Regina (C'Wealth) v Baladjam [No 41]

[2008] NSWSC 1462

CITATION:	Regina (C'Wealth) v Baladjam & Ors [No 41] [2008] NSWSC 1462
HEARING DATE(S):	19/08/08
JUDGMENT DATE :	26 August 2008
JURISDICTION:	Criminal
JUDGMENT OF:	Whealy J at 1
DECISION:	Order that the fixed dock be removed for the purposes of this trial.
CATCHWORDS:	CRIMINAL LAW - Application to remove fixed glass screen from dock area - Prejudice - Ability to have a fair trial - Directions to cure prejudice.
LEGISLATION CITED:	Criminal Code Act (Cth)
CASES CITED:	Jago v District Court (1989) 168 CLR 23 R v Benbrika & Ors [No 12] 2007 VSC 523 per Bongiorno J R v Smith (1982) 2 NSWLR 608 at 613
PARTIES:	Regina (C'Wealth) v Omar BALADJAM [No 41] 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:	G. Bellew SC; C. Donnell; Ms S McNaughton - Crown 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; - Accused Touma
SOLICITORS:	Commonwealth DPP 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

- 1 -

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

WHEALY J

PARRAMATTA: TUESDAY 26 August 2008

2007/2397001 - Regina v Omar BALADJAM [No 41]
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 to remove fixed glass screen from dock area – prejudice – ability to have fair trial – directions to cure prejudice

1 HIS HONOUR: This is an application made on behalf of all the accused. It seeks an order for the removal of the fixed glass screen at the front of the dock in the Trial Court. The substance of the argument has been presented by Mr G Turnbull SC and Mr A Djemal of junior counsel. They are the counsel for the accused Mirsad Mulahalilovic. Their arguments, however, encompass the interests of all accused.

2 The Sydney West Trial Court Complex is a ten-court facility located within the Parramatta Justice Precinct. The complex is modern and attractive, as are all the courtrooms. The complex was opened in February 2008. The Trial Court is located on the third level. It is known as Courtroom 5. It is the largest courtroom in the complex and is a specially designed "high security" courtroom. It is able to house approximately 40 lawyers, 30 members of the public, 15 jurors, court officers, court reporters and judicial staff.

3 The dock is conventionally placed on one side of the courtroom. It is appropriately described as a glassed-in room to the side of the court. It accommodates up to ten accused, as well as four Corrective Services officers.

4 A detailed description of it is contained in the affidavit of Trisha Randhawa (Exhibit 3). Miss Randhawa gave the following description:

“8. I estimate the width of the dock at 2 metres, the length at 10 to 12 metres and the height in excess of 2 metres. It is recessed into the courtroom wall facing the jury and a glass screen extends from the roof to the dock edge completely blocking the dock from the rest of the courtroom. The glass door three-quarters of the way along the front of the dock allows access, when opened into the courtroom proper. A door directly into the cell area opens from the rear of the dock.
9. The accused sit in two rows to one side of the dock and four Corrective Services sit in two rows on the other side of the dock adjacent to the accused.
10. The jury will be looking straight at the dock through the glass screen. Mr Graham Turnbull of Senior Counsel has sat in the jury box. I am informed by him and verily believe that the height of the seats in the dock means that the accused and others are visible from the shoulders up. The accused in the back row are occasionally obscured...
11. The view of a juror will therefore be downward into a dock where the accused are partially and, at times, totally obscured.
12. At all times the accused sit beside a group of Corrective Services officers, sitting as a group. Outside the dock Corrective Services officers are placed around the courtroom, usually two at the front of the dock and two each at each of the rear exits. The officers are in uniform and carry the usual appointments.”

5 Miss Randhawa gave further evidence in her affidavit about the manner of communication between the lawyers and their clients in the courtroom situation. Adjacent to the dock is a booth with a full glass door placed to the accused's side of the dock. A phone is available in the booth to the lawyer. The accused must rise from his seat and move to an intercom at the end of the dock. The intercom speaker broadcasts into the dock as a whole and can be heard by all in the dock, including Corrective Services officers. Any reply must be through the speaker and is generally audible to all in the dock area, including Corrective Services officers.

6 Miss Randhawa described the process of speaking to the accused and receiving instructions as visually distracting and practically cumbersome. It does not allow any real degree of confidentiality. Miss Randhawa further described the problem that arises because instructions can usually only be arranged in the Parramatta cells during the lunch hour and between 4pm and 5pm. Only two clients can be seen at a time. The problem this raises is that only short instructions, momentary advice or brief explanations are possible in the courtroom itself. This complaint, it was suggested, could be overcome if the dock were an open one, rather than fully enclosed.

7 Miss Randhawa also pointed to the problems of the accused attempting to obtain the attention of their lawyers. This is usually done by way of tapping on the glass or by way of "histrionic waving". Provision of documents to the accused in court is by way of an opening in the front of the dock to seated Corrective Services officers who check the document is not contraband and then distribute it to the relevant accused. This process is also cumbersome and is clearly evident to the jury.

8 Other complaints included the fact that the sound system in the dock is sometimes broadcast into the courtroom and that, on occasions, proceedings in the courtroom cannot be heard by the accused through the speaker systems. These complaints I would describe as teething problems. They are clearly important, but I have no doubt that appropriate manipulation of the speaker controls will largely address this problem.

