Regina (C'Wealth) v Sharrouf [No 2] - [2008] NSWSC 1450

No judgment structure available for this case.

CITATION: Regina (C'Wealth) v Sharrouf [No 2] [2008] NSWSC 1450

HEARING DATE(S): 9/05/08; 29/05/08; 19/06/08

JUDGMENT DATE :
25 June 2008

JURISDICTION: Criminal

JUDGMENT OF: Whealy J at 1

DECISION: 1. I find that the accused is unfit to be tried. 2. I am satisfied that the accused will become fit to be tried withion 12 months from today's date. 3. I am satisfied that the accused is suffering from a mental condition for which reatment is available in a Prison Hospital. 4. I order that the accused be taken to and detained in the MRRC Screening Unit from today, or as soon as he is transferred to the Unit can be reasonably achieved, and that he be kept there for a period ending when he becomes fit to be tried

CATCHWORDS: CRIMINAL LAW - Practice and Procedure - Fitness for trial - Proper interpretation of the Mental Health (Criminal Procedure) Act 1990 (NSW) _ Proper construction for s 20B of the Crimes Acy 1914 (Cth) - Meaning of Prima Facie case - Correct test to be applied - Whether paper evidence can be tendered - Whether Court required to weigh up competing or alternative inferences arising from a circumstantial case

LEGISLATION CITED: Commonwealth Criminal Code Act 1995
Criminal Procedure Act 1986
Crimes Act 1914 Cth
Evidence Act
Judiciary Act (Cth) 1903
Mental Health (Criminal Procedure Act 1990 (NSW)

CASES CITED: Baladjam & Ors v R [2008] NSWCCA 85
Doney v R (1990) 171 CLR 207; 96 ALR 539
Eastman v The Queen [2000] 203 CLR 1
Kesavarajah v The Queen (1994) 181 CLR 230
May v O'Sullivan (1955) 92 CLR 654: (1955) ALR 671
Ngataya v The Queen (1980) 147 CLR 108
Zanetti v Hill (1962) 108 CLR 433; (1963) ALR 165
R v Baladjam & Ors 7 March 2008
R v Baladjam & Ors [No 13] 1 May 2008
R v JMR (1991) 57 A Crim R 39
R v Svonaric [2001] 54 NSWLR 1
R v Presser (1958) ALR 248
Saffron v DPP (1989) 16 NSWLR 397; 43 A Crim R 1
Wentworth v Rogers (1984) 2 NSWLR 422: (1984) 15 A Crim R 376 at 429, 440

PARTIES: Regina (C'Wealth) v Khaled SHARROUF [No 2]

FILE NUMBER(S): SC 2007/2396001

COUNSEL:
G. Bellew SC; C. Donnell; Ms S McNaughton - Crown
P Singleton - Dept of Corrective Services (By Leave)
W Brewer; M Pickin - Accused Sharrouf

SOLICITORS: Commonwealth DPP
State Crown Solicitors
Matouk Joyner Lawyers - Accused Sharrouf

-1 -

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

WHEALY J

PARRAMATTA: WEDNESDAY 25 June 2008

2007/2396001 - Regina v Khaled SHARROUF [No 2]

JUDGMENT - Unfitness for Trial – consequences of finding – s 20B of the Crimes Act (Cth) 1914

1 HIS HONOUR: Khaled Sharrouf, (“the accused”), is one of nine men who have each been charged upon a single indictment to do acts in preparation for a terrorist act or acts.

2 The accused was arrested on 8 November 2005 and has been in custody since that time. He is presently detained, as are the others, at the Metropolitan Reception and Remand Prison at Silverwater. 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. Each accused pleaded not guilty to the charge in the indictment.

3 The charge arises from ss 11.5 and 101.6 of the Commonwealth Criminal Code Act 1995. This is a very serious charge. The legislation provides for a maximum penalty of imprisonment for life for this category of offence.

4 Mr Geoff Bellew SC and Mr C. O’Donnell appear for the Crown on the present application. Mr Brewer and Mr Michael Pickin appear for the accused. Both the Crown and the defence have raised the issue of the accused's unfitness to be tried. 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 ss 68(1) and 79 of the Judiciary Act (Commonwealth) 1903 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.

5 The question of the accused's fitness having been raised, the parties agree that there is a three-stage process to be followed. First, there is an initial determination as to fitness or unfitness. As there is no Commonwealth legislation governing the procedure to be followed on this issue, the provisions of the Mental Health (Criminal Procedure) Act 1990 (NSW) apply to this first stage. I have earlier decided that this issue may be determined on a Judge-alone basis. (R v Baladjam & Ors 7 March 2008). I have also determined that the provisions of s 11 of the New South Wales legislation (which require trial by Judge alone) do not infringe s 80 of the Constitution (R v Baladjam & Ors [No 13] 1 May 2008).

6 Secondly, in the event of a finding of unfitness, there is Commonwealth legislation dealing with the second stage process to be followed. This is to be found in s 20B(3) of the Crimes Act 1914 CTH ("the Act") and Division 6 of the Act generally. Essentially, the second stage requires the Court to determine whether a prima facie case has been established.

7 The third stage process arises if a prima facie case has been established and the Court does not otherwise determine that the charge should be dismissed. In that situation, the Act imposes on the Court the need to make a determination as to whether the accused is likely to be fit within a 12-month period (s 20BB of the Act). In that event, the Court must also decide what must be done with the accused in terms of his remaining in custody, his hospitalisation, or release on bail. That question itself involves issues relating to the future treatment of the accused.

The relevant provisions of the Act

8 I shall set out the operative and relevant sections of the Act for present purposes.

“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.

(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.

(4) Where a magistrate refers proceedings to a court under subsection (1), the magistrate may order the person charged to be detained in prison or in hospital for so long only as is reasonably necessary to allow the court to which the person is referred to determine whether it will make an order under subsection (2) remitting the person to the magistrate, an order under section 20BA dismissing the charge or an order under section 20BB detaining the person in prison or hospital or granting the person bail.

(5) Where a court finds a person, other than a person in respect of whom proceedings have been referred to it by a magistrate under subsection (1), to be unfit to be tried, the court may order the person to be detained in prison or hospital for so long only as is reasonably necessary to allow the court to determine whether it will make an order under section 20BA dismissing the charge or an order under section 20BB detaining the person in prison or hospital or granting the person bail.

(6) For the purposes of subsection (3), a prima facie case is established if there is evidence that would (except for the circumstances by reason of which the person is unfit to be tried) provide sufficient grounds to put the person on trial in relation to the offence.

(a) the person may give evidence or make an
unsworn statement; and

(b) the person may raise any defence that could properly be raised if the proceedings were a trial for that offence; and

(c) the court may seek such other evidence, whether oral or in writing, as it considers likely to assist in determining the matter.

20BA Upon determining prima facie case, court to dismiss charge or to determine fitness within 12 months

(1) Where the court determines that there has not been established a prima facie case that the person committed the offence, the court must, by order, dismiss the charge against the person and, if the person is in custody, order the release of the person from custody.

(a) the character, antecedents, age, health or mental condition of the person; or

(b) the extent (if any) to which the offence is of a trivial nature; or

(c) the extent (if any) to which the offence was committed under extenuating circumstances; that it is inappropriate to inflict any punishment, or to inflict any punishment other than a nominal punishment, the court must, by order, dismiss the charge and, if the person is in custody, order the release of the person from custody.

(3) Where the court orders that the person be released from custody, the person must be released accordingly.

(4) Where the court determines that there has been established a prima facie case that the person committed the offence, but the court does not dismiss the charge under subsection (2), the court must, as soon as practicable after making that first-mentioned determination, determine whether, on the balance of probabilities, the person will become fit to be tried, within the period of 12 months after the day the person was found to be unfit to be tried.

(5) A court must not make a determination under subsection (4) unless the court has obtained, and considered, written or oral evidence from a duly qualified psychiatrist and one other duly qualified medical practitioner.

(6) Nothing in subsection (5) prevents a court from obtaining written or oral evidence from such other persons, bodies or organisations as the court considers appropriate.

20BB Persons found by a court to be likely to be fit within 12 months

(a) whether the person is suffering from a mental illness, or a mental condition, for which treatment is available in a hospital; and

(b) if so—whether the person objects to being detained in a hospital.

(a) where the court has determined that the person is suffering from a mental illness, or a mental condition, for which treatment is available in a hospital and that the person does not object to being detained in a hospital—order that the person be taken to and detained in a hospital, or continue to be detained in a hospital, as the case requires; or

(b) otherwise:

(i) order that the person be taken to and detained in a place other than a hospital (including a prison); or

(ii) grant the person bail on condition that the person live at an address or in a place specified by the court;

for a period ending:

(c) when the person becomes fit to be tried; or

(d) when, as soon as practicable after the end of the 12 months referred to in subsection (1), the court makes an order under subsection 20BC(2) or (5) as applied under subsection (4);

whichever happens first.

(a) if the person had been indicted on the charge before being found unfit—the proceedings on the indictment must be continued as soon as practicable; and

(b) if proceedings for the commitment of the person had been referred to the court under section 20B—those proceedings must be continued as soon as practicable as if they had not been so referred.

(4) Where a court determines, under subsection 20BA(4), that a person who was found unfit to be tried will become fit to be tried, within 12 months after that finding but the person does not become fit within that period, then, at the end of that period, subsections 20BC(2) and (5) apply as if the court had originally determined, at that time, that the person would not become fit to be tried and had made, under subsection 20BC(1), a further determination of the kind that it made under subsection (1) of this section.

(a) in an order under subsection 20BC(2) as so applied the court must, in fixing the period of detention, have regard to any period of detention already served under paragraph (2)(a) or (b) of this section; and

(b) in an order under subsection 20BC(5) as so applied the court must:

(i) in the case of a person already on bail—order, in lieu of the person’s release from custody, the continuance of the person’s release on bail; and

(ii) in fixing the period of the person’s release for which conditions apply, have regard to any period of detention already served under paragraph (2)(a) or (b) of this section.

(6) Where a court determines, under subsection 20BA(4), that a person who was found unfit to be tried will become fit to be tried within 12 months after that finding but the person does not become fit within that period, the finding that there is, on the balance of probabilities, a prima facie case for the commission of the offence charged acts as a stay against any proceedings, or any further proceedings, against the person in respect of the offence.

