Regina (C'Wealth) v Baladjam [No 3]

[2008] NSWSC 725

CITATION:	Regina (C'Wealth) v Baladjam & Ors [No 3] [2008] NSWSC 725
HEARING DATE(S):	29/02/08, 03/03/08
JUDGMENT DATE :	18 March 2008
JURISDICTION:	Criminal
JUDGMENT OF:	Whealy J at 1
DECISION:	Application for change of venue is refused.
CATCHWORDS:	CRIMINAL LAW - Suitability of venue for large scale Criminal Trial - Principles applicable to change of venue.
LEGISLATION CITED:	Criminal Code Act 1995 Crfiminal Procedure Act 1986
PARTIES:	Regina (C'Wealth) v Omar BALADJAM [No 3] 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; 2007/2396001; 2007/2455001
COUNSEL:	Ms W Abraham QC; G Bellew SC; C O'Donnell; Ms S McNaughton - Crown S Lloyd - Department of Corrective Services 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 W. Brewer; M Pickin - Accused Sharrouf S Hanley; P King - Accused Touma
SOLICITORS:	C'Wealth DPP - Crown State Crown Solicitors - Department of Corrective Services Greg Walsh & Co - Accused Baladjam Lawyers Corporation Ltd - Accused K Cheikho William O'Brien & Ross Hudson Solicitors - Accused M Cheikho Nyman Gibson Stewart - Accused Elomar Legal Aid Commission - Accused Hasan Michael Doughty Solicitor - Accused Jamal Matouk Joyner Lawyers - Accused Sharrouf Lawyers Corporation Ltd - Accused Mulahalilovic Burke & Elphick Lawyers - Accused Touma

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

WHEALY J

PARRAMATTA: TUESDAY 18 March 2008

2007/2397001 - Regina v Omar BALADJAM [No 3]
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 for change of venue

1 HIS HONOUR: Nine men are charged with conspiracy to do acts in preparation for, or planning, a terrorist act or acts contrary to sections 11.5 and 101.6 of the Commonwealth Criminal Code Act 1995. They have been in custody since November 2005. They were arraigned before the Supreme Court on 31 May 2007 and their trial was set down for hearing on 25 February 2008.

2 At the time the proceedings were set down for hearing, it was anticipated that the trial venue would probably be in the Darlinghurst Court complex used by the Supreme Court of New South Wales for criminal trials. This is a very old complex and, despite its historical and heritage significance, it is sadly in need of repair and modernisation. It is, however, a favoured venue for trials for many criminal lawyers because of its proximity to the city and their chambers.

3 Unfortunately, it has, for reasons I will explain, not been possible to hold the trial in or close to the Central Business District. The trial commenced on 25 February 2008 at the new Sydney West Trial Courts situated in the legal precinct of Parramatta near the spacious surrounds of Parramatta Park and the river.

4 It is fair to say that from the moment this prospect was made clear to the legal representatives of the accused, there has been a concerted movement to abort the hearing at Parramatta and to change the venue to Sydney, or at least to some closer venue than the city of Parramatta. This has culminated in a spate of applications to the Court seeking a change of venue.

5 In November 2007, I directed that applications of this kind should await hearing until the pre-trial applications began on 25 February 2008 at Parramatta. I did so because, amongst other reasons, it seemed to me that it would be more appropriate to await the completion of the new Court complex at Parramatta and to experience its facilities, before making any decision as to its suitability or otherwise.

6 The application for change of venue is made pursuant to section 30 of the Criminal Procedure Act 1986. This is in the following terms:

“30 In any criminal proceedings, if it appears to the Court:

(a) that a fair or unprejudiced trial cannot otherwise be had; or
(b) that for any other reason it is expedient to do so
the Court may change the venue and direct the trial to be held in such other district or at such other place as the Court thinks fit, and may for that purpose make all such orders as justice appears to require.
Applications for change of venue are assigned to the Criminal Division of the Supreme Court (Part 75 rule 3).”

