AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
Supreme Court 21 October 2015

R v Khalid

[2015] NSWSC 1561

Public order & justice offences
CRIMINAL LAW PRACTICE AND PROCEDURE APPLICATION TO VACATE TRIAL TRIAL VACATED

Citation: R v Khalid [2015] NSWSC 1561
Court: Supreme Court of New South Wales
Date: 21 October 2015
Judge(s): Bellew J

Background

The accused faced a charge of possessing documents connected with the preparation for a terrorist act, knowing of that connection. He had been arrested in December 2014, and the Commonwealth Director of Public Prosecutions had sought to have the matter heard in the Supreme Court rather than the District Court, which Bellew J took as a signal that the Director regarded the case as one of particular importance. A trial date of 2 November 2015 had been set.

The accused's solicitor filed a motion to vacate the trial date, relying on two grounds: the Crown's failure to provide disclosure material in a timely fashion, and the potential for adverse pre-trial publicity to prejudice the accused's right to a fair trial. Only the first ground was argued before the court on the day.

The disclosure issue had a troubled history. When the matter came before Johnson J at the arraignment stage in mid-2015, nothing was said about outstanding disclosure material, despite at least someone having known it remained unserved. Bellew J had only been informed of the issue weeks before the application, and the Crown ultimately served two large tranches of material six and a half weeks, and just under four weeks, before the scheduled trial.

  • Whether the trial date should be vacated on the basis that the Crown had served voluminous disclosure material so late as to deny the accused's representatives a proper opportunity to consider it and obtain instructions
  • Whether the adverse pre-trial publicity (a newspaper article about the case) independently warranted vacation of the trial (this ground was not ultimately pressed)

Decision

Bellew J vacated the trial date, accepting the Crown's own concession that the late service of significant disclosure material meant those acting for the accused required further time to properly consider it and obtain instructions. The Crown did not contest the accused's solicitor's description of the material: it included approximately 2,000 loose pages, 21 CDs (one containing no fewer than 6,942 separate files, including phone calls, text messages, and other media), a USB drive, and a further bundle served days before the application. Some of the material was in Arabic and required translation.

The Crown's concession was treated as implicitly acknowledging that proceeding without further time would deny the accused a fair trial. Bellew J described the situation as "lamentable," noting that the accused had been in custody for approximately ten months and, with the trial now likely rescheduled to mid-2016, could face up to eighteen months of pre-trial detention while entitled to the presumption of innocence.

Bellew J also noted his concern that Johnson J had not been informed, at the arraignment stage, that disclosure material remained outstanding, particularly given his Honour had specifically canvassed the need to resolve pre-trial matters before 2 November. While accepting that Crown counsel appearing in the application had not known of the outstanding material at the arraignment stage, the court found that someone must have been aware of the position at that time.

On the pre-trial publicity ground, Bellew J did not make any formal adjudication. He did, however, take the opportunity to observe that a newspaper article had misdescribed both the charge and the trial date, and urged members of the media to make use of the Court's Media Officer to verify factual matters before publication.

Orders Made

  • The trial date of 2 November 2015 was vacated.
  • The matter was listed before Johnson J (the arraignments judge) on 6 November 2015 at 10am.
  • The accused was ordered to attend that listing by audio-visual link.

Key Takeaways

  • The Supreme Court vacated a terrorism trial after the Crown conceded that voluminous disclosure material had been served so close to the trial date that the accused's legal representatives could not properly review it or obtain instructions, effectively acknowledging a fair trial could not proceed on the scheduled date.
  • Late Crown disclosure creating an irretrievable lack of preparation time for the defence can, in itself, be sufficient ground to vacate a trial date.
  • Responsibility for ensuring disclosure obligations are met rests with the prosecution as an institution, not only with the counsel who happen to appear on the day. Bellew J found it concerning that the court setting the trial date had not been informed that significant material remained unserved.
  • Vacation of a trial date has consequences beyond the immediate parties: Bellew J noted that other accused persons were denied earlier trial dates as a result of the rescheduling.
  • Inaccurate media reporting about pending trials can create difficulties for the court and the parties. Bellew J noted the availability of court Media Officers as a resource for journalists seeking to verify factual matters such as charge descriptions and listed dates.

Legislation and Cases Referenced

The judgment does not cite specific legislation or cases. The offence before the court relates to possession of documents connected with the preparation for a terrorist act, which arises under Commonwealth counter-terrorism legislation, though no specific provision is named in the decision.