Regina (C'Wealth) v Baladjam [No 1]

[2008] NSWSC 721

CITATION:	Regina (C'Wealth) v Baladjam & Ors [No 1] [2008] NSWSC 721
HEARING DATE(S):	06/03/08
JUDGMENT DATE :	7 March 2008
JURISDICTION:	Criminal
JUDGMENT OF:	Whealy J at 1
DECISION:	Direct that the fitness hearing of the accused Sharrouf proceed before Whealy J as judge alone on Tuesday 25 March 2008

CATCHWORDS:	CRIMINAL LAW - Practice and Procedure - Fitness hearing before Judge alone. - CRIMINAL LAW - Mental Health (Procedure) Amendment Act 2005 - Transistional provisions - Meaning of. - CRIMINAL LAW - Practice and Procedure - ss 121 and 130 of Criminal Procedure Act 1986 - Commencement of criminal proceedings by filing and presentation of indictment - Commencement of criminal trial - Ascertainment of commencement date.
LEGISLATION CITED:	Commonwealth Criminal Code Act 1995 Judiciary Act (Commonwealth) Mental Health (Criminal Procedure) Act 1990 Crimes Act (Commonwealth) 1914 Mental Health (Criminal Procedure) Amendment Act 2005 Criminal Procedure Act 1986 Crimes Amendment Self-Defence Act 2001
CASES CITED:	Regina v Michael Taylor [2003] NSWCCA 194 Regina v Janceski [2005] NSWCCA 281
PARTIES:	Regina (C'Wealth) v Bradley Umar BALADJAM [No 1] Regina (C'Wealth) v Khaled CHEIKHO Regina (C'Wealth) v Moustafa CHEIKHO Regina (C'Wealth) v Mohamed Ali ELOMAR Regina (C'Wealth) v Abdul Rakib HASAN Regina (C'Wealth) v Mohammed Omar JAMAL Regina (C'Wealth) v Mirsad MULAHALILOVIC Regina (C'Wealth) v Khaled SHARROUF Regina (C'Wealth) v Mazen TOUMA
FILE NUMBER(S):	SC 2007/2397001; 2007/2395001; 2007/2398001; 2007/2399001; 2007/2400001; 2007/2452001; 2007/2454001; 2007/2456001; 2007/2455001
COUNSEL:	G Bellew SC; C O'Donnell - Crown M Pickin - Accused Sharrouf
SOLICITORS:	C'Wealth DPP Matouk Joyner Lawyers - Accused Sharrouf

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IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
CRIMINAL LIST

WHEALY J

PARRAMATTA: FRIDAY 7 March 2008

2007/2397001 - Regina v Bradley Umar BALADJAM [No 1]
2007/2395001 - Regina v Khaled CHEIKHO
2007/2398001 - Regina v Moustafa CHEIKHO
2007/2399001 - Regina v Mohamed Ali ELOMAR
2007/2400001 - Regina v Abdul Rakib HASAN
2007/2452001 - Regina v Mohammed Omar JAMAL
2007/2454001 - Regina v Mirsad MULAHALILOVIC
2007/2396001 - Regina v Khaled SHARROUF
2007/2455001 - Regina v Mazen TOUMA

JUDGMENT - Application re fitness to plead - Trial of
accused Sharrouf

1 HIS HONOUR: Khaled Sharrouf, who I shall hereafter refer to as "the accused", was arrested on 8 November 2005. He was charged, I am informed, with an offence of conspiracy to do acts in preparation for a terrorist act or acts. He has been in custody since that time. The accused and his alleged co-conspirators faced committal proceedings during the early part of 2007. He was, along with the others, committed to stand trial on 30 April 2007. On 31 May 2007 he and his co-accused were arraigned before me in the Supreme Court.