7 Before moving to the merits of the application, I should mention the circumstances which led to the Sydney West Trial Courts being selected as the trial venue. The committal hearing for the nine accused had taken place at the Penrith Court complex. This raised considerable problems for the lawyers involved, as daily movement between Sydney and Penrith was plainly inconvenient.

8 It is fair to say that by time of the arraignment hearing in May 2007 a number of steps were already in process to identify suitable accommodation for the trial. Because of the number of accused, the likely number of legal representatives, public interest in the matter and the likely length of the trial, a suitable venue was difficult to find. Reliable information provided to me at the time indicated that the King Street complex in Sydney was not suitable because none of the courtrooms was large enough. Penrith was simply too far away and, more importantly, the courtroom had insufficient space to conduct a jury trial of this dimension. The multi-accused Court at the Downing Centre was rejected because the courtroom shape and design could not accommodate even thirty legal representatives at Bar tables.

9 The only realistic alternatives left were the Darlinghurst Court complex and the new Parramatta trial court building. The latter was, as at May 2007, under construction but not likely to be completed until the end of the year.

10 It was hoped from the outset that Darlinghurst might be a realistic location for the trial. This was because one large wing of the complex could be sealed off and made available for the trial without undue disturbance to other New South Wales Courts and criminal trials at the complex. My understanding however, was that the complex would need approximately $600,000 worth of work to be done to it to provide for appropriate modernisation. This work would have been especially in the area to address technology and security issues. My further understanding is that there were discussions between the New South Wales government and the Australian Attorney-General's Department with a view to seeking funding from Commonwealth sources for the purposes of transforming the Darlinghurst complex. This proposal did not reach fruition, however, because of an important intervening event.

11 The Department of Corrective Services, which had been involved in extensive discussions concerning the Darlinghurst Supreme Court as a possible venue, determined in late June 2007 that the Darlinghurst complex was simply unsuitable. This was said to be for a number of reasons, but especially those related to appropriate security arrangements. It soon became apparent that this decision was fixed in concrete, at least in political terms. Consequently, there appeared at that time to be no presently existing courtroom facility in New South Wales that would be appropriate and suitable for the proposed trial.

12 In June 2007, the New South Wales Government suggested that the Sydney West Trial Courts, when completed, might provide a suitable venue, indeed the only venue, which could be considered as an available option.

13 This decision was notified to the parties and it led to the preparation of a considerable number of submissions, not only from those representing the accused, but from the Crown and the Commonwealth Attorney-General as well. It seems that in mid-2007, no one was happy with the proposal to have the trial at Parramatta, save for the Government.

THE ISSUES IN THIS APPLICATION

14 In general, it must be said that many of the submissions that were received during the latter part of 2007 were anticipatory in their concerns. For example, detailed submissions were received from both Mr Button SC on behalf of Moustafa Cheikho and from the Crown Prosecutor. These submissions dealt with many of the anticipated shortcomings of the complex, even though it had not been completed at the time.

15 A principal concern for the defence was, as might be anticipated, the fact that a trial at Parramatta would prove most inconvenient, difficult and taxing for the lawyers involved because of the distance between Parramatta and Sydney CBD. There were secondary arguments advanced about the proposed courtroom and the Court complex itself. These included whether the courtroom would be big enough to hold all the defence lawyers and extended to possible concerns about the jury room, and the dock area. There were submissions about other parts of the complex which might impact upon the ability to interview the accused from time to time. I need not detail them all because, as I say, they were largely anticipatory and made assumptions based on the plans of the proposed premises then available.

16 The Crown submissions also focused upon a number of matters which I need not detail. They included, however, the absence of suitable witness rooms or conference rooms for use by the Crown and the defence. There was also a concern about the available area for the public. There were also concerns about the courtroom itself and whether it would be big enough to accommodate all of the lawyers. There were also submissions about storage areas and the jury rooms. The Crown shared the defence concerns about the distance between the Sydney CBD and Parramatta and the problems this would have for the lawyers.

17 The Commonwealth joined in a number of concerns that had been expressed by the Crown and defence lawyers.

18 It is fair to say that in addition to those I have mentioned, a number of the other defence counsel have made submissions, either in written or oral form, either late last year or earlier this year.