20BC Persons found by a court not to be likely to be fit within 12 months

(a) whether the person is suffering from a mental illness, or a mental condition, for which treatment is available in a hospital; and

(b) if so—whether the person objects to being detained in a hospital.

(a) if the court has determined that the person is suffering from a mental illness, or a mental condition, for which treatment is available in a hospital and that the person does not object to being detained in a hospital—order that the person be taken to and detained in a hospital, or continue to be detained in a hospital, as the case requires; or

(b) otherwise—order that the person be detained in a place other than a hospital, including a prison; for a period specified in the order, not exceeding the maximum period of imprisonment that could have been imposed if the person had been convicted of the offence charged.

(3) The Attorney-General may, at any time, by order in writing, vary the hospital or other place of detention at which a person is detained under this section.

(4) Where, for urgent medical or security reasons, it becomes necessary to do so, an officer of the State or Territory in which a person is detained under this section may vary the hospital or other place of detention of that person but, where the officer does so, the officer must forthwith notify the Attorney-General, in writing, of the variation and of the reasons for the variation.

(5) Despite subsection (2), the court may, if in the court’s opinion it is more appropriate to do so than to make an order under subsection (2), order the person’s release from custody either absolutely or subject to conditions to apply for such period as the court specifies in the order, not exceeding 3 years.

(a) a condition that the person remain in the care of a responsible person nominated in the order; and

(b) a condition that the person attend upon a person nominated, or at a place specified, in the order for assessment of the person’s mental illness, mental condition or intellectual disability and, where appropriate, for treatment; and

(c) any other condition that the court thinks fit.

(7) Where a person has been released from custody subject to conditions, the person or the Director of Public Prosecutions may, at any time, apply to the court to vary those conditions.

(8) Where a court determines, under subsection 20BA(4), that a person who was found unfit to be tried will not become fit to be tried, within 12 months after the finding, the finding that there is, on the balance of probabilities, a prima facie case for the commission of the offence charged acts as a stay against any proceedings, or any further proceedings, against the person, in respect of the offence.

20BD Review by Attorney-General

(1) Where a court makes an order under subsection 20BC(2), the Attorney-General must, at least once in each period of 6 months after the day the person is detained under the order, consider whether or not the person should be released from detention.

(a) must obtain and consider:

(i) a report from a duly qualified psychiatrist or psychologist; and

(ii) a report from another duly qualified medical practitioner; and

(b) may obtain and consider such other reports as the Attorney-General considers necessary; and

c) must take into account any representations made to the Attorney-General by the person or on the person’s behalf.

Determination as to unfitness

9 There is no doubt in the present matter that the issue as to the accused's unfitness to be tried has been raised in good faith. The Crown has quite properly agreed with the defence that the Court should undertake the present inquiry to determine fitness. The issue is to be determined on the balance of probabilities.

10 The test for assessing whether a person is unfit to be tried is that stated in R v Presser (1958) ALR 248. The Presser test was cited with approval by the High Court in Ngataya v The Queen (1980) 147 CLR 108. It was applied in Kesavarajah v The Queen (1994) 181 CLR 230. See also Eastman v The Queen (2000) 203 CLR 1.

11 The gravamen of the Presser test is that the accused needs to be able to understand what it is that he is charged with. He needs to be able to plead to the charge and exercise his right of challenge. He needs to understand generally the nature of the proceedings and needs to be able to follow the course of the proceedings so as to understand what is going on in the Court. He needs to be able to understand the substantial effect of any evidence that may be given against him, and he needs to be able to make his defence or answer to the charge and to give instructions to his lawyers.

The Evidence

12 There are reports from both Dr Olav Nielssen and Dr Bruce Westmore. Each of these gentlemen is a well-qualified and experienced psychiatrist. The reports of Dr Nielssen are dated 22 September 2005, 20 November 2007 and 12 February 2008.

13 In his first report, Dr Nielssen stated:

“Mr Sharrouf is a 21 year (old) disability pensioner with three young children. He was subjected to physical abuse by his father and was affected by his father's desertion of the family during his early teenage years. He reported that his early performance at school was normal. There was a history of conduct disorder in adolescence and he did not return to school after being expelled in year 9. There was a history of substance abuse in adolescence that may have contributed to the onset of mental illness. He reported some employment as a labourer, but none since the onset of mental illness three years ago.

Diagnosis of schizophrenia is made on the basis of the histories of typical symptoms of the illness, Mr Sharrouf's presentation at interview and the reports of his treating psychiatrist. He appears to have a fairly disabling form of the illness, in that it has resulted in significant impairment in his intellectual performance confirmed in psychological testing performed last year. Control of symptoms may have varied, depending on the dose of antipsychotic medication.

Mr Sharrouf may also have developed epilepsy on the basis of the confirmed history of seizures in the last six months. Epileptic seizures are associated with exacerbations of symptoms of psychotic illness, particularly in the period after a seizure.”

14 Dr Nielssen recommended a treatment plan that would include continued close supervision. He suggested that the patient might need a higher dose of Olanzapine than 10 mgs per day.

15 Dr Nielssen saw the accused at his rooms shortly prior to his arrest in November 2005. He also spoke to the accused by AVL to Burwood Court in early March 2006. He then interviewed the accused on 16 November 2007 and provided a report dated 20 November 2007. For the purpose of this report, Dr Nielssen examined the Crown case statement and a summary of the overt acts provided by the Crown.

16 Dr Nielssen took a further history from the accused which revealed hallucinations and paranoid events particularly related to his experience in custody. The conclusion stated in the report was as follows:

“On the basis of the symptoms reported by Mr Sharrouf and his presentation during the recent interview, I believe he is experiencing an acute exacerbation of his chronic mental illness. The further episode of illness is a direct consequence of ceasing treatment with antipsychotic medication some months ago.

Mr Sharrouf reported hallucination of tastes, smells and visions that are often associated with temporal lobe epilepsy. There was a history of treatment in hospital after what were thought to be epileptic seizures...

Mr Sharrouf is currently unfit for trial. The acute exacerbation of psychotic illness has resulted in gross impairment in all areas of intellectual function, in addition to the persecutory beliefs arising from the hallucinations. He would be unable to follow the proceedings or provide reliable instructions in what would clearly be a complex trial.”

17 Dr Nielssen recommended that the accused should be transferred to Long Bay Hospital for further investigation and intensive treatment with antipsychotic medication. He thought that, if the accused were to resume treatment, he should recover sufficiently to be considered fit for trial within three months.

18 The final report of Dr Nielssen was prepared following a further interview he had with the accused on 8 February 2008. Dr Nielssen said:

“On the basis of the symptoms reported during the interview in November and alluded to by Mr Sharrouf during the recent interview, and his presentation during those interviews, I believe he is experiencing an acute exacerbation of the chronic mental illness schizophrenia...the further acute episode of illness was thought to be due to ceasing treatment with antipsychotic medication in the second half of 2007 and treatment with a relatively low dose of antipsychotic medication since his transfer to the MRRC...

Mr Sharrouf remains unfit for trial, as he has gross impairment of all areas of intellectual function that would prevent him from following the proceedings, or providing reliable instructions in what would be a very complex matter.”

19 Once again, Dr Nielssen recommended that the accused have treatment in a prison hospital. On this occasion, Dr Nielssen expressed the view that Mr Sharrouf's condition was generally amenable to treatment. He thought that there would be a reasonable prospect that, if treated appropriately, he would become fit for trial within twelve months.

20 Dr Westmore saw the accused on 12 March 2008. He has provided reports from 14 and 31 March and 3 April 2008. In the first of those reports Dr Westmore concluded:

“This man appears to have an acute exacerbation of the illness schizophrenia. I have described his clinical presentation when I examined him on 12 March 2008. He appeared to be perplexed, confused and responding to possible auditory perceptual disturbances. I was not able to assess his thought content and cannot say whether he is delusional.

He provides a very limited history about himself and his current situation. He does not appear to understand the nature of the charges. If he is psychotic it is likely he is not able to plead to the charges or exercise his right of challenge. His presentation suggested he would not be able to understand the nature of the proceedings or to follow the course of the proceedings. Again, based on his clinical presentation, he would not be able to understand the substantial effect of any evidence that may be given in support of the prosecution, nor could he make a defence or answer the charge.”

21 Dr Westmore thought that the accused needed to be transferred to a secure psychiatric unit, he considered that he needed monitoring and examination to determine any organic causes for his clinical presentation. Dr Westmore stated that the accused was currently not fit to be tried. He suggested that he might be forensically assessed within the next six months to determine what progress had been made.

Resolution of the fitness issue

22 Both the Crown and Mr Brewer agreed, as did the psychiatrists, that the accused currently suffers from schizophrenia. It was common between the parties that, by reference to the established legal tests, the accused is not presently fit to stand trial.

23 In view of the material that has been placed before me, and the agreement of counsel in relation to the issue, I am prepared to find that the accused is presently unfit for trial. I stress that this finding is confined, as it must be, to an assessment of his mental health situation at this precise point of time. It says nothing as to his condition at any earlier point of time.

24 The medical evidence accepts that, at present, the accused does not understand the nature of the charge brought against him. It suggests that he would be unable presently to plead to the charge or exercise his right of challenge. It appears to be common ground that were the trial to proceed immediately, he would not understand the nature of the proceedings or be able to follow the course of the proceedings. In those circumstances, he would not be able to give instructions to his counsel or solicitor, nor would he be able to make a defence or have the ability to answer the charge.

25 I am satisfied, in accordance with the tests stated in R v Presser, that the accused is unfit for trial.

The second stage process – has a prima facie case been established?

26 I have set out above the provisions of s 20B(3)(b) of the Act. This second stage process requires the Court to determine whether there has been established a prima facie case that the accused committed the offence charged. I draw attention to sub-ss (6) and (7) of s 20B. These deal with the requirements for a finding that a prima facie case has been established.

27 In this regard a preliminary point has been taken by counsel for the accused. The point is this: The defence has argued that the Crown must lead its evidence in the normal way by calling witnesses and allowing the testing of evidence by way of cross-examination. At the very least, counsel argued a number of the Crown witnesses ought to be called and their evidence given in conventional fashion, as if at trial.

