Baladjam v R [2010] NSWCCA 102

Procedural Posture

Criminal Application for Leave to Appeal Against Interlocutory Order / Application Under S 5 F of the Criminal Appeal Act 1912 From District Court Orders Concerning Protection of ASIO Witnesses, Heard After the Witnesses Had Given Evidence and the Crown Case Had Closed

Legal Issues

1. 1 ['Whether leave should be granted to appeal against interlocutory orders protecting the identity and physical appearance of ASIO witnesses.' 'Whether the District Court had power, consistently with Chapter III of the Constitution, to make orders preventing the accused from seeing ASIO witnesses.' 'Whether the trial judge applied the correct test and evidential burden in maintaining the protective orders.' 'Whether the application should be dismissed because there was no interlocutory order appealed against.' 'Whether, given the ASIO witnesses had already testified under the protective orders and the Crown case had closed, the proposed grounds should instead be considered on any appeal against conviction.']

Ratio Decidendi

Leave to appeal was refused because the ASIO witnesses had already given evidence under Tupman DCJ's protective orders and the Crown case had closed. If the appeal were allowed, the witnesses and Director-General of Security would likely object to their identities being revealed, the Crown might seek to withdraw their evidence, and difficult questions could arise about discharging the jury and aborting the trial. Any merit in the applicant's grounds could be assessed after conviction, if one occurred, in an appeal considering whether there had been a miscarriage of justice.

Court Disposition

Application for leave to appeal dismissed.

Orders

• ['Application for leave to appeal dismissed.']