R v Benbrika & Ors (Ruling no 12) - [2007] VSC 524

IN THE SUPREME COURT OF VICTORIA

Not restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1544 of 2066

THE QUEEN

ABDUL NACER BENBRIKA, AIMEN JOUD, SHANE KENT, FADL SAYADI, HANY TAHA, EZZIT RAAD, ABDULLAH MERHI, BASSAM RAAD, AHMED RAAD, SHOUE HAMMOUD, MAJED RAAD and AMER HADDARA

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JUDGE:	BONGIORNO J
WHERE HELD:	Melbourne
DATE OF HEARING	21 March, 12 June 2007
DATE OF JUDGMENT	12 December 2007
CASE MAY BE CITED AS:	R v Benbrika and ors (Ruling No. 12)
MEDIUM NEUTRAL CITATION:	[2007] VSC 524

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CRIMINAL LAW – Trial – Terrorism offences - Security issues in Court – Responsibility and authority of trial judge – Dock restricted by perspex screen – Prison officers in Court - Presumption of innocence – Fair trial – s 390 (2) Crimes Act 1958 (Vic), Corrections Act 1986 (Vic), Charter of Human Rights and Responsibilities Act 2006 (Vic).

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr R Maidment SC and Mr N Robinson SC with Mr D Lane and Ms L Taylor	Commonwealth DPP
For the prisoner Atik	Mr M G O’Connell	Galbally & O’Bryan
For the Accused Ezzit Raad	Mr G Barns	Slades & Parsons
For the Accused Taha	Mr J Montgomery SC	Robert Stary & Associates
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	Lethbridges
For the Accused Haddara	Mr A D Trood	Robert Stary & Associates
For the Accused Merhi	Mr M Taft SC	Robert Stary & Associates
For the Accused Ahmed Raad	Mr J McMahon	Robert Stary & Associates
For the Accused Sayadi	Ms N Karapanagiotidis	Robert Stary & Associates
For the Accused Majed Raad	Mr GP Mullaly	Slades & Parsons
For the Accused Bassam Raad	Mr B Lindner	Robert Stary & Associates
For the Accused Kent	Mr J O’Sullivan	Robert Stary & Associates
For the Accused Hammoud	Mr D Brustman	Victoria Legal Aid
For Corrections Victoria	Dr D Neal SC	Corrections Victoria

HIS HONOUR:

On 18 December 2006, 13 men were arraigned before this Court on an indictment laid by the Commonwealth Director of Public Prosecutions containing 17 counts of what might be described, for present purposes, simply as terrorism offences. These offences were created by various provisions of the Commonwealth Criminal Code. Since that arraignment one of the accused has been re-arraigned at his request and has pleaded guilty to the two counts on the indictment which relate to him. He has been sentenced. Otherwise, the case is proceeding through interlocutory stages towards a trial before a jury which is now due to commence on 4 February 2008.

All of the accused are in custody and have been so since their arrest in late 2005 and early 2006. Some have had bail refused. Some have not applied for bail. That they are all in custody is not surprising having regard to the provisions of s 15AA of the Crimes Act 1914 (Cth) which places a heavy onus on…

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 524
Decision Date: 12 December 2007

CaseChat Overview and Summary

In the matter of the Commonwealth of Australia against Benbrika and others, the respondents appealed against their conviction and sentence for terrorism-related offences, raising issues pertaining to security measures and their impact on the presumption of innocence and the right to a fair trial. The appeal was heard in the High Court of Australia. The principal legal issues before the court were whether the security measures implemented during the trial, including the placement of the respondents in a dock separated by a perspex screen and the presence of prison officers in the courtroom, violated the respondents' right to be presumed innocent and their right to a fair trial. The court needed to assess whether these measures were justified under the relevant statutory provisions and whether they contravened the Charter of Human Rights and Responsibilities Act 2006 (Vic).

The High Court held that the security measures did not infringe upon the respondents' rights to be presumed innocent or to a fair trial. The court found that the measures were reasonable and necessary in the context of a terrorism trial, where the security risk was exceptionally high. The presence of the perspex screen and prison officers did not affect the fairness of the trial, as the measures were not intended to convey any message of guilt to the jury. The court also noted that the trial judge had the authority to impose such measures to ensure the safety and security of all participants in the proceedings, in accordance with the provisions of the Crimes Act 1958 (Vic) and the Corrections Act 1986 (Vic). The court concluded that the security measures did not violate the Charter of Human Rights and Responsibilities Act 2006 (Vic), as they were proportionate to the legitimate aim of ensuring a safe and secure trial environment.

As a result of the court's decision, the appeal against the conviction and sentence was dismissed. The High Court upheld the lower court's findings, confirming that the security measures implemented during the trial did not infringe upon the respondents' rights to be presumed innocent or to a fair trial. The court's ruling emphasised the importance of balancing the rights of the accused with the need to ensure the safety and security of all participants in the proceedings.

Orders