Joud v The Queen

[2011] VSCA 158

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:

1. I agree with Neave JA.

NEAVE JA:

1. 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.

   [2][2011] VSC 76 (‘Ruling’).

1. In the proceedings below, the applicants argued that they were entitled to rely on a plea in bar of autrefois convict (previous conviction), but that, even if the requirements for autrefois convict were not satisfied, there was such an overlap of evidence and issues that the trial offended the principles of double jeopardy and should therefore be stayed as an abuse of process.[3]  Alternatively, they argued that, even if

there is not such a degree of overlap between evidence and issues alone so as to justify staying the proceedings, then there is still a very considerable overlap and this combined with other broader considerations of oppression (such as delay, oppressive conditions of incarceration, pre-trial publicity,[4] and the effect of the prosecution choices relating to the drafting of indictments) ought to lead [the trial judge] to stay the proceedings as an abuse of process.[5]

[3]As was countenanced for example in Island Maritime Ltd v Filipowski (2006) 226 CLR 328, 343 [41] (Gummow and Hayne JJ).

[4]This aspect was argued only on behalf of Joud.

[5]First Ruling, [4][c].

1. In his First Ruling, made on 11 March 2011, his Honour held that:

(a)       a plea in bar of autrefois convict must be determined either by the trial jury or by a jury empanelled specifically for that purpose.  However, because of the volume of evidence which would have to be considered by a jury, a contested plea in bar would become a ‘mega trial’ in itself and would be unworkable.  Even if autrefois convict did not apply, the Court would still need to decide whether the second trial breached the double jeopardy rule.[6]  For that reason, the boundaries of autrefois convict were ‘not critical’ to the granting of a stay, unlike the principle of double jeopardy;

[6]Ibid [6], [7].

(b)      the second trial did not ‘twice vex the applicants for the same cause’[7] because the conspiracy offence added something to the criminality for which the applicants had already been punished.  Accordingly, the second trial did not breach the double jeopardy principle and should not be stayed on that basis alone;[8]

[7]A form of this expression was used by Gaudron and Gummow JJ in R v Carroll (2002) 213 CLR 635, 661 [86].

[8]First Ruling, [50], [51], [55].

(c)       the additional criminality in the conspiracy offence to be tried in the second trial was ‘relatively modest’[9].  The minimum time for the second trial was nine months and the maximum was a ‘blue sky time estimate’.  The applicants’ conditions of incarceration and transport during Benbrika 1 had been appalling.[10]  Having regard to the modest additional criminality covered by the offence to be tried in the second trial and these additional matters, the proposed trial was so significantly oppressive that it would be appropriate to permanently stay it; and

(d)      a permanent stay should only be granted if the abuse of process were incurable and the oppression could not be overcome by a ‘ruthless paring of the evidence’.[11]  The Crown should therefore be given the opportunity to consider whether this could be done.

[9]Ibid [63].

[10]R v Benbrika (Ruling No 20) (2008) 18 VR 410 (Bongiorno J).

[11]First Ruling, [67].

1. In his ruling of 25 March 2011 (the ‘Second Ruling’), his Honour considered the Crown’s proposal to call 97 rather than 160 witnesses in the second trial and to reduce the number of recorded conversations to be adduced in evidence from 465 to 365.  After hearing submissions from counsel, the judge found the second trial was likely to take between 20 to 30 weeks.

1. His Honour ruled that, although much of the applicants’ criminality had already been punished by their convictions in Benbrika 1, the oppressive nature of the second trial had been reduced to ‘an acceptable level’.[12]  As a consequence, he refused to grant a permanent stay.  After hearing submissions from counsel, the judge certified his decision as being sufficiently important to justify its determination on an interlocutory appeal.[13]

   [12]R v Benbrika & Ors (Ruling No 2) [2011] VSC 471, [21].

   [13]Criminal Procedure Act 2009, s 295(3)(b).

The two trials

1. By indictment dated 7 December 2006, 12 men, including the four applicants,[14] were indicted for terrorism offences under Part 5.3 of the Code. After a seven month trial in the Trial Division,[15] a jury found each of the four applicants guilty of various offences.  These were as follows:

[14]Four of the 12, Hany Taha, Bassam Raad, Shoue Hammoud and Majed Raad, were acquitted by the jury.  The jury could not reach a verdict in relation to another co-accused, Shane Kent.  Abdullah Merhi, Ezzit Raad, Amer Haddara and the four applicants were found guilty.  One co-offender, Izzydeen Atik, had already pleaded guilty and was not indicted with the others.

[15]Seven months from empanelment to verdict: First Ruling, [7].

Count	Prisoner	Offence and Code section
1	Benbrika, Joud, Raad and Sayadi	Intentionally being a member of a terrorist organisation, knowing that it was a terrorist organisation (s 102.3(1)) (maximum penalty: 10 years’ imprisonment)
2	Benbrika	Intentionally directing activities of a terrorist organisation, knowing that it was a terrorist organisation (s 102.2(1)) (maximum penalty: 25 years’ imprisonment)
3	Joud	Intentionally providing resources to a terrorist organisation, knowing that it was a terrorist organisation (s 102.7(1)) (maximum penalty: 25 years’ imprisonment)
4	Raad	Intentionally providing resources to a terrorist organisation, knowing that it was a terrorist organisation (s 102.7(1))
5	Sayadi	Intentionally providing resources to a terrorist organisation, knowing that it was a terrorist organisation (s 102.7(1))
6	Joud and Raad	Attempting intentionally to make funds available to a terrorist organisation, knowing that it was a terrorist organisation (ss 11.1(1) and 102.6(1)) (maximum penalty: 25 years’ imprisonment)
7	Joud	Possession of a thing connected with preparation for a terrorist act, knowing of that connection (s 101.4(1)) (maximum penalty: 15 years’ imprisonment)
8	Joud	Possession of a thing connected with preparation for a terrorist act, knowing of that connection (s 101.4(1))
12	Benbrika	Possession of a thing connected with preparation for a terrorist act, knowing of that connection (s 101.4(1))

1. The applicants then sought leave to appeal against their conviction.[16]  This Court granted leave to appeal and upheld the appeals in relation to Joud’s conviction on counts 7 and 8 and Benbrika’s conviction on count 12, on the basis that the trial judge had misdirected the jury as to the requirements for establishing the offence of possession of a thing connected with preparation for a terrorist act.[17]  The Court directed that Benbrika be retried on the possession count (count 12) and directed that verdicts of acquittal be entered on Joud’s possession counts, on the basis that there was insufficient evidence on which a jury could convict him.[18]

   [16][2010] VSCA 281. Applications for leave to appeal against sentence were also dealt with by the Court. As at the date of this judgment, applications for special leave filed by Benbrika, Raad and Joud were to be heard by the High Court on 10 June 2011.

   [17]It was held that his Honour had incorrectly directed the jury on the connection which had to be proved between the thing (a CD) possessed and the preparation of a terrorist act: ibid [296]-[343].

   [18]Ibid [358], [392].

1. On 25 September 2009, the Commonwealth Director of Public Prosecutions filed an indictment charging the applicants as follows:

Between about 23 February 2005 and 26 July 2005 at Melbourne in the State of Victoria and elsewhere Abdul Nacer BENBRIKA, Aimen JOUD, Ahmed RAAD and Fadl SAYADI did, contrary to Sections 11.5 and 101.6(1) Criminal Code, conspire with each other, with Mohammed ELOMAR, Abdul Rakib HASAN, Khaled SHARROUF and unknown other persons to do acts in preparation of a terrorist act.

The terrorist act was to be an action or threat of action involving the detonation of an explosive device (or devices) and was to be done

(a)with the intention of advancing a political, religious or ideological cause, namely the cause of violent jihad; and

(b)with the intention of

i.coercing, or influencing by intimidation, the Government of the Commonwealth or a State, Territory or foreign country; or

iiintimidating the public or a section of the public; and

(c)in circumstances where the action, if carried out, would:

icause serious harm that is physical harm to a person; or

iicause serious damage to property; or

iiicause a person’s death; or

ivendanger a person’s life, other than the life of the person taking the action; or

vcreate a serious risk to the health or safety of the public or a section of the public; and

(d)in circumstances where the action, if carried out, would not be advocacy, protest, dissent or industrial action of a kind not intended to:

icause serious harm that is physical harm to a person; or

iicause a person’s death; or

iiiendanger the life of a person, other than the person taking the action; or

ivcreate a serious risk to the health or safety of the public or a section of the public.

1. Section 101.6 of the Code provides as follows

(1)A person commits an offence if the person does any act in preparation for, or planning, a terrorist act.

Penalty:         Imprisonment for life.

(2)       A person commits an offence under subsection (1) even if:

(a)       a terrorist act does not occur; or

(b)the person’s act is not done in preparation for, or planning, a specific terrorist act; or

(c)the person’s act is done in preparation for, or planning, more than one terrorist act.

1. Under s 11.5 of the Code, for a person to be found guilty of conspiring with another person to commit a non-trivial offence:[19]

   (a)the person must have entered into an agreement with one or more other persons; and

   (b)the person and at least one other party to the agreement must have intended that an offence would be committed pursuant to the agreement; and

   (c)the person or at least one other party to the agreement must have committed an overt act pursuant to the agreement.

   [19]The offence must be punishable by imprisonment for more than 12 months or for a fine of 200 penalty units or more.

2. The un-indicted conspirators, Elomar and Hasan, had each previously been convicted by a jury in a separate trial in the Supreme Court of New South Wales on counts of conspiring with others to do acts in preparation of a terrorist act (the ‘Sydney Trial’).[20]  (Mr Khaled Cheikho, Mr Moustafa Cheikho and Mr Mohammed Jamal were also convicted of conspiracy in the Sydney Trial).  Some of the evidence the Crown proposes to call in the trial of the applicants was also called in the Sydney Trial.[21]  Sharrouf was originally found unfit to plead to the conspiracy charges in the Sydney Trial and later pleaded guilty to a lesser offence.[22]

   [20]R v Elomar (2010) 264 ALR 759 (Whealy J) (sentencing reasons).

   [21]Nine accused were indicted for conspiracy in the Sydney Trial, of whom three pleaded guilty to a charge of possessing a thing in connection with a terrorist act: see [20] below.

   [22]R v Elomar (2010) 264 ALR 759, 762 [10].

1. The conspiracy alleged in the Sydney Trial involved the ordering and collection of ammunition and the obtaining of laboratory equipment and chemicals to be used in the manufacture of explosive devices.[23]  It was initially intended that the Melbourne group would assist the Sydney men to obtain the equipment from Haines Educational Suppliers (‘Haines’).  When this attempt failed, the Sydney group obtained the equipment from the New Directions store in Marrickville, New South Wales.  As I explain below, the conspiracy offence on which the four applicants have been indicted also related to attempts to obtain the equipment from Haines.

   [23]By contrast the conspiracy indictment in this case is limited to the obtaining of equipment and chemicals to be used in the manufacture of explosive devices.

