Regina (C'Wealth) v Baladjam & Ors [No 1] [2008] NSWSC 721

Regina (C'Wealth) v Baladjam & Ors [No 1] [2008] NSWSC 721

The transitional reference to "proceedings" in the Mental Health (Criminal Procedure) Amendment Act 2005 refers to criminal proceedings in the Supreme Court or District Court, not to earlier charging or committal proceedings. In the Supreme Court, the relevant criminal proceedings against Khaled Sharrouf commenced on 31 May 2007 when the indictment was presented and he was arraigned, which was after the 1 January 2006 commencement of the amendments. Accordingly, s 11(1) of the Mental Health (Criminal Procedure) Act 1990 applies and the fitness question must be determined by a judge alone.

Jurisdiction
Australia
Judgment Date
07 March 2008
Procedural Posture
Criminal Proceedings Concerning an Offence of Conspiracy to Do Acts in Preparation for a Terrorist Act or Acts / Preliminary Issue on Whether the Accused Sharrouf's Fitness Hearing Is to Proceed Before a Judge and Jury or Before a Judge Alone
Outcome
The Court held that the amended s 11 of the Mental Health (Criminal Procedure) Act 1990 applies and that the accused Sharrouf's fitness hearing is to be determined by a judge alone.
Legal Topics
['fitness to Be Tried' 'fitness Hearing Before Judge Alone' 'transitional Provisions' 'commencement of Criminal Proceedings' 'presentation of Indictment and Arraignment' 'application of State Procedural Laws in Federal Jurisdiction']
['criminal Law' 'criminal Procedure' 'mental Health Criminal Procedure' 'federal Jurisdiction'] ['fitness to Be Tried' 'fitness Hearing Before Judge Alone' 'transitional Provisions' 'commencement of Criminal Proceedings' 'presentation of Indictment and Arraignment' 'application of State Procedural Laws in Federal Jurisdiction']

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Procedural Posture

Criminal Proceedings Concerning an Offence of Conspiracy to Do Acts in Preparation for a Terrorist Act or Acts / Preliminary Issue on Whether the Accused Sharrouf's Fitness Hearing Is to Proceed Before a Judge and Jury or Before a Judge Alone

Legal Issues

  1. 1 ['Whether the word "proceedings" in the transitional provision to the Mental Health (Criminal Procedure) Amendment Act 2005 refers to the proceedings before the Supreme Court or more broadly to earlier charging or committal proceedings.' 'Whether the relevant proceedings against Khaled Sharrouf commenced before 1 January 2006 or on 31 May 2007 when the indictment was presented and he was arraigned.' "Whether the question of Khaled Sharrouf's unfitness to be tried must be determined by a judge alone under s 11(1) of the Mental Health (Criminal Procedure) Act 1990."]

Ratio Decidendi

The transitional reference to "proceedings" in the Mental Health (Criminal Procedure) Amendment Act 2005 refers to criminal proceedings in the Supreme Court or District Court, not to earlier charging or committal proceedings. In the Supreme Court, the relevant criminal proceedings against Khaled Sharrouf commenced on 31 May 2007 when the indictment was presented and he was arraigned, which was after the 1 January 2006 commencement of the amendments. Accordingly, s 11(1) of the Mental Health (Criminal Procedure) Act 1990 applies and the fitness question must be determined by a judge alone.

Court Disposition

The Court held that the amended s 11 of the Mental Health (Criminal Procedure) Act 1990 applies and that the accused Sharrouf's fitness hearing is to be determined by a judge alone.

Orders

  • ['Direct that the fitness hearing of the accused Sharrouf proceed before Whealy J as judge alone on Tuesday 25 March 2008.']