R v Qaumi & Ors

RECOMMENDATION

1. 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:
2. 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.
3. I direct that these remarks be provided to:

• The Chief Justice of New South Wales.
• Mr Severin, the Commissioner for Corrective Services.
• The Officer in Charge of the Court Escort Security Unit of the Department of Corrective Services.
• The Correctional Officer in Charge of the cells at the Downing Centre Court complex.
• The Superintendent or Officer in Charge of the Parklea Correctional Centre.

1. 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: "5. My principle concern is the proper administration of justice. The Department of Corrective Services, in all its forms and in all its functions, plays a fundamental part in the administration of justice. Its role, in the present respect, is to facilitate the functioning of the criminal Courts. Any step which may be taken in transporting the Accused which causes an adverse health outcome, and causes his trial to be interrupted (or even aborted), would constitute a direct interference with the administration of justice. 6. I am speaking more plainly on this occasion because it does not seem that what I said a week ago has had any effect. 7. I am not saying this because of any personal desire that the Accused be given special treatment. At the same time, everyone, including the Court and the Department of Corrective Services, must take into account his unusual circumstances. His age and his state of health are such that it must be obvious to all concerned that to treat him as an ordinary prisoner, to be transported from one place to another until he does not arrive at his present place of custody until late at night, is entirely wrong."
2. 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. 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. 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: "It is already very evident how onerous it is on particularly Mr Zarshoy who is brought from some distance and his days are going from 4.00 o'clock in the morning at the moment until late in the evening before he gets back to his cell and then cooking his own food and washing. … It is onerous and any lengthy trial will be horrendous for the people in the dock. … Certainly it works for the court time but for Mr Zarshoy it is a huge day. One look at him one can see at the moment he is a bit grey and he is tired. He is falling asleep whenever he gets the opportunity, and this has only been going for a couple of weeks. It's going to be terrible in front of a jury, if we get to that point." [1]
3. "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. 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. 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. 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. 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: "Biscuit-gate - I was provided with a copy of the Downing Centre standard operating procedure. It tells me at 5.11 that: 'No food or medication is to be received by inmates, only water given by the court officer is allowed. If a judge or Magistrate orders such prohibited items to be given to an inmate, the officers will express their reservation to the Court and the officer in charge of the cells is to be called in immediately.' I note that from time to time the officers in court have complied with that standing operational procedure by expressing their reservations and I took the liberty of contacting the officer in charge of the cells myself to save them from having to panic and do so. She tells me that the offer of supplying biscuits essentially from the Bench is not possible. Coffee at morning tea is not possible but that the sandwiches will be distributed more evenly through the day so that the accused will receive sustenance at morning tea of some kind. I am afraid, as far as I can tell, absent some application and submissions that address the various restrictions placed on courts interfering with the administration of prisons, of which there are a number of authorities and they don't all speak with one voice, I think I have reached the limits of what I can do. So I'm sorry about that, but so it is."
8. 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: "The trial be stopped until he can come to court and in a position where he is not sleep deprived to the point of constantly falling asleep." and "The trial not proceed until he is in a fit state to present himself before his jury." [5]
9. 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. 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: "The accused Mr Zarshoy and the accused Mr Kalal (I am told) are both currently incarcerated at the Parklea Correctional Centre and at least on many days, if not all days, they are being woken at 4 o'clock in the morning and not getting back to the gaol until after dark, possibly sometimes until nine. The result is that they are both struggling to maintain focus during the course of the hearing. Mr Zarshoy in particular is noticeably falling to sleep, and Mr Kalal is showing signs of fatigue as I observe each of them from the bench. All of that information at this stage comes from the bar table and I have no doubt reflects the instructions taken by both Mr Driels, who appears for Mr Zarshoy, and Mr Clarke who appears for Mr Kalal. Various solutions have been contemplated and spoken of. But the situation is, as I expressed this morning, I am getting to a point where it may be necessary to take action which will be extremely expensive. That action would be to adjourn the trial for a period or to sit shorter sitting hours simply because two of the accused are having difficulty focusing on proceedings of the utmost importance to each of them. As I understand it Mr Zarshoy's lawyers are in the process of formulating some form of application and putting together evidence to support that. But in the meantime Mr Clarke, who appears for Mr Kalal, has asked me to make a recommendation to those who are responsible for transporting him from Parklea to this centre every day. Whether the solution proposed is a practical one is impossible for me to say. Whether or not it is a solution that can be acted upon by the Department of Corrective Services, again it is impossible for me to say. But it is known that another remand inmate by the name of Glen Patrick McNamara is being transported from Parklea to the city each day for his trial, which is a proceeding before Justice Bellew in one of the courts in King Street." [8]
11. 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. On 28 April 2016 the transcript records the following: "HIS HONOUR: Before I adjourn I just want to raise and place on the record that I think on four occasions this morning I looked at the dock and both Mr Kalal and Mr Zarshoy appeared to be asleep and I just wonder whether or not anything had happened in relation to the recommendation of travelling with Mr McNamara which is Mr Kalal's situation Mr Clarke. CLARKE: Not at the moment. I think it's back to the old regime. I thought there was a slight improvement last week but it seems to have lapsed back to the up early and return late. … HIS HONOUR: I must say my observations of Mr Zarshoy have been that he seems to have been asleep on a number of occasions. It's just that this morning I thought they might end up in one another's laps. CLARKE: Thank you for that your Honour. HIS HONOUR: Can I recommend to the officers who have custody of Mr Zarshoy and Mr Kalal during the morning adjournment that steps be taken to provide them with a cup of coffee if they would like one, otherwise [I am] going to stop the trial and this is going to end up being a far more expensive undertaking for the Department of Corrective Services than it will be otherwise. I'm not having people charged with offences of this nature falling asleep in the courtroom consistently. So if it's possible for them to be provided with refreshments that will enable them to be more alert, I would be very grateful. I realise that I'm possibly stepping on toes, but in the end I can only control the courtroom and if that means sitting for half an hour a day that's what will happen, and then Corrective Services will be transferring them for months and months longer than needs to be." [9]