2 An indictment, signed by Paul Shaw for and on behalf of the Director of Public Prosecutions, was presented on that day by the Crown Prosecutor. The charge in the indictment, leaving aside the particulars, was in the following terms:

“The Director of Public Prosecutions of the Commonwealth of Australia, who prosecutes in this behalf for Her Majesty, charges in the Supreme Court of New South Wales in its criminal jurisdiction at Sydney on 31 May 2007 that Omar Baladjam, Khaled Cheikho, Moustafa Cheikho, Mohamed Elomar, Abdul Rakib Hasan, Mohammed Omar Jamal, Mirsad Mulahalilovic, Khaled Sharrouf and Mazen Touma between about 8 July 2004 and 8 November 2005 at Sydney in the State of New South Wales and elsewhere did conspire with each other and divers others to do acts in preparation for a terrorist act or acts."

3 The charge arises from sections 11.5 and 101.6 of the Commonwealth Criminal Code Act. To this charge the accused and the other men pleaded not guilty.

4 On the same day, the trial, including a range of contemplated pre-trial applications, was set down for hearing on 25 February 2008. The pre-trial procedures are to be completed so far as they possibly can be before a jury is empanelled. They began in fact on 25 February 2008 and have been continuing since that day. It is likely they will continue for some months.

5 Mr Brewer and Mr Michael Pickin appear for the accused Khaled Sharrouf. Mr Geoff Bellew SC appears for the Crown on the present application. Both the Crown and Mr Pickin have raised the issue of the accused's unfitness to be tried. Relevantly, a motion filed on behalf of the accused raising the issue was first notified to the Court in November 2007. It is agreed between the parties that this Court is exercising Federal jurisdiction, but that by virtue of sections 68(1) and 79 of the Judiciary Act (Commonwealth) a range of State laws relating to procedures for trial are, in general terms, to apply to the accused in connection with the offence with which he is charged.

6 It.Is also common ground between the parties that in relation to the narrow issue of determination of unfitness, the New South Wales legislation known as the Mental Health (Criminal Procedure) Act 1990 governs the procedures to be followed.

7 There is, subject to one qualification I will mention later, no Commonwealth legislation dealing with the procedure to be adopted in this Court in determining an initial issue of fitness. Certainly there is no Commonwealth legislation governing the procedure to be followed in the present substantive application, although there is legislation governing the procedures subsequently to be adopted in the event that an accused person is to be found unfit (see sections 20B and following of the Crimes Act Commonwealth).

8 A preliminary issue has arisen. It is within a narrow compass. The essential question is whether the fitness hearing, as I shall for convenience call it, is to proceed before a judge and jury, or before a judge alone. The issue arises in the following circumstances: Prior to 1 January 2006 a fitness hearing was to be held with a jury, unless the accused made an election to have the issue determined by a judge alone. The legislation, as it operated prior to 1 January 2006, created on occasions significant problems for the legal representatives of an accused person where a fitness issue had arisen. How could the lawyers be satisfied they had operable and effective instructions from the client, when the fitness issue raised concerns about the fundamental ability of that client to understand and make decisions regarding issues in the proceedings generally?

9 The Mental Health (Criminal Procedure) Amendment Act 2005 altered the situation significantly. This legislation came into force on 1 January 2006. It inserted into the legislation by virtue of schedule 1(4) section 11(1) which is now in the following terms:

“11(1) The question of a person's unfitness to be tried for an offence is to be determined by the judge alone."

10 Of course, the amending Act made other significant changes as well. It is not necessary to recite or refer to these, however, in relation to the narrow issue I have to determine. Those other changes may become relevant at a later stage if a finding of unfitness is made. It is important, however, to note that there was also enacted what might be described as a transitional provision. It was created by schedule 1(4). The provision is in part as follows:

“An amendment made by schedule 1(4)…applies to proceedings for offences whether or not the offences were committed before, on or after the commencement of the amendment. It does not apply to proceedings commenced before the commencement of the amendment.”