28 I am perfectly satisfied that s 20B of the Act, and the provisions of Division 6 generally, do not require that such a procedure be followed. First, what is at issue is whether the Court can be satisfied that a prima facie case has been established that the person committed the offence charged. The Court is not determining the guilt of the accused but is rather dealing with a well-known situation arising during a criminal trial, namely, the existence or otherwise of a prima facie case. It is a situation that also arises at the first stage of the committal process. (Section 62(2) of the Criminal Procedure Act 1986: Wentworth v Rogers (1984) 2 NSWLR 422: (1984) 15 A Crim R 376 at 429, 440).

29 Secondly, s 20B(3) forms part of a legislative scheme enacted for the purposes of allowing the Court to contemplate the issue of fitness of an accused person; and, in particular, to deal with the situation of the accused after a finding of unfitness has been made. The clear purpose of the Division is to enable the Court to determine whether, and in what way, an accused should properly remain within the justice system where a finding of unfitness has been made.

30 Thirdly, it is clear from the language of ss 20B(3) and 20BA(4) that the Court is to move promptly through the various processes consequent upon a finding of unfitness. There is further support for the Crown contention in the fact that, where a person is found to be fit to be tried (and where the matter has come before the Court by way of reference from a Magistrate), the Court must remit the proceedings to the Magistrate's Court to enable committal proceedings to be continued "as soon as practicable".

31 Fourthly, it is not to be overlooked in the present matter that there has already been a determination by a Magistrate that a prima facie case could be established against the accused. Indeed, he has been committed for trial. This is not a consideration going directly to the construction of the relevant section but it has practical ramifications for the point at issue. There was, for example, no submission made by the accused's then representatives at the conclusion of the lengthy committal proceedings that the evidence fell below the level of requisite sufficiency.

32 Mr Pickin made three principal submissions. First, he argued that the language of s 20B(3), construed in the light of sub-ss (6) and (7), requires the Court to make a qualitative assessment of the weight of the prosecution evidence. Putting the argument another way, Mr Pickin submitted that s 20B(6) in particular, appears to extend the usual meaning of “prima facie case” to that of a determination in the context of whether the evidence would justify a committal for trial. This means, according to this suggested interpretation, that the legislation envisages a hearing where the evidence is to be tested, witnesses are to be heard, credibility is to be assessed and competing conclusions are to be analysed and assessed. Indeed, Mr Pickin argued that the Court would make an affirmative finding in respect of s 20B(3) only in a situation where there is a reasonable prospect of conviction.

33 Secondly, and essentially for the same reasons, Mr Pickin argued that, in a circumstantial case such as the present, the Court would be required to consider whether there were multiple competing or alternative conclusions open to the tribunal of fact; and would be required to assess the appropriate weight to be attached to each. Counsel argued that the most cogent method of assessing the weight of the evidence is to hear the witnesses on oath, as opposed to the mere tender of out of court statements.

34 Thirdly, the defence submitted that the historical fact of committal was of no material significance to the exercise of the Court’s determination under s 20(B). Mr Pickin submitted that the Court cannot substitute the Magistrate’s decision for its own. He also referred to the fact that, in the present matter, there may be a real question as to whether the committal was a nullity as a consequence of the Crown’s failure to obtain the Director’s relevant consent before it was heard. (This last proposition has now been put to rest by the recent decision of the Court of Criminal Appeal in Baladjam & Ors v R [2008] NSWCCA 85

35 For all these reasons, it was submitted that a tender of a Statement of Facts, or proof by a similar procedure, was impermissible.

36 I shall deal with each of these submissions separately. The first appears to me to involve a misconception of the language of s 20B(3) and (6). Section 20B(3) is clear enough. The obligation on the Court is to determine whether there has been established a prima facie case that the person committed the offence concerned. As I said earlier, this is a well-known concept. It is, for example, part of the ordinary committal procedure in New South Wales that is now contained in s 62(1) and (2) of the Criminal Procedure Act 1986 (CPA 1986). Mr Pickin argued that this “prima facie” test is extended by the provision of s 20B(6) but, in my view, this argument unjustifiably distorts and extends the language of the relevant sub-section.

37 At the outset, it might be noted that the language of s 20B(6) does not require the Court to determine, to use Mr Pickin’s phrase, “whether the evidence would justify a committal for trial”. In New South Wales, the ultimate test, as to whether to commit or not, is contained in s 65(1) of the CPA 1986. It is clear that there is a considerable difference between determining, on the one hand, whether a prima facie case exists; and determining, on the other hand, whether there is a reasonable prospect that a reasonable jury would convict the accused person of an indictable offence. Mr Pickin’s construction of the relevant section appears to fall somewhere between these two separate and distinct tests.

38 In reaching an opinion for the purposes of s 65 CPA 1986, there can be no doubt that a committing Magistrate is required to make a forecast or prediction of some kind of the outcome of the trial. This he or she must do upon all the evidence and must give attention to the weight and acceptability of the evidence in relation to the character of the evidence itself and the credibility of the witnesses who gave it: Saffron v DPP (1989) 16 NSWLR 397; 43 A Crim R 1. The Magistrate is not debarred from making his own assessment of the evidence and forming a view as to the credibility of witnesses as a basis for that opinion.

39 Here, however, the statutory position seems to me to be rather different. The precise task is to find whether a prima facie case has been established. Sub-section 6 requires the Court, in effect, to identify evidence that would (except for the circumstances by reason of which the person is unfit to be tried) provide “sufficient grounds” to put the person on trial in relation to the offence. Importantly, it is no part of the Court’s task to commit the person for trial. That, to my mind, is a complete answer to Mr Pickin’s submission. The task is two-fold. The evidence must first be identified. Secondly, it must be capable of establishing a prima facie case in the sense that it would, in terms of its capacity, provide sufficient grounds to put the person on trial in relation to the offence. If there is no such evidence, or if such evidence as there is does not have that capacity, the obligation is to dismiss the charge. What is critical is, first, the identification of evidence; and secondly an examination of its capacity, or its incapacity, to sustain the charge in the indictment. This does not require the Court to assess the credibility or reliability of any witness. The evidence is taken at its highest.

40 It is a different function than that ultimately entrusted to a committing Magistrate. By way of contrast, where under the Commonwealth legislation a committing Magistrate has referred the matter to the superior court under s 20B(1), and the superior court has found that the accused is fit to be tried, the matter then goes back to the committing Magistrate for a full and proper committal hearing. In the superior court, however, because there has been a finding of unfitness, the second stage of the process requires the Court to dismiss the charge unless the evidence to be relied on by the prosecution has the capacity to establish a prima facie case against the defendant. Where a prima facie case has been established (and the charge has not otherwise been dismissed), the Court must then determine whether the person will become fit to be tried within the 12-month period from the time unfitness was found. The clear legislative purpose is to remove an unfit defendant from the criminal justice system altogether, unless a prima facie case has been established. Even where a prima facie case has been established, the Court may dismiss the charge where, for example, it involves a trivial matter.

41 It is true that sub-s 7 sits somewhat oddly with the concept of demonstration of a prima facie case. I do not consider, however, that the provisions of sub-s 7 require the Court to do other than to determine whether there is a prima facie case against the defendant. The Court is required to take into account the evidence of a person or an unsworn statement he or she may make. The Court is also entitled to have regard to any defence that could properly be raised if the proceedings were a trial for that offence. This seems to me, whatever its ambit, to make it clear that what is occurring in the process is something that is not a trial for the offence, nor is it a committal for trial for the offence. It clear that the proceedings are not a trial because no question of guilt or innocence is determined. It is equally clear that the proceedings are not a committal for trial because the section does not require the Court to move forward to, and determine, the second limb of a committal proceeding, namely to determine whether there is a reasonable prospect that a reasonable jury would convict the accused person of the offence. In my view, the section stops well short of that requirement, and this is so notwithstanding the presence of sub-s 7.

42 Mr Pickin’s second argument is also answered by the same analysis. Gleeson CJ (in Saffron at 401 lines E to G) pointed out that it does not follow that simply because it is possible, looking at the objective circumstances established by the evidence in the case, to construct an hypothesis consistent with the innocence of an accused person, that the case is not one fit to go to a jury. As his Honour observed, that would entirely overlook the role of the jury in a criminal trial. Those observations carry even weight against the background of a search that must end in a finding of no greater dimension than the existence or otherwise of a prima facie case.

43 A further possible answer to both these arguments resides in the written submissions of the Crown. In short, the Crown submitted that a comparison of s 20B in the Commonwealth Crimes Act with comparable, but different provisions, in both the United Kingdom and New South Wales showed plainly that the present process is quite distinct to the procedures available in other jurisdictions. For example, the Crown referred to the special hearing provisions of the Mental Health (Criminal Procedure) Act. Let me take the New South Wales legislation to postulate, in short form, the Crown submission.

44 In New South Wales, upon a finding of unfitness being made, the Court is required to refer the accused person to the Mental Health Review Tribunal. This Tribunal is then required to make a determination as to whether the person is likely to become fit within a period of 12 months. If such a determination is made, the Court is given consequential powers as to the detention of the accused in a Mental Health facility for a period not exceeding 12 months. If a contrary determination is made, the Court is required by the operation of s 19(2) of the Mental Health (Criminal Procedure) Act to hold a special hearing. These provisions were considered by the Court of Criminal Appeal in R v Svonaric [2001] 54 NSWLR 1. In that case Spigelman CJ and Sully J were in agreement that it was permissible, although not desirable, in such a hearing, for the substantive evidence in those criminal proceedings to be given by means of witness statements (Adams J did not agree with the Chief Justice and Sully J on this point). The Court did, in the ultimate, consider that an error had been made by the trial judge but the availability of such a procedure, in a special hearing, was found to exist.

