DPP v Harika

[2007] VSC 435

IN THE SUPREME COURT OF VICTORIA Not restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1544 of 2006

THE QUEEN

v

ABDUL NACER BENBRIKA, AIMEN JOUD, SHANE KENT, FADL SAYADI, HANY TAHA, EZZIT RAAD, ABDULLAH MERHI, BASSAM RAAD, AHMED RAAD, SHOUE HAMMOUD, MAJED RAAD and AMER HADDARA

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JUDGE:	BONGIORNO J
WHERE HELD:	Melbourne
DATE OF HEARING:	1 November 2007
DATE OF RULING:	7 November 2007
CASE MAY BE CITED AS:	R v Benbrika and ors (Ruling No. 9)
MEDIUM NEUTRAL CITATION:	[2007] VSC 435

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CRIMINAL LAW – Evidence – Conversations between accused and family – Rumours of undesirable activity – Subsequent conversation with others in which rumours not denied – Hearsay – No prejudicial effect.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr R Maidment SC with Mr N Robinson SC, Mr D Lane and Ms L Taylor	Commonwealth DPP
For the Accused Ezzit Raad	Mr G Barns	Slades & Parsons
For the Accused Taha	Mr J Montgomery SC	Robert Stary & Associates
For the Accused Benbrika	Mr R Van de Wiel QC with Mr A Halphen	Doogue & O”Brien
For the Accused Joud	Mr T E Wraight	Lethbridges
For the Accused Haddara	Mr A D Trood	Robert Stary & Associates
For the Accused Merhi	Mr M Taft SC	Robert Stary & Associates
For the Accused Ahmed Raad	Mr J McMahon	Robert Stary & Associates
For the Accused Sayadi	Ms N Karapanagiotidis	Robert Stary & Associates
For the Accused Majed Raad	Mr G P  Mullaly	Slades & Parsons
For the Accused Bassam Raad	Mr B Lindner	Robert Stary & Associates
For the Accused Kent	Mr J O’Sullivan	Robert Stary & Associates
For the Accused Hammoud	Mr D Brustman	Victoria Legal Aid

HIS HONOUR:

1. This application concerns the admissibility of conversations between one of the accused, Shoue Hammoud, and his father, and between the same accused and a relative, Ahmed Abboud.  The conversations each deal with rumours that Shoue Hammoud was involved in undesirable activity of which his father and Abboud did not approve.  

1. The admissibility of this evidence is opposed both by counsel for Hammoud and counsel for Hany Taha, a co‑accused who is also involved.  However, the argument for exclusion was argued, in accordance with the practice followed by the Court in this trial, only by one member of counsel, Mr Brustman.

1. In the first conversation (line 373 of the Crown summary) complained of, Hammoud's father asked him if he was involved with the police.  Hammoud said, "No." His father then told Hammoud that someone had told him that he, Hammoud, Hany Taha and Fadl Sayadi had been "dobbed in", that they were going to make a bomb and that the police were after them.  He gave further details of this information and then asked Hammoud if he was in trouble.  Hammoud denied that the information was true and denied that he was in trouble.  The second conversation (line 376 of the Crown summary) was in a similar vein.

1. A similar conversation between Ahmed Abboud and Hammoud took place later the same day (Crown summary line 377).  Abboud relayed a rumour to Hammoud that two young men, Gehad and Baha, had been saying that a group of which Hammoud was a member was interested in making a bomb.  Abboud asked him if he was one of the group.  Hammoud said that Baha didn't hang around with the brothers.  He said he saw Abu Bakr, that is to say, Benbrika, a lot.  Abboud advised him to keep away from Benbrika. 

1. The relevance of these conversations only becomes apparent in the context of a subsequent conversation between Hammoud, Benbrika, Joud and Taha at Benbrika's residence the following day (line 382 Crown summary).  The conversation is long and there is no need to set it out here.  It is sufficient to say that Hammoud relayed the conversations with his father and his uncle to the group in some detail.  In the course of his conversation with them, each of the participants said things from which a jury might infer that Hammoud's protestations of innocence to his father and his uncle were disingenuous and that Benbrika, Joud and Taha accepted the allegations made by Hammoud's father and uncle as being, in substance, true, at least to a significant extent.  Certainly there was no denial of them as being unfounded rumours or gossip.

1. The Crown seeks to rely upon this evidence as going to the nature and existence of the terrorist organisation to which the accused are alleged to belong as one fostering or preparing for a terrorist act.  That the evidence would have this probative value cannot be denied. 

1. The Crown does not seek to tender the conversations between Hammoud and his father and his uncle as going to the truth of the allegations they contain, but merely to explain the ultimate conversation in which there is evidence of admissions which are only intelligible in the context of those earlier conversations. Mr Brustman complained that the basal conversations complained of are based on gossip and rumour and that there is a danger that a jury will accept them as conveying facts upon which they might act.  In effect, he submits that they are inadmissible hearsay.  This submission cannot be accepted.  Insofar as they contain allegations, they are merely that.  They are not evidence that the allegations are in any sense true, but merely that they were made by Hammoud's father and his uncle.  At trial the jury will be carefully instructed that they must not take those conversations as in any way going to proof of the allegations they contain.  Such a warning or direction is not uncommon and must be given in any case where a jury might think that evidence of an out of court statement is being tendered as proof of the facts asserted in it.

1. Alternatively, Mr Brustman argues that if these conversations have probative value, the prejudicial effect of them outweighs that probative value.  The probative value of these conversations is very high and there is not, so far as I can see, any prejudice to the accused in leading them, that is to say prejudice in the way that that term is understood in this area of legal discourse.  Prejudice would only arise from the use of the conversations if they were used as hearsay evidence.  They will not be used in that way and the jury will be so instructed. 

1. Accordingly, there is not, in my opinion, any basis for their exclusion under any residual discretion as to prejudice or unfairness.  The conversations will be admitted into evidence.

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