THE PRESENT POSITION

19 The Sydney West Trial Courts complex was officially opened by the Premier of New South Wales and the Attorney General on 20 February 2008, that is to say only a few days before the trial commenced. The building is not fully operational at the present time and the only trial proceeding there at the moment is the subject trial involving the present accused.

20 The trial venue is Court 5 on level 3. An associated courtroom on this floor (Court 6) is occupied by the Crown and used by it as a preparation and office area. This means that, in practical terms, the Supreme Court is, for the purposes of this trial, occupying the whole of level 3. It is on these floors that the two multi-accused Courts have been constructed. An area has been set-aside in the public areas adjacent to courtroom 5 which are used as offices by the lawyers for the Commonwealth.

21 On level 2, there is a very large area which provides facilities for defence counsel using the complex generally. This has, however, been given over entirely to the defence counsel in the present trial for the duration of the trial. It is a very large area. It is furnished in a modern and attractive style and is integrated with a significant range of modern facilities. There are nine offices, a number of defence workstations, interview areas and a general range of amenities. No other Court complex in New South Wales provides, so far as I am aware, facilities of this level and standard to defence counsel appearing in one multi-accused trial. Indeed, there would be no court complex anywhere in the State offering this level of facility. Not surprisingly, for these reasons, the anticipatory submissions querying the suitability of the proposed complex for defence counsel have, in effect, been abandoned in the present change of venue application.

22 So far as the jury rooms are concerned, they, of course, will not be occupied until after a jury is empanelled. This is many months away. There will be the opportunity, from time to time, to reflect upon whether any changes are needed to the jury room or their facilities to ensure that they are suitable for a lengthy trial. There are in hand, already, proposals for the addition of suitable storage facilities in the jury room to make sure that the extensive number of folders that will be given to the jury may be kept by them in a secure and orderly way in the jury room itself.

23 I should add that the proposal is that the jury will not only use the one jury room on level 3, but the second jury room will be made available for their use as a recreational area and to provide them with a break-out area when they are not deliberating on matters relating to the trial. I have no doubt that some further improvements may have to be made to the jury facilities, but there will be ample time to consider these as the weeks and months pass.

24 Overall, the Court complex is extremely impressive. The level of finishes it possesses, the services it is to provide and its extensive range of amenities make it, plainly enough, a most attractive and efficient Court complex. This is not to say that, like all new buildings, it does not or will not have teething problems. They may need to be addressed as they arise from time to time. But as I say, it is a most attractive and efficient complex. It is fully air-conditioned, it is light and airy and it is clear that considerable professional care has gone into its planning and detail.

THE PRESENT SUBMISSIONS AS TO UNSUITABILITY OF VENUE

25 As I have indicated, the list of complaints regarding the complex have altered and substantially diminished since the submissions were filed late last year. This is quite understandable, as all the parties have now had an opportunity of looking at the complex in operational detail.

26 I leave to one side for the moment the overarching issue about the problems arising from the fact that the complex is situated at Parramatta at a considerable distance from the Sydney CBD.

27 The current concerns are best appreciated from the written submissions which have been filed on behalf of Mr Turnbull SC on behalf of his client, Mr Mulahalilovic. These concerns were supported in oral submissions by other counsel. There is no need for me to set out each and every matter, but I will mention those that seem to me to be the principal matters. Once again, I leave to one side the issue regarding the contest between Parramatta and Sydney as the appropriate venue.

28 The principal matters are:

(1) The inadequacy of the courtroom to cater for the number of lawyers, their working materials and the like.
(2) The dock accommodation is said to be inconvenient and prejudicial.
(3) The present hours of access to the Court (7am to 5pm on weekdays and no access on weekends) will compound the difficulties involved for preparation and work out of Court.
(4) The jury box has fourteen seats, when fifteen will be required once the jury is empanelled. The rear row in the jury box is cramped.
(5) Issues regarding the relevant software to be used remain undetermined and the Court Complex computer system may not be adequately enabled.