9 The final matters mentioned by Miss Randhawa were these: There are occasional problems with the air conditioning in the dock area. (I might add this is not uncommon throughout the building generally). The accused complain of a feeling of "dislocation". Many parts of the public gallery cannot see all of the accused. Even counsel at the bar table cannot see all the accused. (I might add that this "problem" infects the bench as well. The particular layout means that it is not possible to see all the accused at any one time from the bench.)

10 The real gist of Miss Randhawa's complaint (made on behalf of all the accused) is that they and their lawyers have expressed a strong concern that the dock, with its complete glass barrier, creates a highly prejudicial impression that they are too dangerous to be afforded the usual open dock facility with its attendant access to their lawyers.

Evidence from the Attorney General’s Department

11 Mr Kerry Marshall, the Director of the Asset Management Branch of the NSW Attorney-General's Department provided the Court with an affidavit (Exhibit “A”). Mr Marshall described in considerable detail the evolving policy of the Department in relation to courtrooms generally and dock areas in particular. The Department has a number of standard designs in relation to docks and these include partially secure docks and high security docks. Mr Marshall explained that, for the last ten years, it has been the policy of the Department to increase the security of docks in New South Wales, primarily because of the number of attempted escapes from docks. (Mr Marshall did not indicate whether any attempts had been successful or how many there have been.)

12 This policy has led to the development of new dock designs. It has been said that these dock designs were developed in conjunction with key stakeholders, including the judiciary, the Department of Corrective Services, courts and tribunal staff, police, members of the legal profession including Legal Aid, the DPP and others.

13 (I would only comment that, so far as I am aware, none of the judges of the Supreme Court, who generally preside over the most serious criminal trials in New South Wales, were consulted about the provision of the enclosed dock in the new Parramatta complex. Certainly, as the designated trial judge, I had no say in the design of the dock area in Court 5.)

14 Interestingly, Mr Marshall points to the fact that the preferred standard design for all docks in New South Wales is now a "flexible dock". A dock of this kind can be seen in all the courts on the other levels of the Parramatta Trial Complex. A flexible dock is one, which combines a fully enclosed high security glass dock, with an open dock attached to the front of the enclosed glass dock. This flexible design means that any dock is able to function as a high security dock when necessary. I understood Mr Marshall to mean by this that, where an accused creates a disturbance or difficulty in the courtroom, he may be, if it is necessary, "banished" into the enclosed dock area at least for a time.

15 Mr Marshall made it clear that Courtrooms 5 and 6 on level 3 in the Sydney West Trial Court Complex were intended to function as "high security" courtrooms. Both courtrooms, however, are larger than the other courtrooms in the complex and are designed to accommodate multi-accused trials. There was not, however, sufficient room to build a double dock, that is a flexible dock, in either of Courtrooms 5 and 6. (I should mention that Courtroom 6 is not presently functioning as a courtroom. It is being used by the Commonwealth DPP as its "office" or “preparation area” for the purpose of the trial to be held in Courtroom 5.)

16 Mr Marshall said that the Department prefers high security docks enclosed with a full height glass screen "because it is the most open and transparent design". The Department, he said, considers the most important design feature of a fully enclosed dock is the safety and security of persons in the dock, DCS officers and court staff. One of the key factors in this regard is the stability of the glass screen, such that it cannot be shattered or damaged by a person seated in the dock. The Department has found that installing a sliding glass window in a full height glass dock adversely affects the stability of the glass. That is why the Department's current preferred design standard for docks is the flexible dock, rather than a fully enclosed glass dock with a window or door built into it. As I have said, this was not possible on level 3 because there was not sufficient room to build a double dock.

17 Mr Marshall placed before the Court the full performance brief for the Criminal Trial Court Complex. The Court was also provided with a project brief for the complex. This was a brief provided to the architects who designed the complex. Finally, the Court was given the Parramatta Justice Precinct Trial Courts Security Design Guide. These documents, although criticised by the defence in some regards, generally support the propositions advanced by Mr Marshall in his affidavit.

The evidence for the Department of Corrective Services

18 Mr Michael Hovey, the Senior Assistant Superintendent within the New South Wales Department of Corrective Services, provided an affidavit addressing the issues in the application. He gave evidence that each of the accused men is classified "AA" within the Department's categories of classification. This is the maximum-security classification that can be given to a person in custody. It is given to:

“Male inmates who, in the opinion of the Commissioner of Corrective Services, represent a special risk to national security (for example, a perceived risk that they may engage in, or incite other persons to engage in, terrorist activities) and should at all times be confined in special facilities within a secure physical barrier that includes towers, or electronic surveillance equipment.”

19 Mr Hovey said that prior to the commencement of trial, he assessed the level of security that would be required for the Department to manage the security of the accused during the trial. Part of this assessment including his consideration of potential security risks during the trial, including the escape or attempted escape of one or more of the accused from custody; the passing of contraband to one or more of the defendants; the occurrence of a disturbance within the Court and a threat to safety of the defendants by a member or members of the public. Mr Hovey said that, when an inmate is moved outside the confines of a correctional centre, the risk of an incident such as an escape or the passing of contraband increases. He was influenced in the present matter by the fact that there were nine accused. He considered that this factor presented different security issues compared to the trial of a single accused. Finally, he had regard to the fact that each of the men was classified “AA” and was, therefore, a maximum security inmate considered by the Commissioner of Corrective Services to be a risk to national security "who should at all times be confined in special facilities within a secure physical barrier".