11 The issue I have posed for determination will be answered by a consideration of two questions: First, what is meant by the word "proceedings" where it appears in the transitional provision? Secondly, depending on the answer to the first question, when were those proceedings relevantly commenced in the case of Mr Sharrouf?

12 The Crown has urged the court to find, first, that the term "proceedings" should be construed as meaning the proceedings which are currently before this Court; secondly, to find that such proceedings commenced when the indictment was first presented on 31 May 2007. It will follow, if these submissions are accepted, that the procedures in the new section 11 are to govern the fitness hearing.

13 Mr Pickin, on the other hand, urges the Court to find that the term "proceedings" is to be given a wider and less restricted meaning than that suggested by the Crown. Counsel submits the expression could and should embrace the initial charging of the accused by the police in November 2005. So construed, the proceedings would have commenced prior to 1 January 2006. Importantly, Mr Pickin submits that the section 11 amendment removes a traditional right to a determination of fitness by a jury of peers. Mr Pickin submits that, for this reason, the Court should be cautious in accepting the interpretation urged by the Crown.

14 In my view, the submissions of the Crown in relation to the preliminary issue are to be preferred. The first issue to be determined is the meaning of the term "proceedings" in the transitional provision. In turn, this provision directly relates to Part 2 of the Mental Health (Criminal Procedure) Act 1990. The application of Part 2 is stated in section 4 of the legislation in the following terms:

“ Application
4. This Part applies to criminal proceedings in the Supreme Court (including criminal proceedings within the summary jurisdiction of the Supreme Court) and criminal proceedings in the District Court.”

15 Secondly, section 5 is in the following terms:

“ Person by whom question of unfitness may be raised
The question of as person’s unfitness to be tried for an offence may be raised by any party to the proceedings in respect of the offence or by the Court.”

16 The presence of the term "proceedings" in this section reinforces that the same term where it appears in the transitional provisions is a reference to criminal proceedings either in the Supreme Court or the District Court and to no other.

17 Further support for this construction is to be found in sections 7, 8 and 9 of the Act. The issue as to fitness may be raised before arraignment but, once again, the sections proceed on the basis that the issue will arises in the Supreme Court or District Court proceedings. Section 10 further reinforces the same conclusion.

18 In the course of his argument, Mr Pickin referred to the fact that committal proceedings are usually commenced by a court attendance notice, known as a CAN (section 47 of the Criminal Procedure Act 1986) and that trial proceedings in the lower courts are commenced in those courts by the issue and filing of a CAN (ss 172 and 178 of the Criminal Procedure Act 1986). This in each case is undoubtedly so. But essentially, for the reasons I have stated, the term "proceedings" in the transitional provisions is not apt to refer to proceedings of that type, but rather it is concerned with criminal proceedings in the Supreme Court and District Court.

19 Mr Pickin also referred to s 20B of the Commonwealth Crimes Act 1914. This section, the practical application of which neither counsel could vouch for nor recall, appears to confer power on a magistrate, in proceedings for the commitment of a person for trial, to refer the proceedings to a higher court to enable the issue of fitness to be considered. This is the qualification I mention earlier. The section appears in Part 1B Division 6 of the Commonwealth legislation. It is in the following terms:

“Division 6-Unfitness to be tried.
20B Consequences of preliminary finding that person unfit to be tried.
(1) Where, in proceedings for the commitment of a person for trial of a federal offence on indictment, being proceedings begun after this section commences, the question of the person's fitness to be tried in respect of the offence, is raised by the prosecution, the person or the person's legal representative, the magistrate must refer the proceedings to the court to which the proceedings would have been referred had the person been committed for trial.
(2) If the court to which the proceedings have been referred finds the person charged to be fit to be tried, the court must remit the proceedings to the magistrate and proceedings for the commitment must be continued as soon as practicable.
(3) Where a court:
(a) to which proceedings have been referred under subsection (1); or
(b) before which a person appears in proceedings for trial of a federal offence on indictment, being proceedings begun after this section commences; finds the person charged unfit to be tried, the court must determine whether there has been established a prima facie case that the person committed the offence concerned.”

