R v Qaumi & Ors (No 30)

1. [1]

   This is not a judgment in the sense that in provides reasons for a decision that is binding upon the parties. Rather, it comprises remarks to explain a recommendation to those in the Department of Corrective Services responsible for the transport and conditions of incarceration of two accused men currently on trial before me. Those men are Mohammed Kalal and Mohammad Zarshoy. Both are remand inmates. Each is presumed to be innocent. Neither has been convicted of the offences with which they currently stand accused.

2. [2]

   The recommendation is not binding upon the Department or upon the particular units and individual officers within the Department to whom it is directed. The restraint with which the courts must approach any interference with the administration of correctional institutions, and the respect that must be paid to those with the responsibility of administering them, is well established. The Court should be cautious in interfering with the conduct of correctional institutions: see, for example, the authorities collected by McInerney J in Kelleher v Commissioner, Department of Corrective Services [1999] NSWSC 86 at [7], [11]. When judicial officers are presiding over trials, particularly long trials, and the accused person is in custody on remand, this restraint, respect and caution create tension and difficulties. The circumstances that I will presently describe are an example – perhaps an extreme example but by no means a unique example – of those tensions and difficulties.

3. [3]

   In making this recommendation, I am conscious of the limited resources available to the Department. However, as I will explain, compliance with this recommendation is likely to save costs in the long term. I make the recommendation having consulted with a number of senior Corrective Services officers who I will not name for privacy reasons. One is a senior member of the Extreme High Risk Transport Unit responsible for transport of three of the accused. Through the Chief Justice, I have previously commended him and his unit for their service to the Court in the course of this trial. The other officers were the Acting Area Manager and the Acting Officer in Charge of the cells in the Downing Centre Court Complex where the present trial is taking place. I am grateful to each of those officers for their concern for the inmates involved and the process of the Court. I value their insight into the kind of recommendation that might be practical, effective and cost effective.

4. [4]

   Both Mr Zarshoy and Mr Kalal are presently held at the Parklea Correctional Centre. Concerns for their safety means that they cannot be transferred to an institution that is closer to the Court, such as Silverwater MRRC or Long Bay. From time to time since the pre-trial hearing commenced, I have been told by counsel that the two men are being woken at 4.00am and do not get back to the cells until 9.00pm or later. Between 4.00am and 1.00pm the only food that they receive is a bowl of cereal at around 7.00am. Due to resource issues in the cells in the Downing Centre they do not receive sustenance at the short adjournment (taken at around 11.15am or 11.30am). The result, especially with Mr Zarshoy, is that they are noticeably drowsy and sometimes fall asleep. I have observed this and commented on it. I have made a number of recommendations with limited, if any, success. I have witnessed Mr Zarshoy fall asleep on more than one occasion. I will return to provide greater detail of the history of these matters presently.

5. [5]

   Having consulted with, and taken into account the opinions of, the officers to whom I referred in paragraph [3], and having considered the submissions of counsel, I make the following recommendation:

6. [6]

   I recommend that the accused Mohammed Kalal and Mohammad Zarshoy be provided with a direct transport to and from court. That is a transport, either by themselves or with other inmates, that travels directly from the Parklea Correctional Centre to the Downing Centre in the morning and directly from the Downing Centre to the Parklea Correctional Centre in the afternoon.

7. [7]

   I direct that these remarks be provided to:

8. [8]

   Confronted with a similar problem in a trial that is currently taking place in the King Street Court Complex, Johnson J discussed the important role of the Department of Corrective Services in R v Turnbull (No 8) [2016] NSWSC 714. I adopt his Honour’s words:

9. [9]

   While the two accused in the present trial are not old and infirm, they are part of one of the largest and longest trials to have been held in this Court and anybody who has been present throughout the trial will have noticed the difficulties that each has had in participating in the proceedings. I am not making this recommendation to secure preferential treatment for the accused. I am making it to prevent further disruption to the trial, to save cost to the community that will arise from repeated adjournment of the proceedings and to ensure the integrity of the trial proceedings.

The background to this recommendation

1. [10]

   As I have said, there have been occasions during the course of the trial that the accused Mr Zarshoy has literally fallen asleep during the course of the evidence. I have observed this on more than one occasion. Mr Kalal has also, from time to time, bordered on somnolence. Both men have looked, more often than not, very tired.