29 I do not suggest that these are the only matters that have been raised, but they give the flavour of the issues to be determined.

RESOLUTION OF THE ISSUES

30 When the trial commenced on 25 February 2008, as might be anticipated, the Courtroom was on that day at bursting point. Not only were all the legal teams for the accused present, there were also present multiple legal teams for the New South Wales Police, the New South Wales Crime Commission, the Federal Police and the Commonwealth. In addition, there were legal representatives for the media interests and others I need not mention. There was a considerable number of members of the public, well beyond the friends, families and supporters of the accused. In addition, there were many media representatives present on that morning. There simply were not enough seats for everybody to be seated on that occasion and, for that reason, I invited a number of the lawyers to sit in the jury box facility, a suggestion readily accepted.

31 It needs to be stressed that the position on that first morning was well out of the ordinary. It would not represent the situation on a normal Court day. On the other hand, there was no jury present and the extra seats that were necessary on that day would not be available for the lawyers when the jury is sitting.

32 My assessment of the courtroom is that it currently can seat approximately thirty-two lawyers. I am told that a reasonable estimate of the number of lawyers who would need to be accommodated, were they all present at one and the same time, is in the order of forty or so. For that reason, I have, after consultation with and on behalf of the lawyers, made preliminary arrangements for a possible alteration to the layout of the courtroom to accommodate some twelve further persons in the legal body of the Court. This will necessarily mean that there will be some degree of cramping between the Bar tables that will then be configured within the well of the Court. But at least everybody will have a seat and there will be no need to use the jury facilities.

33 In fairness to those who have favoured the complex as a suitable venue, I should say that it was probably never contemplated that there would be as many lawyers involved in the trial as is now the obvious position. By way of contrast, in a current Melbourne trial involving twelve men accused of terrorism offences, there are approximately thirty lawyers involved at any one time. Here, as I have said, we are looking at over forty seats to accommodate lawyers in a nine-person trial.

34 The proposal to alter the courtroom accommodation is one that could possibly be implemented at reasonably short notice, and over about a week. A detailed assessment of the proposal is currently being undertaken by those responsible for the building work and the building itself. This proposal does not affect the seating for the public at the rear of the Court. There has always been relatively limited public seating. There are approximately thirty-two seats for the public at the rear of the Court. It is proposed, however, that monitor screens will be located in the public area outside the courtroom which will enable members of the public, if they wish, to see and hear what is happening in the courtroom during open Court sessions. This area is attractively furnished and is open, light and airy. It can accommodate a reasonable number of people. It should be operational shortly.

35 It is also proposed that there be a separate room in the complex made available exclusively for the media, where media representatives may, on screens, see and hear all that is happening in the courtroom during open Court sessions. They will have facilities or the ability to use modern technology to relay information that is newsworthy or which merits prompt media facilitation to the public.

36 I turn now to consider the jury box facilities. A copy of the plan shows that there is in fact provision for fifteen jurors, although this may not have been apparent to counsel at the time of their inspection. This was because one seat at the end, closest to the witness stand, is to be a movable seat made available for a disabled person, should a disabled person be selected for the jury panel. It is for this reason also that there is more room in the front row of the jury box than the rear row. The rear row, however, has a distance of one metre between the rear of the seat and the bench in front. I understand this to be the standard situation with all jury boxes in New South Wales. True it is that the jury box, in this regard, might be made a little more comfortable but that is something to which further thought can be given as the weeks and months pass.

37 The issue regarding the use of computers and software both in the courtroom and the preparation areas for the lawyers is one that is undergoing consideration at the present time. I do not think that I am in a position to make any final comment about this issue. I have urged the parties to confer in connection with it. I can say that from my inspection of the premises and of the plans, this courtroom is singularly well equipped to enable the adaption of cabling to any necessary computer system. I would be very surprised if this issue cannot be resolved favourably and, clearly, its resolution will help overcome the fact that the courtroom could not, as indeed no courtroom could, accommodate all the folders, exhibits, et cetera, that will be part and parcel of the working base of the trial. The selection of an appropriate computer system or methodology could also be linked to the defence preparation area, and, subject to issues of national security, to their Sydney chambers.