20 It must be said, however, that the risk to national security apparently emerged from the classification itself, rather than from any adverse activities of the accused since they have been in custody. (I might mention that they have now been in custody for nearly three years).

21 Mr Hovey said that the primary function of the Department's officers, in the event of a security breach, is to maintain the security of the inmates. Any incident within the court area itself is the responsibility of the New South Wales Sheriff's Office. The role of the Department's officers present on the floor of the courtroom is to provide an immediate response function to assist in evacuating the defendants from the dock area in the event of a security incident. Mr Hovey said, however, that in the event of a security issue in the courtroom, the Department's officers present in the court would assist in a secondary way by protecting the judge, the lawyers, the jury, witnesses and the public, if required to do so.

22 Mr Hovey described to the Court the high level of security involved in transporting the accused to and from Silverwater gaol each day. There is no need for me to detail this for the purposes of the decision. It is sufficient to note that there is a mandatory full strip search of the defendants at the commencement of the day and in the court cells in the evening before they are transported back to Silverwater.

23 Mr Hovey firmly supported the retention of the glass area in the dock. He said that, in the event of a serious incident in the courtroom, the Department's current strategy is one of containment and swift removal of the accused. That can be easily done because the dock itself is securely contained. This is clearly a valid consideration.

24 Mr Hovey also said that, by reason of the high security dock, the Department's security presence in these proceedings has been lower than he would otherwise have considered necessary. For example, during the committal hearing in Penrith, there were eighteen officers of the Department present in the courtroom. By contrast, the nine defendants at the Sydney West Trial Court Complex have been managed by no more than ten officers being present. Mr Hovey said that he regarded the secure dock at Court 5 as an important part of the Department's security strategy in the court.

25 Finally, Mr Hovey expressed the concern that if the glass were removed from the dock, he would need to reassess the security strategy. He thought control of the illegal passage of items to the nine accused would be made more difficult if the glass were removed. Secondly, the short distance between the public area and the dock could not be secured quickly enough in the event of a security incident if only ten officers of the Department were present. For that reason, he said that he would have to consider a significant increase in the number of security staff positioned in front of the dock area if the glass were removed. I took Mr Hovey to mean by this that the prejudicial effect of a significant increase in the number of Corrective Services officers would be higher, in his view, than any prejudicial effect represented by the screen itself.

The Report of Associate Professor David Tait

26 Professor Tait provided a report dated 3 August 2008 (Exhibit 1). He is a social scientist with a PhD in Social Administration from the London School of Economics. He is currently employed as an associate professor in the Law Faculty at the University of Canberra. His primary role at present is as a research leader on major national projects about courts. Many of these involve the Australian Federal Police, the Australian Institute of Judicial Administration and Prosecutors. One area involved in Professor Tait's position as a research leader is the question as to how juries respond to particular forms of evidence, particularly new forms of evidence in relation to terrorism trials. In turn, the research is looking at how well crafted judicial instructions could address some of the issues. Professor Tait frankly conceded, both in his oral evidence and in his report, that there is very little in the way of current studies available to examine an issue such as the present, particularly in relation to the likely impact of the screen on a jury. Consequently, he was confined to three essential methods in his report. These were reviews of academic literature, summaries of judicial opinion and case comparison between courtroom configurations. Of course, Professor Tait brought to bear his own experience in relation to all these areas. He conceded, however, that none of the three methods employed would generally be regarded as would be reliable as randomised, controlled tests.

27 For these reasons, fairly conceded by Professor Tait himself, I do not think a great deal of weight can be given to his report. There is simply not enough objective independent data upon which to draw guidance. Nevertheless, Professor Tait suggested that jurors might be more likely to consider defendants guilty if the dock were set behind a glass screen. Secondly, he spoke of the difficulties likely to be encountered by the defendants and their lawyers, in terms of communications, where there is a fully installed, inflexible glass screen.

28 Professor Tait did address (between pages 5 and 7 of Exhibit 1) security issues and challenges from a design point of view. He addressed the question of "how the presumption of innocence is represented" by suggesting that jurors tend to show more sympathy for defendants who are similar to themselves on a range of dimensions. Anything that makes the accused look different from other people in the room could potentially lead to prejudice. He thought that restraint of any kind, including a dock, could be seen as one of these. As I say, however, there is very little in the way of empirical evidence to give guidance to Professor Tait's views. Common sense would suggest that a jury might be startled, at least at first instance, upon encountering an accused person behind a completely enclosed glass wall.

29 The second part of Professor Tait's methodology was not, it must be said, particularly helpful. This was basically concerned with the situation in the United States where the dock has been abolished altogether. That is not the position in New South Wales and is unlikely to be so for the foreseeable future. Little, if any, weight can be given to that circumstance.

30 The final part of Professor Tait's evidence compared the situation in a number of courtrooms. These were the Cook County Court in Chicago, the International Criminal Tribunal For the Former Yugoslavia, the Nuremberg War Crimes Trial, and, finally, the Melbourne County Court Ceremonial Courtroom. This is the courtroom in which Bongiorno J is presently presiding over a trial which relates to an allegation of terrorist behaviour brought against twelve accused (R v Benbrika).