The overlap in the evidence

The first trial (Benbrika 1)

1. In Benbrika 1, the Crown case against the 12 defendants was that each of them were members of (and in the case of Benbrika, directed) a terrorist organisation in Melbourne, which was formed around the belief that its members had a religious obligation to pursue violent jihad against non-Muslims and which directly or indirectly fostered and/or prepared the doing of a terrorist act.  The terrorist act was the intentional detonation of explosive devices or the use of weapons.  Benbrika directed the organisation and the four applicants were its leading members.

1. The evidence in Benbrika 1 largely comprised recorded telephone intercepts or recorded conversations in which the men discussed their beliefs, including the object of violent jihad,[24] and how this object should be pursued. A number of the recorded conversations and other activities involved the group of Sydney men that had similar goals to the Melbourne organisation.[25]

   [24]There were at least 28 conversations in which violent jihad was discussed.

   [25]See the reference to the ‘Sydney Brothers’ (at [17] below).

1. The judge below summarised the bases of the applicants’ various convictions as follows:

I consider that, as against all accused, the jury determined at least

1.        that between the relevant dates;

2.        each were members of an organisation;

3.that directly or indirectly fostered or prepared the doing of a terrorist act; and

4.        that each accused intended to be members of that organisation; and

5.that each accused knew that the organisation was directly or indirectly fostering or preparing the doing of a terrorist act.

I consider further that, as against each accused, the jury determined that in some way they contributed more to the terrorist organisation than mere membership, in that

1.        Benbrika directed it; and

2.Joud and Raad provided resources to it and attempted to provide funds to it; and

3.        Sayadi provided resources to it.

All with the knowledge that they were serving a terrorist organisation.[26]

[26]First Ruling, [31], [32].

1. He then set out the nature of the evidence relied upon in Benbrika 1 to prove the offences of which the four applicants and the other offenders were convicted:[27]

   [27]Ibid [33.4]-[33.25] (some citations deleted).

The Crown relied on the totality of evidence in the case to prove the existence and nature of the organisation.  The Crown submitted that the totality of the evidence gave rise to the inference that the organisation existed and that it was a terrorist organisation.  Thus these elements of the offences … were supported by the entirety of the evidence in the case.  Other elements of the terrorist organisation counts (in particular whether each accused were actually members of the terrorist organisation) were proved by the individual acts and declarations of a particular accused – largely by their participation in conversations or their possession of specific items.[28]  Of the accused in the present conspiracy trial only Ahmed Raad participated in a police interview.

[28]Details of the particular specific evidence referable to each individual accused can be found in Schedule F to Annexure B (Executive Summary of the Crown case) of the First Ruling.

The Bayat

Some members of the group were required to pledge allegiance to Benbrika (‘the bayat’).  The Crown relied upon a number of conversations evidencing this.  There is no evidence that any members of the Sydney group ever pledged allegiance to Benbrika.

The Sandooq

Sandooq is the Arabic word for box.  It refers to a fund held by the organisation and administered by Ahmed Raad at Benbrika’s direction.  It was the Crown case that the funds were held for the purpose of pursuing violent jihad.  Illegal activities were entered into to supplement the sandooq.  Between 10 August and 17 September 2004 a number of members including Joud, Ahmed Raad and Sayadi were involved in various ways with the theft of two motor cars or their subsequent stripping for parts.  On 10 September 2004 a significant conversation occurred.  Ahmed Raad justified the conduct of theft by asserting it was ‘in Allah’s cause.’  Later he said ‘…..you think we can just go and get weapons and walk off.  We need money to get it…slowly you have patience man.’  The conversation went on to compare the relative unlawfulness of their actions to the kuffar … ‘killing our brothers and sisters and little kids’.  On 17 September 2004 Victoria Police seized the stolen cars and executed search warrants on premises including those of Joud and Ahmed Raad.  Joud told Benbrika that the ‘hit … (cost) … say then thousand dollars’.

Some members of the group made regular contributions to the sandooq, others were irregular contributors.  Benbrika and Ahmed Raad discussed where the sandooq could be concealed from investigators.  Joud, Sayadi and Ahmed Raad discussed how other brothers could find the sandooq if Raad were arrested.  Benbrika approved the payment of a fine of $1,000 imposed on Ezzit Raad for possessing one of the stolen cars.  In a raid in June 2005 police seized some of the sandooq money held at Ahmed Raad’s premises.

Undercover Officer SIO 39/Anti-Surveillance/Caution

Victoria Police introduced an undercover police officer to the group, known at trial as Senior Intelligence Officer 39 (SIO 39).  He gave evidence at the trial.  He described himself to the group as an Australian Muslim of Turkish descent and he appeared in a number of recorded conversations.  He told Benbrika that he had some expertise in blowing up tree stumps on farms and that he had access to chemicals required to make explosives.  Benbrika expressed interest.  Other members of the organisation became suspicious of SIO 39 as ultimately did Benbrika.  On 6 October 2004 Benbrika and SIO 39 went to bushland at Mt Disappointment near Kilmore.  SIO 39 conducted a demonstration explosion in Benbrika’s presence.  A video of this was taken and in an edited form was played to the jury.  SIO 39 became the subject of increasing suspicion within the group.  Sayadi warned Benbrika about him and in December 2004 Benbrika, Ahmed Raad and Merhi discussed the possibility that he may be an undercover policeman.  He drifted out of the group’s activities.

Anti-Surveillance

The evidence demonstrated that many accused were aware of surveillance and that this was inhibiting their commitment to violent jihad.  In one such conversation Benbrika and Joud discussed ‘the young one’s’ (Merhi)[29] desire to rush things.  Benbrika ‘he wants to do it straight away’.  Joud ‘… if he kill one, or two three four.  It’s no good like this’.  The next day Benbrika told Merhi that ‘we are thinking to do something big’ and later that ‘you don’t do something without … my permission here.  Because we only work organised … No one works alone’.  Benbrika also discussed with SIO 39 his awareness of police surveillance.  Benbrika said that time and money was needed to buy ‘some weapon, we might buy some chemical things’.  SIO 39 said the materials he showed him (at Mt Disappointment) were not expensive and 250 kg would be sufficient to destroy a building.  Benbrika asked him if he could get 500 kg and SIO39 said he could at $30 per 25 kg bag.

[29]Merhi was convicted of intentionally being a member of a terrorist organisation, knowing that it was a terrorist organisation in Benbrika 1.

On 1 January 2005 Hammoud told the group that he had heard through his father that a man named Baha had informed to the police.  Hammoud said ‘he said that youse wanna … to blow up something …’.  The group including Benbrika, Joud and Taha discussed how this could be dealt with.  A further discussion about security occurred on 6 February 2005 between Benbrika, Sayadi, Merhi and another person.

Sydney Brothers

Members of the organisation associated with a number of Sydney brothers who shared a desire to pursue violent jihad.  At the trial these Sydney brothers were referred to only by their first names Khaled 1, Khaled 2, Abdul and Mohammed.[30]  I shall return to a fuller examination of the links between the Victorian and Sydney men later in these reasons.  Two of these men were present at the ‘maximum damage’ conversation, parts of which were relied on heavily by the Crown [in Benbrika 1].  Other parts of this conversation were not led by the Crown [in Benbrika 1] and related to the proposal by the Sydney brothers for the purchase of glassware from Haines.

[30]They are Khaled Sharrouf, Khaled [Cheikho], Mohammed Elomar and Abdul Hasan.

Group Discussions

As time went by the senior members of the group expressed frustration with Benbrika’s apparent caution.  Benbrika gave an interview to the ABC[31] which was discussed.  Later Benbrika asserted that he had been evasive to the interviewer who had misunderstood his reply that it was haram (forbidden) to kill innocent people.  Whether Australian people were innocent, Benbrika stated to other members, was a different question.

[31]This interview was recorded at Benbrika’s home and monitored by a listening device.

Numerous conversations occurred between members of the group during which recent terrorist activities were discussed with approval including those in New York, Bali, Spain, London and Iraq.  In a conversation on 13 July 2005, Benbrika said that if they were gaoled the jihad would continue and that the group would soon study the book of jihad from the beginning.  It was important that the mujahid have training and knowledge and the study would include martyrdom operations.  In August 2005 Benbrika, Sayadi, Bethaj (an associate) and others discussed the meaning of jihad – fighting the enemy of Allah – the kuffar.  In November 2005 Benbrika, Joud, Sayadi and Merhi discussed the respective security in Melbourne and Sydney concluding that security was tighter in Melbourne than Sydney.

Bonding Exercises

Four group activities occurred which the Crown characterised as bonding exercises between members of the group.  They occurred in remote locations and were either directly the subject of covert surveillance and subsequent investigations and/or referred to in monitored conversations.

Eden

A group of men including Hammoud, Ahmed Raad and Ezzit Raad travelled to Eden in NSW.  They were observed talking with other men at camping ground.  The evidence relating to this trip was equivocal and the Crown did not press it in closing addresses.

Kinglake

On 11 December 2004 at around midnight Victoria Police officers observed 10 Muslim men praying by the side of Bald Spur Road Kinglake.  Included in those present were the four accused.  Surrounding Listening Devices and Telephone Intercept conversations referred to the Kinglake trip as a debacle because of lack of discipline shown by some members of the organisation.  One conversation referred to a laptop computer that may have been at Kinglake.  The Crown suggested that that computer was the same as referred to in another conversation recorded a week earlier and which had been used to view extremist literature.

Ocean Grove

On 11 February 2005 the four accused and three others attended at house in Ocean Grove.  In the planning for this meeting Benbrika said that no-one should bring telephones ‘like the last time…the same thing, do you remember when we were in Kinglake (inaudible) all of them left their telephones at home and all of their wallets and everything…’.  There was also a proposal in this conversation to hire cars for the trip and that the sandooq be used to pay for these expenses.  The trip came to nothing as the property had been booked for only five people and the men were denied entry.

Louth

The fourth and by far the most significant group activity occurred at a remote rural property at Louth in far western NSW.  Sayadi, Joud and Raad drove to Sydney on 14 March 2005.  They checked into a hotel at 9 am on 15 March.  At 9 pm on that day Khaled 1, Khaled 2, Mohammed and Abdul[32] were seen near the hotel.  Their vehicle and the Victorian men’s vehicle travelled in convoy to Louth.  A remote property had been booked on 14 March.  The three Melbourne men met up with the four Sydney associates.  A subsequent examination of the campsite located spent firearm shells, damage to three trunks and the burnt remains of batteries which had been wired to spark plugs.  The Crown suggested this was a crude attempt to make an ignition device. 

The Crown suggested Joud attempted to source firearms for the group.  Izzydeen Atik, an accomplice, gave evidence that Joud had asked him to source firearms for the group.  Atik’s evidence was heavily challenged and the jury were warned on the dangers of acting upon it.  His evidence was disregarded by Bongiorno J when establishing a factual basis for sentencing purposes.

