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Court of Criminal Appeal 12 May 2010

Baladjam v R

[2010] NSWCCA 102

Assault & violence
CRIMINAL LAW LEAVE TO APPEAL REFUSED.

Citation: Baladjam v R [2010] NSWCCA 102
Court: NSW Court of Criminal Appeal
Date: 12 May 2010
Judge(s): Hodgson JA, Rothman J, Barr AJ

Background

The applicant was on trial in the District Court on charges including attempted murder. Before the trial commenced, the Director-General of Security applied for orders protecting the identities of witnesses employed by the Australian Security and Intelligence Organisation (ASIO). On 16 September 2009, Tupman DCJ made a series of orders requiring those witnesses to use ciphers or assumed names, closing the court during their evidence, and permitting them to give evidence by video-link so their physical appearance would be concealed from the applicant (though not from the judge, jury, and legal representatives).

The applicant challenged these arrangements on constitutional grounds, serving notices under s 78B of the Judiciary Act 1903 (Cth) raising Chapter III concerns. At one point the Crown indicated it would not rely on ASIO witnesses, but later reversed that position and confirmed it would. On 22 March 2010, the applicant moved before trial judge Charteris DCJ to lift the identity protection orders to the extent they prevented the applicant from seeing the witnesses. That motion was dismissed on 8 April 2010.

The applicant then sought leave to appeal against the dismissal as an interlocutory order under s 5F of the Criminal Appeal Act 1912. The trial proceeded on 19 April 2010 (without opposition from the applicant), the jury was empanelled, the ASIO witnesses gave their evidence under the protection of the existing orders, and the Crown's case closed before the leave application came before the Court of Criminal Appeal.

  • Whether the dismissal of the applicant's motion constituted an interlocutory order capable of attracting leave to appeal under s 5F of the Criminal Appeal Act 1912.
  • Whether the District Court erred in holding that Chapter III of the Constitution had no bearing on the power to make the identity protection orders.
  • Whether the District Court applied the correct test in finding that its implied powers permitted the orders on national security grounds.
  • Whether the trial judge's acceptance of the Director-General's affidavit evidence, and the evidentiary burden placed on the applicant, were open on the material before the court.
  • Whether leave to appeal should be refused as a matter of discretion given that the ASIO witnesses had already given evidence and the Crown's case had closed.

Decision

The Court declined to determine the substantive constitutional and procedural grounds raised by the applicant. Instead, the Court concluded that leave to appeal should be refused on discretionary grounds, arising from the fact that the ASIO witnesses had already given their evidence in full under the protection of the orders, and the Crown's case had closed before the leave application was heard.

The Court rejected the Crown's argument that there was no interlocutory order capable of appeal. It considered that Charteris DCJ's order dismissing the applicant's motion qualified as an interlocutory order, and indicated the same likely applied to the original orders of Tupman DCJ, though it was not necessary to finally resolve that question given the outcome.

The Court identified a significant practical problem with granting leave. If the appeal were allowed and the applicant were then shown photographs of the witnesses, it was likely those witnesses and the Director-General of Security would object to disclosure of their identities. The probable consequence would be that the Crown sought to withdraw their evidence, raising difficult questions about whether the jury would need to be discharged and the trial aborted. The Court noted that this situation arose partly because the trial had proceeded over the Crown's opposition but without objection from the applicant.

The Court observed that if the applicant were convicted, all the grounds raised in the leave application could be pursued in a conviction appeal. In that context, any arguable merit in the grounds could be assessed as part of a broader enquiry into whether a miscarriage of justice had occurred.

Orders Made

  • Application for leave to appeal dismissed.

Key Takeaways

  • The Court of Criminal Appeal confirmed, without finally deciding the point, that a trial judge's order dismissing a motion to lift identity protection orders is capable of constituting an interlocutory order for the purposes of s 5F of the Criminal Appeal Act 1912.
  • Leave to appeal under s 5F may be refused on discretionary grounds where the practical consequence of allowing the appeal would be severe disruption to an ongoing trial, even where the substantive grounds raise serious constitutional questions.
  • Where a trial has proceeded without the applicant's opposition and the Crown's case has closed, those circumstances weigh heavily against granting interlocutory leave.
  • Refusing leave does not extinguish the applicant's right to raise the same grounds in a conviction appeal, where the Court of Criminal Appeal indicated such grounds could be assessed in the full context of whether a miscarriage of justice occurred.
  • Uncontested affidavit evidence from the Director-General of Security regarding risks to national security and the personal safety of ASIO officers was accepted by the trial judge; the Court of Criminal Appeal noted that evidence had been accepted without challenge and treated it as part of the relevant factual background.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Act 1912 (NSW), s 5F
- Judiciary Act 1903 (Cth), s 78B
- Constitution of Australia, Chapter III

Cases: No cases were cited in the judgment.