Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Baladjam v R [2010] NSWCCA 102 Hearing dates: 5 May 2010 Decision date: 12 May 2010 Before: Hodgson JA Rothman J Barr AJ Decision: Application for leave to appeal dismissed. Catchwords: CRIMINAL LAW – Application for leave to appeal against interlocutory order – Order protecting identity of ASIO witnesses – Application heard after their evidence given – Leave to appeal refused. Legislation Cited: Criminal Appeal Act 1912 s 5F Judiciary Act 1903 (Cth) s 78B Category: Procedural and other rulings Parties: Bradley Umar Sariff BALADJAM (applicant) CROWN (first respondent) DIRECTOR-GENERAL OF SECURITIES (second respondent) ATTORNEY-GENERAL (NSW) (third respondent) Representation: Counsel: P LANGE/ G SCRAGG (applicant) D ARNOTT SC/ G TABUTEAU (Crown) M WIGNEY SC (second respondent) Ms A MITCHELMORE (third respondent) Solicitors: LawyersCorp Pty Ltd (applicant) Office of the Director of Public Prosecutions NSW (Crown) Australian Government Solicitor (second respondent) Office of the Crown Solicitor (third respondent) File Number(s): CCA 2006/11417 Decision under appeal Court or tribunal: District Court Date of Decision: 08 April 2010 Before: Charteris DCJ File Number(s): 2006/00011417 JUDGMENT 1. 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. 2. The applicant had been charged with, and was standing trial in the District Court in respect of, various offences including attempted murder. 3. 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). 4. 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). 5. 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. 6. 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. 7. 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. 8. 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. 9. 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. 10. 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. 11. 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. 12. 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. 13. 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. 14. The applicant relied on the following proposed grounds of appeal: His Honour erred in: 1) concluding that Chapter III of the Constitution had no bearing upon the power of the District Court to make the orders challenged, by holding that the Constitution prohibited only such interferences with the judicial power of the Commonwealth as were: a. contained in express legislative provisions; and b. which directed the court as to the manner in which its judicial power was to be exercised; 2) applying the wrong test, by concluding that the District Court's implied power permitted the making of the orders challenged on the basis that the orders were necessary to protect national security; 3) unreasonably accepting, in the absence of contrary evidence, that there is a risk to national security on the basis of the affidavit of the Director-General of Security; 4) imposing too high an evidential burden on the Applicant by holding that it was incumbent upon the Applicant to adduce evidence that access to the physical identities of the witnesses was necessary for the conduct of his defence; 5) determining that the Applicant was not in any way disadvantaged by being unable to see the faces of the particular witnesses; 6) holding that the District Court had the implied power to deny an accused access to all identifying features of a witness called by the prosecution, bar his occupation and the identity of his employer. 1. 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. 2. 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. 3. 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. 4. 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: 14 Further, I believe that Orders 3 and 4 in the notice of motion are necessary for the following two reasons, both of which are relevant to national security: 14.1 to prevent the defendant identifying any ASIO witnesses that the defendant may have seen in the course of any surveillance conducted by those officers; and 14.2 to prevent any persons present in the Court (other than those persons identified in Orders 3(a)-3(i)) from identifying any ASIO witnesses who are or may be involved in operational duties in the future. 15 I understand that it is important that the defendant be present to hear the evidence of the ASIO witnesses and to provide instructions to his legal representatives. However, were the defendant to see the ASIO witnesses, he would be in a position to identify those witnesses as officers of ASIO, and may be able to assist other persons in identifying those officers, or other officers who may have been seen with the ASIO witnesses in the past, now or in the future. 16 If the appearance of ASIO witnesses were to be revealed to either the defendant or persons other than those identified in Orders 3(a) to (i), I consider this would adversely impact upon the ability of those officers, and other ASIO officers, to engage in operational duties in the future, and would pose a real and unacceptable risk to the personal safety of those officers and their families. It would, in turn, harm ASIO's operational effectiveness. 1. That evidence was accepted by the trial judge, who noted there was nothing to challenge it. 2. 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. 3. 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. 4. It was for those reasons that the Court decided to dismiss the application. ********** Amendments 20 April 2020 - Publication restriction removed – judgment published DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 20 April 2020