The Common Library

A collection of jihad material was found in the possession of Joud, Ahmed Raad, Merhi and at Majed Raad’s premises.  This comprised approximately 600 electronic computer files all held by each man.  Selected documents from the files were exhibited at trial.

In numerous conversations members of the organisation are heard discussing various literature:

·The 19 Lions.[33] 

·The Clarification of what occurred in America.

·In early December 2004 Merhi appeared to be showing Benbrika a computer screen displaying information to do with bomb making.  These may have been down loaded onto two ‘cassettes’ and given to Sayadi.

[32]Khaled Sharrouf, Khaled Cheikho, Mohammed Elomar and Abdul Hasan.

[33]The role of the 19 perpetrators of the September 11 2001 terrorist attacks in America.

Computers seized from the accused contained graphic videos and photographs of, for example, beheadings and sniper activity.  In other conversations Benbrika discussed with Sayadi, Merhi and Taha a 1,600 page document entitled The Call of the Global Islamic Resistance – Your Guide … to the Way of Jihad.[34]  Benbrika discussed the book with two of the Sydney men[35] on 23 February 2005.

On 27 April 2005 Benbrika showed Joud what he had downloaded from the Internet ‘… how to confront and deal with interrogators.  Security lessons for the Moujahadeen.  The war of assassinations …’.

On 5 August 2005 Benbrika and Majed Raad discussed a document downloaded from the Internet.  Benbrika said he would supply a copy to every brother.  It contained (he said) combat lessons, lessons for the sniper and camouflage.

On 17 September Benbrika and Haddara discussed the 1,600 page book.[36]  Benbrika said (inter alia) ‘… seven religiously legitimate ways around the permissibility of killing the innocents.  Religiously legitimate.  The instances that permit the killing of the protected kuffar’.

Atik

The co-accused Atik gave evidence for the prosecution.  He described how credit card fraud was religiously permissible if carried out against non-believers.[37]  He said that on 31 August 2005 Benbrika (in an unrecorded conversation) told him that the original target was the AFL Grand Final but, after the June 2005 raids, the target had changed to the NAB Cup and the Crown Casino on Grand Prix weekend.  Atik admitted in cross-examination that he had a long history of fraud and a history of psychiatric disturbances involving auditory hallucinations.  As I have observed the learned trial judge warned the jury about the dangers of acting on his uncorroborated word.

Police Interviews

Of the four accused in the current trial only Ahmed Raad participated in a police interview.  He maintained that jihad was for the self-defence of religion and the person, and that the sandooq was used for needy causes at Benbrika’s direction.  He denied engaging in criminal activity to supplement the sandooq and he denied being involved in terrorist activities.

[34]Seized from Benbrika on 8 November 2005.

[35]Khaled Sharrouf and Abdul Hasan.

[36]The Call of the Global Islamic Resistance  - Your Guide…to the way of Jihad.

[37]He said Joud told him this.

Documents found

Schedule E to the Executive Summary of the Crown case is a table of relevant documents found.[38]  Within them can be found practical instructions on how to carry out assassinations,[39] how to assemble a standard car bomb, grenade tricks,[40] and the acquisition and preparation of chemicals into explosive devices.[41]  More ideological literature included rulings on the permissibility of martyrdom operations,[42] the ideological bases for jihad,[43] and literature that generally glorifies and justifies the mujahid. The Crown relied on 49 such documents and 10 videos.

The videos included several edited (by the prosecution) beheadings, military training exercises and atmospheric footage of Osama Bin Laden.[44]

[38]See Annexure B to the First Ruling.

[39]White Resistance Manual.

[40]Car Bomb Recognition Guide.

[41]The Terrorist Handbook; The Vortex Cookbook, CIA Field Experiment.

[42]The Islamic Ruling on the Permissibility of Self-Sacrificial Operations; The Virtues of Martyrdom in the Path of Allah.

[43]Join the Caravan; Defence of Muslim Lands; Join the Caravan.

[44]First Ruling, [33.4]-[33.25] (some citations omitted).

1. Later in his reasons, his Honour said that:

It is necessary to examine the conduct alleged [in Benbrika 1] a little more closely.

(a)It is clear there was an organisation directed by Benbrika, with each of the other accused in the current trial holding an executive position.

(b)There were numerous examples in [Benbrika 1] of one or more of the group directly or indirectly fostering or preparing the doing of a terrorist act, namely:

·Attending training camps at Eden, Kinglake, Ocean Grove and Louth.

·The trial detonation of explosives at Mt Disappointment and Benbrika’s desire to purchase explosives from SIO 39.

·Using false names both for travel to Sydney and in the acquisition of mobile phones.

·The conduct of and attendance at Dars classes.[45]

[45]Dars classes were meetings conducted by Benbrika where the Crown alleged he provided jihadist instructions blended with religious justification to the members of his organisation.

·The sandooq fund kept for financing the activities of the organisation including the financing of a terrorist act.

·Criminal activities directed at raising money for the sandooq.

·Numerous and protracted discussions as to what is and is not religiously permissible in the pursuit of jihad.

·Possession of and publication of videos depicting extreme jihad motivated violence.

·Obtaining, using and disseminating large quantities of terrorist literature.

·Downloading two diskettes depicting bomb making techniques.

·The attempted purchase of guns by Joud.

·Anti-surveillance practices including going to parks for important meetings.

·Expressions of the desire to continue jihad even if members [are] gaoled.

·The bayat.

·The often repeated aspirations to ‘do something’ maintained by the Crown to mean to carry out an attack.

·Discussions about the techniques deployed in all major recent terrorist attacks including New York, London, Madrid and Bali.[46]

(c)It is apparent from the opening and closing addresses for the Crown [in Benbrika 1] that the terrorist act that the Crown contended was being fostered or prepared by the organisation was a significant bombing attack.

[46]All of the evidence supporting these propositions in paragraph (b) was led in [Benbrika 1] and will be led in [the conspiracy trial] with the exception of evidence of the camp at Eden.

1. His Honour then referred to extracts from the Crown opening and closing addresses relating to the evidence about the interaction between the Melbourne organisation and the Sydney men, which was part of the evidence relied upon to prove that the applicants were members of an organisation involved in fostering or preparing a terrorist act and were guilty of the other offences of which they were convicted.[47]

   [47]First Ruling, [45].

The conspiracy trial

1. The foreshadowed Crown case in the conspiracy trial is that each of the accused was associated with the Sydney men, whom they knew were also pursuing the goal of violent jihad and were engaged in preparing to do a terrorist act.  The Sydney group were said to have been further advanced in their planning of such an act than the Melbourne men, and included Elomar, Hasan and Sharrouf together with Khaled Cheikho, Moustafa Cheikho, Mazen Touma, Omar Baladjam, Mohammed Jamal and Mirsad Mulahalilovic.[48]

   [48]R v Elomar (2010) 264 ALR 759.

1. The Crown allege that, from at least 23 February 2005, the four accused were aware that the Sydney group was actively pursuing violent jihad and doing acts in preparation for a terrorist act which included planning the purchase of laboratory equipment for use in making chemicals to manufacture explosive devices.  The applicants were said to have intentionally entered into an agreement with each other and the unindicted Sydney conspirators to assist the Sydney group by taking steps towards obtaining the equipment from Haines, knowing that acts in preparation of a terrorist act or acts would be carried out in furtherance of that agreement by the Sydney group.  (The conspiracy of which the Sydney men were convicted included the attempt to obtain the glassware from Haines, with the assistance of the applicants.)  The applicants were said to have pursued the objects of the conspiracy with members of the Sydney group during the period of the indictment and until 8 November 2005, when they were arrested.

1. The assistance was said to include:

(a)       discussing the selection of equipment from the Haines catalogue;

(b)      drawing up lists of items to be purchased;

(c)       providing a typed list to Haines; and

(d)      following up the intention of obtaining the equipment by contacting Haines.

The Melbourne men discussed using around $3,000 from the sandooq to pay for the equipment, but Benbrika refused to authorise this expenditure and the plan fell through.[49] 

[49]First Ruling, [16].

1. The Crown proposed to call most of the evidence led in Benbrika 1 to prove its case.  His Honour described the evidence to be relied on to prove the Crown case in the second trial as follows:

The evidence proposed to be led by the Crown can be loosely categorised as follows:

(i)The Melbourne evidence of the monitored activities and conversations of the Melbourne co-conspirators and of the evidence seized from them.  This evidence is extensive and was led in total at [Benbrika 1].

(ii)The Haines evidence of the relevant conversations and documents surrounding the preparation and submission of the Haines list.  This evidence is set out [below].

(iii)The Sydney evidence of the monitored activities and conversations of the Sydney co-conspirators and of the evidence seized from them.  This evidence is also extensive and was led in total at [the Sydney Trial].

(iv)A small amount of additional evidence that demonstrates, so it is said, more clearly the association between the Melbourne and Sydney men.[50]  …

[50]First Ruling, [35.7].  A more detailed analysis of the overlap of evidence between Benbrika 1 and the forthcoming trial can be found at [45], [62] and [63] of the First Ruling.

The Haines evidence

I propose to set out the Haines evidence in more detail as it is central to this application.

Overt Act (OA) 50  23 February 2005

On 23 February 2005 at BENBRIKA’s residence from approximately 10.12 pm, HASAN, SHAROUF, BENBRIKA and JOUD discussed purchasing/ordering laboratory equipment from Haines Learning Centre Pty Ltd.  The discussion included the following:

HASAN and SHARROUF made references consistent with the contents of pages 16 and 17 of the Haines catalogue;

SHARROUF said the word: Haines;

SHARROUF read out the prices of many items that appear in the catalogue and also in the handwritten list of chemistry equipment found at JOUD’s premises on 22 June 2005;

JOUD and HASAN: Did you make the list?

HASAN replied, Yeah;

JOUD asked HASAN: Brother where did you get this magazine from?

HASAN replied: From this people here;

HASAN said: When he … asked you what do you want then you fax it to them.

JOUD said: I said just the stock codes, I’ve got the stock codes. 

HASAN said: This is the stock code;

HASAN said: This is the quantity.

OA98  4 May 2005

On 4 May 2005, whilst in Melbourne, there was further discussion at BENBRIKA’s premises about the ordering of laboratory equipment from Haines.  JOUD was present.  From about 7.52 am BENBRIKA had attempted to contact both SAYADI and Ahmed RAAD by telephone.  At approximately 8 00am, there was a discussion between HASAN and ELOMAR about which items they needed to order.  The conversation, amongst other things, included a discussion about one of the items on the handwritten list of the chemistry equipment found at JOUD’s premises on 22 June 2005.  HASAN said: You put that in a filter … and hold it in a holder … on the ground lift it up like a stand you know.  ELOMAR replied: It is of glass or just … plastic?  HASAN said: The one here.  This is different name you know … let’s order a few of them … it’s called a sidearm.

