R v Benbrika (No 2)

[2007] VSC 261

IN THE SUPREME COURT OF VICTORIA Not restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1544  of 2006

THE QUEEN	Plaintiff
v
ABDUL NACER BENBRIKA, IZZYDEEN ATIK, AMER HADDARA, AIMEN JOUD, SHANE KENT, ABDULLAH MERHI, AHMED RAAD, EZZIT RAAD, FADAL SAYADI, HANY TAHA, SHOUE HAMMOUD, MAJED RAAD and BASSAM RAAD	Defendants

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JUDGE:	BONGIORNO J
WHERE HELD:	Melbourne
DATE OF HEARING:	26 June 2007
DATE OF RULING:	27 June 2007
CASE MAY BE CITED AS:	R v Abdul Nacer Benbrika & Ors (Ruling 2)
MEDIUM NEUTRAL CITATION:	[2007] VSC 261	Revised 30 July 2007

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CRIMINAL LAW – Pleadings – Indictment – Elements of offence pleaded in addendum to indictment – Practical difficulty in arraignment - Crimes Act 1958 s 369, Schedule 6; Criminal Code Act 1995(Cth), s 100(1), s 101, s 102;   Lodhi v R (2006) 199 FLR 303 applied.

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

HIS HONOUR:

1. The 13 accused in this case are the subjects of a 17 count indictment preferred against them in the name of the Commonwealth Director of Public Prosecutions alleging a number of different offences contrary to the Commonwealth Criminal Code Act 1995 (“the Code”).  All of the offences charged are concerned with conduct proscribed by provisions of Part 5.3 of the Code. 

1. Every one of the 17 counts refers in one way or another to a "terrorist act", a term defined in s 100(1) of the Code in the following terms:

‘Terrorist act’ means an act or action or threat of action where:

(a)the action falls within the 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 a 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; or

(f)seriously interferes with, seriously disrupts, or destroys, an electronic system including, but not limited to:

(i)        an information system; or

(ii)       a telecommunications system; or

(iii)      a financial system; or

(iv)a system used for the delivery of essential government services; or

(v)       a system used for, or by, an essential public utility; or

(vi)      a system used for, or by, a transport system.

(3)     Action falls within this subsection if it:

(a)       is advocacy, protest, dissent or industrial action; and

(b)       is not intended

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

(ii)       to cause a person's death; or

(iii)to endanger the life of a person, other  than the person taking the action; or

(iv)to create a serious risk to the health or safety of the public or a section of the public.

(4)     In this Division:

(a)a reference to any person or property is a reference to any person or property wherever situated, within or outside Australia; and

(b)a reference to the public includes a reference to the public of a  country other than Australia.

1. An omnibus definition, it can be satisfied in a number of different ways.  For an act to be a terrorist act it need not satisfy all the criteria specified.  Each of the sub-sections provides a number of alternatives, any one of which would be sufficient to designate any particular conduct having that attribute as a "terrorist act".

1. In the indictment in this case, the pleader has not particularised the conduct specified as being the relevant terrorist act in each individual count.  Rather, he has simply used the term "terrorist act" as describing the conduct referred to in each count, but has added, as a schedule or appendix to the indictment, the following statement:

For the purposes of counts 1-17 particulars of the 'terrorist act' referred to in each of the said counts are as follows:

Particulars of Terrorist Act

An action or threat of action involving the detonation of an explosive or incendiary device or the use of weapons to be done or threatened with the intention of advancing a political, religious or ideological cause, namely the pursuit of violent jihad and with the intention of:

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

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

In circumstances where the action, if carried out, would result in:

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

(b)  causing damage to property; or

(c)  causing a person's death; or

(d)endangering a person's life, other than the person taking the    action; or

(e)creating a serious risk to the health or safety of the public or a section of the public.

And in circumstances where the action to be done or threatened would not be advocacy, protest, dissent or industrial action, or alternatively would not be advocacy, protest, dissent or industrial action of a kind not intended to:

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

(b)  to cause a person's death; or

(c)endanger the life of a person other than the person taking the action; or

(d)create a serious risk to the health or safety of the public or a section of the public."

1. Thus it would be reasonably comprehended by someone reading the indictment that in each count the words "terrorist act" meant that the conduct referred to in that count was conduct referred to in one or more of sub-paragraphs (2)(a), (b), (c), (d) or (e) of the definition of "terrorist act" contained in s 101(1) of the Code set out above, and not the conduct referred to in s 101(1)(3).

1. However, Mr Lindner, who appears for the accused Bassam Raad, has moved to quash the indictment because, as he submits, none of the counts alleged contains the necessary allegation of each of the elements of the terrorist act relied upon.  He includes, of course, the counts which concern his client, namely counts 1 and 9.  He made no like submission with respect to the term "terrorist organisation" which occurs in 12 of the 17  counts on the indictment.  The term "terrorist organisation" was not relevant to any of the counts in Lodhi v the Queen,[1] the case relied upon by Mr Lindner , although by a parity of reasoning it is difficult to see why it would not require similar treatment in the indictment to the term "terrorist act".

   [1](2006) 199 FLR 303.

1. Mr Lindner referred, in particular, to paragraphs 78 to 94 of the judgment of Spigelman CJ in Lodhi with whom McClellan and Sully JJ agreed. That judgment concerned counts on an indictment which, like the offences in the indictment at present before this Court, referred to a "terrorist act".  The Court of Appeal held that both limbs of paragraph (a) of the definition of "terrorist act" in s 101(1) of the Code were essential elements of the offence charged and each limb must be proved beyond reasonable doubt by the Crown to sustain a conviction. That is to say, it must be proved that the alleged terrorist act fell within sub-paragraph (2) of the definition and did not fall within sub-paragraph (3). Therefore, the Court held, each limb should be pleaded. Likewise, the Court held that the elements referred to in paragraphs (b) and (c) of the definition must also be pleaded and proved. As the indictment as laid and amended in Lodhi was deficient with respect to the elements of the "terrorist act" relied upon in each count by the Crown, it was quashed.