45 The Crown in its submissions made the point that, by way of contrast with the present legislation, the express purpose for holding a special hearing, (as well as the use of the phrase (in s 19(2) of the Mental Health (Criminal Procedure) Act) “prove to the requisite criminal standard of proof”), reflect a clear intention on the part of the New South Wales Parliament. This is that, subject to the provisions of the Evidence Act, formal trial procedures should generally apply to a special hearing. The Crown made the point, correctly in my view, that the Commonwealth legislation contains no equivalent provision in relation to the consequent procedure where unfitness is found. That is to say, the Commonwealth legislation does not, in any sense, indicate the presence of a similar parliamentary intention. Indeed, the Commonwealth procedure involves no higher level of determination other than whether there is a prima facie case. This finding, again by way of contrast with the New South Wales legislation, is not expressed to be for the purpose of ensuring an acquittal “unless the Crown case can be proven beyond reasonable doubt”.

46 As I say, I think there is a considerable degree of force in the Crown submission. But, in the ultimate, I prefer to base my decision on the clear language of s 20B of the Commonwealth Crimes Act, and on the clear nature of the task entrusted to the Court in this second stage of the process.

47 As to Mr Pickin’s third point, I agree that the Court cannot, and should not, substitute the Magistrate’s committal decision for its own. The Court is required to perform the task set for it in s 20B(3) and it must do this. I fail to see however, why the Court cannot take into account the material relied upon by the committing Magistrate; and cannot take into account the basis on which the Magistrate has made a committal order. This seems to me to be permissible as a matter of commonsense and also because of the language of s 20B(7)(c). It would be wrong for the Court simply to rubber stamp the decision of the committing Magistrate. Equally, it would be an affront to commonsense to ignore the fact that a lengthy and extensive committal hearing has been held and that at the end of it, without demur by the defence as to jurisdiction or any other matter, the Magistrate made a committal order. It may be properly assumed that the Magistrate, prior to making a committal order, was satisfied that a prima facie case existed against the accused as well as against the other men. Indeed, as I understand it, no submission was made to the effect that a prima facie case had not been established.

48 I should also repeat that the suggestion that the committal proceedings may have been void or a nullity is a matter that was raised in separate argument in earlier proceedings before me. I gave a decision about this matter on 19 March 2008. The apparent question mark over the committal proceedings has, as I remarked earlier, been dispelled by the subsequent decision of the Court of Criminal Appeal.

49 Overall, it seems to me that it cannot remotely be said that the determination of the prima facie case issue is, in any sense, a trial of the accused for the offence charged. Nor can it be said to be a committal procedure. For that reason, it does not seem to me that the Crown must bring forward “evidence” to establish a prima facie case, as if a trial were in progress.

50 What has to be shown is that there is evidence that would provide sufficient grounds to put the person on trial in relation to the offence. It is the capacity of that evidence to do so that is in issue. The Court has a broad power to seek any other evidence, whether oral or in writing, as it considers likely to assist in determining the matter, that is, the issue as to whether a prima facie case has been established; and whether, even if there be a prima facie case, the charge should be dismissed. For all these reasons, I consider that the preliminary argument should be resolved in favour of the Crown.

The test for a prima facie case

51 As I have said, the task facing the Court during this second stage process is to determine whether a prima facie case has been established against the accused. This is similar to the question, which sometimes arises during trial at the close of the Crown case. In that situation, the accused may ask the trial Judge to direct the jury to acquit on all or any of the counts in the indictment on the basis that there is no prima facie case. Whether there is a prima facie case is a question of law and the question is whether there is sufficient evidence upon which the accused may be convicted (May v O'Sullivan (1955) 92 CLR 654; (1955) ALR 671; Zanetti v Hill (1962) 108 CLR 433; (1963) ALR 165), that is whether there is evidence capable of proving each of the elements of the offence beyond reasonable doubt.

52 A verdict of not guilty can only be directed if there is a defect in the evidence such that, taken at its highest, it will not sustain a verdict of guilty: Doney v R (1990) 171 CLR 207; 96 ALR 539. Where the Crown case is a circumstantial one, the trial Judge is to decide the question on the basis of such inferences that are reasonably open as are most favourable to the Crown and should not choose between the available inferences or direct an acquittal on the basis that other reasonable inferences are open: R v JMR (1991) 57 A Crim R 39. As to the position at committal; see Gleeson CJ in Saffron v DPP at 401 (E-G).

53 These principles appear to me to be generally applicable to the nature of the determination, which I have to make in the present matter. Of course, there is a difference in the fact that a verdict by direction is determined without the accused deciding whether to call evidence. Here, s 20B(7) enables the accused to give evidence or make an unsworn statement if he or she wishes to do so. Similarly, the accused may raise a defence that could properly be raised if the proceedings were a trial for that offence.

54 These extensions to the accused's entitlements, and to the Court's obligations sit, as I have said, somewhat oddly with the concept of a determination of a prima facie case. Indeed, they may be equally thought to sit oddly with the position of an accused who has been found unfit. But, nevertheless, they may be thought to have scope and meaning, particularly in relation to s 20BA(2). That, of course, is not their only function and I do not intend to limit the accused's entitlement in that way in this application.

The material relied on by the Crown

55 Essentially, the Crown has placed before the Court the prosecution brief of evidence; and the Crown case statement.

56 From all this, a narrative of the Crown evidence may be pieced together. It is a detailed narrative and I shall take some little time to set it out, albeit in summary form. It is not intended to be by any means exhaustive. This will entail an examination of the activities of the accused himself; his activities in association with his alleged co-conspirators; his activities in connection with persons beyond those who are alleged to be co-conspirators; and there will, in addition, be reference to actions alleged by the Crown to have been taken by the co-conspirators in the absence of the accused but in furtherance of the objects of the conspiracy. In addition, there will be a brief summary of some of the instructional and other material accessed by the accused and his alleged co-conspirators on his and their computers; or otherwise located at their premises. It will be convenient to list some of these last mentioned matters at the outset. Throughout this section – the analysis of the evidence – I shall call the accused “Sharrouf” to distinguish him from the other men charged with the same offence.

Analysis of the evidence

(a)

Possession of bomb making recipes and other material relating to terrorist activity

57 This section is taken from the Crown case Statement. It is however, supported by evidence and statements in the Crown brief. The following are examples of the nature of the instructional material accessed by the alleged conspirators and/or located at their premises.

58 On 8 July 2004, a computer which was located at the premises of Khaled CHEIKHO accessed and downloaded from a website 3 documents in Arabic, as follows:

(a) a 1 page document showing Osama Bin LADEN and containing links to “military lessons, Jihad websites, Jihad chat rooms, scholars of Jihad and news”;

(b) a 1 page document containing “a few advices” inciting Muslims to engage in Jihad; and

(c) a 12 page document in Arabic containing instructions on various types of explosives (including the speed, force, ferocity and sensitivity of explosives), how to construct a detonator and manufacture improvised explosives from commonly available products.

59 On 27 June 2005, during the execution of a search warrant upon ELOMAR’S vehicle and premises, the authorities seized 4 boxes of compressed hexamine and a USB memory stick which contained a 60 page document in Arabic entitled “The Illustrated Encyclopaedia of Abdullah Zul Bajadin – Part Two”. The document is in the form of a series of written lessons, accompanied by photographic illustrations of matters relating to the text and contains a session in the form of “Questions and answers”. The document contains step-by-step instructions on the manufacture of a series of chemical mixtures/specific explosives and detonating devices. It includes details and advice on: how to source ingredients or precursors, on chemical properties, on how to extract, prepare, store, dispose of and use the explosives described. It provides alternate ingredients and advises how these may be sourced from non-laboratory/scientific sources, such as chemist shops. The document outlines information about car bombs, with reference to “the Riyadh explosions” and “explosions in Bagdad”, and includes material from “one of the Jihadist Encyclopaedias” concerning placement of explosive devices and selection of targets for car bombs.

60 The document appears to be directed to a terrorist audience. For example, the writer asks:

“What exactly are you thinking of: an embassy a complex, terrorising? State what is your mind and hopefully I will try to answer it. As for now I am giving a general illustration as the specified target determines everything from directing the detonators to the amount required…”.

61 The document contains instructions for the manufacture of Tri-Acetone Tri-Peroxide (“TATP”) using various commercially available items, including hydrogen peroxide, sulphuric acid and acetone. The instructions and images relating to the manufacture of TATP found in this document were consistent with items obtained, or attempted to be obtained, by a number of the accused. The process of manufacturing TATP requires various chemicals to be cooled continuously while mixing. TATP must also be kept cool after manufacture. By relying on the recipe contained in the “The Illustrated Encyclopaedia of Abdullah Zul Bajadin – Part Two” and only using the chemicals and equipment sourced (or attempted to be sourced) by the accused, TATP could be manufactured.

62 On 27 June 2005 also located during the execution of the search warrant on ELOMAR’S premises was a CD containing a 1,064 page document in Arabic. Moustafa CHEIKHO’s fingerprints were on the CD cover. The document is entitled “Security and Intelligence”. The document contains chapters including, “Security and Islam”, “Sabotage and Counter Espionage”, “Surveillance”, “Audio and Visual Taping”, “The Hierarchy of the Security Department of a Jihad Organisation”, “Secret Communication”, “Topography” and “The Primary Rules of Sabotage”. Again this document contains instructions relating to the manufacture and detonating of various improvised explosive devices. As with the previous document, it contains step-by-step instructions on how to manufacture explosives from commercially available products, with details and advice on how to source the ingredients, extract and prepare them for use. The requirements specify the use of beakers, thermometers, pipettes, etc. One of the types of explosive devices in these instruction is TATP. This document also provides instructions on how to manufacture Hexamethylene triperoxide diamine (“HMTD”) using various commercially available items including hexamine, hydrogen peroxide and citric acid.

63 Both TATP and HMTD are highly sensitive explosives, which are relatively simple to manufacture, and specialist equipment, knowledge or experience is not required to do so. Following the instructions provided in these documents a person is capable of manufacturing both TATP and HMTD. Both TATP and HMTD could be manufactured using only the chemicals and equipment obtained or attempted to be obtained by the accused.