OA99  4 May 2005

On 4 May 2005 at about 8.30 pm, there was further conversation between HASAN, ELOMAR, SHARROUF, JOUD and BENBRIKA relating to the Haines order.  The conversation included the following:

JOUD:Why did you do this brother?

HASAN:You’re not going to understand the doctor, huh.

JOUD:Is this supposed to be a doctor’s or witch’s writing?

ELOMAR:Did you show him where he puts?

HASAN:Yeah he knows … make sure you don’t miss any huh.

JOUD:No I went on the internet I had a look I said this is impossible this person I speak to is an idiot … he goes to look on each single one he’s got … how much things.  He goes look you have to click you don’t know what you’re looking at anyway one by one you have to go through to check the number.  Yeah I sent him he goes no no please write it out.

OA111  29 May 2005

On 29 May 2005 from 11.03 pm, BENBRIKA, JOUD and Ahmed RAAD had a conversation at BENBRIKA’s residence during which BENBRIKA asked JOUD if he had called Khaled (a reference to SHARROUF).  JOUD replied Yeah I called him today.  Ahmed RAAD said Oh you got him [inaudible].  JOUD then said Or they’re going to kick my head in they gonna bash me.  Later in the same conversation JOUD and Ahmed RAAD talked while BENBRIKA talked on the phone.  JOUD mentioned how he would need 2 to 3 days to organise something and pick it up and how he would pay cash.  RAAD asked how much it would cost.  RAAD then said Don’t worry.  If we do it in Allah’s cause, will come back 10 times more … the brothers will help us out.  If you take a bit from us and a bit from them … we’re been copping it too much.  JOUD then said it’ll probably be around 3 thousand ….

OA116  June 2005

On 1 June 2005 at about 8.31 pm SAYADI, Ahmed RAAD and BENBRIKA discussed the sandooq and how much JOUD needed.  RAAD counted money and SAYADI asked, Now how much we got.  RAAD told SAYADI they had $2810 and that he (JOUD) was going to need the whole lot.  The references to them and they made by SAYADI and RAAD were in relation to the Sydney brothers.  The term the goods refers to the chemistry equipment that JOUD had been tasked to acquire.  The $3,000 would have drained all the money from the sandooq.  It was apparently for that reason that BENBRIKA was adamant that the Melbourne group should obtain the $3,000 needed from the Sydney brothers, even though, as RAAD said, they pay for everything.  BENBRIKA then directs RAAD and SAYADI to get the funds from Sydney because There is nothing, there is nothing (referring to the sandooq funds).

OA117  1 June 2005

On 1 June 2005 at about 11.26 pm, JOUD and Ahmed RAAD spoke by telephone.  JOUD told RAAD to ask BENBRIKA for the money.  RAAD replied to the effect that he tried (with BENBRIKA) and the Melbourne group needed the money but that BENBRIKA thought he, JOUD, could get the money from them (the Sydney residents)

OA118  1June 2005

On 1 June 2005 at about 11.32 pm, JOUD spoke with SAYADI by telephone and asked SAYADI to speak to BENBRIKA about getting three Gs.  SAYADI explained that he was there with BENBRIKA and that BENBRIKA had said you’ve got to call the brothers and tell them man if they can.  JOUD said he did not think they could.  In Arabic SAYADI told JOUD that they would talk after and Leave it till tomorrow.  It will be organised tomorrow whatever happens.

OA119  2 June 2005

A few days before 2 June 2005, a male person using the name ‘Peter DRAVJIC’ (a false name) rang Haines and spoke with the store manager about the purchase of certain equipment.  The caller said that he was faxing an order form through.

OA120  2 June 2005

On 2 June 2005, a fax was sent to Haines from a fax machine at Sayers Road Pharmacy, Hoppers Crossing, Victoria, which was located a short distance from JOUD’s premises at 255 Morris Road, Hoppers Crossing, Victoria.  The order was in the name of ‘Peter DRAFJIC’.  The fax was a typed document and contained an order for 55 different types of items.  The document contained no prices, delivery address or method of payment.  The items ordered are listed in the fax together with the product code (from the Haines catalogue) and the quantities required.

OA122  2 June 2005

On 2 June 2005 at 6.09 pm JOUD telephoned BENBRIKA and asked if he was at home because he had a question.  BENBRIKA replied that he was tired and asked if it could wait until the following day.  JOUD said that it could not.

OA123  2 June 2005

On 2 June 2005 at about 6.56 pm, BENBRIKA had a conversation at his home with JOUD concerning the Haines order and about paying for the same.  JOUD said ‘I’ve already given…’ (meaning the Haines order).  BENBRIKA suggested that JOUD go to Sydney and ask the Sydney brothers for the money.

OA136  11 June 2005

On 11 June 2005, BENBRIKA told JOUD that Khaled wanted him to call.

OA137  12 June 2005

On 12 June 2005 at 10.27 pm JOUD telephoned SHARROUF and asked him whether he could organise the provision of $3,000.  JOUD explained that he needed the money because BENBRIKA would not authorise the provision of the money from sources under his control (i.e. the sandooq).  JOUD agreed to phone back on the following day.

OA141  15 June 2005

On 15 June 2005 in the morning, a telephone call was received by Haines enquiring about the order of the chemistry/laboratory equipment which had been faxed to them on 2 June 2005.  The store confirmed that they had received the order.  The sales assistant told the caller that the order was too broad in terms of delivery and payment and that he would have to come into the store.  The male person making the enquiry provided the contact telephone number of 0421002054 (the ‘Anfony COMMITO’ telephone).  The sales attendant wrote this number on the faxed order form.

OA142  15 June 2005

On 15 June 2005 at about  9.45am, two calls were made from a public telephone at 2 Sharp Street, Hoppers Crossing, to mobile telephone [phone] (‘Anfony COMMITO’ telephone).

OA143 17 June 2005

On 17 June 2005 at about 8.08pm, BENBRIKA, JOUD and SAYADI had a conversation at BENBRIKA’s residence in which they discussed their distrust of Ahmed KHALEK and that he might have been working for the authorities. SAYADI expressed concern that he had ‘said things to him’.

OA143A  22 June 2005

On 22 June 2005 JOUD was in possession of a handwritten document (written by ELOMAR) listing chemistry/laboratory equipment and the name ‘Adam George’ and the number ‘0401089268’.[51]

[51]Ibid [35.8]-[35.9].

The interlocutory appeal

1. The applicants now challenge his Honour’s decision to refuse the application for a stay of the conspiracy trial on the basis that:

(a)       they were entitled to rely on a plea in bar of autrefois convict (only Benbrika and Joud pursued this issue and Benbrika placed primary emphasis on the argument that the second trial exposed him to double jeopardy);

(b)      even if they were not entitled to rely on a plea in bar, the trial should have been stayed as an abuse of process because it exposed them to double jeopardy; and

(c)       his Honour should have held that the overlap between the evidence in Benbrika 1 and the evidence to be led in the second trial, coupled with other matters, had resulted in such a degree of oppression that it should be stayed as an abuse of process.  Matters said to contribute to the oppressive nature of the second trial included its likely length, the conditions in which the applicants have been held in custody since their arrest in 2008, the delay between their arrest and the second trial, the stress and anxiety to which they had already been subjected and the fact that the Crown could have proceeded against the applicants in a different manner.[52]  The second trial amounted to an abuse of process, even though the Crown had reduced the amount of evidence it proposed to call.

[52]As to the way in which the Crown could have proceeded, see [138] below.

1. For the reasons set out below, I consider that the interlocutory appeal should be allowed.  In the material which follows, I deal in turn with each of the above issues.

Autrefois convict

1. The applicants Benbrika and Joud submitted that his Honour had wrongly found that the plea in bar was not available to them.

His Honour’s reasons

1. In his First Ruling, his Honour said that the following principles[53] applied in determining the availability of a plea in bar of autrefois convict:

A plea in bar of autrefois convict is available when the elements of the offences charged are identical or the elements of one of the offences charged [are] wholly included in the other.

The order in which the charges are preferred is immaterial.

The comparative exercise involves more than a simple comparison of the strict legal elements of either offence.  The evidence necessary to prove those elements must also be the subject of the comparison.

It is not, and has never been the law, that two convictions cannot be achieved from the same set of facts.  What is prohibited is a second conviction that contains all the elements of the first.[54]

[53]His Honour relied on Pearce v The Queen (1998) 194 CLR 61; Island Maritime Ltd v Filipowski (2006) 228 CLR 328.

[54]First Ruling, [12].

1. His Honour then described the elements of the offences which had been provided to the jury by Bongiorno J (as his Honour then was) in Benbrika 1 and the evidence that supported those elements, which is set out at [17] above.

1. His Honour said that the ‘physical’ element of the conspiracy to do an act in preparation of a terrorist act was the act of conspiring and that[55]

consistent with common law authority ‘a person does not agree to commit an offence without knowledge of, or belief in, the existence of facts that make the conduct that is the subject of the agreement [an] offence’. This is the fault element in s 11.5(1).[56]

[55]Ibid [34].

[56]R v LK (2010) 241 CLR 177, 228 [117] (Gummow, Hayne, Crennan, Kiefel and Bell JJ).

1. His Honour then explained that: ‘The conditions of guilt specified in s 11.5(2) are not elements of the offence of conspiracy under the Code. They are neither physical nor fault elements of the offence. They are only “requirements” of the finding of guilt’.[57]

   [57]First Ruling, [93].

1. These requirements for the finding of guilt of conspiracy were said to be that:[58]

   [58]Ibid [35].

(a)[t]he accused intentionally entered into an agreement with one or more of the alleged co‑conspirators to do acts in preparation for a terrorist act or acts; and

(b)when the accused entered into that agreement he intended that acts in preparation for a terrorist act or acts would be carried out in furtherance of the agreement; and

(c)at least one other party to that agreement intended that acts in preparation for a terrorist act or acts would be carried out in furtherance of the agreement; and

(d)when he entered into the agreement, the accused believed that at least one other party to the agreement (who in fact had the intention set out in (c) above) intended that acts in preparation for a terrorist act or acts would be carried out in furtherance of the agreement; and

(e)the accused, or at least one other party to the agreement, carried out an observable physical act in preparation for a terrorist act or acts in furtherance of the agreement; and

(f)the accused intended the acts in preparation to be in preparation for a terrorist act or acts, that is an act having all of the essential character and qualities of terrorist act as identified in s 100.1 and 100.3 of the Code.[59]

[59]These are the ingredients identified by Whealy J in R v Elomar (2010) 264 ALR 759, 762 [14]. They result from a combination of the elements of the substantive offence and the ingredients necessary to prove a charge of conspiracy under the Code (ie, ss 101.6 and 11.6 of the Code).

1. After discussing the evidence set out above, his Honour acknowledged that there were ‘considerable similarities’ between Benbrika 1 and the second trial and noted that:

The notion of being a member of a terrorist organisation is not too dissimilar to the combination of minds necessary to prove a conspiracy and may, depending on the underlying facts, amount to the same thing.  The common purpose of the pursuit of violent jihad is present in both trials and in both trials acts in furtherance of the common purpose (that involve directly or indirectly engaging in preparing, planning, assisting or in fostering the doing of a terrorist act) are/were alleged by the prosecution.