31 It is perhaps salient to mention at this point that the issue of the court configuration became a critical one in the trial before Bongiorno J. His Honour had to make a decision which balanced security issues in the courtroom against the likely prejudice generated by a dock which was restricted by a Perspex screen. There were other issues as well, but the principal one went to the issue as to whether the security measures adopted in the courtroom were likely to prejudice a fair trial for the accused. His Honour described the situation as follows:

“At the back of the Court there is a dock consisting of two rows of seats in a wooden enclosure. In front of each row of seats is a slightly curved wooden barrier about .87 metres high. At present, superimposed on the dock is a Perspex structure, which not only isolates the dock and its occupants from the body of the Court, but also serves to create a number of small cells in the dock itself, each containing two seats bolted to the floor. Each cell is surrounded on three sides by the Perspex screen, which sits on the floor and rises to a height of 1.8 metres. There are also a number of computer screens positioned at regular intervals in front of the accuseds' seats. The height of the Perspex screen effectively prevents conversation, particularly private conversation, over the wooden dock wall, as would, and does, occur in any ordinary courtroom. At present, the position of the Perspex screen in front of each seat in the dock means that, for a person of average height or above, the occupant's knees are jammed hard against the Perspex, necessitating frequent postural adjustment to achieve even a moderate degree of comfort.”

32 Counsel for the accused argued that the Perspex screens were burdensome, oppressive and likely to prejudice a fair trial. At para 12 of his Honour's decision (R v Benbrika & Ors (Ruling No 12) 2007 VSC 524, Bongiorno J said:

“As far as the screens themselves are concerned, I am satisfied that they have the effect contended for by Mr McMahon. They cut the accused off from the courtroom in such a way as to render the accuseds' presence hardly more real than if they appeared by a video link. The presence of the computer monitors also does not assist in this regard, although it is really the Perspex screens themselves, which create the effect. Although I am satisfied that the accused can generally hear the proceedings going on in the courtroom, their capacity to communicate with each other is severely restricted and they cannot communicate with their lawyers unless those lawyers actually enter the dock area. As far as the presence of the prison officers is concerned, the perception created by such a large number of them is that the accused are people who warrant being guarded in such a fashion to prevent their escape or to prevent other undesirable activity.”

33 Bongiorno J held that the situation was such as to materially diminish the accuseds' right to the presumption of innocence. His Honour considered that the situation could only be improved by the removal of the Perspex screen surrounding the dock and by a restriction of the number of uniformed prison officers in the courtroom at any one time.

34 As I have indicated, I do not think that great weight can be given to Professor Tait’s report, if for no other reason than that his opinions, though interesting and reflecting his own experience and reading, are not based on empirical surveys of tests conducted in this country.

Submissions of the parties

35 Mr Turnbull SC made the oral submissions on behalf of the accused. I should say that it was particularly appropriate that Mr Turnbull presented these submissions. Senior counsel have agreed, many months ago, to take part in a number of discussions which addressed a range of "teething problems" related to this courthouse. Some of those were touched upon in judgments I gave in early March 2008. There is no need for me to repeat them here. Many of the teething problems have been addressed and others are to be shortly addressed when further building and cabling work is to be carried out during a brief recess in the hearing of preliminary arguments. As I say, Mr Turnbull has had a significant role in helping to resolve matters of the kind I have identified.

36 Mr Turnbull's essential complaint is that one specific problem has simply not been addressed: This is the presence of the glass screen separating the accused from the courtroom proper. It is Mr Turnbull's contention that the presence of this glass screen will produce irreparable prejudice, will impinge in a practical way on the presumption of innocence and prevent the accused from getting a fair trial. Mr Turnbull makes the point that, so far as the evidence indicates, this is the only courtroom in New South Wales at present with a fixed glass screen between the courtroom and the accused, creating in effect a separate room where the accused are enclosed. Mr Turnbull has argued that no matter the range of directions that might be given, the jury will inevitably think that the accused are highly dangerous, violent and hence likely to be guilty of the offence charged.

37 There is a secondary aspect to Mr Turnbull's argument related to the disconnection of the accused from the trial itself and the problem this has caused for enabling proper communication and access between the accused and their lawyers. Mr Turnbull suggested that the easiest way to solve all these problems is simply to remove the screen.

38 Mr Lloyd of counsel presented the arguments for both the State of New South Wales and the Commissioner of Corrective Services. At the outset, Mr Lloyd challenged the Court's absolute power to make an order for the removal of the glass screen in the present matter. Mr Lloyd accepted that there is authority to suggest the Judge has absolute authority within the courtroom in relation to matters of security affecting all persons in the courtroom, including the accused. Mr Lloyd also accepted that the Court has the power, and indeed the duty, to prevent an unfair trial (Jago v District Court (1989) 168 CLR 23). Mr Lloyd argued, however, that the "problem" identified here did not relate, as it had done in other cases, to the removal of special security measures that had been introduced into the courtroom in circumstances specifically related to the trial of a particular accused. It could not be said, counsel argued, that the glass screen in front of the dock here has been put in place for this trial or for these accused. It is no more than an ordinary and permanent feature of the courtroom.

39 In those circumstances, Mr Lloyd argued that, where a courtroom, or a feature of the courtroom, was, by reason of its inherent design, found to be prejudicial to such an extent that prejudice could not be removed by appropriate directions, the trial judge could order that the trial be moved to another place. Mr Lloyd argued that it was by no means clear that the “absolute authority” in the trial judge extended to a power to order that a courtroom be structurally redesigned where the contention was that the inherent design features of the trial court raised an obstacle to a fair trial.

