Posts Tagged ‘Judge Audrey Balla’

All stand for the judge – or else!

February 11, 2017

In 2013, by means of telephone intercepts, the AFP became aware that Hamdi Alqudsi was involved in assisting people to travel to Syria to join ISIS in its fight against the Syrian government.

That is an offence under s 7(1)(e) of the Crimes (Foreign Incursions and Recruitment) Act 1978 of which Mr Alqudsi was ultimately found guilty in 2016 after a jury trial before Justice Christine Adamson.  Details of the various telephone intercepts are set out in her sentencing remarks: R v Alqudsi [2016] NSWSC 1227He was sentenced to a term of imprisonment of 8 years, with a non-parole period of 6 years.

Alqudsi’s role, or at least the conduct that was detected and for which he was convicted, involved putting people in Australia in touch with an Islamic State recruiter, Baryalei, advising the would-be fighters about how to get there and liaising with the Islamic State people who were expecting them.  He planned to go at least to Turkey himself but was ultimately stopped from leaving Australia in September 2013.

On the morning of 18 September 2014, police in Australia carried out the biggest counter-terrorism operation in the nation’s history, with over 800 heavily armed officers targeting households in Sydney and Brisbane.

The immediate catalyst was an intercepted call from an ISIS operative to a younger sympathizer relaying instructions to commit a terror beheading against a random Australian target. The younger sympathizer said that he knew there were people ready to carry this out. Alqudi was presumably a target because of his known ISIS involvement (including with the operative).

Notoriously, very few charges were ultimately brought and none against Mr Alqudsi in relation to the plan to behead someone.

These were the classic dawn raids though this is a misnomer since such raids are generally conducted shortly before dawn.  The aim is to surprise people when they are asleep with maximum force to prevent resistance to arrest or, as in this case, to prevent any resistance and preempt any attempt to destroy evidence which may be in the premises which are authorised to be searched by a search warrant.

Seven heavily armed and balaclava’d police battered the door down and secured the premises.  The violence of their armed incursion into the house was justified on the basis that the execution of the warrant was investigation of a “terrorist” offence.  Then 4 AFP officers, who had been waited inside, entered and executed the warrant.

Mr Alqudsi, his wife Moutia Elzahed and her two teenage sons (then aged 14 and 16) sued the police for what they said was mistreatment in the course of the raid.  They said in their statement of claim:

The First Plaintiff [Elzahed] was punched in the ear, eye and head, was held and moved in a brutal manner; was handcuffed in an aggressive and hurtful manner, her ear bled, she was mentally and physically abused; she was screamed at and was humiliated. She suffered bodily and mental pain.

The Second Plaintiff’s [Mr Alqudsi’s] head was held by the officers who pushed his head down on the ground injuring it and his nose and preventing him from breathing, talking or calling out. He was wounded and punched on the back thereby aggravating a previous back condition. He was handcuffed in a brutal manner and his arms and wrists became sore and cramped; The Second Plaintiff suffered bodily and mental pain.

The Third Plaintiff was pushed down on the floor with violence by officers and handcuffed in an aggressive manner injuring his arms and wrists. He suffered bodily and mental pain on seeing and witnessing the assault and battery of his mother.

The Fourth Plaintiff was slammed on a cupboard and still has marks on his stomach. He also was pushed on the floor in a violent manner and handcuffed. He suffered bodily and mental pain as well as physical injury aggravated by the officer’s treatment of his mother.

8   At the said time and place referred to above the four Plaintiffs were wrongfully arrested and imprisoned by the officers who impeded their liberty by handcuffing and restraining them from moving freely and by keeping them under strict and constant control.

9    Further and in addition the officers intimidated the Plaintiffs by aggressively calling the Third and Fourth Plaintiffs terrorists, by aggressively calling the First Plaintiff a bitch and by beating and assaulting them, wearing balaclavas and carrying firearms and weapons and their general conduct in handling and by bullying and frightening them.

Mr Alqudsi’s claim was settled. That left Moutia Elzahed and the two sons.  The trial was heard by District Court judge Audrey Balla.

Ms Elzhahed refused to remove her niqab to give evidence.  Judge Balla refused to permit her to give evidence with her head covered, because she said this would deprive her of the means of assessing the witness’s credibility by seeing her face – [2016] NSWDC 327

You have to wonder about this.  If that were so, a blind or short-sighted person would be incompetent to act as a judge. Let’s not even go into those cases where judges or jurors have dozed off. People can keep a bold face or likewise be uncomfortable and look shifty according to their talents or nervousness.  Actual responses to questions and hesitations in giving answers are much more likely to be telling.  This is how Judge Balla dealt with this:

I am well aware that the demeanour of a witness and the viewing of their face is not the only way in which credibility is assessed.  In some cases the demeanour of a witness may be misleading.  However, neither of those considerations can, in my view, mean that I should be completely deprived of having the assistance of seeing her face to assess her credibility.

Largely as a result of this, she then dismissed the claims – [2016] NSWDC 353 .  (Other aspects of the claim had already been struck out by Judge Judith (“Judge Judy”) Gibson  – [2015] NSWDC 271. )

Judge Balla had another bone to pick with Ms Elzahed.  She had observed that Ms Elzahed had not stood when she entered and left the courtroom.  It is customary that all present in the court should do so, as a mark of respect.  She raised it with Ms Elzahed’s counsel, the redoubtable Clive Evatt (not QC).  Evatt told her that his client did not stand because she only stands for Allah.  Judge Balla drew his attention to section 200A of the District Court Act.  This section (recently introduced as a response to defiance by various Islamic “terror-related” defendants) provides:

A person is guilty of an offence against this section if:

(a) the person is an accused person or defendant in, or a party to, proceedings before the Court or has been called to give evidence in proceedings before the Court, and

(b) the person intentionally engages in behaviour in the Court during the proceedings, and

(c) that behaviour is disrespectful to the Court or the Judge presiding over the proceedings (according to established court practice and convention).

Maximum penalty: 14 days imprisonment or 10 penalty units, or both.

Judge Balla said:

“The law reflects community’s expectation that everyone who comes before a court should show respect for the judge and court. [….Possible ellipsis here as my source is the Daily Telegraph] Not standing up in court or refusing to follow a reasonable request fits that category.”

I expect Judge Balla was drawing on the second reading speech made on introduction of this law, as well as the definition of “behaviour” as “any act or failure to act.”

Ms Elzahed is now to be charged with an offence under that section – presumably for every occasion on which she failed to stand, the fact conveniently placed on the record by Judge Balla by raising the issue.

It will be an interesting question whether a failure to show a customary respect will amount to a positive act of disrespect according to custom.

My own feeling is that the essence of showing such respect is that it is voluntarily offered.  To say that it must be offered under pain of criminal prosecution robs it of that element.  There is already a law of contempt, although I am unaware of prosecutions being brought for merely failing to stand when the judge enters or leaves the court, or to offer the customary little bow when entering or leaving a court when it is in session.  If the law is as Judge Balla says it is you could be compelled to give evidence (by a subpoena), have your evidence rejected if you do not uncover your face and also be charged with an offence.

Is this necessary?  Did  Judge Balla need to raise the issue?  Even if ostensibly she was offering Ms Elzahed an opportunity to explain her failure to stand (bereft as it happens of the usual safeguards of right to silence when charged), it looks very much to me as though her Honour was stitching Ms Elzahed up.

Judge Balla’s behaviour in this case has not increased my respect for her.