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Joud v The Queen

Joud v The Queen

Case [2011] VSCA 158 3 June 2011

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

Not Restricted

Nos 52, 59, 60 and 61 of 2011

AIMEN JOUD	Appellant
v
THE QUEEN	Respondent

ABDUL BENBRIKA	Appellant
	v
THE QUEEN	Respondent

AHMED RAAD	Appellant
	v
THE QUEEN	Respondent

FADL SAYADI	Appellant
	v
THE QUEEN	Respondent

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JUDGES	ASHLEY, NEAVE and WEINBERG JJA
WHERE HELD	MELBOURNE
DATES OF HEARING	18 and 19 April 2011
DATE OF JUDGMENT	3 June 2011
MEDIUM NEUTRAL CITATION	[2011] VSCA 158
JUDGMENTS APPEALED FROM	R v Benbrika & Ors (Ruling No 1) [2011] VSC 76 (T Forrest J); R v Benbrika & Ors (Ruling No 2) [2011] VSC 471 (T Forrest J)

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CRIMINAL – Interlocutory appeal – Application for permanent stay – Applicants previously convicted of being members of a terrorist organisation and other terrorism offences – Separately indicted for conspiring to do acts in preparation of a terrorist act – Criminal Code Act 1995 (Cth), ss 11.5 and 101.6(1) – Overlap between evidence relied upon in first trial and proposed to be relied upon in present trial – Autrefois convict – Whether elements of offences identical – Pearce v The Queen (1998) 194 CLR 610; Carroll v The Queen (2002) 213 CLR 635, applied – Abuse of process – Double jeopardy – Relevance of maximum penalty prescribed for offences – Seriousness of conduct involved – Oppression – Whether prosecutorial decision made in good faith oppressive – Public interest – Capacity to avoid lengthy second trial – Individual assessment of prejudice to each applicant required – Jago v District Court of New South Wales (1989) 168 CLR 23; R v Glennon (1992) 173 CLR 592; Dupas v The Queen (2010) 241 CLR 237, applied – Appeal allowed – Application for stay remitted to trial judge.

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Appearances:	Counsel	Solicitors
For the Applicant Joud	Mr M P Cahill with Ms S J Keating	Lethbridges
For the Applicant Benbrika	Mr P J F Higham with Mr S A Moglia	Doogue & O’Brien
For the Applicant Raad	Mr J P McMahon	Robert Stary & Associates
For the Applicant Sayadi	Mr S R Johns with Ms M J Mykytowycz	James Dowsley & Associates
For the Crown	Mr R Maidment SC with Ms L A Taylor	Commonwealth Director of Public Prosecutions

ASHLEY JA:

I agree with Neave JA.

NEAVE JA:

This is an interlocutory appeal against the decision of a Trial Division judge refusing to order a permanent stay of the forthcoming trial of four applicants, Mr Abdul Benbrika, Mr Aimen Joud, Mr Fadl Sayadi and Mr Ahmed Raad,[1] who have been indicted for the offence of conspiring to do acts in preparation of a terrorist act contrary to ss 11.5 and 101.6(1) of the Criminal Code Act1995 (Cth) (the ‘Code’).[2] The applicants submit that the stay should have been granted because they were convicted of certain terrorism offences under Part 5.3 of the Code in a previous trial (‘Benbrika 1’).
[1]I will hereafter refer to the applicants solely by their surnames.

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 Joud v The Queen

Details

AGLC: Joud v The Queen [2011] VSCA 158
Case: [2011] VSCA 158
Decision Date: 3 June 2011

CaseChat Overview and Summary

Joud v The Queen involved two applicants who had previously been convicted for their involvement in a terrorist organisation and related offences. They were subsequently indicted for conspiring to commit acts in preparation of a terrorist act. The applicants applied for a permanent stay of proceedings on the grounds of double jeopardy, abuse of process, and oppression. The case was heard in the High Court of Australia.

The court was required to determine whether the elements of the offences in the first trial and the proposed trial were identical, and if the prosecution's decision to proceed with the second trial was oppressive. The court also had to assess whether the public interest favoured holding a second trial, and whether there was a capacity to avoid a lengthy trial. The applicants argued that the overlap in evidence and the oppressive nature of the prosecution's decision warranted a stay of proceedings.

The court held that the elements of the offences were not identical, as the first trial was for membership of a terrorist organisation, whereas the second trial was for conspiracy to commit a terrorist act. The court found that the prosecution's decision to proceed with the second trial was not oppressive, as it was made in good faith. However, the court held that the public interest did favour holding a second trial, and that there was a capacity to avoid a lengthy trial. The court concluded that an individual assessment of prejudice to each applicant was required, and remitted the application for a stay to the trial judge.

The appeal was allowed, and the application for a stay was remitted to the trial judge for further consideration in light of the court's findings.

Orders