40 Mr Lloyd's principal contention, however, was that there was no inherent prejudice in the presence of the glass dock itself. Mr Lloyd sought to distinguish the situation in R v Benbrika by pointing out that the Perspex dock in that case had been introduced specifically for that particular trial. They were not part of the overall courtroom design. They were, in effect, special security measures which had been introduced to meet the exigencies of the particular trial.

41 By way of contrast, Mr Lloyd argued, having regard to the evidence of Mr Marshall, that the design of Courtroom 5 represented best practice in contemporary court design. The nature of the dock did not represent a response to this particular trial or to the particular accused. Rather, the courtroom had been designed for general multi-accused trials and would be used for this purpose in the future, irrespective of the nature of the charges brought against the accused.

42 Mr Lloyd made somewhat different submissions on behalf of his second client, the Department of Corrective Services. In this regard, Mr Lloyd argued that there was a need for high security. This arose, as Mr Hovey's affidavit indicated, principally because of the classification of the accused as ‘AA” remand inmates. Secondly, he said the use of the glass dock in Courtroom 5, a specially designed high security courtroom, allowed for the trial to be conducted without the use of excessive Corrective Services presence.

43 At a practical level, Mr Lloyd conceded that there might need to be some improvement for the method of communication between the accused and their lawyers. But beyond this, he submitted that directions from the trial judge would be sufficient to avoid prejudice, and would enable a fair trial to take place.

44 The Crown submissions were made by Mr Geoff Bellew SC. Senior counsel for the Commonwealth DPP accepted that issues of security were necessarily the province of the Department of Corrective Services and, within the courtroom, the Sheriff's Office. However, Mr Bellew submitted that the current presentation of the dock would not give rise to any degree of prejudice, but, if it did, appropriate directions could be given to ameliorate the situation. Finally, in relation to the practical problems of access between the lawyers and the accused, the Crown suggested that there would be ways and means, apart from the removal of the screen, by which these problems could be addressed.

Resolution of the issues - Background considerations

45 Before coming to a resolution of the issues, it may be convenient if I say something about the background of this trial. It will be necessary to say something firstly about the circumstances which have led to the case being heard at Parramatta. Secondly, it will be necessary to say something about the nature of the trial itself.

46 As to the first matter, I gave a decision in this matter on 18 March 2008. At that time, there was a concerted application by both the prosecution and the defence to change the venue from Parramatta to Sydney. Originally, it had been proposed that the trial would take place in the Darlinghurst Court complex at Sydney. The courtroom which was considered for that purpose was old and in many respects, antiquated. It would have been necessary to spend approximately $600,000 to provide for its modernisation. The major amount of the expenditure would have been necessary to address technology and security issues. As might be expected, the prospect of this massive expenditure led to discussions between the New South Wales Government and the Commonwealth Attorney General's Department with a view to seeking funding from Commonwealth sources for the purpose of transforming the Darlinghurst complex. Unfortunately, this proposal did not result in any agreement between the parties. Moreover, an important intervening event emerged which played a major part in rendering the Darlinghurst complex unsuitable.

47 In late June 2007, the Department of Corrective Services, which had been involved in extensive discussions concerning the Darlinghurst Supreme Court as a possible venue, determined that the complex was simply unsuitable from a security point of view. This determination became fixed in concrete, at least in political terms.

48 It was against that background that, in the middle of 2007, the New South Wales government contemplated, and ultimately determined, 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. A number of submissions emerged from the Crown and the defence opposing the suggestion that the trial be held at Parramatta. Many of these concerns were addressed in my decision of 18 March 2008. One important consideration was the distance between Sydney and Parramatta. It was feared that this would prove inconvenient, difficult and taxing for the lawyers involved, simply because of the distance between Parramatta and Sydney CBD. There were other arguments advanced as well which related to the proposed courtroom and the court complex itself. Many of these submissions were largely anticipatory and were based on assumptions about the plans of the proposed premises then available.

49 As I have said earlier, the complex opened in February 2008. The building was not fully operational for some months, although it is now operating with the District Court using a number of the trial courts. The Drug Court is also in occupation and the building is fully staffed by Sheriff's officers and the Registry. Leaving to one side the "distance argument" between Parramatta and Sydney, the complex has proved quite satisfactory for the legal practitioners involved. Many of the concerns contained in the written submissions simply vanished by the wayside. For example, the defence have now a very attractive and effective work location, probably unsurpassed by any other court complex in the State, on level 2. I addressed the situation in a general way at paragraph 24 of my earlier decision:

“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 knew 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.”

50 I have made earlier reference to the fact that there were and are "teething problems". These included, for example, the inadequacy of the courtroom in its original layout to cater for the number of lawyers, their working materials and the like. The problems also extended to the fact that, even when the courtroom was reassembled to provide sufficient accommodation for the number of lawyers, it was necessary to carry out extensive and expensive cabling works to make sure the sound systems operated adequately around the whole courtroom. As I have said, these problems have been, or are to be addressed, before the commencement of the trial proper.

51 One problem, however, identified in the original written submissions was the issue involving the dock area. In plain terms, this was identified as a problem by the submissions made on behalf of all of the accused well prior to the completion of the building. In my March 2008 decision, I indicated that this problem should be addressed separately and I did not deal with it at that time.. It is as a consequence of the postponement of that issue that the present application has been made.

52 It is fair to say that the practitioners, myself and other interested persons have had the opportunity over the last six months of to observe the regime imposed on the accused by virtue of their presence in an enclosed dock. In particular, it has enabled the Court to consider over a long period of time the impact that the present structure is likely to have on a jury selected to judge the facts in the trial.

