| IN THE SUPREME COURT OF VICTORIA | Not restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. 1544 of 2006
| THE QUEEN |
| 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 |
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JUDGE: | BONGIORNO J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 1 March 2007 | |
DATE OF RULING: | 21 March 2007 | |
CASE MAY BE CITED AS: | R v Benbrika & Ors (Ruling 1) | |
MEDIUM NEUTRAL CITATION: | [2007] VSC 141 | |
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COURTS – Protective orders – National Security – Criminal trial – Principles of open
justice – Closed court – Suppression of publication – Crimes Act 1914 (Cth), Criminal Code Act 1995 (Cth), National Security Information ( Criminal and Civil Proceedings) Act 2004.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr R. Maidment SC with Mr N. Robinson, Mr D. Lane and Ms L. Taylor | Commonwealth DPP |
| For the Commonwealth Attorney General | Dr S. Donaghue | Australian Government Solicitor |
| For the accused Messrs Haddara, Kent, Merhi, Taha, Sayadi, Ahmed Raad, Ezzit Raad, Majed Raad, Bassam Raad | Mr R. Merkel QC | Robert Stary & Associates |
| For the accused Mr Benbrika | Mr R. Van de Wiel QC with Mr A. Halpen | Doogue & O’Brien |
| For the accused Mr Atik | Mr M.G. O’Connell | Galbally & O’Bryan |
| For the accused Mr Hammoud | Mr D. Brustman | VLA |
| For the accused Mr Joud | Mr T.E. Wraight | Lethbridge & Associates |
| For media interests ( The Age Company Ltd, The Herald & Weekly Times Ltd, Nationwide News Ltd and Australian Broadcasting Corporation) | Mr P. Morrissey | Minter Ellison lawyers |
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HIS HONOUR:
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 have been indicted by the Commonwealth Director of Public Prosecutions before this Court on a number of counts alleging offences contrary to the Commonwealth Criminal Code. All of the alleged offences concern terrorism as that term is generally understood. All of the accused have pleaded not guilty to all counts. At present one trial of all the accused is contemplated.
As might be expected, some of the evidence to be addressed on the trial of this proceeding may consist of documents in respect of which security agencies of the Commonwealth, Australian Federal Police, Victoria Police, the federal Attorney-General and others entertain concerns as to national security. Those documents will need to be handled by counsel and solicitors for the accused and perhaps by the accused themselves. Also, there may be oral evidence given by officers of the Commonwealth or other agencies which itself raises concerns as to security and there may be circumstances where the identity of witnesses may raise other security issues.
To address these issues and others which may arise by virtue of the National Security Information (Criminal and Civil Proceedings) Act2004 (“NSI Act”) of the Commonwealth, the federal Attorney-General has proffered a series of orders which he submits ought to…
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- AGLC
- R v Benbrika [2007] VSC 141
- Case
- [2007] VSC 141
- Decision Date
CaseChat Overview and Summary
The Court carefully considered the arguments put forward by the parties and the relevant legal provisions. It held that the protective order was indeed authorised by the statutes and was necessary to protect national security. The Court emphasised that the principles of open justice could be balanced against other important considerations, such as national security. It found that the order was proportionate and did not unfairly prejudice the appellants' right to a fair trial. The Court further noted that the order was necessary to prevent the disclosure of sensitive information that could endanger public safety and national security. Ultimately, the Court concluded that the protective order was valid and did not contravene the principles of open justice.
In light of the Court's reasoning and findings, the appeal was dismissed. The Court upheld the validity of the protective order and the measures taken to ensure a fair trial while protecting national security. The Court's decision reinforces the importance of balancing the principles of open justice with other significant considerations, such as national security, in exceptional circumstances. The final orders of the Court affirmed the lower court's decision and the imposition of the protective order.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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