Benbrika v A-G (Cth) - [2024] VSC 265

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

GENERAL LIST

S ECI 2022 05118

ABDUL NACER BENBRIKA	Plaintiff
v
ATTORNEY-GENERAL OF THE COMMONWEALTH	Defendant

S ECI 2023 00855

ATTORNEY-GENERAL OF THE COMMONWEALTH	Plaintiff
v
ABDUL NACER BENBRIKA	Defendant

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JUDGE:	HOLLINGWORTH J
WHERE HELD:	Melbourne
DATE OF HEARING:	2, 5, 6, 7, 20 June 2023, 19 December 2023
DATE OF JUDGMENT:	5 June 2024
CASE MAY BE CITED AS:	Benbrika v A-G (Cth)
MEDIUM NEUTRAL CITATION:	[2024] VSC 265

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PUBLIC LAW - Review of continuing detention order under Criminal Code Act 1995 (Cth) – Application for extended supervision order under Criminal Code Act 1995 (Cth) – Extended supervision order made for one year on strict conditions.

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APPEARANCES:	Counsel	Solicitors
For Mr Benbrika	Mr D Star KC Ms G Morgan Mr J Hartley	Doogue + George Defence Lawyers
For the Attorney-General	Mr P Hanks KC Ms S Zeleznikov Mr S Rajanayagam Ms M Jackson	Australian Government Solicitors

HER HONOUR:

INTRODUCTION

Until 19 December 2023, Abdul Nacer Benbrika was detained in prison under a continuing detention order (“CDO”), which was made under s 105A.7(1) of the Criminal Code (Cth) (“the Code”).

The CDO was due to expire on 23 December 2023. Mr Benbrika and the Attorney-General of the Commonwealth (“the A-G”) both agreed that Mr Benbrika should be the subject of a less restrictive extended supervision order (“ESO”), instead of the CDO, although there was a dispute as to some of the ESO conditions and the duration of the ESO.

Because of late developments in the proceedings, which will be discussed shortly, it was not possible for me to publish detailed written reasons before the CDO expired. On 19 December 2023, I made orders replacing the CDO with an ESO. At the time of making the orders I gave extensive oral reasons for decision, and indicated that I would publish full written reasons at a later date. These are those written reasons.

In order to understand the issues in dispute, it is convenient to begin with a discussion of the background to these proceedings.

Previous proceedings

Between mid-2004 and late 2005, Mr Benbrika was the leader of a terrorist organisation, whose members were preparing to commit a violent terrorist act in order to advance Islamic ideology through the pursuit of violent jihad.

In September 2008, Mr Benbrika was found guilty by a jury of intentionally being a member, and directing the activities, of a terrorist organisation. In February 2009, Mr Benbrika received a total effective sentence of 15 years’ imprisonment, with a non-parole period of 12 years.[1]
[1]R v Benbrika & Ors [2009] VSC 21, Bongiorno J (“the sentencing remarks”).

Mr Benbrika was not granted parole. His sentence expired on 5 November 2020. From then until 19 December 2023, he remained in prison in the following circumstances.

CDOs and ESOs are both “post-sentence orders” that may be sought on application by the “AFP Minister”, who is defined in s 100.1 of the Code…

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.

Continue reading Benbrika v A-G (Cth)

Details

AGLC: Benbrika v A-G (Cth) [2024] VSC 265
Case: [2024] VSC 265
Decision Date: 5 June 2024

CaseChat Overview and Summary

The case of Benbrika v A-G (Cth) involved a review of a continuing detention order under the Criminal Code Act 1995 (Cth) and an application for an extended supervision order. The applicant, Benbrika, was being held under the extended detention regime due to concerns about his potential to engage in terrorist activities. The High Court of Australia was tasked with determining whether the continued detention and the conditions of the extended supervision order were justified.

The primary legal issues before the court were whether the detention order was valid under the Criminal Code Act 1995 (Cth) and whether the terms of the extended supervision order were reasonable and proportionate to the risk posed by Benbrika. The court had to consider the statutory framework governing extended detention, the principles of proportionality, and the extent to which the order impinged on Benbrika's rights. Additionally, the court assessed whether the evidence supported the government's contention that Benbrika posed a significant risk of engaging in terrorist activities.

In delivering the judgment, the High Court found that the extended detention order was valid under the statutory provisions and that the conditions of the extended supervision order were appropriate given the risk posed by Benbrika. The court emphasised the importance of the principle of proportionality, ensuring that the measures taken were not excessive in relation to the risk. The court also highlighted the need for the evidence to be compelling and to support the government's claims regarding the risk of terrorist activities. The High Court concluded that the extended supervision order, with its strict conditions, was a reasonable and proportionate response to the risk posed by Benbrika.

The final orders of the court were that the extended supervision order made for one year with strict conditions was upheld, and the application for review of the continuing detention order was dismissed. The court's decision underscored the balance between national security interests and individual rights, affirming the validity of the extended supervision order under the circumstances presented.

Orders