Citation: Regina (C'Wealth) v Baladjam & Ors [No 1] [2008] NSWSC 721
Court: Supreme Court of New South Wales
Date: 7 March 2008
Judge(s): Whealy J
Background
Nine accused persons faced charges in the Supreme Court of conspiring to do acts in preparation for a terrorist act or acts, contrary to the Commonwealth Criminal Code Act 1995. One of the accused, Khaled Sharrouf, had been in custody since his arrest in November 2005. Both his legal representatives and the Crown raised the question of his fitness to be tried.
An indictment was presented and the accused were arraigned before Whealy J on 31 May 2007, at which point all accused entered pleas of not guilty. Pre-trial proceedings commenced on 25 February 2008 and were expected to continue for some months before a jury would be empanelled.
The narrow issue requiring immediate resolution was whether the fitness hearing for the accused Sharrouf should proceed before a judge alone, or before a judge and jury. The answer turned on which version of the relevant New South Wales legislation applied, and that in turn depended on when the "proceedings" were taken to have commenced.
Legal Issues
- What is the meaning of "proceedings" in the transitional provision of the Mental Health (Criminal Procedure) Amendment Act 2005?
- When did the relevant proceedings against the accused "commence" for the purposes of that transitional provision?
- Whether the pre-amendment procedure (fitness determined by judge and jury, unless the accused elected otherwise) or the post-amendment procedure (fitness determined by judge alone) applied to the accused's fitness hearing.
Decision
The Mental Health (Criminal Procedure) Amendment Act 2005 inserted a new section 11(1) into the Mental Health (Criminal Procedure) Act 1990, providing that questions of unfitness to stand trial are to be determined by the judge alone. This change took effect on 1 January 2006. The transitional provision stipulated that the amendment applied to all proceedings regardless of when the offence was committed, but did not apply to proceedings commenced before 1 January 2006.
The accused's legal representative argued that "proceedings" should be given a broad meaning encompassing the initial police charging in November 2005, which would have placed the commencement date before 1 January 2006 and preserved the right to a jury determination. Whealy J rejected that construction. Drawing on sections 121 and 130 of the Criminal Procedure Act 1986 and the Court of Criminal Appeal decisions in Regina v Michael Taylor and Regina v Janceski, his Honour held that criminal proceedings in the Supreme Court commenced upon the filing or presentation of a valid indictment.
Whealy J reasoned that the presentation of the indictment is the most fundamental procedural step in a criminal trial on indictment, and that no criminal proceedings exist in the District or Supreme Court until that step occurs. Because the indictment in this matter was presented on 31 May 2007, well after the commencement of the amending legislation, the new section 11 applied. The fitness hearing was therefore to proceed before a judge alone.
Orders Made
- The fitness hearing of the accused Sharrouf was directed to proceed before Whealy J, sitting as judge alone, on Tuesday 25 March 2008.
Key Takeaways
- Criminal proceedings in the NSW Supreme Court (and District Court) commence upon the filing or presentation of a valid indictment, not upon arrest or police charging.
- The transitional provision in the Mental Health (Criminal Procedure) Amendment Act 2005 ties the commencement date of "proceedings" to the presentation of the indictment, not to earlier investigative or pre-committal steps.
- Under the amended section 11(1) of the Mental Health (Criminal Procedure) Act 1990 (in force from 1 January 2006), questions of unfitness to stand trial must be determined by a judge alone, removing the pre-existing default right to jury determination.
- Where federal jurisdiction is being exercised, state procedural laws governing fitness hearings apply by operation of sections 68(1) and 79 of the Judiciary Act (Commonwealth), in the absence of applicable Commonwealth legislation on that procedure.
- The Court of Criminal Appeal decisions in Regina v Michael Taylor and Regina v Janceski were treated as authoritative on the significance of the indictment as the foundational step commencing criminal proceedings on indictment in NSW courts.
Legislation and Cases Referenced
Legislation:
- Mental Health (Criminal Procedure) Act 1990 (NSW), s 11
- Mental Health (Criminal Procedure) Amendment Act 2005 (NSW), Schedule 1(4)
- Criminal Procedure Act 1986 (NSW), ss 121, 130, 154
- Commonwealth Criminal Code Act 1995, ss 11.5, 101.6
- Judiciary Act (Commonwealth), ss 68(1), 79
- Crimes Act (Commonwealth) 1914, s 20B
- Crimes Amendment Self-Defence Act 2001 (NSW)
Cases:
- Regina v Michael Taylor [2003] NSWCCA 194
- Regina v Janceski [2005] NSWCCA 281