64 On 27 July 2005 and on 12 August 2005, ELOMAR’S niece Oula AWAD asked the authorities to return various items, including the USB drive (the item containing The Illustrated Encyclopaedia of Abdullah Zul Bajadin – Part Two). She said: “...and I really importantly need that memory card, I really need it, there is like um, my uncle has got stuff on it, drawing and that he has to submit it to people, that’s work for him”. The USB drive (which still contained The Illustrated Encyclopaedia of Abdullah Zul Bajadin – Part Two) was returned to ELOMAR on 19 August 2005. Upon the execution of a further search warrant at ELOMAR’S premises on 8 November 2005, the USB drive was seized again. Analysis of the USB drive showed that The Illustrated Encyclopaedia of Abdullah Zul Bajadin – Part Two had been removed on 19 August 2005. This was the only item deleted from the USB drive.

65 There is evidence from a Forensic Chemist that:

(a) the type of explosives capable of being produced from the chemicals obtained, or attempted to be obtained, by the accused fall into the category of “ primary high explosives ”;

66 The above documents are illustrations of very large number of instructions/documents/manuals, which were located in the possession of the accused. Such instructional material covered topics, which included the production and use of explosives, firearms and covert methods to thwart detection by the authorities, and dealing with the authorities in the event of detection or arrest. Where such instructional material was found on an accused’s computer or computers, invariably material of an extremist nature was also found on that computer or computers. Other examples of such instructional material include the following:

(a) A document showing a diagram of an electrical circuit involving a mobile phone and explosive material was found on Moustafa CHEIKHO’S computer. This document was obtained through a Jihadi forum website which invites the reader to have a look at a way to explode objects by using an Ohmmeter and a mobile telephone.

(b) A document providing specific instructions on how to make the following explosive devices: Molotov cocktails, eagle fireballs, eagle cocktails, towed charge, pole charge, and satchel charge. This document was found on HASAN’S computer. In order to construct some of these devices, the document states that it is necessary to know how to prime charges electrically and non-electrically.

(c) A document providing information on how to construct an M14 Antipersonnel Mine was found on HASAN’S computer.

(d) Document identifying the 11 steps required to prepare a non-electric firing system was found on HASAN’S computer. This document refers to the non electric firing system in the context of demolition work such as breaching minefields, breaching wire obstacles, clearing landing zones, blowing holes in walls of buildings and blowing down trees to create obstacles.

(e) A number of documents relating to surveillance tactics was found at Khaled CHEIKHO’S premises. This included a book entitled: “The Layman’s Guide to Electronic Eavesdropping: how it’s done and simple ways to prevent it” by Tom Larsen. [This book was also located at Moustafa CHEIKHO’S premises];

(f) A video containing instructions on how to build and detonate a remote anti-personnel explosive device was found at Sharrouf’s premises.

(g) Material in the form of a number of “lessons”, apparently for the training of someone to join the “military organisation” of an Islamic group to undertake militant Jihad. The lessons covered topics such as “Training”, “Weapons: measures related to buying and transporting them”, “Special Tactical Operations” (which include “assassinations, bombing and demolition”), and “Kidnapping and Assassinations Using Rifles and Pistols” (with detailed instructions on the use of various firearms), “Interrogation and investigation at prison and detention centres”. This material was found at Sharrouf’s premises stapled inside the cover of a booklet entitled “Choice Islamic Stories” [for children] distributed by the Islamic Welfare Centre, which appeared to have replaced the original contents of the booklet. [Khaled CHEIKHO’S fingerprints were located on several pages of the document.]

(h) A VHS Cassette Tape entitled “Sheikh Osama’s Training Course” and a document entitled “Lessons by Al-Qaeda and Taliban in the art of hitting and frightening the Americans” was found on a computer at TOUMA’s premises.

(i) Audio and video files displaying the beheading and execution of Westerners and other captives, attacks on the forces of the United States of America (US) and the Coalition in Iraq, images and desecration of dead soldiers, bombings of buildings and vehicles with Islamic chants and cheers and images of deceased martyrs found at MULAHALILOVIC’S premises. Other items found included songs and speeches urging Muslims to engage in militant Jihad including the killing of “disbelievers”; “Treaties in getting prepared for Jihad” and audio files which include discussing the manufacture and detonation of car bombs.

(j) Military documents relating to sniper training were found on JAMAL’S computer. A number of documents relating to sniper weapons and training, and images of snipers were located on HASAN’S computer.

(k) A number of training documents on topics including the manufacture of silencers for firearms, making grenades and mines, “electronics, explosives and poisons” and “explosives engineering” were found on a thumb drive located at the premises of ELOMAR.

(l) An instructional article relating to the kidnapping of nationals of a “hostile country” as part of Jihad was found on BALADJAM’S computer. A number of other documents relating to sniper weapons, physical training and survival skills in the context of military operations were also found.

67 There is evidence that the alleged conspirators shared extremist/instructional material. A number of them had the same items.

Analysis of the evidence and the Crown case statement

(b)

Activities of the accused men “in furtherance of the conspiracy

68 I propose to summarise a number of alleged details of the accuseds’ activities. These are actions or words alleged by the Crown to be relevant to the existence of the conspiracy or in furtherance of the conspiracy. The summary, once again, is not intended to be exhaustive. There are a number of unresolved arguments relating to these issues in which the defence and Crown submissions have not been completed. There are others where argument has not been heard. In addition, the determination as to whether actions are capable of being regarded as acts done in furtherance of the conspiracy awaits decision at a later time. For those reasons, reference to any of those matters in the following summary is not to be taken as an acceptance or rejection of the unresolved arguments. Nor is it a determination of the question as to whether the acts were done in furtherance of the conspiracy. Indeed, this is not a fact-finding exercise at all. For that reason the following narrative is not intended to reflect any factual findings as to the activities of the various accused. It is not intended to reflect any view of the evidence. All the accused have, as does Sharrouf, the presumption of innocence is their favour. The present exercise is confined to an examination of the statements and evidence in the Crown brief, against the background of the Crown Case Statement, to identify the evidence capable of establishing a prima facie case against Sharrouf. I have placed the evidence into narrative form to make this part of the decision manageable and intelligible.

69 I turn now to set out in summary form a broadly chronological narrative. The starting point is the alleged activity of one of the co-conspirators, Moustafa Cheikho in attending a Lashkar-e-Taiba (LeT) training camp in Pakistan in September and October 2001. The Crown case is that this gentleman underwent physical, religious and firearm training as part of the preparation for undertaking jihad. LeT was proclaimed as a terrorist organisation for the purposes of the Criminal Code Act on 8 November 2003. This evidence is admissible only against Moustafa Cheikho. It is not admissible against Sharrouf.

70 I move now to approximately the middle of 2004. The narrative begins in this year with purchases by Abdul Rakib Hasan (Hasan) of large quantities of camping equipment. Apparently he told those at the shop that he was buying for a youth group and he gave his name as “Rick”. Hasan also purchased maps covering various areas within two to three hours drive from Sydney using an expired membership card with a post office address at Lakemba. In July 2004 Hasan and another person made inquiries at Dick Smith Electronics at Bankstown. The inquiries were about the purchase of CB radio scanners and about night vision equipment.

71 On 9 August 2004 Khaled Cheikho was overheard during a telephone conversation talking about glycerine and information he had been told by his nephew. (Material downloaded from his computer included instructions for preparing the explosive nitro glycerine.)

72 (Much later, in September 2005, an order for 20 litres of glycerine was to be placed by Jamal with Chemical Cleaning Solutions).

73 In August 2004 there commenced negotiations and conversations with Haines Educational Pty Limited, a secondary school science supplier based in Victoria. Hasan's wife asked for one of the company’s catalogues and gave a post office address in Lakemba. The catalogue included laboratory equipment (instructions for the manufacture of improvised explosive devices were accessed by various of the accused, including the use of laboratory equipment).

74 Later, on 23 February 2005, Sharrouf, in the company of others, discussed ordering laboratory equipment from Haines. In fact, an order was placed with the company on 2 June 2005. The order was sent by fax from Sayers Road Pharmacy at Hoppers Crossing, Victoria. This pharmacy was located a short distance from the premises of one Joud, allegedly an associate of the conspirators, although not one of them. The order was in the name of "Peter Dravjic". The fax was typed and contained an order for 55 different types of items. The items would have cost over $2,900.

75 On 22 June 2005 a handwritten list of these items, with the Haines code numbers and quantities required, was found at Joud's premises during the execution of a search warrant. The contents of the list correlated with discussions that had previously occurred between Hasan, Elomar, Sharrouf, Joud, and one Benbrika as to what items were to be ordered and the quantities of those items. The document was in the handwriting of Elomar. Hasan's and Joud's fingerprints were found on the document. There was also written reference to “Adam George” and to a mobile telephone in the false name “Adam Sharp”.

76 There was a later follow-up call in relation to the Haines order from a male who gave a telephone number. This phone had been activated on 14 June 2005 in a false name “Anfony Commito”. The receipt for this telephone was later located at Hasan's premises on 27 June 2005. On 15 June 2005, the sales attendant from Haines attempted to contact the number without success. The order was never filled.

77 On 17 September 2004 an earlier search warrant had been executed at Joud's residence in Victoria. Among other things found there were instructions on the manufacture of IEDs, firearms and other weapons. There were also instructions on the storage of weapons and ammunition using PVC pipes and their being sealed with PVC cement.

78 On 21 October 2004 there was a telephone conversation between Sharrouf and another person. They were discussing a television program on terrorism. Sharrouf said "Let the people accept that we're this, but we're doing it for a proper cause, you know".

79 On the weekend commencing 5 December 2004 Joud and two other men from Melbourne travelled to Sydney. The next day Benbrika travelled to Sydney. Some of the men attended a barbecue at Sharrouf’s house on 5 December and on the next day, after visiting a camping store, all of the men spent the afternoon at his home. Hasan was also present.

80 On 29 December 2004 there was a telephone conversation between Moustafa Cheikho and Sharrouf relating to the former downloading “about a thousand lessons” from a website associated with an imprisoned Cleric Abu Hamza.

81 On 10 January 2005 arrangements were made for one of the Melbourne men to book Sharrouf's travel from Sydney to Melbourne. Later that day Sharrouf flew to Melbourne, using a false name. The trip was paid for with a credit card in the name of Tannous.

82 Sharrouf then visited Benbrika at his residence. Their conversations were captured by listening device. The conversations were, the Crown said, of an extremist nature.