20 Three points may be observed. First, whether the section could ever have had any real or appropriate application in the present matter is not necessary to determine. The fact is that no application was ever made to the committing magistrate in this matter. Secondly, Mr Pickin does no more than suggest that the existence of the section should be thrown into the mix on the construction point. Thirdly, while I have given consideration to Mr Pickin's argument, I do not think the section has any bearing on the construction point, essentially for the reasons I have already expressed. In those circumstances I simply put the section to one side.

21 I turn now to consider the question as to when the criminal proceedings in this Court commenced. This in turn takes me to s 121 of the Criminal Procedure Act, and to s 130 of the same legislation. The former section defines "criminal proceedings" to mean:

“(a) proceedings relating to the trial of a person before the Supreme Court or the District Court;
(b) proceedings relating to the sentencing of a person by the Supreme Court or the District Court; or
(c) proceedings relating to an appeal under the Crimes (Local Courts Appeal and Review) Act 2001 to the District Court in its criminal jurisdiction.”

22 The relevant part of the latter section is in the following terms:

“130(1) In this section, court means the Supreme Court or District Court;
(2) The Court has jurisdiction with respect to the conduct of proceedings on indictment as soon as the indictment is presented and the accused person is arraigned, and any orders that may be made by the Court for the purposes of the trial in the absence of a jury (and any orders) may be made before a jury is empanelled for the trial."

23 This section was considered by the New South Wales Court of Criminal Appeal in Regina v Michael Taylor (2003) NSWCCA 194 and, more recently, in Regina v Janceski (2005) NSWCCA 281.

24 In the first of those cases a problem arose as to whether the new form of self-defence should go to the jury or whether the previous self-defence regime had application. This issue, in turn, depended on whether the Crimes Amendment Self-Defence Act 2001 applied to the trial or not.

25 The appellant, Mr Taylor, had been arraigned on 5 October 2001 on an indictment that charged him with murder. The appellant on that day entered a plea of not guilty and the trial was fixed for hearing and eventually commenced on 25 March 2002. The Crown Prosecutor presented a fresh indictment on that day. It contained the same charge as the earlier indictment, but it was differently dated and signed by a different Crown Prosecutor.

26 For some reason, the jury was discharged on that day and the proceedings were stood over to the following day, when again a new indictment was presented. It contained the same charge, but was dated a day later. It was signed by the same prosecutor who had signed the indictment the day before.

27 Between the date of the original arraignment and the trial date, the Crimes Amendment Self-Defence Act had come into force. There was a transitional provision, which provided as follows:

“This division applies to offences committed before or after the commencement of this division, except as provided by this section.
(2) This division does not apply to an offence if proceedings for the offence (other than committal proceedings) were instituted before the commencement of this division."

28 So, the issue before the trial Judge (it was myself as it happened) was whether the proceedings for the offence had been instituted before 22 February 2002, the date when the new legislation came into force. The trial Judge found that the proceedings had been "instituted" on 5 October 2001.

29 The Court of Criminal Appeal (Bell J with whom Spigelman CJ and Miles AJ agreed) dismissed the appeal and, in particular, held that the trial Judge had been correct to hold that the new legislation had no application to the conduct of the trial. This was on the basis that the proceedings for the offence alleged against the appellant had been instituted prior to the date on which the new legislation commenced.

30 In the course of her judgment, Bell J addressed s 130(2) of the Criminal Procedure Act 1986. At para 150, her Honour said:

“In any event, regardless of convenience, the indictment is the originating process in criminal proceedings in the District Court and the Supreme Court and once presented may only be amended or substituted in accordance with the provisions of the Criminal Procedure Act .”

31 Later, at para 153, her Honour said:

“Section 130 confers jurisdiction on the court with respect to the conduct of proceedings on indictment.”

