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:

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.

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2007] VSC 261
Decision Date: 27 June 2007

CaseChat Overview and Summary

In the case of R v Benbrika (No 2), the defendant was charged with multiple offences related to terrorism and criminal activities. The proceedings were held in the Supreme Court of Victoria. The defendant, Benbrika, and others were accused of involvement in a series of criminal activities, including the planning and preparation of terrorist acts. The specific dispute in this case revolved around the form and content of the indictment against Benbrika. The prosecution had included additional elements of the offence in an addendum to the indictment, which raised questions about the legality and practicality of the indictment process.

The court was required to determine whether the addendum to the indictment was valid and whether it complied with the statutory requirements under the Crimes Act 1958 and the Criminal Code Act 1995. The key legal issues included whether the addendum constituted an amendment to the indictment and whether it was permissible under the relevant statutes. The court also needed to consider whether the defendant's rights to a fair trial were prejudiced by the inclusion of the addendum.

The court held that the addendum to the indictment was not an amendment but rather a clarification of the charges, which was permissible under the statutory framework. The court referred to Lodhi v R, which established that an addendum can be used to correct or clarify the charges without requiring a formal amendment. The court further found that the inclusion of the addendum did not prejudice the defendant's right to a fair trial, as it did not introduce new charges or alter the fundamental nature of the offence. Consequently, the court ruled in favour of the prosecution, upholding the validity of the indictment as amended by the addendum. The court's decision ensured that the defendant was properly informed of the charges against him while adhering to the legal requirements for indictments in terrorism-related cases.

Orders