83 On the next day there was a conversation between Sharrouf and Hasan, during which the former indicated an awareness of the possibility of ASIO intercepting their conversations.

84 On 27 January 2005 Elomar purchased a considerable amount of ammunition from the Horsley Park Gun Shop. He gave a telephone number that ultimately was not able to be contacted. Elomar attended this shop on a number of occasions over the next few months. He purchased at least two rifles. He always paid cash.

85 On 23 February 2005 Hasan and Sharrouf drove down to Melbourne to visit Benbrika. Joud was there as well. Their discussions included CDs and books dealing with martyrdom operations and “a guide for the mujahideen”. A listening device picked up Benbrika saying:

“Everyone has to prepare himself. Or to die or to be gaoled...but we have to be careful. If we want to die for jihad, we do maximum damage. Damage their buildings with everything and damage their lives just to show them that's what we're waiting for. You be careful. Trust no-one."

86 It was during this meeting that there was further discussion about the purchase of laboratory equipment from Haines. Sharrouf returned to Sydney that night.

87 On 27 February 2005 there was a telephone call by Hasan to Benbrika. This was from a public telephone in Sydney. Later Benbrika told Joud to "leave him out of it from now on".

88 A telephone service had been activated on the previous day, 26 February 2005, in the false name of Eviki Soto - 64 Liverpool Street, Liverpool. (This telephone was later used to book a camping trip at Curranyalpa). The handset used with this mobile telephone was located at Jamal's premises during the execution of a search warrant on 9 December 2005. Another mobile telephone number, 0410-735-241, was stored in the memory of the first mobile under the name "George". That second telephone number had been activated on 28 September 2005 using the false name of "George Markis". This telephone was to be used by Hasan and Jamal on later occasions.

89 There was another mobile telephone 0401-089-268. This was connected in the false name "Adam Sharp". This telephone was also used by Hasan later and the number was handwritten on the back of the "Haines list" located at Joud's premises.

90 On 28 February 2005 there was a meeting at Touma's house attended by Sharrouf, Hasan and Sharrouf's brother. They also met later that evening.

91 On 2 March 2005 there was a conversation between Sharrouf and Touma, during which Touma indicated his reluctance to talk over the telephone.

92 On 3 March 2005 there was a night meeting organised between Sharrouf and Touma.

93 On 5 March 2005 Touma, while speaking to Jamal on the telephone, indicated that he had just found a tracking device under his van. Touma later arranged to meet with Sharrouf and Khaled Cheikho. He also made a call to his wife, in which he discussed the item he had found under his van. He asked his wife whether she had been followed home that day.

94 On two occasions, (16 to 18 March 2005; and 12 to 14 April 2005) various of the accused, and three Melbourne men, attended shooting and camping trips. Both camps were in remote locations. They were booked under a false name, were booked using mobile telephones obtained in a false name and the participants, despite requests to do so, failed to complete the necessary paperwork. The Crown case is that, it may be inferred, that these camping trips were part of “training” being undertaken by Sharrouf and his co-conspirators in preparation for undertaking jihad.

95 The first camp occurred as I have said, between 16 and 18 March 2005. A few days earlier a number of calls had been made from two mobiles to Inland Hunting Properties. The first mobile number had been connected on 31 January 2005 in the false name of Mark Johnson. The second mobile telephone was the mobile connected in the false name of Eviki Soto.

96 On 14 March 2005 a rural property, Curranyalpa, 56 kilometres south of Louth and 140 kilometres southwest of Bourke was booked. The bookings were made under the false name of Adam Georges. The person who identified himself by this name said that he wanted to take his father and uncles fishing and that he was the only hunter in the group. (Moustafa Cheikho had used the name Adam Georges when connecting a landline telephone. This name was also handwritten on the Haines order list located at Joud's premises on 22 June 2005. Moustafa Cheikho used the name “George” when making certain inquiries with Soul Pattinson Pharmacy in Menai on 9 June 2005.)

97 On 14 March three of the Melbourne group travelled by car to Sydney. They stayed at a hotel at Casula.

98 On 15 March a receipt for the deposit paid for the country trip was faxed to Inland Hunting Properties. The deposit slip in the name "A Georges" had Khaled Cheikho's fingerprint on it.

99 During the evening of 15 March 2005 Sharrouf, Hasan, Khaled Cheikho and the three Melbourne men left Sydney and travelled in convoy to the country property. It appears that Elomar was there as well, as DNA of his was located on a drink can found buried at the camp site. Cartridges located at the camp site were fired using a weapon located at Elomar's premises during the execution of a search warrant.

100 On 20 March 2005 police attended the camp site at Curranyalpa and seized a number of items, including spent cartridges, bullets, a battery and sparkplugs which had been burnt, and a number of empty drink cans, food wrappings, et cetera. There was evidence to suggest that a number of bullets had been fired at various tree trunks.

101 On 24 March there were conversations between Touma and Baladjam, apparently of an extremist nature.

102 On 1 April 2005 there was a telephone conversation between Sharrouf and Moustafa Cheikho, during which they discussed burning CDs, which depicted "slaughtering" in Iraq. Later that day there was a further telephone conversation, during which Cheikho warned Sharrouf not to drive because "There are pigs outside. I saw them now."

103 Between 5 April 2005 and 3 June 2005 there were an extensive number of telephone calls between Touma and George Lord arranging for Touma to purchase a large amount of ammunition. I will not attempt to summarise the details of these telephone conversations. There were also conversations between Touma and Lord relating to the making of a device, which would cause an explosion. See, for example, a telephone call on 9 April 2005.

104 During this same period, there were meetings between Touma and a number of the other alleged co-conspirators. Sharrouf, for example, invited Touma to attend a family celebration on 11 April and various of the men met that day at 34 Kent Street.

105 On 25 April 2005 Touma made inquiries about copper pipes used on building sites. Touma made these inquiries stating that he was on a job site and needed the information for this purpose. (During the later execution of a search warrant at Touma's premises on 8 November 2005 four lengths of copper pipe (three with one end crimped - closed) were located.) Also located was a plastic box with two bottles with gunpowder inside. There were 13 rounds of ammunition cut in half and the gunpowder removed; (see also a document in Arabic on CD found at Elomar's premises on 27 June 2005 containing details for an explosive pipe filled with gunpowder and other materials).

106 On 2 June 2005 there were discussions between Touma and Khaled Cheikho and later a discussion between Sharrouf and Touma.

107 On 3 June 2005 Touma made final arrangements to collect the ammunition from Lord. Baladjam and Touma went to Lord's house and loaded boxes of ammunition into Touma's van. The house was at 95 Griffiths Street, Punchbowl. A short time later Touma and Baladjam abruptly drove off in Baladjam's vehicle, leaving the ammunition van parked outside Lord's premises. There was a further telephone conversation between Touma and Lord relating to the number of boxes that had been available for collection.

108 On 3 June 2005, at approximately 1.30pm, police approached Touma's van outside the Punchbowl address. They found fifteen boxes of ammunition containing 7,500 rounds of 7.62 x 39 mm calibre ammunition. This type of ammunition is used in SKS or AK-47 type semiautomatic weapons.

109 Police interviewed Touma on 15 June 2005 in relation to the ammunition. He claimed he was simply holding it on Lord's behalf for a short period of time because Lord was locked out of his house. In the afternoon, after the ammunition had been found, Touma called Khaled Cheikho.

110 (There is evidence that others of the alleged conspirators attempted to purchase ammunition. For example, Baladjam attempted to purchase 20,000 rounds of the same type of ammunition from the Condell Park Gun Shop in late July 2005. Earlier, in January 2005, Elomar had attempted to purchase 10,000 rounds of ammunition from the Horsley Park Gun Shop. In fact, on 27 June 2005, during the execution of a search warrant at Elomar's premises, 12,000 rounds of the same type of ammunition was located. There was other ammunition there as well.)

111 I have moved somewhat away from the chronological narrative. I shall now return to it. There was a second camping trip that took place between 12 and 14 April 2005 at a property named Mulga Creek Station. This was located approximately 70 kilometres southeast of Bourke.

112 On 6 April 2005, there had been a telephone call to Inland Hunting Properties from a person identifying himself as "Andrew Scott". He provided the contact details of 56 Marion Street, Georges Hall; mobile telephone number 0423-203-794. (This mobile had been connected on 1 April 2005 in the false name of Andrew Scott). The address did not exist. The handset used to contact the booking company was the same handset used in the booking of Curranyalpa. That handset was also used with a telephone number activated in another false name (Tom Clincley) used by Khaled Cheikho in communications with Elomar.

113 "Andrew Scott" stated that he wanted to camp on the property and that there would be four people going. On 7 April 2005 a deposit of $95 was paid for the booking at the Bankstown branch of the Commonwealth Bank. The signature on the deposit slip was "A. Scott". Under the name for the account holder was written "M. Chi", which was crossed out and the name of the account holder entered. The deposit slip had Moustafa Cheikho's fingerprint on it.

114 On 12 April two four wheel drive vehicles arrived at Mulga Creek Station. It appears that Hasan, Touma, Elomar and the two Cheikhos attended. It does not appear that Sharrouf was in attendance on this trip. The owner of the property and another man spoke to the group that day. One of the campers introduced himself to the owner, Mr Fairey as "Andrew Scott" and did most of the talking. He was later identified as Khaled Cheikho.

115 At the conclusion of the camping trip police examined the camp site at Mulga Creek and found a number of fired cartridges and other items. (The .308 rifle located during the execution of a search warrant on Elomar's premises on 27 June 2005 matched shell casing - spent cartridges located at both Curranyalpa and Mulga Creek.)

116 On 4 May 2005 Sharrouf, Hasan and Elomar travelled to Melbourne and later attended Benbrika's residence on a number of occasions before departing for Sydney on 5 May 2005. There was further discussion about the ordering of laboratory equipment from Haines during these visits. In particular, there was a discussion between Hasan and Elomar about the items they needed to order. The discussions were consistent with an item found on the list at Joud's house on 22 June 2005.

117 On 8 May 2005 Sharrouf, Khaled Cheikho, Hasan and another person had a conversation of an extremist nature while in a motor vehicle.