2. [11]

   The matter was first raised by counsel on 24 November 2015. That was in the course of the pre-trial hearing. At that stage there was no jury and, because the issues ventilated were of a legal nature or involved pre-trial examination of witnesses, the accused consciousness was not as important as it is during the course of the trial proper. In any event, I was told:

3. [12]

   “That point” was reached around five weeks ago, a jury having been empanelled on 4 April 2016. Since the jury was empanelled the matter has been raised on a number of occasions and I have attempted to observe both Mr Kalal and Mr Zarshoy since that time.

4. [13]

   On 7 April 2016 Mr Driels advised me that an incident at the gaol resulted in his client not being returned to his cell until 10.30pm after being woken at 4.00am. He was then woken at 4-00am the following morning but “refused to get out of bed”. [2]

5. [14]

   On 8 April 2016, having made some inquiries with the Department, I raised the possibility that the trial may be prolonged if it was necessary to adjourn early each day, or every other day, in order to allow Mr Zarshoy and Mr Kalal to get some sleep. [3]

6. [15]

   On 11 April 2016 I was advised by counsel that applying for a transfer to a gaol close to the Court complex was not a practical solution. The solicitor for Mr Zarshoy had been advised that “his life is in danger” if transferred to Silverwater. By that stage, I had been observing the two accused during the course of the trial and put on the record that “they are looking a little drowsy”. Mr Driels asked that Mr Zarshoy be given a cup of coffee at the morning adjournment. My staff had organised to obtain sealed packs of biscuits with the idea that the Court – that is, my staff – may be permitted to provide the accused with biscuits delivered in sealed packets to provide the accused with a “sugar hit” during the short adjournment. It was hoped that this might sustain the accused until the luncheon adjournment. I indicated that I intended to raise this possibility with those in charge of the cells in the Downing Centre but noted that there may be “real difficulties with providing sustenance from outside”. [4]

7. [16]

   As a result of those events, the corrective officers in court brought to my attention the Standard Operating Procedures for the Downing Centre cells. On 13 April 2016 I brought this to the attention of the parties:

8. [17]

   On 26 April 2016 the matter reached a critical moment when Mr Driels invited me to “look at [his] client”. Mr Zarshoy had his eyes closed with his head slumped. As I looked at him, he literally fell forward into somnolence. Falling forward in the dock woke him and he looked up, surprised to see all of the lawyers looking at him. Mr Driels submitted that “he needs a different regime” and made an application that:

9. [18]

   I asked the Crown whether the accused should be required to stand trial for murder in circumstances where his conditions of incarceration meant that he could not stay awake and how this was consistent with the treatment of inmates in a civilised society. The Crown did not wish to say anything against those propositions behind those questions but did not agree that the proceedings should be stayed. He agreed with the proposition that before I could take any action staying the proceedings I would need a formal application supported by affidavit evidence. The learned Crown Prosecutor observed that the situation, as I described it, was such that “a person [that is, Mr Zarshoy] is not able to be a participant, or on the verge of potentially not participating, in [his] own trial.” [6]

10. [19]

    Later that day, Mr Clarke (who appears for Mr Kalal) raised the possibility that his client might travel with another inmate currently standing trial in the city who is also housed at Parklea. Following discussions, [7] I made the following observation and recommendation:

11. [20]

    Counsel has told me that this recommendation was acted upon – at least on those days where it was practical – and the situation with Mr Kalal has improved. He has been noticeably more alert and engaged. I express the Court’s sincere gratitude to those in the Department of Corrective Services who are responsible for acting on this recommendation.

12. [21]

    On 28 April 2016 the transcript records the following:

13. [22]

    On 2 May 2016, the situation with Mr Zarshoy again disrupted the trial. First thing in the morning counsel brought his client’s fatigue to my attention:

14. [23]

    Around an hour later, Ms Carroll (counsel for a co-accused, Jamil Qaumi) raised an objection and asked to be heard in the absence of the jury. The following exchange is recorded:

15. [24]

    At the conclusion of the legal argument, I made the following request:

16. [25]

    During the short adjournment the (Acting) Officer in Charge of the cells and the (Acting) Area Manager of the Department of Corrective Services spoke to me in chambers. As I have said, the information provided to me was extremely helpful and both officers demonstrated sensitivity, professionalism and pro-activeness in an attempt to find a solution to the problem. I take the opportunity to commend both officers.

17. [26]

    I was made aware of the problems that confronted the staff in the Downing Centre cells and provided with information about a volunteer organisation called “Prison Fellowship Australia” which might be in a position, subject to Departmental approval, to supply a cup of tea or coffee to inmates before Court. We also had useful discussions about the kind of recommendation that might not only alleviate the problems in the present trial but also assist in clearing the cells in the Downing Centre more quickly in the afternoon each day (particularly on Thursdays and Fridays when the number of inmates increases because the District Court lists large numbers of sentencing matters).