32 And again at para 154 her Honour said:

“The institution and conduct of proceedings on indictment in this Court is governed by the provisions of the Criminal Procedure Act and the Common Law, to the extent the latter is not altered by the former. It seems to me the proceedings for the offence of the murder of Adam Scott were instituted in this Court on a date no later than 5 October 2002 when the appellant entered his plea upon his arraignment before Kirby J. It was then that the appellant was deemed to have put himself on the country for trial in respect of the charge that he had murdered Adam Scott."

33 This decision of the Court of Criminal Appeal makes it clear, and this is reinforced by the language of s 130, that criminal proceedings in this Court are commenced as soon as the indictment is presented and the accused person is arraigned.

34 Mr Pickin sought to distinguish the situation in the present matter because the section under consideration in Taylor made express reference to "proceedings (other than committal proceedings)" being instituted before the commencement of the division. Mr Pickin submitted that, if the transitional provision in the present matter had included a reference to committal proceedings, there would be no arguable issue. However, he argued that the present reference is general and that the available construction is accordingly a broad one.

35 Now, it is true that the transitional section in Taylor was in a different form than the provision under consideration in the present preliminary question. I do not consider, however, that the distinction sought to be made by Mr Pickin is a valid one. First, the reference to "committal proceedings" in the legislation under consideration in Taylor was, in my opinion, really no more than a statement of the obvious. It did not otherwise impinge upon the correct interpretation of the issue as to when the relevant proceedings had commenced.

36 Secondly, the absence of a reference to "committal proceedings" in the present transitional provision does not, and indeed could not, in my opinion, take the argument any further. It is clear that criminal proceedings in this Court commence upon the presentation of an indictment and the arraignment of an accused. There was, in the present matter, simply no need for the legislature to refer to "committal proceedings".

37 In Janceski Spigelman CJ (with whom the other members of the Court agreed)referred to section 130 in the following terms at para 41:

“Even prior to the enactment of section 130, the District Court's jurisdiction in a criminal matter only arose upon the presentation of an indictment. That rule is now enshrined in section 130, which was enacted to overcome any doubt about the Court's ability to make pretrial orders (see Jago v District Court (NSW) (1989) 168 CLR 23 at 36 to 37)."

38 There is, in that case, a valuable discussion by Howie J on the same point. At para 219 his Honour said:

“The presentation of an indictment and the arraignment of the accused before the jury panel is a step in the proceedings that marks the commencement of the trial: R v Nicolaidis (1994) 33 NSWLR 362 at 367. But it serves no other purpose and I do not believe that it is a necessary step provided that there has previously been an indictment filed and provided that the accused has been arraigned on that indictment. The proceedings for trial on indictment commence upon the filing or presentation of a valid indictment. When the accused is first arraigned and pleads 'not guilty' he is 'taken to have put himself or herself on the country for trial': Section 154 of the Act. Thereafter the Court has jurisdiction to make orders with respect to the conduct of the proceedings: Section 130(2) of the Act."

39 There is also a helpful analysis by Howie J of the importance of an indictment in a criminal trial. This appears between paras 231 and 234. I have received considerable guidance from this analysis.

40 At para 232 his Honour said:

“The presentation of an indictment is therefore the most fundamental of the procedures that attend a criminal trial for an indictable offence. So far as the Courts in this State are concerned, there is neither any other procedural step necessary nor any alternative step available for the commencement of a criminal trial in the District or Supreme Court."

41 These authorities make it perfectly clear that criminal proceedings in this Court against the accused commenced on 31 May 2007 and not at any earlier time. Consequently, the new section 11 of the Mental Health (Criminal Procedure) Act 1990 will apply to the question of the accused's unfitness to be tried for the offence with which he is charged. This means that the question is to be determined by a judge alone and not by a judge and jury.

42 I direct that the Fitness hearing proceed before me on Tuesday 25 March 2008.

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