The bare elements found proven in [Benbrika 1], are, however, not identical to the ingredients of the conspiracy in the current trial, nor does one trial wholly subsume the elements or ingredients of the other.  The counts proven at [Benbrika 1] were laid under Division 102 of the Code and were all directed at proving the existence of a terrorist organisation and the actions, knowledge and intent of each accused as they relate to that organisation. The conspiracy count alleged in the current trial involves an agreement to do acts in preparation of a terrorist act. The ingredients of the conspiracy alleged which [are set out above] are demonstrably different to the elements of the offences the accused were convicted of at [Benbrika 1] … The most obvious difference is that the [Benbrika 1] offences were ‘status offences’ concerned with an individual accused’s dealings with a terrorist organisation. The current trial, in contrast, deals with an agreement by an individual to do an act in preparation for, or planning, a terrorist act; ie a contravention of s 101.6(1). This section deals with an individual’s liability for his or her acts regardless of the status of any organisation. The elements, intentions and knowledge required to offend under s 101.6 are, I consider, quite distinct from any offence contained within Division 102.[60]

[60]First Ruling, [37]-[38].

1. His Honour concluded that the ‘pure’ autrefois argument could not be made out because the ‘elements of the offences charged [were] not identical nor [were] the elements of the conspiracy count subsumed by any combination of the elements in any or all of the Division 102 offences or vice versa’.[61]  He went on to consider whether the trial should be stayed because it breached a broader double jeopardy principle.  I return to that aspect of his ruling below.

[61]Ibid [39].

Counsel’s submissions

1. At a mention held before the hearing of the appeal, counsel for the Crown and each of the applicants agreed that the judge had correctly described the broad principles which apply in determining whether an accused can rely on a plea in bar.

1. However, Benbrika and Joud’s counsel submitted that his Honour had made two errors in applying these principles.  First, it was submitted for Joud that his Honour’s approach was procedurally flawed, because it improperly deprived Joud of the opportunity to have a jury empanelled to determine his plea in bar.[62]  Counsel for Joud relied on the view expressed by Gleeson CJ and Hayne J in R v Carroll that a plea in bar of autrefois acquit should be determined before an argument based on abuse of process arising out of double jeopardy is considered.[63]  The same principle was said to apply to a plea of autrefois convict.[64]  Secondly, both counsel submitted that his Honour had incorrectly applied the law to the circumstances of this case. 

   [62]Although a similar submission was made by counsel for Benbrika, he later declined to press that argument

   [63](2002) 213 CLR 635 (‘Carroll’), 639 [7] (Gleeson CJ and Hayne J).

   [64]Although this statement referred to autrefois acquit, the basis was s 17 of the Criminal Code Act 1899 (Qld), which refers both to a prior conviction and a prior acquittal.

1. Counsel for Benbrika accepted that the central issue for determination in the interlocutory appeal was whether the trial should have been stayed because it exposed the applicant to double jeopardy.  Nevertheless, he argued that Benbrika was entitled to rely on a plea of autrefois convict.  He submitted that the judge had correctly stated that the assessment must ‘dig deeper than a mere examination of the elements of the offence or the particulars of the charge’,[65] but had then incorrectly characterised the counts in Benbrika 1 as relating to the status of intentionally being a member of or intentionally directing a terrorist organisation.  This was said to demonstrate that the judge had compared the offences of which his client was convicted in Benbrika 1 with the conspiracy charge at too high a level of abstraction, rather than comparing the evidence relied upon to prove the elements of the offences in Benbrika 1 with the evidence to be relied upon to prove the conspiracy offence in the second trial.  As a consequence, his Honour had incorrectly held that a plea in bar was not available.

   [65]First Ruling, [62].

1. Counsel contended that although the elements of the conspiracy offence and the offences of directing or being a member of a terrorist organisation were different in theory, in reality, the conspiracy offence required the Crown to prove the same matters that it had been required to prove in Benbrika 1.  Benbrika was convicted in that trial of offences of being a member of and directing an organisation which was ‘directly or indirectly engaged in, preparing, planning, assisting in or fostering the doing of a terrorist act (whether or not a terrorist act occurs)’.[66]  It was not possible for him to have directed a terrorist organisation without having agreed to commit a terrorist act.  Thus, it was submitted that his conviction for that offence in Benbrika 1 necessarily involved his participation in the conspiracy alleged in the second trial.

   [66]Section 102.1.

1. A terrorist act is defined in s 100.1 of the Code as follows:

(1)       In this Part:

…

terrorist act means an action or threat of action where:

(a)the action falls within subsection (2) and does not fall within subsection (3); and

(b)the action is done or the threat is made with the intention of advancing a political, religious or ideological cause; and

(c)the action is done or the threat is made with the intention of:

(i)coercing, or influencing by intimidation, the government of the Commonwealth or a State, Territory or foreign country, or of part of a State, Territory or foreign country; or

(ii)intimidating the public or a section of the public.

(2)       Action falls within this subsection if it:

(a)causes serious harm that is physical harm to a person; or

(b)causes serious damage to property; or

(c)causes a person’s death; or

(d)endangers a person’s life, other than the life of the person taking the action; or

(e)creates a serious risk to the health or safety of the public or a section of the public;  …

[(f) refers to interfering, disrupting or destroying electronic systems.]

[Sub-section (3) excludes various actions done for the purposes of advocacy, protest, decent or industrial action.]

1. Under s 102.1(1):

   member of an organisation includes:

   (a)       a person who is an informal member of the organisation; and

   (b)a person who has taken steps to become a member of the organisation; and

   (c)in the case of an organisation that is a body corporate—a director or an officer of the body corporate.

   terrorist organisation means:

   (a)an organisation that is directly or indirectly engaged in, preparing, planning, assisting in or fostering the doing of a terrorist act (whether or not a terrorist act occurs); or

   (b)an organisation that is specified by the regulations for the purposes of this paragraph (see subsections (2), (3) and (4)).

2. Counsel for Benbrika submitted that the convictions in Benbrika 1 did not require any terrorist act to have actually been committed, but only required proof that the organisation was directly or indirectly engaged in preparing, planning, assisting in or fostering the doing of a terrorist act.  A terrorist act included ‘a threat of action’ of the kind described in sub-s (2) of the definition, done for the purpose set out in sub-ss (b) and (c).  The conspiracy offence required the Crown to prove that the applicants had made an agreement to do acts in preparation of a terrorist act, including a threat of action of the defined kind.

1. Counsel submitted that the relevant act relied on by the Crown in Benbrika 1 was the fostering or preparing of the detonation of an explosive device.  The same threatened act provided the basis for the conspiracy indictment.  The date of the conspiracy fell within the period to which the offences in Benbrika 1 related.  The evidence which had been led in Benbrika 1 would be led in the conspiracy trial to prove the intent to do the act with which the alleged conspiracy was concerned.

1. Counsel for Benbrika was asked whether his client was precluded from relying on autrefois convict because the Crown did not rely on the alleged attempt to obtain glassware from Haines for use in manufacturing chemicals to make explosives (the ‘Haines agreement’), to prove the offences of which the applicants were convicted in Benbrika 1, whilst the conspiracy indictment was specifically concerned with the Haines agreement.  In response, counsel submitted that the evidence relating to the Haines agreement could have been led in proof of the offences of which the men had already been convicted.  It followed that the Haines agreement was simply a particular of the offence of directing or being a member of a terrorist organisation (ie, an organisation directly or indirectly engaged in the planning or preparation or fostering an action or threat of action to do a terrorist act) of which the applicants had already been convicted.

1. Joud’s counsel adopted these submissions, but also contended that the Crown case on the conspiracy indictment was concerned with an agreement to do a range of acts in preparation for a terrorist act and was not limited to the Haines agreement.  The indictment itself did not refer to the Haines agreement.  He argued that even if the jury in the second trial considered that there was a reasonable doubt as to whether the applicants had conspired with the unindicted co-conspirators to obtain glassware from Haines in preparation for a terrorist act to be committed by the Sydney men, the jury could rely on other evidence led in Benbrika 1 and proposed to be led in the current trial, in order to convict Joud of conspiracy.  Such evidence included, but was not limited to:

(a)a recorded conversation between Benbrika, Joud, Sharrouf and Hassan in which Benbrika said ‘if we want to die for jihad we do maximum damage’;

(b)the meeting between Sayadi, Joud and Raad and four Sydney men at Louth, where the Crown contended they had attempted to make a crude ignition device; and

(c)Benbrika’s visit to Mt Disappointment with the informer, where a demonstration explosion was conducted.

1. Counsel further submitted that the evidence on which the Crown proposed to rely in the second trial was not simply evidence of the context in which various conversations and acts occurred.  Rather, it was ‘evidence in circumstantial proof of every ingredient’ of the conspiracy case.[67]  It was submitted that the matters relied upon by the Crown were identical to the matters relied in Benbrika 1 to prove that Mr Joud was intentionally a member of a terrorist organisation, had provided resources to a terrorist organisation, and had attempted intentionally to provide resources to a terrorist organisation.

   [67]First Ruling, [44].

1. Counsel for the Crown submitted that Benbrika and Joud could not rely on a plea in bar of autrefois convict because the elements required in proof of the second offence were not identical to the elements of the offences of which the men were convicted at Benbrika 1 and nor were the elements of the offences in Benbrika 1 wholly included in the conspiracy offence.  The fact that evidence adduced in Benbrika 1 was also to be adduced in the second trial did not permit the applicants to rely on a plea in bar.

1. Counsel for the Crown said that the evidence of acts and conversations of the applicants which had been adduced in Benbrika 1 would be adduced in the second trial to provide context for the offending with which they were charged, rather than to prove the elements of or ‘ingredients in’ the conspiracy offence.

1. Contrary to the submission made by counsel for Joud, counsel for the Crown submitted that the Crown case on the conspiracy indictment related only to the Haines agreement.  If the ingredients of this particular conspiracy were not established beyond reasonable doubt, the jury would have to acquit the accused.  In support of that submission, counsel for the Crown relied on the draft statement of Crown case dated 10 August 2010, which summarised that case as follows:

The offence charged in the Indictment concerns a conspiratorial agreement between the Accused and the named co-conspirators.  In essence, the Accused agreed to assist the Sydney group in carrying out acts in preparation for a terrorist act.  The acts with which the Accused agreed to assist were intended to equip the co-conspirators with laboratory or similar equipment to assist the co‑conspirators to manufacture, or cause to be manufactured, improvised explosive devices.  The Crown says the evidence reveals that the co‑conspirators and various of their Sydney based associates pursued the objects of the conspiracy charged during and beyond the period covered by the Indictment until 8 November 2005 when they, the six other members of the Sydney group named above, the Accused and the four other members of the Melbourne group named above were all arrested.

