R (CTH) v Baladjam & Ors [2008] NSWSC 714 (28 February 2008)

In this matter Greg Walsh acted for Omar Baladjam.

Mr Baladjam and eight (8) other accused had been charged with a conspiracy to do acts in preparation of a terrorist act or acts contrary to ss.11.5 and 101.6 of the Commonwealth Criminal Code Act (1995).

An application was made to a Melbourne trial judge, Bongiorno J seeking certain non publication suppression orders in relation to the reporting of certain material emanating or likely from a trial in Melbourne.

By coincidence the trial of 12 other men accused of terrorism commenced in Melbourne before a Judge and jury on 13 February 2008.

On 21 February 2008 Bongiorno J refused the substantive application to suppress details about the application.

Whealy J dismissed the application on behalf of the accused.  His Honour considered whether a Quia timet injunction can be made in an anticipatory fashion to prevent a threatened contempt of court by media outlet or outlets.

His Honour accepted that there was authority for the court to grant such an injunction in circumstances where the publication of the material is prejudicial to pending proceedings.  In United Telecasters Sydney v Hardy (1991) 23 NSWLR 323 at 332; Waterhouse v Australian Broadcasting Corporation (1986) 6 NSWLR 716 at 719-720, His Honour observed that the exercise of such a power would be a rare one.  Herald & Weekly Times Pty Limited v A [2005] 169 A Crim R 299; Pickering v Liverpool Daily Post (1991) 2 AC 370.

The fundamental principles of open justice were emphasised by His Honour.  See John Fairfax Publications Pty Ltd v District Court  of New South Wales [2004] NSWCA 324 (2004) 61 NSWLR 344.

Regina (Cth) v Baladjam & Ors [No.1] [2008] NSWSC 721 (7 March 2008).

 In this matter Greg Walsh acted for Omar Baladjam who was one of the Accused standing trial in the Supreme Court of an offence of conspiracy to do acts in preparation of a terrorist act or acts contrary to ss.11.5 and 101.6 of the Commonwealth Criminal Code Act.

 The trial was conducted by Justice Whealey.  His Honour dealt with a number of pre trial and trial applications and these dealt with a variety of issues.

 Judgments are referred to hereunder.

Regina (C’wealth) v Baladjam & Ors [No 3] [2008] NSW SC 725 (18 March 2008)

Nine (9) men charged with conspiracy to do acts in preparation for, or planning, to commit a terrorist act or acts contrary to section 11.5 and 101.6 of the Commonwealth Criminal Code Act 1995 applied to have the venue of their Trial changed.

They had been in custody since November 2005.  They were arraigned before the Supreme Court on 31 May 2007 and the Trial was listed on 25 February 2008.

At the time the Trial was set down for Hearing, it was anticipated that the venue would probably be the Darlinghurst Court complex used by the Supreme Court of New South Wales for criminal trials.

The Trial commenced on 25 February 2008 at the New Sydney West Trial Court situated in the legal precinct of Parramatta.

The Application for change of venue was made pursuant to section 30 Criminal Procedure Act 1986.

Whealy J observed that it was hoped from the outset that Darlinghurst might be a realistic location for the Trial.  The Defence argued that a Trial at Parramatta would prove a most inconvenient and difficult one for lawyers involved because of the distance between Parramatta and Sydney CBD.  There were other arguments about the proposed Court room and Court complex itself.

His Honour found that he was not satisfied there was any risk that a fair or unprejudiced Trial could not be held in relation to the present venue.  His Honour thus declined to change the venue of the Trial.

 

Regina (C’wealth) v Baladjam & Ors [No 4] [2008] NSW SC 726 (18 March 2008)

A number of applications were made on behalf of Omar Baladjam and others accused facing charges contrary to the Commonwealth Criminal Code.

An application was made for the quashing of the Indictment on the basis that it was bad for duplicity.  It was argued that the offence pleaded in the Indictment was one unknown to the Law and accordingly it should be quashed.

The Indictment

The Indictment charged each Accused, that between July 2004 and November 2005 he conspired with other Accused to do acts in preparation for a terrorist act (or acts).

