Attorney-General (Commonwealth) v Benbrika (No 2) - [2025] VSC 223

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

S ECI 2024 06580

ATTORNEY-GENERAL OF THE COMMONWEALTH	Plaintiff
v
NACER BENBRIKA	Defendant

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JUDGE:	Elliott J
WHERE HELD:	Melbourne
DATES OF HEARING:	31 March, 1-3 April 2025
DATE OF JUDGMENT:	8 April 2025
DATE OF REASONS:	30 April 2025
CASE MAY BE CITED AS:	Attorney-General (Commonwealth) v Benbrika (No 2)
MEDIUM NEUTRAL CITATION:	[2025] VSC 223

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PUBLIC LAW – Application for extended supervision order under Division 105A of Part 5.3 of the schedule to the Criminal Code Act 1995 (Cth) – Terrorist offender – Whether defendant poses an unacceptable risk of committing a serious Part 5.3 offence – Whether extended supervision order should be made – Whether conditions of extended supervision order reasonably necessary and reasonably appropriate and adapted for the purpose of protecting the community from an unacceptable risk of the defendant committing a serious Part 5.3 offence – Extended supervision order made for a period of 7 months and 18 days – Conditions directed towards therapeutic matters only – Criminal Code Act 1995 (Cth), sch, pt 5.3, div 105A.

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APPEARANCES:	Counsel	Solicitors
For the plaintiff	Z Maud SC with G Ayres and S Rajanayagam	Australian Government Solicitor
For the defendant	D Star KC with G Morgan and J Hartley	Doogue + George
For the Director-General of the Australian Security Intelligence Organisation (interested party)	J Petry	Australian Government Solicitor
For the Secretary to the Department of Justice and Community Safety (interested party)	S Fitzgerald	Victorian Government Solicitor’s Office
For the Commissioner of the Australian Federal Police (interested party)	T Glover SC	Australian Government Solicitor

HIS HONOUR:

A. Should an extended supervision order be made, and if so, on what terms?

The trial of this proceeding concerned 2 key questions:
(1)Should a further extended supervision order be made in respect of the defendant, Nacer Benbrika (“Benbrika”)?
(2)If an order is to be made, what conditions should it include?
The answers to those questions are:
(1)Yes, for a period expiring on 28 November 2025.
(2)The conditions summarised at paragraphs 28(1) to (4) and 29(1) below.

B. Why is Benbrika before the court?

Benbrika is 65 years old. On 5 November 2020, he completed a term of imprisonment imposed after he was found guilty by a jury in September 2008 of intentionally being a member, and directing the activities, of a terrorist organisation.[1]
[1]Benbrika was found guilty of a further charge (see R v Benbrika (2009) 222 FLR 433 (Bongiorno J)), but this was the subject of a successful appeal against conviction: Benbrika v The Queen (2010) 29 VR 593 (Maxwell P, Nettle and Weinberg JJA).
Since the expiration of his sentence, Benbrika has remained subject to successive post-sentence orders made under Division 105A of Part 5.3 of the schedule to the Criminal Code Act 1995 (Cth) (“the Criminal Code”) on the basis that he continues to pose an unacceptable risk of committing serious terrorism offences.[2]
[2]This is a reference to the offences referred to…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2025] VSC 223
Decision Date: 8 April 2025

CaseChat Overview and Summary

The applicant, the Attorney-General for the Commonwealth, sought an extended supervision order in respect of the respondent, Benbrika, a convicted terrorist offender, under Division 105A of Part 5.3 of the schedule to the Criminal Code Act 1995 (Cth). The application was heard by the Federal Court of Australia. The primary legal issue before the court was whether the respondent posed an unacceptable risk of committing a serious Part 5.3 offence and, if so, whether an extended supervision order should be made, along with what conditions should be imposed. The court was also required to determine whether any proposed conditions were reasonably necessary and reasonably appropriate and adapted for the purpose of protecting the community from the unacceptable risk posed by the respondent.

The court found that the respondent posed an unacceptable risk of committing a serious Part 5.3 offence, justifying the making of an extended supervision order. The court further determined that the proposed conditions of the extended supervision order, which were directed towards therapeutic matters only, were reasonably necessary and reasonably appropriate and adapted for the purpose of protecting the community from the unacceptable risk posed by the respondent. Consequently, the court made an extended supervision order for a period of 7 months and 18 days, with conditions that were limited to therapeutic matters. The court's decision was based on the evidence presented and the need to balance the respondent's rights with the need to protect the community from the risk of serious crime.

The final orders of the court were that an extended supervision order be made for a period of 7 months and 18 days, with conditions directed towards therapeutic matters only. This decision reflects the court's careful consideration of the evidence and the principles underpinning the legislation. The outcome demonstrates the court's commitment to ensuring that the rights of the respondent are balanced with the need to protect the community from the risk of serious crime.

Orders