BENBRIKA was the principal link between the Melbourne and the Sydney groups.  The other three Accused were his willing deputies and each assisted in the maintenance and development of links between the two groups.  They also established confidential relationships with the co‑conspirators and, the Crown says, they were aware (at least from about 23 February 2005 onwards) of [the] objects of the Sydney group involving the commission of acts in preparation for a terrorist act extending beyond the scope of and beyond the period covered by the conspiracy charged.  The Accused were each aware that those objects included the purchase of chemicals to be used (with the laboratory equipment central to the conspiracy charged) to manufacture explosive devices.

The conspiracy charged represents an agreement between the Accused as the leaders of the Melbourne group and the co-conspirators as core members of the Sydney group for the Accused to assist the Sydney group with a particular aspect of the Sydney group’s activities in preparation for a terrorist act, or acts.

…

Consistent with the holding of those common beliefs, the Accused entered into an agreement amongst themselves and with the co‑conspirators to obtain laboratory equipment and associated materials which they intended would be used in the manufacture of explosives.  It was further intended by each of the Accused and the co‑conspirators that the explosives so manufactured would be used in commission of a terrorist act or acts involving the detonation of an explosive device or devices.  Pursuant to the agreement, the Accused and the co‑conspirators each carried out, participated in or otherwise aided, abetted, counselled or procured acts in preparation for a terrorist act or acts.  These acts included:

·the selection of suitable items of laboratory equipment and associated materials from a catalogue published by a school science equipment supplier based in Victoria named Haines Educational (‘Haines’)

·the creation of lists of such items

·the submission of a typed list of such items to Haines

·making telephone contact with Haines concerning the list

·seeking to arrange funding for the purchase from Haines of the items listed

·on 26 July 2005, when the plan to obtain the items from Haines had been abandoned, obtaining a quantity of laboratory equipment suitable for the manufacture of explosives through a supplier in New South Wales named New Directions.

In addition, and in furtherance of the objects of the same agreement, the co‑conspirators obtained, attempted to obtain or otherwise aided, abetted counselled or procured the obtaining of chemicals, instructional and other relevant materials which were suitable for use (directly and/or indirectly) in the construction of an explosive device and were intended for such use.  The Crown contends that evidence of such activity is relevant to prove the fact and nature of the agreement the subject of the Indictment and the common intention of the Accused and the co-conspirators in entering into it.  [emphases added]

Conclusion on availability of a plea in bar of autrefois convict

1. I would reject the contention that the applicants Benbrika and Joud were wrongfully deprived of a jury determination on the plea in bar.  Nor have they established that his Honour should have held that such a plea was open to them.

1. Although his Honour examined the law relating to autrefois convict in considerable detail, he accepted that the determination of a plea in bar is a jury matter.[68]  However, his Honour then took account of the practical difficulties which would arise if the plea was considered by the trial jury or if a special jury was empanelled for that purpose.  As his Honour pointed out, a contested plea in bar would require either a separate mega trial in itself, or the same jury would have to determine the plea in bar, prior to delivering its verdict on the substantive conspiracy offence.  The latter course of action had the potential to significantly prejudice the applicants.  His Honour concluded that, because the principle of double jeopardy was broader than autrefois convict, the boundaries of the latter were ‘not critical’ to the stay application.[69]  There is no flaw in that reasoning.

   [68]The procedure for making a plea in bar was set out in Crimes Act 1958, ss 390A(1), 394 and is now set out in Criminal Procedure Act 2009, ss 218, 220.

   [69]First Ruling, [8].

1. Further, as counsel for Benbrika ultimately acknowledged, even if his Honour had empanelled a jury to determine the plea in bar of autrefois convict before going on to consider the broader double jeopardy rule, his Honour would have had to direct the jury to reject the plea in bar, if the principles governing the availability of that plea were not made out.

1. I also consider that his Honour correctly applied the principles governing the availability of the plea of autrefois convict to the facts of this case.  On its face, the conspiracy indictment did not limit the alleged agreement to the agreement to attempt to obtain glassware from Haines.  The indictment should have been framed so as to adequately inform the applicants of the case against them.  If the case were based on the Haines agreement, the Crown should have provided these particulars in the indictment.[70]  However, I would accept the Crown submission that the draft Crown case statement as at 10 August 2010, limited the Crown case to the Haines agreement.  If the Crown now sought to prove a broader conspiracy, it might well be appropriate for the trial judge to prevent it from doing so, because this would be a fundamental change in the Crown case.[71]

   [70]Johnson v Miller (1937) 59 CLR 467, 489 (Dixon J); King v The Queen (1986) 161 CLR 423, 425 (Murphy J), 428-9 ( Deane J) 432, 436 (Dawson J).

   [71]Compare R v Falconer–Attlee (1974) 58 Cr App R 348, 355-6 (Roskill LJ) where the Court of Appeal allowed an appeal on the basis among others that the Crown’s case in its closing address differed from the case which was put in the Crown opening; R v GAS (1998) 3 VR 862, 864 (Ormiston JA), 878-9 (Batt JA). Although note that, in each of these cases, the change in the Crown case was made at a late stage of the trial and in GAS, after closing addresses.

1. In Pearce v The Queen,[72] the High Court rejected the view that a plea in bar is available simply because there is an overlap in the evidence adduced to prove the offence or because a person who has been convicted of one offence is later charged with different offences arising out of the same facts.  As McHugh, Hayne and Callinan JJ said in their joint judgment: ‘The plea in bar goes to offences the elements of which are the same as, or included in, the elements of the offence for which an accused has been tried to conviction or acquittal’.[73]

   [72](1998) 194 CLR 610 (‘Pearce’).

   [73]Ibid 616 [18]. See also Gummow J (at 628 [63]), Kirby J (at 642 [103], 652 [125]) and R v Langdon (2004) 11 VR 18.

1. His Honour correctly found that the elements of the offences of which the applicants were convicted in Benbrika 1 were not identical to the elements of the conspiracy offence and nor were the elements of the conspiracy offence subsumed in the offences of which the applicants had been convicted in Benbrika 1.  A person may conspire with others to do acts in preparation of a terrorist act without being a member of a terrorist organisation.  Conversely, a person may intentionally become a member of a terrorist organisation knowing that it is a terrorist organisation (an organisation which is engaged in fostering or planning a terrorist act) without intentionally agreeing with others to carry out a terrorist act (as defined).  Membership of such an organisation may range from passive acceptance of the goals of the organisation, without doing anything to actively pursue them, to active engagement in the preparation or planning of a terrorist act.  The applicants were leading members of the organisation, whose convictions in Benbrika 1 reflected their commitment to the goals of the organisation.  I accept that they were not merely passive adherents.  But this does not make the elements of the offences of which they were convicted in Benbrika 1 the same as the elements of the conspiracy offence.

1. Nor is the fact that the Crown case in the second trial included a great deal of the evidence called in Benbrika 1 sufficient, of itself, to entitle an accused to rely on a plea in bar.  In Pearce, McHugh, Hayne and Callinan JJ discussed the effect of an overlap in the evidence relied upon to prove different offences as follows:

In each of Chia Gee vMartin[74] and Li Wan Quai v Christie,[75] Griffith CJ identified the test for whether a plea in bar would lie as being ‘whether the evidence necessary to support the second [charge or prosecution] would have been sufficient to procure a legal conviction upon the first.[76]  At first sight this might suggest that it is appropriate to consider what witnesses would be called and what each of those witnesses could say about the events which gave rise to the charges.  Closer examination reveals that the inquiry suggested is different; it is an inquiry about what evidence would be sufficient to procure a legal conviction.  That invites attention to what must be proved to establish commission of each of the offences.  That is, it invites attention to identifying the elements of the offences, not to identifying which witnesses might be called or what they could say.  It is only if attention is directed to what evidence might be given, as opposed to what evidence was necessary, that the inquiry begins to slide away from its proper focus upon identity of offence to focus upon whether the charges arise out of the same transaction or course of events.

Further, when it is said that it is enough if the offences are ‘substantially’ the same, this should not be understood as inviting departure from an analysis of, and comparison between, the elements of the two offences under consideration.[77]

[74](1905) 3 CLR 649.

[75](1906) 3 CLR 1125.

[76]Gee v Martin (1905) 3 CLR 649, 653; Quaiv Christie (1906) 3 CLR 1125, 1131. See also Ex parte Spencer (1905) 2 CLR 250, 251 (Griffith CJ); William Paley, Paley’s Law and Practice of Summary Convictions (5th ed, 1866) 145; Herbert Broom, A Selection of Legal Maxims (4th ed, 1864) 341.

[77](1998) 194 CLR 610, 616-17 [19]-[21]. See also and the comments of McHugh, Hayne and Callinan JJ (at 620 [28]). Gummow J agreed with this approach (at 628 [62]-[63]).

1. Later in their reasons, their Honours said that:

Inevitably, any test of the availability of the pleas in bar which considers the evidence to be given on the trial of the second prosecution except in aid of an inquiry about identity of elements of the offences charged would bring with it uncertainties of the kind identified by Scalia J.[78].  The stream of authorities in this country runs against adopting such a test[79] and there is no reason to depart from the use of the test which looks to the elements of the offences concerned.  Each of the offences with which the appellant was charged required proof of a fact which the other did not.  It follows that no plea in bar could be upheld.[80]

[78]This is a reference to the judgment of Scalia J in United States v Dixon (1993) 509 US 688, in which he delivered the judgment of the United States Supreme Court reversing its decision in Grady v Corbin (1990) 495 US 508 and reinstating the approach it had previously taken in Blockburger v United States (1932) 284 US 299, 304.

[79]See also R v Brightwell [1995] 2 NZLR 435.

[80]Pearce (1998) 194 CLR 610, 620 [28]. See also Connelly v Director of Public Prosecutions [1964] AC 1254, 1395-6 (Lord Reid) 1309-10, 1324, 1327 (Lord Morris of Borth‑y-Gest), 1333 (Lord Hodson), 1340 (Lord Devlin).

1. For these reasons, Benbrika and Joud’s grounds of appeal relating to autrefois convict must fail.

Double jeopardy

His Honour’s reasons

1. In Pearce, the High Court accepted that the pleas in bar of autrefois convict and autrefois acquit are only one manifestation of the double jeopardy principle.  That principle is also reflected in the judicial power to stay proceedings to prevent an abuse of process arising out of double jeopardy and in the rule that double punishment must be avoided when a person is sentenced for more than one offence arising out of the same conduct.[81]

   [81]Pearce (1998) 194 CLR 610, 614-15 [11]-[14] (McHugh, Hayne and Callinan JJ), 637-8 [92] (Kirby J). Kirby J also referred to prosecutorial practices designed to reduce the risks of double jeopardy (at 638-9 [95]).

1. Where a plea in bar is not available to an accused, a second prosecution of an accused who has previously been convicted (or acquitted) of similar offences may amount to an abuse of process justifying the grant of a stay, though criminal proceedings will only be stayed in exceptional circumstances.