13. 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: "DRIELS: Transportation problems, if I may raise them. Apparently, Mr Zarshoy came in the long way this morning as opposed to Mr Kalal who came with Mr McNamara and was here at 8 o'clock. I am informed Mr Zarshoy arrived here about 10 o'clock this morning. He has been in holding cells since 5.30, 6 o'clock this morning and in backs of trucks until he got here now. So he is not faring the best. HIS HONOUR: Yes. DRIELS: If he is forced to take some time out, he has had the opportunity to wash his face before he came into Court, but if he does need some time I will be seeking it during the day, your Honour. Sorry. HIS HONOUR: You will just have to let me know when it arises. I do note the recommendation I made in relation to the use of Mr McNamara's transport was confined to Mr Kalal because he was the only one who asked for it. DRIELS: As I said the other day, they both came together but maybe then for completeness, your Honour, if I could ask at this time that a recommendation be made to the transport section of the Department of Corrective Services that Mr Zarshoy be afforded the opportunity to travel with his co‑accused to Court here." [10]
14. 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: "CARROLL: I might say this, I probably interjected a little early only because I did observe Mr Zarshoy to be completely asleep and I just thought it better sooner rather than later to object. HIS HONOUR: I think I should put on the record that I nearly called stumps before this witness was called for the same reason. I think the situation is reaching a point where there just may have to be something extreme done." [11]
15. At the conclusion of the legal argument, I made the following request: "HIS HONOUR: Mr Zarshoy can perhaps get some refreshment during the morning adjournment. I don't know what is possible. The officers earlier in the trial at one stage when I made what I gather to be an outrageous suggestion that the accused receive some refreshment at morning tea, someone was kind enough to provide me with the protocol or standard operating procedures for the cells in this centre. I have mislaid my copy and I wonder whether it would be possible to get from the Officer in Charge downstairs a copy of those. I would also like to know whether there are cells immediately behind the courtroom, holding cells, and I would like to inspect those at some stage today. I think you are all aware, I know one officer has taken steps to try to keep Mr Zarshoy awake, I am grateful for that. I'm sure you're all aware of the problem that is developing in the trial and we're going to have to do something about it during the course of the day. If you could tell the officer in charge downstairs that I expect that to happen. Thank you." [12]
16. 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. 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. After the short adjournment, there was further discussion about the matter: "HIS HONOUR: I have it in mind to tell the jury that the Court will adjourn until Wednesday for their purposes. Mr Driels, I am not sure how Mr Zarshoy is now. You have just spoken to him, I see. Is there anything you want to say about that? … HIS HONOUR: I must say, the reason that I said what I said when I walked on to the bench was (1) because I had just had some communication and I thought I might be able to make a useful recommendation that might actually have some effect and (2) because my observations of Mr Zarshoy this morning were such that I thought the trial perhaps shouldn't continue. DRIELS: Yes. HIS HONOUR: Three, because I thought I had another objection to rule on and rather than have the jury waiting around for an indeterminate amount of time. But if he is okay to go on then I think we should go on. DRIELS: As I said, he is okay there at the moment, talking to him. He is pale, as you can see, as well as being tired. I am keeping an eye on it. I would ask maybe if we could finish off Ms Brown and do all those other things it might be a reasonable time. It is midday now. … HIS HONOUR: What are you thinking about all this, Mr Crown. You have got eight eyes or so in court. I am sure you are conscious of the fact that one of your accused is, a lot of time or some of the time, not conscious. CROWN PROSECUTOR MCKAY: Clearly it is a concern that is concerning the Court and it must be clear that he is participating in the trial, not not participating." [13]
19. Subsequently, I made the following recommendation: "HIS HONOUR: … I recommend that the recommendation that I made in respect of Mr Kalal being transported with Mr McNamara also apply to the accused Mohammad Zarshoy." [14]
20. 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: "HIS HONOUR: I will just wait to hear from you and we will monitor the situation in the meantime, noting Mr Zarshoy is presently apparently asleep. Can you just keep me informed as to whether the McNamara option is working." [16]
21. 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. 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: "Secondly, I would make a recommendation that the Officer in Charge of the cells and the Department of Corrective Services do everything that they can to facilitate the offer made by the Prison Fellowship of Australia to provide refreshments to the inmates at the Downing Centre cells before Court or if practicable at the short adjournment, and I will order that this part of the transcript be taken out and provided to the people to whom the recommendation is directed and to the Prison Fellowship as well." [17]
23. 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. 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. 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. 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. 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. 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. 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. 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. 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. I call on those with the power to make appropriate arrangements to alleviate this situation to do so.

Endnotes

1. Pre-trial transcript, 457.
2. Trial transcript (T) 179.
3. T 293.
4. T 388-390.
5. T 886.
6. T 887-888.
7. T 932-934.
8. T 934-935.
9. T 1038.
10. T 1160-1161.
11. T 1180.
12. T 1182.
13. T 1182-1184.
14. T 1194.
15. T 1195.
16. T 1195.
17. T 1305.
18. The decision was upheld on appeal: Feili v R [2015] NSWCCA 43. 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: 23 November 2016