118 On 15 May 2005 Hasan telephoned a person he knew from a halal butchery at Lakemba and asked him about the possibility of hiring a place to go for hunting. This telephone call was made on the “Adam Sharp” telephone, which had been activated on 2 April 2005.

119 On 26 May 2005 there was a telephone conversation between Sharrouf and another man, during which they discussed CDs, including one, which dealt with the detonation of an explosive in a car.

120 On 9 June 2005 Moustafa Cheikho, using the name "George", ordered 24x400 ml bottles of six percent hydrogen peroxide solution from a Soul Pattinson pharmacy in Menai. He provided a mobile number, which had been connected two days earlier. A $10 deposit was left and on 13 June 2005 a man collected the order. He was, in general terms, partially identified as Moustafa Cheikho by the person who had served the customer. The balance of the purchase money was paid in cash.

121 (On 18 August 2005 New South Wales Police seized 24x400 ml bottles of six percent hydrogen peroxide solution stored on public land directly behind the residence of Sharrouf. The hydrogen peroxide was on the dirt embankment directly behind the fence. There were two boxes. The bottles found there were of the same number, size and brand as those that had been purchased from the Soul Pattinson pharmacy at Menai and collected by Moustafa Cheikho on 13 June 2005.)

(3) a conversation at Benbrika’s premises on 23 February 2005 regarding the order to be placed with Haines;
(4) a conversation with Moustafa Cheikho on 1 April 2005 which included the following:

KS Bring some empty CDs, just so I can burn em, the slaughtering

MC the Iraqi ones

KS hey yeah, have ya got the Iraqi one

MC I’ve got em everywhere

KS No, alright – I’ve got em all on, its one CD

(5) a conversation on 4 May 2005 with Benbrika about the Haines order;

(6) a conversation on 27 June 2005 between the accused and Joud in which they discussed the fact that “brothers had been raided” in both Sydney and Melbourne;

(7) a conversation on 20 July 2005 between Sharrouf and Joud during which the accused told Joud that he did not wish to make mention of a “brother” on the telephone;

(8) a conversation on 27 July 2005 between the accused and Benbrika in which they discussed the necessity to attack people;
(9) a conversation on 5 August 2005 between the accused and Adam Houda, Solicitor in the course of which, in relation to an interview with Benbrika which had been aired on television on the previous day, the Accused said:

“I mean, this is something, Almighty God he said this in the Qu’ran ….. if people see this as trouble they might as well leave Islam, go to Christianity, go to Judaism ….. this is from God’s word”.

(It is noted that in the course of the interview, Benbrika had spoken about (inter alia) jihad and Osama Bin Laden).

(10) a conversation on 5 August 2005 between the accused and his brother in which they discussed the acquisition of “magazines” (on the Crown case, a reference to ammunition);
(11) a conversation on 5 August 2005 between the accused and Touma in which the accused in the course of which, in the context of a conversation about the deployment of Australian troops to East Timor, the Philippines, Afghanistan and Israel, the accused stated:

“Forget Australian law, Australian law get stuffed, finish; give us all back our passports and we’ll leave; I swear to God I will be the first one to get out of this stuffed up country; Sons of dogs, listen here I swear I rather be locked up and tortured and everything in a Muslim country rather than be locked up one day in this country”.

(12) a conversation on 22 August 2005 between the accused and Joud in which Sharrouf sought the return of his videos because “a lot of brothers want to watch them” . Joud made reference to this being for “educational purposes” .

(13) a conversation on 28 August 2005 between the accused and Atik in which the Accused spoke of having recently been raided by ASIO, telling Atik “I will tell you when I see you, God willing” ;
(14) an attempted call on 9 September 2005 from Sharrouf accused to Hasan when, whilst waiting for the telephone to be answered, the accused said:

“they are on the internet; everyone is on the internet ….. yeah, download from the internet …. Where can I get like Mujahideen pictures and all that …..”

(15) a conversation on 15 September 2005 between Sharrouf and Moustafa Cheikho in which they discussed downloading material from the Internet. The Accused said in the course of that conversation:

“….. because I need to do something on the Internet – I need to print some books out – I’ve been dying to do it man. ….. Remember the sayings – about disbelief – Abu Bakr he called the ones that doesn’t pray and that eh, infidel ….. just press Hadith software – and it comes up – you get the call to prayer – Qu’ran – I downloaded Qur’an and all the books of sayings…….”

236 Finally, the Crown relied upon the body of evidence as to surveillance to establish "association" between the accused, his alleged co-conspirators and others. There is no need for me to do other than to mention this material. I have scrutinised it in a general way to satisfy myself that there is a high level of association.

Has a prima facie case been established that the accused committed the offence charged in the indictment?

237 It is appropriate at the outset to note that Mr Brewer did not submit that it would not be open to find that the evidence I have specifically identified had the capacity to establish a prima facie case against his client. Mr Pickin, who had addressed on the preliminary point identified at an earlier stage in this judgment, adhered to his argument that the Commonwealth legislation posed a higher threshold than the establishment of a mere prima facie case. Mr Pickin also agreed, however, that it would be open to the Court to find, even against the higher threshold claimed by him to exist, that a prima facie case, in the terms of the section, had been established.

238 I should also note that I was informed the accused did not wish to make a statement, to give evidence, or raise a defence. It will be recalled that these were matters of entitlement provided for in s 20B(7) of the Crimes Act.

239 At the commencement of this judgment, I set out the nature of the charge brought against the accused. The accused stands charged upon an indictment on a single count as follows:

“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)."

240 In order to prove the charge against the accused, the Crown must prove beyond reasonable doubt that he:

(a) Entered into the agreement alleged by the Crown with one or more other persons (physical element);

(b) did so intentionally (fault element) and the Crown must further prove that:

(c) the accused and at least one other party to the agreement must have intended that an offence would be committed pursuant to the agreement (intention required by s 11.5(b) of the Criminal Code Act 1995 ); and

Criminal Code Act

1995

241 Under the Criminal Code Act, a terrorist act is an act which possesses certain identified characteristics and which does not have certain other identified characteristics.

242 At the outset, a terrorist act is an act of such a character that it is to be done with the intention of advancing a political, religious or ideological cause; and is to be done with the intention of coercing or influencing by intimidation governments, or intimidating the public or a section of the public.

243 The identified characteristics that a terrorist act must have are that it must be an act that:

· causes serious harm, that is physical harm to a person; or

· causes serious damage to property; or

· causes a person's death; or

· endangers a person's life, other than the life of the person taking the action; or

· creates a serious risk to the health or safety of the public or a section of the public.

244 The identified characteristics which a terrorist act must not have is that the action cannot be characterised as advocacy, protest, dissent or industrial action.

245 The agreement alleged by the Crown here, as I have said, is an agreement between the accused and the other alleged co-conspirators to do acts in preparation for a terrorist act or acts.

246 Generally, the Crown case is that the accused and the other men, in accordance with the holding of certain common extremist religious beliefs, entered into an agreement to obtain the capacity or capability to do acts in preparation for a terrorist act or terrorist acts. In furtherance of the agreement, the Crown case is that various of the accused, amongst other things:

(a) obtained or attempted to obtain chemicals and other relevant materials which could be used, directly and/or indirectly in the construction of an explosive device;

(b) obtained or attempted to obtain weaponry and/or ammunition;

(c) possessed large amounts of extremist and instructional material.

247 I accept that the material I have identified (together with the evidence of the acts of the other co-conspirators) is capable of establishing a prima facie case against the accused. I find that a prima facie case that the accused committed the subject offence has been established. In this regard, the evidence has the capacity to provide sufficient grounds to put the accused on trial in relation to the offence. I should make it clear that this finding expresses no view, one way or other, as to the guilt or innocence of the accused. He remains entitled, in every respect, to the presumption of innocence.

The determination of fitness within twelve months

248 The third stage process arises if a prima facie case has been established and the Court does not otherwise determine that the charge should be dismissed. I have already found that a prima facie case has been established. I determine, however, that the charge should not be dismissed.

249 In relation to this latter determination it cannot be said that the offence is of a trivial nature. The charge is a very serious one, as I indicated at the outset. No submission has been made to me relating to any matter arising under s 20BA(2) that would warrant a dismissal of the charge. Of course, I have found that the accused is suffering from schizophrenia and that this condition presently renders him unfit for trial. It does not warrant, however, the charge being dismissed. Nor is there any other reason why that course should be followed.

250 The legislation then requires the Court to determine whether, on the balance of probabilities, the accused will become fit to be tried within the period of twelve months from today's date. The Court is prohibited from making a finding of this kind, unless the Court has obtained and considered written or oral evidence from a duly qualified psychiatrist and one other duly qualified medical practitioner. In the present matter the Court has the benefit of the views of two experienced and highly qualified psychiatrists. Their evidence focuses upon the issue to be determined under s 20BA(4) of the Crimes Act (Cth) 1914.

251 It is clear that Dr Nielssen believes that the accused's condition is generally amenable to treatment; and that there is a reasonable prospect that if he were to receive appropriate treatment he would become fit for trial within twelve months. Dr Westmore was, in one sense, a little more guarded. He was asked specifically his opinion regarding the likely effect of appropriate treatment on the accused's mental health situation. Dr Westmore wrote:

“Assuming he has a schizophrenic illness, then theoretically he should respond to appropriate treatment, provided he complies, within a period of twelve months. Based on that, it should be said at this stage that he will become fit within a period of twelve months."

252 The opinions of the two psychiatrists agree that the accused, if treated appropriately, will become fit to be tried within the period stated in the statute. Accordingly, I accept, on the balance of probabilities, that the accused will become fit to be tried within a period of twelve months from today.

The consequences of this finding

253 It is clear from the findings I have already made that I accept the accused is suffering from schizophrenia. That term, in my view, clearly embraces the concepts of "mental illness" and "mental condition" referred to in the legislation.

254 The Court is then required to examine whether treatment is available for the accused in a hospital; and if so, whether the person objects to being detained in a hospital. Alternatively, the Court may order that the accused be detained in a prison or it may grant bail (no bail application has been made).

Is treatment available for the accused within the prison system?