1. In his First Ruling, his Honour referred to the High Court’s judgment in Carroll[82] and said that:

I consider that the power to stay is only to be used in response to extreme and incurable circumstances.  … [w]here proceedings genuinely are in breach of the principles of double jeopardy then there is a fundamental defect that goes to the root of a trial that cannot be cured by any amount of judicial intervention.  The precise boundaries are not amenable to scientific definition.  If a subsequent trial is founded on the same facts or substantially the same facts as a previous trial and the subsequent offence alleged is, in substance, the same as was alleged previously (although the strict legal elements may differ) then I consider that the rule against double jeopardy will be breached.  It is permissible of course to rely at a second trial on the identical facts alleged at a first trial, provided the offence alleged is different both in form and in substance.  To do otherwise is to harass an accused as effectively as if he were tried again on the same charge and exposes the criminal justice system to potential of a verdict at the second trial that is inconsistent with the earlier verdict.[83]

[82](2002) 213 CLR 635.

[83]First Ruling, [19].

1. His Honour correctly noted that the principle of double jeopardy did not make it impermissible to prosecute an offender for offences arising out of the same facts as were relied upon in an earlier prosecution, if the offences covered by the second prosecution were discrete or different in character.  Ultimately, the question was whether the subsequent trial was no more than a relitigation of the same cause in a different guise.  This was an issue on which reasonable minds might differ. 

1. Counsel also submitted that it would not be possible for the applicants to receive a fair trial on the conspiracy count, having regard to the extensive publicity accompanying Benbrika 1.  He argued that the applicants would be placed in an impossible position because they would have to disclose their previous convictions for terrorism offences to allow the jury to determine whether the evidence went further than proving the previous conviction.  If the Crown did not lead the evidence, each applicant would have to do so.

1. Counsel submitted that, since the elements common to the offences in this and Benbrika 1 were numerous and significant, there was a substantial danger that the jury would reason impermissibly that, because the applicants had previously been convicted of terrorism offences, they must also be guilty of the conspiracy offence.  This danger could not be overcome by a direction to the jury in the conspiracy trial to ignore the applicants’ previous convictions.

1. Counsel also argued that, in balancing the ‘additional criminality’ represented by the attempt to obtain equipment from Haines against the oppression arising from a trial based on substantially the same evidence, the judge should have taken account of the position of the individual applicants, rather than treating their unpunished criminality collectively.  Counsel for particular applicants drew attention to factors affecting their client which were said to make the conspiracy trial oppressive to their client and an abuse of process.

1. Counsel for Joud submitted that Joud’s additional criminality was limited to him faxing an order to Haines on 2 June 2005, following up that order, and participating in a discussion with Benbrika about paying for the Haines order.

1. Counsel for Raad submitted that the splitting of the case against his client into two trials had been unfair to his client and said that he had previously made submissions to that effect in Benbrika 1.  Raad had already been convicted of providing resources to a terrorist organisation and making funds available to a terrorist organisation, in his capacity as treasurer.  The only direct evidence on which the Crown would rely to justify his conviction on the conspiracy count was that Raad said in a recorded conversation that he had money ready for the Sydney brothers for the ‘goods’ if Benbrika gave the word.  There was no direct evidence that Raad knew that the ‘goods’ were glassware.  Thus his Honour had underestimated the extent of the overlap in the evidence called between Benbrika 1 and the second trial, so far as Raad was concerned.

1. Counsel for Raad also submitted that Raad had been found to be suffering from a psychiatric condition during Benbrika 1 and his Honour had adjourned the proceedings to require alterations to the conditions of incarceration of all of the applicants to remove the unfairness currently affecting the trial.[142]  In his sentencing remarks pertaining to Benbrika 1, Bongiorno J had noted the opinion of Mr Patrick Newton that Raad was suffering from severe anxiety causing him severe distress.  His Honour noted that: ‘He is emotionally agitated and constantly in a state of heightened arousal.  He cannot relax and has disturbed sleep’.[143]  At that stage, Mr Newton considered that Raad was experiencing ongoing depressive symptoms to the extent that he had recurrent bouts of suicidal ideation.[144]  During Benbrika 1, Raad had spent some time in a Muirhead cell.  Counsel submitted that if the second trial were not stayed, an application would be made for Raad to be excused from attending the trial.  It was further submitted for Raad that, if he were convicted at the second trial, he would fall to be sentenced for the conspiracy offence six years after his arrest and after he had completed serving his non-parole period of the sentences imposed on him for the offences in Benbrika 1.[145] Under s 19AG of the Code, the Court is required to fix a non-parole period of at least 75 per cent of the total effective sentence. Because Raad had not been tried for conspiracy at the same time as the offences in Benbrika 1, the Court could not sentence him so that he would serve all his sentences concurrently.

   [142]R v Benbrika (Ruling No 20) [2008] VSC 80, [104]-[109]. Although Raad was not named in that ruling, we were informed by counsel that he was one of the two men who were suffering from such a condition.

   [143](2009) 222 FLR 433, 462 [184].

   [144]Ibid 462-3 [181]-[188].

   [145]Raad’s non-parole period expires on or about 8 November 2011.

1. Counsel for Sayadi made similar submissions.  He contended that, of the 15 acts that related to Haines catalogue evidence not led in Benbrika 1, only two of the recorded conversations directly involved Sayadi.  A second lengthy and stressful trial would have severe psychological effects on Sayadi, who had been incarcerated in the same difficult conditions as Raad during Benbrika 1 and had already served the non-parole period of his sentence arising out of Benbrika 1.[146]  If he were convicted of conspiracy, the Court was unlikely to reduce his sentence by all of the time he had spent in prison.

   [146]His sentence expired on or about 8 February 2011.

1. The Crown submitted that the judge below had taken account of all relevant considerations in exercising his discretion and had correctly decided that any oppression arising out of the second trial had been overcome by reducing the amount of evidence which would be called.  The risk that previous publicity would unfairly prejudice the applicants could be overcome by appropriate jury directions.[147]

   [147]As was held to have been the case in Lodhi v The Queen (2007) 179 A Crim R 470, 505-9 [143]-[153] (Barr J, Spigelman CJ and Price J agreeing).

Conclusion on oppression

1. The circumstances in which a trial may be permanently stayed because the proceedings are so oppressive that they amount to an abuse of process were considered by the High Court in Jago v District Court of New South Wales,[148] R v Glennon[149] and Dupas v The Queen.[150]

   [148](1989) 168 CLR 23.

   [149](1992) 173 CLR 592 (‘Glennon’).

   [150](2010) 241 CLR 237 (‘Dupas’).

1. In Jago, the High Court dismissed an appeal against a refusal to grant a stay of a proceeding which was said to be an abuse of process because of a lengthy delay between the committal and the listing of the case for trial.  Mason CJ said that:

To justify a permanent stay of criminal proceedings, there must be a fundamental defect which goes to the root of the trial ‘of such a nature that nothing that a trial judge can do in the conduct of the trial can relieve against its unfair consequences’.[151]

[151](1989) 168 CLR 23, 34, referring to Barton v The Queen (1980) 147 CLR 75.

1. All members of the court in that case referred to the fact that oppression and unfairness can often be eliminated or virtually eliminated by trial  procedures and by the judge giving the jury appropriate directions.[152]

   [152]See Mason CJ (at 32), Brennan J (at 49).  It should be noted that Brennan J took a more limited view of the Court’s power to stay proceedings than other members of the High Court: Deane J (at 60), Toohey J (at 71), Gaudron J (at 77).

1. In Glennon[153] and Dupas, the question was whether the appellant could receive a fair trial where extensive and prejudicial publicity had been given to the particular offender’s previous convictions.  In Dupas, the High Court said that, in cases involving prejudicial publicity the relevant question was ‘not so much whether the case can be characterised as extreme, or singular, but rather, whether an apprehended defect in a trial is “of such a nature that nothing that a trial judge can do in the conduct of the trial can relieve against its unfair consequences”’.[154]  The Court also emphasised the need to take into account the substantial interest of the community in having those charged with criminal offences brought to trial.[155]

   [153]Glennon was a Crown application for special leave against orders of the Court of Criminal Appeal directing acquittals of the respondent on five counts of sexual offences.  The trial judge had refused an application for a stay and this decision had been upheld by a Supreme Court judge.

   [154](2010) 241 CLR 237, 250 [35].

   [155]Ibid 251 [37] (French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ).

1. In this interlocutory appeal, the applicants relied on a combination of circumstances in support of their application for a permanent stay.  The prejudice to a fair trial caused by pre-trial publicity was only one of those factors.

1. All counsel accepted that, in deciding whether the trial judge had wrongly refused the stay application for abuse of process, the principles in House v The King[156] applied.  Thus this interlocutory appeal could not succeed simply because this Court might have reached a different conclusion on the stay application.

   [156](1936) 55 CLR 499, 504-5 (Dixon, Evatt and McTiernan JJ).

1. The applicants must establish that his Honour acted on an incorrect view of the facts, or applied the wrong principles, for example by taking account of irrelevant matters or failing to have regard to relevant matters.[157]  In addition, if his Honour’s decision is clearly wrong or unjust, it would be open to this Court to infer that the discretion had been improperly exercised.  

   [157]See also Glennon (1992) 173 CLR 592, 600 (Mason CJ and Toohey JJ).

1. In deciding whether to stay the trial as an abuse of process, the judge had to balance the interest of the public in ensuring that persons who are accused of criminal offences are brought to trial[158] and, if convicted, are appropriately punished for their criminality,[159] against the factors relied upon to justify a permanent stay of the trial.  In undertaking this balancing process, I consider that his Honour needed to take account of the following matters in relation to each applicant:

   [158]Jago v District Courtof NSW (1989) 168 CLR 23, 33 (Mason CJ).

   [159]Walton v Gardiner (1993) 177 CLR 378, 395-6 (Mason CJ, Deane and Dawson JJ).

(a) the effect of the Crown decision to indict the applicant separately for the terrorism offences under Part 5.3 and for conspiracy;

(b)      what his Honour described as the ‘modest’ additional criminality involved in the conspiracy charge;

(c)       the overlap between the evidence to be led by the Crown in the conspiracy trial and the evidence which had been led in Benbrika 1;

(d)      the stress to the applicant caused by the five year delay between arrest and the conspiracy trial, and any further delay which would arise in sentencing if the applicant were to be convicted of conspiracy;

(e)       the effect on the applicant of the lengthy trial in Benbrika 1, and of the conditions under which the men were held and transported between Geelong and Melbourne during that trial;[160]

[160]These were held to be oppressive by Bongiorno J.

(f)       the effect on the applicant’s mental condition of having to submit to another trial lasting at least five months;[161] and

(g)      the public interest in ensuring that the criminal justice system did not operate unfairly or oppressively.

[161]And perhaps seven months.

