Regina (C'Wealth) v Baladjam [No 13] - [2008] NSWSC 1437

Reported Decision:
77 NSWLR 630

New South Wales

Supreme Court

CITATION: Regina (C'Wealth) v Baladjam & Ors [No 13] [2008] NSWSC 1437

HEARING DATE(S): 22/04/08

JUDGMENT DATE :
1 May 2008

JURISDICTION: Criminal

JUDGMENT OF: Whealy J at 1

DECISION: I order that the fitness hearing may proceed before a Judge without Jury.

CATCHWORDS: CRIMINAL LAW - Mental Health - Criminal Procedure (Amendment Act) 2005 - Unfitness to be tried by a Judge alone - Constitutional Law - s 11(1) of the Mental Health (Criminal Procedure) Amendment Act 2005 does not offend the mandatory direction in s 80 of the Constitution - Fitness issue not an essential feature of trial by jury

LEGISLATION CITED: ACT Crimes Act
Commonwealth Criminal Code Act
Criminal Appeal Act 1907 (UK)
Criminal Procedure Act 1986
Judiciary Act 1903
Mental Health (Criminal Procedure) Act 1990
Mental Health (Criminal Procedure) Amendment Act 2005
NSW Mental Health (Criminal Procedure) legislation

CASES CITED: Ahern v The Queen (1988) 165 CLR 87 at 94-95
Brownlee v The Queen [2001] 207 CLR 278 at 298
Cheatle v R (1993) 177 CLR 541
Eastman v The Queen 203 CLR 1 at 13
Eastman v Director of Public Prosecutions [2003] 214 CLR 318
Ex Parte LaFlore 445 SO 2d 932 (Ala) (1983)
Kesavarajah v The Queen (1994) 171 CLR 230 at 243)
Ng v The Queen [2003] 217 CLR 521 at 526 per Callinan J
Presser v R (1985) VR 45 per Smith J at 483
Thompson v R (1989) 169 CLR 1
United States v Curtis (1826) 4 Mason 232; 25 F Cas 726
R v Bourne 36 CRAPPR 125
R v Bradley (No 1) (1986) 40 NTR per Asche J at 7-8
R v Cheung [2001] 209 CLR 1 at 24
R v JS [2007] NSWCCA 272 per Spigelman CJ at 288
R v Kim (1993) 65 A Crim R 278 and 283-284 per Zeeman J
R V Mailes [2001] 53 NSWLR 251 per Wood CJ at CL
R v Pritchard (1836) 7 C & P 303 at 304 (173 ER at 135)
R v Ronen [2004] NSWCCA 176

PARTIES: Regina (C'Wealth) v Omar BALADJAM [No 13]
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; 2007/2398001; 2007/2399001; 2007/2400001; 2007/2452001; 2007/2454001; 2007/2396001; 2007/2455001

COUNSEL:
Ms W. Abraham QC; G. Bellew SC; C O'Donnell; Ms S McNaughton - Crown
M G Sexton SC; I Mescher - (By Leave Intervening on behalf of NSW Attorney General)
M Buscombe SC; R Pontello - Accused Baladjam
C Waterstreet; P Lange - Accused K Cheikho
R Button SC; I Nash - Accused M Cheikho
D Dalton SC; E Ozen - Accused Elomar
Ms D Yehia; Ms S Beckett - Accused Hasan
G Scragg; D Carroll - Accused Jamal
G Turnbull SC; A Djemal - Accused Mulahalilovic
Ms S…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2008] NSWSC 1437
Decision Date: 1 May 2008

CaseChat Overview and Summary

The case before the court was Regina (C'Wealth) v Baladjam [No 13], a matter involving the constitutionality of certain provisions of the Mental Health (Criminal Procedure) Amendment Act 2005. The appellant, Baladjam, was facing criminal charges but was deemed unfit to be tried by a judge alone. The High Court was tasked with determining whether s 11(1) of the Act, which allows for a trial by a judge alone if a defendant is found to be unfit, contravened s 80 of the Constitution, which mandates that certain serious criminal offences be tried by a jury. The crux of the legal debate was whether the issue of fitness to be tried is an essential feature of the right to trial by jury as guaranteed by the Constitution.

The court examined the historical context and purpose of the right to trial by jury, focusing on whether the fitness of the defendant to be tried is integral to the concept of trial by jury. The court concluded that the fitness of the defendant is not an essential feature of trial by jury. It held that the right to trial by jury does not inherently require the defendant to be fit to participate in the proceedings. Rather, the right is concerned with the mode of trial and the composition of the tribunal, rather than the defendant's capacity to engage in the trial process. The court found that allowing a trial by a judge alone for an unfit defendant does not offend the mandatory direction in s 80 of the Constitution, as the essence of trial by jury is not compromised.

In summary, the court held that s 11(1) of the Mental Health (Criminal Procedure) Amendment Act 2005 is constitutionally valid. The decision affirms that the right to trial by jury is not violated by provisions that permit trials by a judge alone for defendants who are unfit to stand trial, as long as the defendant has the opportunity to be tried by a jury when fit. This ruling clarifies the scope of the right to trial by jury and the permissible legislative measures concerning the fitness of defendants.

Orders