Baladjam v R

THE COURT: On 5 May 2010, this Court heard an application for leave to appeal against an interlocutory order, pursuant to s 5F of the Criminal Appeal Act 1912. At the conclusion of argument, the Court dismissed the application, and indicated it would give reasons later. These are those reasons.

The applicant had been charged with, and was standing trial in the District Court in respect of, various offences including attempted murder.

Prior to commencement of the trial, the Crown served witness statements for witnesses employed or previously employed by the Australian Security and Intelligence Organisation (ASIO witnesses).

On 16 September 2009, on application of the Director-General of Security, Tupman DCJ made a number of orders, including orders that ASIO witnesses must give evidence and be referred to by use of ciphers or assumed names, that a person aware of these orders should not disclose or publish the identity of any ASIO witness, that the Court be closed while ASIO witnesses give their evidence (with specification of those persons allowed to be present), and that ASIO witnesses be permitted to give evidence by video-link so as to ensure their physical identity will be protected from persons other than the judge, jury and legal representatives (that is, from persons including the applicant).

It was noted by the judge that the orders were made until further order, in particular as there might be an application by the applicant to challenge the validity of some of the orders on a constitutional basis.

On 19 October 2009, the applicant caused notices to be issued pursuant to s 78B of the Judiciary Act 1903 (Cth) giving notice of intention to argue that it was an abuse of process for the Crown to rely on evidence of witnesses whose identities were not disclosed to the defence and the faces of whom were not disclosed to the accused, since to do so would be to confer on the District Court a power repugnant to and incompatible with the exercise of the judicial power of the Commonwealth as safeguarded by Chapter III of the Constitution.

On 17 December 2009, the matter was set down for trial on 22 March 2010, and subsequently the Crown notified the applicant that it would not be relying on ASIO witnesses. The relevant Attorneys-General were then advised that the constitutional issue would not be pursued.

Subsequently the Crown advised the applicant that it did intend to rely on ASIO witnesses, and further s 78B notices were served on or about 22 March 2010. On that day the applicant moved orally before the trial judge Charteris DCJ a motion to lift the orders made by Tupman DCJ to the extent that they precluded the applicant from seeing the ASIO witnesses.

Argument on applicant’s motion proceeded on 30 March 2010, with the Attorney-General for New South Wales intervening. The trial judge reserved his decision; and on 8 April 2010 he dismissed the motion, delivering reasons orally.

On 9 April 2010, the applicant filed and served a draft notice of application for leave to appeal from the decision of the trial judge.

On 12 April 2010, the trial judge provided in written form a draft copy of his reasons, and he stood the matter over to 19 April 2010.

On 13 April 2010, the applicant filed a settled notice of application for leave to appeal, with written submissions. The applicant was unable to have the application heard prior to 19 April 2010. It appears that on 16 April 2010, the Crown opposed the commencement of the trial on 19 April, but the applicant did not oppose it; and the trial judge directed that the trial commence on 19 April.

On 19 April 2010 the jury was empanelled and the case proceeded. The Crown called evidence, including evidence from ASIO witnesses, which was given in accordance with the orders of Tupman DCJ. The Crown case closed prior to the application coming before this Court. The case for the applicant had not yet commenced, and this Court has been told that the applicant does intend to give evidence himself.

The applicant relied on the following proposed grounds of appeal:

Substantial written submissions concerning these grounds were provided by the applicant, by the Director-General of Security and by the Attorney-General for New South Wales; and these were supplemented by oral argument. However, the Court came to the view that it should not determine these grounds but that, in circumstances where the relevant witnesses had already given their evidence in accordance with the orders of Tupman DCJ and the Crown’s case had been closed, leave to appeal should be refused.

It was submitted by the Crown that the application should be dismissed because there was no interlocutory order appealed against. We do not accede to that submission, although because of our other views, we do not need finally to determine this question. We do think that the order made by Charteris DCJ dismissing the applicant’s motion is such an order, and to the extent that it is necessary, we do think that the orders of Tupman DCJ are also such orders.

The contention of the applicant is that, if leave were granted and the appeal were allowed, photographs of the ASIO witnesses could then be shown to the applicant and then, if further cross-examination were required, these witnesses could be re-called for further cross-examination; so that, in the applicant’s contention, there would be no major disruption of the trial.

However, the affidavit of the Director-General of Security relied on before the trial judge included the following matter concerning the orders protecting the identity of ASIO witnesses:

That evidence was accepted by the trial judge, who noted there was nothing to challenge it.

In circumstances where these witnesses have already given evidence under the protection of the orders made by Tupman DCJ, it would be open to those witnesses and the Director-General of Security, if the appeal were allowed, to raise an objection to their identities now being revealed; and if that occurred, as seems likely, the likely result would be that the Crown would seek to withdraw their evidence, leading to difficult questions as to whether the jury would have to be discharged and the trial aborted. These circumstances have arisen because the trial went ahead, over opposition from the Crown but without opposition from the applicant.

If leave were refused and if the applicant were convicted, the grounds sought to be relied on in this application could be relied on in an appeal against conviction. In our opinion, if there is merit in these grounds, that merit could best be assessed in the context of an overall assessment, in such an appeal, of whether there has been a miscarriage of justice.

It was for those reasons that the Court decided to dismiss the application.