53 As to the trial itself, the first thing to be noted is that it is likely to be lengthy. No real estimate has been put upon it at this stage, but it could take nine months or more. I am hopeful that when a number of presently contemplated discussions between the parties are held, there will be a more reliable estimate of the length of the trial. But, by any reckoning, it will be a very lengthy trial.

54 The charge against the accused is that between about 8 July 2004 and 8 November 2005 the accused did conspire with each other to do acts in preparation for a terrorist act or acts. Section 101.6 of the Criminal Code Act (Cth) makes it an offence to do an act in preparation for or planning a terrorist act. The offence of conspiracy is set out at s 11.5 of the Criminal Code Act. The combined effect of these sections highlights the seriousness of the charge. The maximum penalty is one of imprisonment for life.

55 The nature of the charge against each of the accused is described in the Crown case statement. The prosecution case is that each of the conspirators considers himself to be a devout Muslim. Each held certain beliefs in common relating to their interpretation of the Muslim faith. These common beliefs included the following:

“(a) Islam throughout the world was under attack and there was a religious obligation to come to the defence of Islam and other Muslims;
(b) jihad was the primary means by which this religious obligation should be fulfilled;
(c) a significant and legitimate aspect of the fulfilment of this obligation was violent jihad, which involved the application of force and violence, including in certain circumstances the killing of 'infidels', that is persons who do not have the same fundamentalist beliefs.”

56 The trial will involve evidence of the finding of a large volume of material supporting extremist views at the premises of each accused upon the execution of search warrants. This extremist material was in the form of electronic media, including videos, DVDs, CDs and material from websites downloaded and saved on each of the accused's computer or computers.

57 The evidence will also include the views expressed by a number of the accused in relation to topics connected with the activities of terrorists throughout the world. There will, for example, be views attributed to some of the accused approving of the September 11, 2001 atrocities; there will be views approving the slaughter of American troops in Iraq and Afghanistan. There will be views about the beheading of hostages, and views of an extremist kind about Australian politicians, the Australian Government, and the involvement of Australia in overseas activities against Muslims.

58 Against the background of this type of evidence, the Crown will submit that the jury will be entitled to infer beyond reasonable doubt that the accused entered into an agreement to obtain the capacity or capability to do acts in preparation for a terrorist act or acts. This in turn will involve evidence suggesting that the accused, or some of them, obtained or attempted to obtain chemicals and other relevant materials which could be used in the construction of an explosive device or devices. It will also include the obtaining, or attempted obtaining, by some of the accused of weaponry and ammunition. It will also extend to include the covert activities by many of the accused in relation to some of these activities, displaying a high level of planning to avoid detection. The evidence will extend to the acquisition and use of mobile telephones in false names, the use of coded SMS messages and the use of false names and other techniques to avoid physical monitoring. Finally, mention should be made of an association between the accused and a Melbourne group who are said, on their own account, to be involved in terrorist activities in that State. One of those was Abdul Nacer Benbrika, an Islamist who had publicly declared his support for militant or violent jihad. The Crown case will be that Benbrika provided spiritual guidance, extending to the support for extremist notions, to a number of the Sydney accused.

59 The description I have given of the nature of the Crown case, general though it be, will highlight, I think, that the trial will involve areas where prejudice or bias could be encountered. At the very least, it could be expected that all members of the community would look unfavourably upon terrorist activities, extremist Muslim positions and approval by Muslims to the commission of atrocities against Americans and Australians involved in overseas battlefields. The handling of the jury pool, the selection of the jury and the conduct of the trial by jury will place a heavy burden on the Court to ensure that these men obtain a fair trial.

60 Each of the accused has pleaded not guilty to the charge. This means that each accused has the presumption of innocence in his favour. It also means that the Crown must prove its case beyond reasonable doubt. The tribunal of fact will be required to make up its mind as to whether the Crown has discharged the burden of proof in an atmosphere that is free from prejudice and bias. The task of the Court will be to oversee the proper fulfilment of these obligations and to give directions, wherever necessary, to ensure that prejudice and bias play no part in the evaluation of the guilt or innocence of the accused. Against this general background, it is now necessary to address the issues in a determinative fashion. I do not propose to go to every argument raised by counsel. I trust that that will not be regarded as a lack of respect or appreciation for the diligence with which the thorough and careful submissions have been prepared on all sides. Similarly, I will not dwell on a detailed analysis of the authorities brought to my attention by counsel. Most of those cases turned upon their own particular characteristics.

Resolution – Final determination

61 The first point relates to the Court's power to make the orders sought. It is not in dispute that a trial judge is entitled to have and to exercise full control of the course of the proceedings in a criminal trial (R v Smith (1982) 2 NSWLR 608 at 613). Nor is it in dispute that the authority of the presiding Judge in respect of security matters relating to the courtroom is "absolute". This statement does not deny that there may be necessarily some limitations on such a power. As Mr Lloyd argued, it would hardly be within the power of a Court to order the demolition of a court because of a concern that there were problems with the accused receiving a fair trial. Such a situation, however, does not arise in the present matter where the issue is a relatively simple one: Should the Court remove a permanently fixed glass screen which is embedded in a non-structural wall? I have been informed that the cost of the works would be in the vicinity of $10,000 (although this seems, at first blush, rather a high estimate) and that the work would take two to three days to complete allowing for painting and making good the surrounds. This is not a major piece of building work, although I have no doubt it would be regarded as relatively inconvenient and perhaps relatively expensive. The cost would, however, pale into insignificance against the costs of the measures that have been promised (and partly carried out already) in relation to solving other teething problems in the courtroom. I also accept that where an appropriate case manifested itself, the Court might simply direct that the proceedings be held in another courtroom. From a practical point of view, that would not be possible in the present matter. There is no other suitable courtroom available. For these reasons, I am satisfied that I have the power to make the order sought.