1. In a separate concurring judgment, McClellan J referred to the difficulties sometimes encountered in being able to determine precisely the full scope of the requirement that a statement of an offence charged, whether summary or indictable, must identify the essential factual ingredients of the offence notwithstanding provisions such as s 11 of the Criminal Procedure Act 1986 (NSW) or s 145A of the Justices Act 1902 (NSW).  He quoted from a judgment of Mahoney JA in De Romanis v Sibraa[2],  where his Honour referred to Johnson v Miller[3], Smith v Moody[4] and Ex parte N Ormsby & Sons Pty Ltd, re Mason[5] . Mahoney JA said in De Romanis :

These cases establish that it may not be sufficient for an information to state the offence charged.  It may be required to condescend to particulars.  But in my opinion, they do not indicate that the information must go beyond the statement of the offence and the proper particularisation of it.[6]

[2](1977) 2 NSWLR 264, 291.

[3](1937) 59 CLR 462.

[4](1903) 1 KB 61, 63.

[5](1964) 81 WN  (Pt 1) (NSW) 286.

[6](1977) 2 NSWLR 264, 292.

1. In the course of his argument, Mr Lindner tendered a copy of a new indictment laid in Lodhi following the Court of Appeal decision.  Mr Lodhi was subsequently tried and convicted on this indictment.  After each count it provided, under a heading entitled “Particulars of Terrorist Act”,  a statement of the elements of the definition of terrorist act relied upon by the Crown.  It was, in the case of each count on the indictment, very similar in form to the statement appended to the 17-count indictment in this case.

1. Mr Lindner also complained that the use of the term "particulars" in the addendum to the indictment before this court was misleading.  He submitted that the facts pleaded were not particulars at all, but rather elements of the offence charged.  He referred to Johnson v  Miller.[7]

   [7](1937) 59 CLR 462.

1. Opposing Mr Lindner's application, Mr Maidment SC, for the Crown, submitted that the device adopted in the present case meant that the indictment complied completely with the New South Wales Court of Criminal Appeal judgment in Lodhi and that there could be no valid objection to it.

1. Although they had not done so earlier, counsel for all other accused sought to join in Mr Lindner's application after he completed his argument.  They were permitted to do so.

1. On its face, Mr Lindner's argument represents a massive triumph of form over substance. Leaving aside any unargued point concerning the term "terrorist organisation", the indictment as it stands makes it clear to the Court and to each accused the precise allegations of fact which the Crown makes against each of them. It would appear to comply with s 369 of the Crimes Act 1958 and with the Presentment Rules found in the Sixth Schedule to that Act[8].

   [8]Although quite different in form s 369 is not dissimilar in effect to the NSW provision referred to in Lodhi.

1. Were it simply that the indictment needed to convey the information which it does to a person reading it, Mr Lindner's application would have been swiftly disposed of.  However, after Mr Lindner's argument was completed, Mr McMahon raised a question as to the practical difficulty of conducting an arraignment before a jury panel, the facts alleged as constituting a terrorist act being incorporated into each count by reference to an addendum to the indictment.  It might be rhetorically asked, would the judge’s associate ask each accused to plead to the counts as drafted without reference to the addendum or would it be necessary to repeat the whole addendum orally each time the words "terrorist act"  appeared in a count?

1. The arraignment of a prisoner in a trial at common law consists of three discrete steps: one, calling him to the bar of the Court or having him placed there by the gaoler; two, reading the indictment to him and, three, asking him, after each count is read, if he pleads guilty or not guilty.  It is an oral process, like much in the criminal law.  Thus the indictment in its current form presents a practical difficulty, if not a theoretical one.  The only solution to this difficulty may be the incorporation into each count of the elements of the terrorist act at present conveniently residing in the appended particulars.  To do so will, of course, produce 17 very long, complex and, I fear, barely intelligible passages of turgid prose, but as McClellan J said in Lodhi, the concepts involved in the definition of "terrorist act" are complex.[9] That this is so can be demonstrated from the fact that the draftsman of the Code was unable to express the omnibus definition in less than about 40 lines of text.

   [9](2006) 199 FLR 303, 327

1. One should not be surprised that an indictment such as that with which this Court is at present concerned will be a long and complex document.  The practical difficulty referred to does not invalidate the indictment as it stands. It is comprehensible and complies with the statutory requirements. Mr Lindner's application to quash the indictment fails.  However, the practicalities of the matter must be addressed, probably by amendment of the indictment, bearing in mind the requirements of Lodhi's case and the necessity for the accused and the jury panel to understand what is being alleged against each accused in each count as it is read by the judge’s associate and pleaded to by the accused.

1. Accordingly, all applications to quash the indictment will be dismissed. The Crown will be given leave to amend the indictment in accordance with this ruling and so as to correct minor omissions to counts 12 and 13 which were identified in the course of argument.

1. The form of the amendment must be a matter for the Crown to determine but it should be drafted in plain English and punctuated so as to express as simply as possible each charge upon which the accused are to be tried.  I suspect that that is a task more easily described than carried out.  It goes without saying that the amendment  must make no change of substance to any of the counts in the present version of the indictment.

1. The orders of the Court are as follows:

1. All applications to quash the indictment are dismissed.

2. The Crown have leave to file and serve a draft form of an amended indictment in conformity with these reasons for judgment by 5 p.m. on 3 July 2007.