18. [27]

    After the short adjournment, there was further discussion about the matter:

19. [28]

    Subsequently, I made the following recommendation:

20. [29]

    After making that recommendation I noted that it was a short-term solution because the McNamara trial was in its final weeks. I also provided the parties with an update concerning my conversation with the two corrective services officers. [15] The record again reflected that Mr Zarshoy had fallen asleep in the course of these discussions:

21. [30]

    I have been told that both accused have been transported with McNamara since that time. This means that they have been transported directly from Parklea to the city and directly back again, the only stop being at the court complex where the McNamara trial is being conducted. Both accused have been observably more alert and engaged in the trial since this arrangement came into operation. However, as has been noted, it is a short-term solution because the McNamara trial is expected to come to an end in about one month.

22. [31]

    On Thursday 5 May 2016 I met with two volunteers from the Prison Fellowship of Australia. This meeting was organised after the Officer in Charge of the Cells at the Downing Centre provided their telephone numbers. They provide lunches and refreshments to inmates in the cells a couple of times per month. Having heard of the difficulties in the present trial, they are going to attempt to provide inmates with coffee or tea before court or at the morning adjournment on a more frequent basis. I notified the parties of this meeting and made the following recommendation:

23. [32]

    I understand that this will take some time, because it requires approval. I hope that something will happen, but in the meantime merely observe that it seems incompatible with modern notions of human rights that remand prisoners receive no sustenance between 4.00 am (or 6.00am) (when they are woken up) until 1.00pm (when they receive lunch in the cells) apart from a bowl of cereal for breakfast. A similar observation might be made in relation to what counsel described as “sleep deprivation” arising as a result of being woken up at 4.00am and not returned to their cells until 9.00pm or later.

The potential impact on the trial and potential economic cost to the Department and to the Community

1. [33]

   At this stage, there has been no application to discharge the jury although on 26 April 2016 Mr Driels asked for the trial to be stopped until there was a change of Mr Zarshoy’s regime. The problem has resulted in a significant amount of wasted court time due to the need for counsel to inform me of the difficulties. On one occasion it was part of the reason the jury was asked to disperse early and the Court did not sit beyond the luncheon adjournment.

2. [34]

   If the situation continues, or returns to the state of affairs that existed before the accused began to be transported with Mr McNamara, there are likely to be further and significant disruptions to the trial.

3. [35]

   In R v Feili [2013] NSWSC 492 an argument was advanced that the fact that the accused was sleeping at times during the trial meant that he was not fit to be tried. While that argument was rejected, [18] there is little doubt that the inability of an accused to participate in the trial (as it was put by the learned Crown Prosecutor in this case) as a result of somnolence may affect the fairness of the trial. This can occur for a number of reasons. First, an accused may not be in a position to provide their lawyers with instructions. Mr Driels has indicated that this occurred on one afternoon in the present case. Secondly, an accused may not hear or understand important evidence about which they may need to provide instructions. Third, the appearance in front of the jury is bad.

4. [36]

   It has not been suggested that the jury be informed of the reason for Mr Zarshoy’s sleepiness. Doing so could cause prejudice to the accused in that there would then be no doubt in the jury’s mind that he is in custody. It could also cause prejudice to the prosecution because explaining the unsatisfactory nature of the accused’s custodial regime may cause sympathy to the accused.

5. [37]

   The situation has not reached the stage, or even come close to the stage, where it could sensibly be argued that the trial proceedings are unfair or have miscarried. However, if the situation were to continue for the remaining several months of the trial, such an argument might be advanced in support of an application to discharge the jury, or for a temporary stay of the proceedings or in the course of an appeal against any conviction that might follow the jury’s deliberations.

6. [38]

   If any of those applications or arguments met with success, the trial may be extended for a substantial amount of time or, if such an argument succeeded on appeal, there would be a re-trial.

7. [39]

   If any of these things occurred the total costs of transporting the inmates would be far greater than the cost involved in organising a special or direct transport.

8. [40]

   None of this should be seen as suggesting that the two accused should receive some preferential or special treatment. However, the fact is that they are involved in an extremely long and expensive trial and that their conditions of incarceration are such that the proceedings have been, and may continue to be, disrupted. In the worst case, those conditions may bring into question the integrity of the trial proceedings.

9. [41]

   I call on those with the power to make appropriate arrangements to alleviate this situation to do so.