62 I turn then to the real question underlying the application. Will the continued presence of the fixed glass screen so affect the presumption of innocence that the jury will be unable to judge the accused fairly? This is a difficult question and one that I have not found easy to resolve. My mind has fluctuated back and forward between the various alternatives during argument. In the end, I have decided that I should accede to the application and that I should direct that the screen be removed.

63 The first reason is, admittedly, one of first impression. I acknowledge that my own impressions of the situation should not be determinative of the issue, but I must confess that when I first saw the fixed screen dock, I was immediately concerned about its impact on the jury. Similarly, when I first saw the accused in the fixed screen dock, I was rather taken aback by the apparent separation of the accused from everybody else in the courtroom. The immediate impression was that they were separated in that way because they posed a threat to people in the courtroom.

64 It is fair to say that, as the months have passed, this impression has eased to a large degree. It may be that I have simply become used to the situation. There is, however, the world of difference between the reaction of an experienced trial judge (if I may call myself that) and the reaction of 15 people from the general community who come to judge a criminal trial as the tribunal of fact. Some of the jurors may have been in a criminal trial before. If so, they will find a marked contrast between the present situation and their previous experience. Even jurors who have not been in a criminal trial before are likely to be startled by the presence of a completely separated dock.

65 It is part and parcel of the training of a Judge to remove bias from his own mind before embarking on a trial, whether it be criminal or civil. It is part of the training and armoury of a Judge that he is able to put such matters out of his mind altogether before embarking upon an adjudication between citizens, or presiding over an adjudication between the State and a citizen in a criminal trial. Members of the community would, I think, find this more difficult to achieve. Not impossible, but difficult nonetheless.

66 I move then from questions of first impression to the principal arguments advanced on behalf of the parties. Here, I think that Mr Lloyd's arguments demonstrated a subtle sense of conflict between the differing approaches of his two clients. The Department's position is that the entire complex, including the multi-accused Courts, has been planned after considerable consultation and consideration. The Department's policy reflected a preference for what was described as "a flexible dock". Docks of this kind are to be found on all other levels of the court complex, save for level 3. Doing my best to read between the lines of the policy (it is not always an easy task) I discerned that the preference of the Department would have been for a flexible dock in each of Courtrooms 5 and 6. Space, however, did not allow a double dock (as it was described) to fit into the available space, or spaces, on level 3. It was essentially for that reason that the flexible dock policy was not adopted for the multi-accused courtrooms. The Department's second argument was based on the proposition that the fully screened dock in Courtroom 5 represents a permanent feature and should not be changed, even if there were no justification for a permanent screen in any particular trial. The corollary to this second argument is that the Department says that Courtroom 5 is not an “AA” classification courtroom. Nor is it an “ AA” classification dock. It is simply the dock that has been built in accordance with the Department's present policy, and based on considerations of the available space within the courtroom itself.

67 The views of the Department of Corrective Services, however, appear very clearly from Mr Hovey's affidavit. He has candidly indicated that his Department is more than happy with the fully screened dock because each of the men is classified “AA”, and is therefore a maximum security inmate considered by the Commissioner to be a risk to national security. Such a person "should at all times be confined in special facilities within a secure physical barrier". This of course was not the only factor that led to Mr Hovey's satisfaction with the present situation, but it was plainly an important one.

68 The subtle conflict I have referred to resides in the fact that the Attorney General's Department does not consider this an “AA” security courtroom containing a dock that has been built with that classification in mind, whereas Corrective Services sees it as perfectly properly fulfilling that function. Indeed, the fact that it does fulfil that function is an important factor in the Corrective Services Department satisfaction with the security issues in the courtroom at the present time.

69 It is not necessary for me to resolve this apparent area of "subtle conflict". It is sufficient simply to address the concerns of each Department, or at least evaluate the principal argument addressed on behalf of each Department.

70 So far as the suggestion that each of the accused represents a risk to national security, this appears to arise principally, if not entirely, from the classification itself. No evidence has been placed before me to suggest that, during the last three years, there has been any serious incident or activity involving any of accused that would enliven a conclusion that there is a risk to national security. Of course, it might be said that they have been incarcerated, restrained and subject to such stringent security measures that it is unsurprising that anything untoward has occurred. Whether this be so or not, the fact remains that I have not been provided with any material to suggest that, during their time in prison, the accused have been a risk to national security otherwise than by virtue of the charge each is facing. It is of course not appropriate, in the present context, to consider the range of activities that are alleged in the charge against the accused. Each has pleaded not guilty and is entitled to the presumption of the innocence.

71 In addition to these observations, I have not been made aware of any other matter involving the accused prior to their arrest that would involve an arguable risk to national security or to security generally. I am, of course, aware that at the time of his arrest Omar Baladjam was allegedly involved in a violent incident involving firearms. But apart from that, I am not aware of any other matter involving either Baladjam, or any of the other accused, that would enable me to say that any of the men pose an actual risk to national security. I have observed on occasions some of the accused acting in a moderately disruptive way while they have been in the dock. This, however, has been relatively minor and does not, in any sense, equate to a risk to national security. There have been no “incidents”.