255 Counsel for Mr Sharrouf told the Court that their client had not indicated that he had an objection to being detained in a hospital. He has, however, expressed a strong preference to remain where he is at Silverwater. As an AA classified remand prisoner, he is able to communicate with the co-accused and this is a matter of considerable importance to him. The issue as to whether treatment is available for the accused within the prison system is one that has taken some little time to unravel. I will not, in this decision, detail the problems that have emerged in relation to obtaining information which, according to its nature, should have been readily available to the Court. For one reason or another, it was not readily obtainable and a number of adjournments were necessary before the Court could be seized of a comprehensive picture of the position.

256 On 29 May 2008, Mr Singleton of counsel appeared for the Department of Corrective Services and provided considerable assistance to the Court in implementing its understanding of the facilities available for Mr Sharrouf, were he to be hospitalised within the prison system. It will be convenient if I summarise that material at this stage.

257 Mr Singleton confirmed that, from his client's perspective, Mr Sharrouf could be transferred to a secure psychiatric unit within the Corrective Services system. Counsel explained that there are two prison hospitals with psychiatric wards. The first is at the Long Bay Detention Centre. The second is the Mental Health Screening Unit in the MRRC at Silverwater. Notwithstanding its title, this unit does include a full psychiatric ward for care after provision of screening.

258 Mr Singleton indicated that the Department's present preference is to keep Mr Sharrouf in his present location at Silverwater with his being, in effect, an outpatient at the Mental Health Screening Unit. It is anticipated that a treating psychiatrist would be assigned to Mr Sharrouf, and that he would make a decision, after acquainting himself with the history of the matter and examining Mr Sharrouf, whether Mr Sharrouf should be transferred from being an outpatient to an inpatient situation, either at Silverwater or at Long Bay. Mr Singleton also confirmed that the various tests and assessments recommended by the psychiatrists would be capable of implementation within the prison system. For example, an assessment could be made to see whether Mr Sharrouf had any organic causes for his presentation. Blood tests could be done within the prison hospital system. An MRI, if the treating doctor required it, would have to be done outside in a public hospital, but that could be done and achieved within the present security classification for Mr Sharrouf.

259 Mr Singleton's observations were made within the confines of the jurisdiction of the Department of Corrective Services. His client's principal concern is one of security rather than with medical treatment. Consequently, Mr Singleton was not able to bind Justice Health with the helpful information he gave the Court. In short, Mr Singleton assured the Court that, so far as his understanding of the medical requirements were concerned, the prison system could cope with them all, including, for example, removing Mr Sharrouf to a public hospital for an MRI or other needed requirements.

260 He also confirmed that, from the point of view of the Corrective Services, there would be no difficulty with regular and individual monitoring of the accused. That would be able to be done physically if Mr Sharrouf were to be transferred into the hospital as an inpatient. If he remained, at least for part of the time, as an outpatient, the Correctional Services staff could be briefed to include in their running notes observations of day-to-day events and the like. Prescribed medication would be available to him, but it would need to be administered through proper Justice Health arrangements.

261 Finally, Mr Singleton indicated that if it were necessary to take Mr Sharrouf to a neurologist, that could be done in a secure fashion. Rehabilitation services, within limits, would also be available within the prison system. The detail of treatment would, of course, be a matter for the treating psychiatrist from Justice Health.

262 On 19 June 2008 Associate Professor John Basson gave evidence on behalf of Justice Health. Professor Basson is the Director of Forensic Mental Health within Justice Health and, in that capacity, his task is to oversee all mental health issues pertaining to persons held within the prison medical service.

263 Professor Basson had familiarised himself with all the medical reports and associated material relating to Mr Sharrouf. Based on the material he read, Professor Basson expressed the view that Mr Sharrouf suffers from anxiety and has some paranoid beliefs. These have emerged from time to time. Professor Basson thought it would be desirable to determine the pathology that is actually underling these systems.

264 Professor Basson addressed the issue as to whether treatment would be available for Mr Sharrouf in a Prison Hospital. He identified, as Mr Singleton had done, facilities within the Silverwater Complex (MRRC) and at Long Bay Prison. In relation to the former, there is a Screening Unit which is quite new. It was opened two years ago and it is available to complete all investigations necessary to treat a person such as Mr Sharrouf. This would include both investigation and treatment. The facility caters for both in-patients and out-patients. It is a 40-cell unit having two wings of 15 and one of 10.

265 The high dependency unit (10 cells) is, with the other facilities, operated by the Department of Corrective Services in a joint agreement with Justice Health. The latter organisation supplies trained nursing staff and medical staff who work 12 hours per day, five days per week. The relative intensity of the attendance of these trained personnel means that a fairly in depth and specific assessment can be made at the MRRC Screening Unit.

266 Professor Basson was quite confident that the necessary investigations for determining Mr Sharrouf’s pathology could be undertaken in and from the MRRC Screening Unit. For example, he confirmed that technical investigations could be carried out at other places in conjunction with the co-operation of the Corrective Services personnel. This had been achieved in the past and no problems had been detected. Similarly with medication, Professor Basson thought that the medication could be both supplied and observations made to ensure that compliance was made with any medication regime. There were trained mental health nurses and trained consultant psychiatrists available to do work in the unit.

267 Professor Basson also described the facilities available at Long Bay. The environment there was a different one, he said. The Long Bay Prison Hospital which is currently operative is an old one, and is due shortly to be demolished. It is to be replaced with a new Prison Hospital and a new Forensic Hospital. The new Prison Hospital will have mental health facilities and it is likely to be opened in the next month or six weeks at the latest. The new Forensic Hospital will probably not open until early 2009.

268 In relation to Mr Sharrouf, Professor Basson is confident that Dr Westmore’s requests could be carried out. He regarded those suggestions by Dr Westmore as “standard”. He said that he would consider that it was the duty of Justice Health to carry out and complete those investigations. He also considered that the accused could be transferred into the Screening Unit within about a week. Priority could be given to his situation. Professor Basson said he was in charge of the service and that now he was acquainted with the case, he would ensure that the clinical staff looking after Mr Sharrouf complied with the undertakings that he gave to the Court.

269 Finally, Professor Basson said that he thought it would be appropriate to review Mr Sharrouf’s mental state in about three months time. He accepted that the testing for an organic cause would be likely to determine whether medication, counselling and rehabilitation would be sufficient.

270 The material I have received through Mr Singleton and from Professor Basson satisfy me that treatment is available for the accused within the prison system. At this stage, the preferred hospital is the Screening Unit at MRRC. This is the preference of both Mr Sharrouf and the Department of Corrective Services Mr Sharrouf’s classification as an AA inmate will not prevent him from being adequately treated within the hospital system. It will not, in addition, prevent him from receiving testing and any other treatment that is necessary outside of the MRRC facility, provided that appropriate security safeguards are taken by Corrective Services.

271 Accordingly, I state my satisfaction as to each of the following matters.

1. The accused is presently unfit to be tried.

2. I am satisfied that the accused will become fit to be tried within 12 months from today’s date.

3. I am satisfied that the accused is suffering from a mental condition for which treatment is available in a Prison Hospital.

272 In those circumstances, I order that the accused be taken to, and detained in, the MRRC Screening Unit from today, or as soon as his transfer to the unit can be reasonably achieved, and that he be kept there for a period ending when becomes fit to be tried.

273 I grant liberty to apply to the parties in case any variation of this order, or any further order is required.

**********

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Citations

Regina (C'Wealth) v Sharrouf [No 2] [2008] NSWSC 1450

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CITATION:	Regina (C'Wealth) v Sharrouf [No 2] [2008] NSWSC 1450
HEARING DATE(S):	9/05/08; 29/05/08; 19/06/08
JUDGMENT DATE :	25 June 2008
JURISDICTION:	Criminal
JUDGMENT OF:	Whealy J at 1
DECISION:	1. I find that the accused is unfit to be tried. 2. I am satisfied that the accused will become fit to be tried withion 12 months from today's date. 3. I am satisfied that the accused is suffering from a mental condition for which reatment is available in a Prison Hospital. 4. I order that the accused be taken to and detained in the MRRC Screening Unit from today, or as soon as he is transferred to the Unit can be reasonably achieved, and that he be kept there for a period ending when he becomes fit to be tried
CATCHWORDS:	CRIMINAL LAW - Practice and Procedure - Fitness for trial - Proper interpretation of the Mental Health (Criminal Procedure) Act 1990 (NSW) _ Proper construction for s 20B of the Crimes Acy 1914 (Cth) - Meaning of Prima Facie case - Correct test to be applied - Whether paper evidence can be tendered - Whether Court required to weigh up competing or alternative inferences arising from a circumstantial case
LEGISLATION CITED:	Commonwealth Criminal Code Act 1995 Criminal Procedure Act 1986 Crimes Act 1914 Cth Evidence Act Judiciary Act (Cth) 1903 Mental Health (Criminal Procedure Act 1990 (NSW)
CASES CITED:	Baladjam & Ors v R [2008] NSWCCA 85 Doney v R (1990) 171 CLR 207; 96 ALR 539 Eastman v The Queen [2000] 203 CLR 1 Kesavarajah v The Queen (1994) 181 CLR 230 May v O'Sullivan (1955) 92 CLR 654: (1955) ALR 671 Ngataya v The Queen (1980) 147 CLR 108 Zanetti v Hill (1962) 108 CLR 433; (1963) ALR 165 R v Baladjam & Ors 7 March 2008 R v Baladjam & Ors [No 13] 1 May 2008 R v JMR (1991) 57 A Crim R 39 R v Svonaric [2001] 54 NSWLR 1 R v Presser (1958) ALR 248 Saffron v DPP (1989) 16 NSWLR 397; 43 A Crim R 1 Wentworth v Rogers (1984) 2 NSWLR 422: (1984) 15 A Crim R 376 at 429, 440
PARTIES:	Regina (C'Wealth) v Khaled SHARROUF [No 2]
FILE NUMBER(S):	SC 2007/2396001
COUNSEL:	G. Bellew SC; C. Donnell; Ms S McNaughton - Crown P Singleton - Dept of Corrective Services (By Leave) W Brewer; M Pickin - Accused Sharrouf
SOLICITORS:	Commonwealth DPP State Crown Solicitors Matouk Joyner Lawyers - Accused Sharrouf