Abdul Nacer Benbrika v Minister for Home Affairs

[2021] VSCA 41

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCI 2021 0003

ABDUL NACER BENBRIKA	Appellant
v
MINISTER FOR HOME AFFAIRS	Respondent

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JUDGES:	BEACH and KENNEDY JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	4 March 2021
DATE OF JUDGMENT:	4 March 2021
MEDIUM NEUTRAL CITATION:	[2021] VSCA 41

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CRIMINAL LAW – Appeal – Terrorist offender’s appeal against continuing detention order – Application that Commonwealth pay offender’s costs of appeal proceedings – Whether appellant unable to engage legal representation – Whether interim order should be made to enable preparation of amended notice of appeal and written case – Criminal Code 1995 (Cth), s 105A.15A(2)(b).

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Dr M Fitzgerald	Doogue & George
For the Respondent	Mr A Berger QC	Australian Government Solicitor

BEACH JA
KENNEDY JA:

1. On 24 December 2020, a judge of the Trial Division ordered that the appellant be subject to a continuing detention order under s 105A.7(1) of the Criminal Code 1995 (Cth) (‘the Code’). On 19 January 2021, the appellant filed a notice of appeal pursuant to s 105A.17(1) of the Code. At the same time, he filed an application seeking the following orders:

1.The requirements under r 64.02 of the Supreme Court (General Civil Procedure) Rules 2015 for the commencement of appeals be dispensed with under r 2.04 until further order (namely, the filing of a written case and additional documents).

2.The notice of appeal filed on 19 January 2021 be taken to commence appeal proceedings. 

3.An order be made under s 105A.15A(2)(b) of the Code for the Commonwealth to pay all reasonable costs and expenses of [the appellant] in regard to the appeal proceedings.

4.Such further or other orders, including as to the filing of any amended notice of appeal and written case, once funding becomes available.

1. The respondent does not oppose the making of orders 1, 2 and 4.  The dispute between the parties this morning relates to order 3. 

1. Sections 105A.15A(2) and 105A.17(2)(a) empower this Court to make an order requiring the Commonwealth to bear all or part of the reasonable costs and expenses of a terrorist offender’s appeal from an order making him or her subject to a continuing detention order.  Such an order may be made when, due to circumstances beyond the terrorist offender’s control,  he or she is unable to engage a legal representative. 

1. The appellant’s solicitor has affirmed two affidavits in which she deposes to the appellant’s impecuniosity, her inability to represent the appellant on a pro bono basis, and her inability to retain counsel on a pro bono basis.  In her second affidavit, she deposes to an application to Victoria Legal Aid having been rejected, and to the making of an alternative application for funding from the Commonwealth Legal Assistance Scheme, administered by the Attorney-General’s Department (‘the Scheme’).  At the time the second affidavit was affirmed, the application for funding under the Scheme had not been determined.  It remains outstanding.

1. In summary, the respondent opposes the appellant’s s 105A.15A application because:

·the appellant has not yet exhausted other available avenues for funding;  and

·the grounds set out in the appellant’s notice of appeal are not adequate to enable an assessment of the prospects of success of the appeal.

1. That said, the respondent recognises that the appellant is likely to face difficulties in filing an amended notice of appeal and written case without a legal representative. Accordingly, if the appellant exhausted other available avenues of funding, the respondent would consent to an interim costs order under s 105A.15A(2)(b), requiring the Commonwealth to pay a fixed sum that is sufficient to enable the appellant to obtain advice and to file an amended notice of appeal and written case. The respondent submits that any interim costs order should not exceed $10,000.

1. In our view, there is force in the respondent’s submission that s 105A.15A is not yet engaged because it will not be known whether the appellant is able to engage legal representation until his application for funding under the Scheme is determined.  As such, it cannot presently be said that the appellant is ‘unable to engage a legal representative’ under s 105A.15A(2).  If the application for funding is granted on appropriate terms, then the application under s 105A.15A(2) will also fall away.

1. With respect to the respondent’s second submission, we agree that it would not be appropriate to make an order without knowing a little more about the basis of the appellant’s appeal.  As currently drafted, the appellant’s notice of appeal provides no basis for any assessment of the merits of the appeal. 

1. In our view, this Court should not make an order in respect of the whole of the costs of the appeal without at least determining that the appeal is not entirely hopeless.

1. To the extent that the respondent submitted that this Court, on an interlocutory application of the present kind, might assess with any precision the merits of the appeal, we would, however, reject that submission. The appellant has a right of appeal, granted by s 105A.17(3)(a) of the Code. Unless his appeal can be shown to be hopeless, he should be permitted to exercise that right.

1. In the result, if the application to the Commonwealth Attorney-General under the Scheme is not successful, we would grant the interim order consented to by the respondent — save that we would not cap those costs as contended for by the respondent. Section 105A.15A(2)(b) permits an order to be made requiring the Commonwealth to bear ‘all or part of the reasonable costs and expenses of the offender’s legal representation’ for the appeal. That is, it is only ‘reasonable costs’ that the Commonwealth may be ordered to bear. Any amount held to be unreasonable is not payable by the Commonwealth. We see no reason to either reduce the amount that otherwise might be payable as reasonable or to fix that amount on some arbitrary basis. Any dispute about the reasonableness of the costs incurred can be determined by the Costs Court.

1. Otherwise, we will make the other orders sought by the appellant which were not opposed by the respondent.  

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