72 I turn then to the arguments advanced on behalf of the Attorney General’s Department. Accepting that a flexible dock, but nevertheless a high security dock, is the preferred option of the Department in building new criminal courts or refurbishing old ones, the argument based on that policy does not especially advance the Department's contention. Mr Marshall's affidavit makes it plain that a flexible dock was not put in Courtroom 5 because it simply could not be fitted there. Secondly, the argument based on the proposition that the glass wall is a permanent feature does not carry with it the weight that might attach if under consideration were a substantial structure, difficult to remove and only capable of removal at considerable expense.

73 In any event, the decision I must make, although it may properly take into account the two views I have ascribed to the respective Departments, cannot be bound by those views in a determinative fashion. I have to give proper weight to those views. But, importantly, I have to balance those views against the ability of the accused to obtain a fair trial. I now turn to that consideration. This is the fundamental one for present purposes.

74 My general view is that the presence of the fixed screen will make it more difficult for the accused to get a fair trial. I consider that the sense will inevitably be conveyed to a jury of 15 that these men do represent in fact a risk to the community, to people in the courtroom and perhaps to national security itself. The screen plainly separates them from the jury and everybody else in the courtroom. Images of other trials in far distant countries will inevitably present themselves to members of the jury when they first see the situation of the accused behind a fixed screen. The problem caused by the presence of the fixed screen will be exacerbated by the secondary problems arising from the difficulty of communication between client and lawyer. This will inevitably lead to an observation by the jury that, on a very regular basis, communication is significantly limited by the presence of the screen. Observations of this kind are likely to feed into the overall sense, principally caused by the presence of the screen, that these are dangerous people.

75 I need to temper these remarks in some small way. Overall, the courtroom presents a very light and airy appearance. It is not dungeon like nor old fashioned in any respect. The dock is of a very modern design and it contains, for example, very comfortable and pleasantly designed seating for the accused. In general, the dock area and its amenities contrast very favourably with other accommodation for accused people in criminal courts in Sydney, and especially country areas. Nevertheless, it will probably be quite apparent to the jury that the accused are in custody, and that there is a significant Corrective Services presence associated with their custodial situation, even while they are in the dock. It might be said that each of those last matters are capable of evincing prejudice. I accept that is so, but I am perfectly satisfied that the usual directions to the jury, if they become necessary, will enable that situation to be addressed. It is not a situation out of the ordinary.

76 I am less comfortable with the proposition that directions will cure the problems associated with the fixed screen. I do not entirely accept Mr Turnbull's forceful submissions that directions in relation to that topic simply would not work. I think that a carefully crafted direction would have the capacity to alleviate the type of prejudice that is likely to be evinced by the presence of the fixed screen. Generally, I take the view that juries pay heed to the trial judge's direction. But I do not feel entirely comfortable, or by any means satisfied, that directions regarding the presence of the fixed screen would be sufficient.

77 This level of uncertainty is reinforced when I consider the other likely prejudices that might operate on the jury's mind in the forthcoming trial. First, there are the charges against the accused themselves. Secondly, there is the nature of the evidence to be adduced during the trial and its summation in the Crown opening. The very nature of this evidence will hardly endear the accused to members of the jury. Nevertheless, this is a common situation in a criminal trial, and juries generally respect the directions of the trial judge in relation to the presumption of innocence, the burden of proof, and the need to keep an open mind until the conclusion of all the evidence and addresses. But here there will be a number of added prejudices. There is the prejudice arising from the fact that it is a trial involving Muslim men said to be involved in terrorist activities. The accused, so far as I can gather, will choose to dress in clothing that reflects their Islamic culture and religion. A number of the accused are bearded and this too, as I understand it, is a reflection of spiritual values in Islamic culture. Their dress and appearance may present them as “outsiders”. The accused have refused to stand when the Judge comes into the courtroom or when he leaves. I assume that a similar attitude will be taken to the situation when the jury come into and leave the courtroom. I am not concerned to be critical about the accused in relation to any of these matters. Their dress, appearance and behaviour in terms of courtesy, is entirely a matter for them. But all these are additional matters of prejudice or possible prejudice that are likely to be present throughout the trial.

78 In my opinion, the presence of the glass screen is but one more layer of prejudice (perhaps one that is more significant than any of the others), and it is an aspect of prejudice that can be avoided altogether by relatively simple and comparatively inexpensive means.

79 I accept that the circumstances of this case are quite different from those adjudicated upon by Bongiorno J in R v Benbrika. The fundamental principles, however, are the same. It is my view that those principles, in the circumstances of the present matter, dictate the same result. I do not dispute the right of the Attorney General's Department to require that its multi-accused courtroom should be equipped with a fixed dock. I make no comment on that policy or on the appropriateness of that situation for any other trial that may take place in this courtroom, or for that matter anywhere else in the State. My concern is with this courtroom, this trial and the ability of these men to get a fair trial. I am satisfied, however, that there is a real risk to the fairness of this trial if the dock remains as it is.

80 I propose to direct that the fixed dock be removed for the purpose of this trial. I leave it to the relevant parties involved in the application to discuss the nature and timing of its removal.

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