38 In relation to issues involving the dock area, I have indicated that these should be addressed separately from the present application. It involves issues and concerns about which I would need to get evidence, submissions and input from all interested parties, including the Sheriff’s Department and the Department of Corrective Services. There are some real issues to be considered in this area, but it is inappropriate for me to address them in this decision and at this time.

39 This brings me finally to consider the Sydney versus Parramatta argument. Mr Button put submissions which encapsulate, I think, the views of others. He submitted that the fact that thirty-five or so Sydney-based lawyers were shuffling back and forth between the city and Parramatta remains a profoundly inconvenient situation, notwithstanding undeniable objective improvements in the building itself from those contemplated late last year. Secondly, he submitted that these movements between the city and Parramatta were expensive and would undoubtedly extend the length of the trial.

40 There were submissions to like effect in the affidavit of Mr Houda.

41 Mr Turnbull complained that predominantly Sydney-based lawyers had been retained prior to Parramatta being chosen as the trial venue. The balance of convenience in a case with security requirements and voluminous materials, he argued, falls on the side of proximity to the workplace of those lawyers.

42 I accept without reservation that it is quite inconvenient for Sydney counsel to have to trek back and forth from Sydney to Parramatta each day and that it carries with it problems for preparation and trial work once the trial is underway. Of course, access to most Courts is limited after 5pm and would not generally be available to counsel on weekends. However, in most situations the courtroom will be much closer to the offices or chambers of the legal representatives than is the situation here.

43 The Court complex at the present time is not as yet fully operational and will not be so until the end of March 2008. At that time, as I understand it, four District Court Judges will take up residence and will use Courts on levels other than those I have identified. The registry staff will move in to the complex and the Court building will take upon itself the aspect of a busy Court centre. When that happens, I am hopeful that a slightly better arrangement for access may be negotiated, although it may not be as extensive as counsel would like.

44 While I accept the complaints that have been made about the situation of the trial being held at Parramatta, rather than at Sydney, I do not think that this warrants the grant of the application for change of venue.

45 A realistic appraisal of the situation must, I think, make it apparent that there is probably no Court complex in Sydney that can offer the facilities that are presently available, being facilities with the level of modernisation I have mentioned that exist in the Parramatta Court complex. There was always the prospect that Darlinghurst might be modernised, but it is clear that that could only be done at very considerable expense and, in any event, it did, rightly or wrongly, not meet with the approval of the Department of Corrective Services. The Downing Centre was, for reasons I have already indicated, always unsuitable for this trial. It remains unsuitable for that purpose.

46 I have the greatest sympathy for counsel, and all of the lawyers, for the inconvenience involved in the situation that arises because of the distance of the Parramatta complex from the Sydney Central Business District. Obviously enough, it affects myself and my staff, the Court Reporters and some of the Court Officers as well. On the other hand, the accuseds’ position at Silverwater places them in relatively close proximity to the Parramatta complex, which may be an advantage from the point of view of interviews and the like.

47 In an ideal world, a large-scale purpose-built Court complex close to the lawyers' rooms could perhaps be built on some extensive site in or near the Central Business District, if such a site could be located. But, in the real world, this complex at Parramatta is the best we can do in all the circumstances. It is, I should add, a very fine complex with many attractive and useful features. In my view, many of the problems that have been adverted to, such as the lack of accommodation in the courtroom, are capable of being addressed in the long run. As to the distance between Sydney and Parramatta, I am afraid that we will all have to put up with that inconvenience and do the best we can.

48 In all of the circumstances, I am not satisfied that there is any risk that a fair or unprejudiced trial cannot be had in relation to the present venue. Nor am I satisfied that any other reason has been established to make it expedient to change the venue. Of course, I accept that there will be issues from time to time regarding the Court complex, the facility generally, and I will endeavour to deal with those promptly and sympathetically as they arise.

49 The application for change of venue is refused.

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