There were a number of particulars of the terrorist act (or acts) which involved an action or threat of action involving the detonation of an explosive device (or devices) or the use of weaponry or both that was or were to be done:

(a)    With the intention of advancing a political, religious or ideological cause; and

(b)   With the intention of:

i.          coercing, or influencing by intimidation, the government of the Commonwealth or a State, Territory or foreign country; or

ii.          intimidating the public or a section of public

(c)    in circumstances where the action, if carried out, would:

i.          cause serious harm that is physical harm to a person; and/or

ii.          cause serious damage to property; and/or

  1. cause a person’s death; and/or
  2. endanger a person’s life, other than the life of the person taking the action; and/or
  3. create a serious risk to the health or safety of the public or a section of the public; and/or
  4. seriously interfere with, seriously disrupt, or destroy an electronic system including but not limited to, an information system, or a telecommunications      system…

(d)   in circumstances where the action, if carried out, would not be advocacy, protest, dissent or industrial action or a kind not intended to:

i.          cause serious harm that is physical harm to a person; or

ii.          cause a person’s death; or

  1. endanger the life of a person;
  2. create a serious risk to the health or safety of the public.

The Law

Whealy J referred in detail to various provisions of the Commonwealth Criminal Code including section 101.6(1) of an offence to do an act in preparation or planning a terrorist act; section 101.6(2) commission of the offence being committed even if the terrorist act has not occurred or the act in preparation or planning has not been in respect of specific terrorist act or been in preparation or planning for more than one terrorist act.

The offence of conspiracy is set out in section 11.5 of the Code and His Honour referred to section 11.5(2) of the Code which provides three requirements before a person can be guilty of conspiracy under section 11.5 of the Code:

(a)    the person must have entered into an agreement with one or more other persons; and

(b)   the person and at least one other party to the agreement must have intended that an offence would be committed pursuant to the agreement; and

(c)    the person or at least one other party to the agreement must have committed an overt act pursuant to the agreement.

The Crown Case

That His Honour dealt with in some considerable detail the Crown case including the Accused amongst other things:

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

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

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

Legal Principles

Reliance was placed upon the principle that Courts have criticised the tactics of charge of conspiracy where a substantive offence is available.  Hoar [1981] HCA 67; (1981) 148 CLR 32.

The Crown responded that a number of matters in the Crown case statement were not to be admitted against some Accused and relied upon Ahearn v Regina (1988) 164 CLR 87; Regina v Tripodi [1961] HCA 22; (1961) 104 CLR 1; Masters v R (1992) 26 NSWLR 450.

Whealy J was of the opinion that the Hoar principles should be confined to propositions that were earlier stated by His Honour.  There were those cases in which it was clearly inappropriate to leave a conspiracy charge in an Indictment where there is a sufficient and effective charge available to the Crown.  In this case, the conspiracy charge was an appropriate charge and His Honour refused to quash the Indictment.  See Ruich v Western Australia [2006] WASCA 241 at [81] – [82]; R v El-kotob [2002] 4 VR 456 per Vincent JA at [42]; R v Chung [2007] NSWCCA 231 at [51].

Duplicity

A further argument was advanced that the Indictment was bad for duplicity.  See Johnson v Miller (1937) 59 CLR 467; S v The Queen (1989) 168 CLR 266; Stanton v Abernathy (1990) 19 NSWLR 656; Walsh v Tattersall (1996) 188 CLR 77; R v Giam (1999) 104 A Crim R 46.

It was argued that the Indictment was bad for duplicity because it charged an agreement to do acts in preparation for “a terrorist act or acts”.  It was argued that at simplest the charge contains of possibly two conspiracies:

(a)    an agreement to do an act or acts in preparation for a single terrorist act;

(b)   an agreement to do an act or acts in preparation for more than one terrorist act.

Resolution of the Issues

Whealy J after carefully considering a large number of authorities, including Gerakiteys v The Queen (1984) 153 CLR 317; R v Ongley (1940) Volume 57 NSW (WN) held that the Indictment was not bad for duplicity.  His Honour’s reasoning was based on three matters.  First the consistency of the language used in the history of the legislation since 1960; secondly the common and accepted practice to include in an Indictment one count for a conspiracy alleging the doing of multiple unlawful acts; thirdly the decision of the New South Wales Court of Criminal Appeal Ansari v R [2007] NSWCCA 204.