Citation: Regina (C'Wealth) v Baladjam & Ors [No 3] [2008] NSWSC 725
Court: Supreme Court of New South Wales
Date: 18 March 2008
Judge(s): Whealy J
Background
Nine men were charged with conspiracy to do acts in preparation for, or planning, a terrorist act or acts under the Commonwealth Criminal Code Act 1995. They had been in custody since November 2005 and were arraigned before the Supreme Court in May 2007, with the trial set to commence on 25 February 2008.
The proposed trial venue became a point of significant contention. The historically preferred Darlinghurst Court complex was ruled unsuitable by the Department of Corrective Services on security grounds, and no existing Sydney courtroom was large enough to accommodate the number of accused, their legal representatives, and a jury. The new Sydney West Trial Courts at Parramatta, then under construction, emerged as the only viable option.
From the moment Parramatta was identified as the trial venue, counsel for the accused made sustained efforts to change it. Those applications were held over until the trial commenced, so the Court could first assess the facility's actual conditions.
Legal Issues
- Whether a fair or unprejudiced trial could not otherwise be had at the Parramatta venue, satisfying the threshold under section 30(a) of the Criminal Procedure Act 1986
- Whether it was otherwise expedient to change the venue under section 30(b) of the same Act
- Whether the practical inconveniences of the Parramatta location, including distance from the Sydney CBD, adequacy of courtroom facilities, and access difficulties for legal representatives, justified transferring the trial to a Sydney venue
Decision
Whealy J refused all applications for a change of venue. The Court accepted that the Sydney West Trial Courts at Parramatta represented the only realistic option available in New South Wales capable of hosting a trial of this scale and complexity. No courtroom in the King Street complex was large enough, the Downing Centre's multi-accused courtroom could not accommodate even thirty legal representatives at Bar tables, and Darlinghurst had been ruled out by the Department of Corrective Services on security grounds.
The Court acknowledged genuine inconvenience flowing from the distance between Parramatta and the Sydney CBD, which affected counsel, judicial staff, court reporters, and court officers alike. However, inconvenience alone did not satisfy either limb of section 30. The accused were held at Silverwater, which placed them in relatively close proximity to the Parramatta complex, and the Court noted that many of the identified shortcomings in the facility were capable of being addressed over time.
On the central question of fairness, the Court was not satisfied that there was any risk of an unfair or prejudiced trial at Parramatta. Nor was any other reason established to make a change of venue expedient. Whealy J expressed a commitment to dealing with any ongoing practical issues promptly and sympathetically as they arose during the trial.
Orders Made
- Application for change of venue refused.
Key Takeaways
- Under section 30 of the Criminal Procedure Act 1986, a court may change the venue of a criminal trial only where a fair or unprejudiced trial cannot otherwise be had, or where it is otherwise expedient to do so; inconvenience to legal representatives does not of itself satisfy either limb.
- Where no other suitable venue exists in the jurisdiction, the absence of alternatives weighs heavily against granting a change of venue application.
- The Supreme Court held that the adequacy of a proposed venue falls to be assessed against what is realistically available, not against an idealised standard of proximity and convenience.
- Refusing the application, the Court drew a distinction between difficulties affecting counsel and practitioners (such as travel to Parramatta) and circumstances that could actually compromise the fairness of the trial itself.
- Practical shortcomings in a court facility do not automatically warrant a change of venue if those shortcomings are capable of being managed or remedied during the course of proceedings.
Legislation and Cases Referenced
Legislation:
- Criminal Code Act 1995 (Cth), ss 11.5 and 101.6
- Criminal Procedure Act 1986 (NSW), s 30
Cases: No cases were cited in the portions of the judgment provided.