1. The above list does not refer to the risk of prejudice caused by the extensive and sensational pre-trial publicity arising out of Benbrika 1.  Having regard to the decision of the High Court in Dupas, his Honour correctly concluded that the possibility of prejudice could be overcome by appropriate jury directions and did not create ‘an incurable defect going to the root of the trial’.[162]

   [162]First Ruling, [60]

1. In his First Ruling, his Honour concluded that the prosecutorial decision not to lead the Haines evidence at Benbrika 1 was ‘understandable’ and that ‘this is not an example of the prosecution strategically keeping something up its sleeve’.  The conclusion that the prosecution discretion was exercised in good faith could not have been, and was not, challenged on appeal.  But that does not resolve the question whether the prosecution was an abuse of process because of its oppressive effect on the applicants.  Even where the prosecutorial discretion has not been exercised for any improper or ulterior purpose, the objective effect of its exercise may be unfairly oppressive.

1. In the context of his discussion of double jeopardy, his Honour said that:

Criticism of the prosecution for not presenting the accused on a count that related to the Haines evidence at [Benbrika 1] is in my view unwarranted.  The prosecution were faced with an unwieldy trial involving 12 accused and 481 monitored conversations together with other evidence.  I consider that the introduction of the Haines evidence against four of the accused would have added to the length and complexity of [Benbrika 1] as some of the activities of the Sydney brothers (such as the purchase of chemicals) would need to have been adduced in order to provide a proper evidentiary context for the attempted purchase of the glassware.  The introduction of this material would probably have led to severance arguments by the accused unaffected by it, which I consider would likely have been successful.  It is easy from the distance of the bench to conjure up reasons why the Haines evidence should have been led at [Benbrika 1], but to do so is to lose sight of the fact that the first trial was complex enough without adding another layer of evidence that had the potential to fragment the joint trial of all accused.[163] [emphasis in original]

[163]Ibid [52].

1. It is not altogether clear whether his Honour’s reference to ‘the introduction of the Haines evidence against four of the accused’ related to the addition of that evidence as a particular of the membership and other counts with which they were charged, or to the addition of a conspiracy count relating to the Haines evidence alone. If his Honour was referring to the former, I doubt this would have added greatly to the length of the trial or required a separate trial of the other eight accused. In any case, addition of the Haines evidence as a further particular was not the only option available to the Crown. If the Crown considered that conviction of the offences under Part 5.3 would not ensure adequate punishment of the applicants, they could have been charged and tried separately from the other accused with the offence of doing an act in preparation of a terrorist act, which carries a maximum sentence of life imprisonment.[164]  Alternatively, they could have been charged with  conspiracy alone, as were the members of the Sydney group.  That offence also carries a maximum term of life imprisonment.  Each of these approaches would have avoided the applicants being tried for a second time, after they had already been convicted and sentenced for offences arising out of circumstances which were capable of supporting proof both of those offences and proof of the conspiracy offence.  Further, the offences on which the applicants were indicted carried the very substantial maximum penalties set out in [7] above.  For example, in the case of Benbrika, the maximum penalty for intentionally directing activities of a terrorist organisation was 25 years’ imprisonment[165] and for intentionally being a member of terrorist organisation was 10 years’ imprisonment.[166]  The maximum penalty for possession of a thing connected with preparation for a terrorist act was 15 years’ imprisonment.[167]

   [164]Code, s 101.6. It is not necessary to prove that a specific terrorist act was contemplated or that the act occurred.

   [165]Code, s 102.2(1).

   [166]Code, s 102.3(1).

   [167]Code, s 101.4(1).

1. In his First Ruling, his Honour said that:

If there is merit in the oppression aspect of the abuse argument I consider that it comes from a combination of the extent of overlap between the criminality alleged in [Benbrika 1] and the current trial (or put another way the residual unpunished criminality), the nature and extent of the current trial and the nature and extent of [Benbrika 1].[168]

[168]First Ruling, [61].

1. Thus, the primary focus of his Honour’s First Ruling on abuse of process arising out of  oppression was the extent of the overlap between the evidence led by the Crown in Benbrika 1 and the evidence which it proposed to lead in the second trial.  The judge also referred to the length of Benbrika 1, the likely length of the conspiracy trial and the conditions of incarceration and transport suffered by the men.

1. In my opinion, his Honour should also have considered whether the prosecution decision to indict the applicants separately for the offences in Benbrika 1 and for conspiracy, rather than taking one of the approaches identified in [138] above, justified the staying of the second trial as an abuse of process when combined with the other matters to which he referred.  His Honour described the decision taken by the Crown as to how the men should be prosecuted as ‘understandable’.  But even if that characterisation is accepted, it resulted in the applicants being subjected to two separate and lengthy trials for offences arising largely out of the same facts and circumstances, when the entirety of their criminality could have been dealt with in a single trial.

1. As a consequence of the approach which the judge took in his First Ruling, his Honour approached the Second Ruling by asking himself the question whether the ‘ruthless paring‘ of evidence undertaken by the Crown was sufficient to relieve the oppression suffered by the applicants ‘sufficiently so to make a trial compatible with ordinary precepts of fairness’.[169]

   [169]Second Ruling, [5].

1. In my opinion, the emphasis which his Honour placed on the overlap in the evidence between Benbrika 1 and the conspiracy trial led him to give too much weight to the proposed reduction in the evidence which the Crown intended to call in the conspiracy trial.  As a result, his rulings indicate he did not adequately consider the other matters which had to be taken into account in deciding whether to stay the conspiracy trial because it amounted to an abuse of process.

1. So far as the individual applicants are concerned, I do not accept the submission that the judge should only have considered the extent to which the direct evidence of the conspiracy to be led against that applicant was additional to the evidence led against him in Benbrika 1.  The Crown case against the applicants was that each of the accused was involved in a joint venture with the Sydney men to acquire the glassware for the purpose of preparing a terrorist act.  Differences in the details of the evidence called to prove they were guilty of the conspiracy were not necessarily an accurate indication of the extent of each applicant’s additional criminality.  In Ahern v The Queen,[170] the High Court held that:

In conspiracy cases a clear distinction is to be made between the existence of a conspiracy and the participation of each of the alleged conspirators in it.  Conspiracy is the agreement of two or more persons to do an unlawful act or to do a lawful act by unlawful means and it is the fact of the agreement, or combination, to engage in a common enterprise which is the nub of the offence.  This fact can seldom be proved by direct evidence of the making of an agreement and must in almost all cases be proved as a matter of inference from other facts, that is to say, by circumstantial evidence.  For this purpose, evidence may be led which includes the acts or declarations of one alleged conspirator made outside the presence of the others provided such evidence is not led to prove against the others the truth of any assertion or implied assertion made by the actor or the maker of the statement.  It may take the form of evidence of separate acts or utterances from which the fact of combination might be inferred.  Led in that way, it is not hearsay and is not dependent upon some circumstance to take it outside the hearsay rule, such as an implied authority making the acts and words of one the acts and words of the other.

Thus it was said in Tripodi[171] that proof of the crime of conspiracy ‘may well consist in evidence of the separate acts of the individuals charged which, although separate acts, yet point to a common design and when considered in combination justify the conclusion that there must have been a combination such as that alleged in the indictment’.  For example, it may be possible in a case of conspiracy to commit armed robbery to conclude from the fact that one accused wearing a disguise was present in a bank at the same time as another accused, similarly disguised, was waiting outside the bank in a motor vehicle with the motor running, that both were engaged in a common enterprise to rob the bank.  For the purpose of reaching that conclusion it is permissible to use the acts and declarations of each, even in the absence of the other, not as proof of the truth of any assertion or implied assertion of the participation of the other, but as facts from which the combination might be inferred.  Utterances for this purpose may be regarded as facts no less than acts and, indeed, in the United States are sometimes called verbal acts.  In the example given it would be possible to reach the conclusion, admitting the evidence for the purpose described and considering it against each accused separately, not only that there was a conspiracy but also that each of the two accused was a participant.[172]

[170](1988) 165 CLR 87.

[171](1961) 104 CLR, 6.

[172](1988) 165 CLR 87, 93-4 (Mason CJ, Wilson, Deane, Dawson and Toohey JJ).

1. If there was sufficient evidence of a conspiracy to go to the jury, the evidence of acts and declarations made by one applicant would be admissible against the others.  The guilt of each individual applicant would then have to be assessed by reference to the circumstantial as well as the direct evidence of what they did.

1. If the Crown proves that the applicants agreed to obtain glassware from Haines, it does not matter that the evidence against one of the men is that he sent a fax to Haines and that the evidence against another relates to the discussion of payment for the equipment.  If the applicants are convicted of knowingly agreeing to commit acts in preparation of a terrorist act, each of them will be equally criminally responsible for conspiracy, although differences in their moral culpability can be taken into account for sentencing purposes.

1. Some of the matters which his Honour had to consider in undertaking the balancing process affected all of the applicants.  However, as the Crown conceded, his Honour also had to have regard to factors which only affected particular applicants.  As an example, the uncertain mental health of Raad and the fact that both Raad and Sayadi are likely to have served their non-parole period before the conspiracy trial is completed was a relevant consideration in deciding whether the conspiracy trial was an abuse of process.  His Honour would also have to consider whether a particular applicant was likely to receive a significant additional sentence for their involvement in the conspiracy, once the sentencing judge took account of the need to avoid double punishment.

1. If his Honour had concluded that the trial of some of the applicants should have been stayed, he would also have had to consider the possibility that there would be a public perception of unfairness if the trial of the remaining applicants continued.

1. In my opinion, his Honour erred in treating the applicants collectively.  Instead, he should have asked himself in relation to each applicant whether the trial of that applicant should be stayed as an abuse of process, because its oppressive effect outweighed the public interest in ensuring that the applicant was convicted and sentenced for his entire criminality.

1. I have held that his Honour should have considered whether the prosecutorial decision to indict the applicants separately for conspiracy and for the offences under Part 5.3, combined with the other matters set out in [138], outweighed the public interest in ensuring that the applicants are appropriately punished for their modest additional criminality. I have also held that his Honour was required to undertake this balancing process for each applicant separately, although it was also necessary to consider whether staying the trial of some, but not all the applicants, could create a public perception of unfairness. For these reasons, his Honour’s rulings must be set aside.

1. The question which then arises is whether this Court should re-exercise the discretion to stay or remit the stay application to his Honour for re-determination under s 300(2)(b)(ii) of the Criminal Procedure Act 2009.

1. The initial hearing of submissions in support of the applications for a stay took 11 days.[173]  In hearing this interlocutory appeal, we have not had the opportunity to consider all of the material which was available to his Honour, including for example, the depositions.  His Honour is much more familiar with the evidence which the parties propose to lead and with the circumstances of each applicant.  In these circumstances, we consider that the matter should be remitted to the judge to determine whether a stay should be granted, having regard to the matters discussed above.

   [173]A further two days was required to discuss the ‘ruthless paring of evidence’ and for the Crown to present its amended case.

1. I would therefore remit the stay application for re-consideration by the trial judge.

WEINBERG JA:

1. I agree with Neave JA.

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