R v Benbrika & Ors (Ruling No 13)

[2007] VSC 543

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1544 of 2006

THE QUEEN

v

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

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JUDGE:	BONGIORNO J
WHERE HELD:	Melbourne
DATE OF RULING:	17 December 2007
DATE OF HEARING:	13 December 2007
CASE MAY BE CITED AS:	R v Benbrika (Ruling No. 13)
MEDIUM NEUTRAL CITATION:	[2007] VSC 543

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CRIMINAL LAW – Trial – Terrorism offences – Suppression orders – Second indictment filed - Application for total suppression of all reporting of first trial – Fair trial – Open Justice – R v Glennon (1992) 173 CLR 592.

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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 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
By leave for The Age, Nationwide News Pty Ltd and Australian Broadcasting Corporation	Mr S Mukerjea, solicitor	Minter Ellison
By leave for The Herald and Weekly Times, Channel 7 and Nine Network	Mr J Cashen, solicitor	Corrs Chambers Westgarth

HIS HONOUR:

1. Mr Van de Wiel, on behalf of the accused Benbrika, supported by some, at least, of the other accused, gave notice some months ago that he would in due course be seeking an order which would have the effect of this trial proceeding to its conclusion without the publication of any reference to it in the media, at least in the media of this State.  In other words, he sought a total suppression of all media reporting of the trial: the charges, the evidence, the arguments, the verdict and, if there were to be sentences following the trial, those sentences and the reasons for them.

1. As the trial is due to commence with jury empanelment on 4 February 2008 it is necessary now to rule on Mr Van de Wiel’s application.  To that end, submissions were heard from him and some other members of counsel supporting his position on 13 December 2007 and also from the Crown and from two solicitors who, between them, acted for all the principal organs of the media in this country.  This ruling deals with that application.

1. The basis of Mr Van de Wiel ‘s application is that his client, along with three of the other accused, are facing not just this trial on terrorism charges, but a second trial on even more serious terrorism charges on which they have been committed and in respect of which an indictment has been laid, upon which no further proceedings have been had to date.  It is the Crown’s intention to proceed with that indictment upon the conclusion of this trial. Also, although it does not involve Mr Van de Wiel’s client, two of his co-accused will, after this trial finishes, still be facing two counts which have been severed from this indictment by the application of ordinary principles as to severance. 

1. Mr Van de Wiel’s argument was short and simple.  He submitted that having regard to the wide media interest which is expected in respect of this trial it would be difficult, if not impossible, for his client to receive a fair trial on the second indictment laid against him, particularly as the Crown says that it wishes to proceed with that trial immediately after this trial finishes.

1. In support of his argument Mr Van de Wiel referred to a passage in the judgment of Kellam J in R v Williams; In the matter of an application by “The Age” & Ors,[1] in which His Honour restated the well-known principles which apply to the question of whether a court will suppress publication of its proceedings to protect the rights of an accused standing trial or who is due to stand trial. In the passage to which Mr Van de Wiel referred, Kellam J emphasised the necessity for an applicant for such a suppression order to demonstrate a “serious and substantial risk” to the conduct of a fair trial to warrant the granting of such an order.

   [1][2004] VSC 413.

1. Mr Van de Wiel pointed to the similarity between the charges his client faces in this court and those he faces on the second indictment and to the inevitable overlap in the evidence which will be presented on both trials.  He also referred to the issue of terrorism generally, to the alarmist nature of much of the media reporting of the topic and to the media’s mention of his client in an arguably prejudicial way already.

1. He tendered a newspaper cutting which reported alleged discussion between his client and the notorious murderer Carl Williams in Barwon Prison concerning religion.  This report trivialised his client’s position, seemingly without any regard being had by the publisher of the newspaper concerned to the effect this might have on this trial.  He concluded by submitting that a total suppression order was in the circumstances necessary to ensure that justice was done and that his client received a fair trial on the second indictment which he faces. Ms Karapanagiotidis and Mr O’Sullivan supported Mr Van de Wiel, the latter referring to his client, Kent’s, involvement with Joud in the counts severed from this trial.

1. The Crown did not support Mr Van de Wiel’s application, although a number of other defence counsel did. The prosecutor, Mr Maidment, submitted that there was not the high degree of the risk of prejudice which Mr Van de Wiel urged upon the court. He pointed to the fact that there will inevitably be a lengthy pretrial argument period, as in this trial, during which there will be a dissipation of discussion of the activities of Benbrika and the other relevant accused such that by the time the second trial starts it will be possible to conduct it free of prejudice and fairly. He also recognised that it may be that if there was still an inappropriate atmosphere surrounding the accused at the time the second trial was due to start, some compensatory order, such as an order for an adjournment, may have to be made.

1. In a strong answering submission, Mr McMahon, of Counsel for Ahmed Raad, referred to what he called unprecedented involvement of investigatory bodies and politicians in leaking information to the press and to the inappropriateness of this occurring. Although this submission did not really go to the issue being debated, his point is an important one. It goes without saying that any attempt to manipulate the media against an accused person or a class of accused persons by investigating agencies is to be deplored if it has occurred. Not only would it be professionally reprehensible, it would constitute a contempt of court from which investigators are, of course, not in any way immune.

1. Mr Mukerjea, who appeared by leave for The Age, Nationwide News Pty Ltd the ABC, and Mr Cashen, who appeared by leave for The Herald and Weekly Times, Channel 7 and the Nine Network, each opposed the making of any suppression order.  Mr Mukerjea relied upon an extensive outline of argument which made reference to most of the leading authorities on suppression orders in this area and argued cogently against the making of the order sought.

1. He referred to the enormous public interest in the trial, although in doing so, I suspect he was really talking about what the public was interested in, rather than the public interest as that term is applied in this area of legal discourse. Of course, the two concepts often coincide and it may be that this case is one in which they do. However, having regard to the conclusion the Court has reached, there is no need to debate this matter further.

1. Mr Van de Wiel’s application will be refused. If, at the time it is ready for trial, circumstances exist which make a fair trial of the issues raised by the second indictment impossible or even sufficiently difficult to require curial intervention, that intervention can then be sought by an appropriate application in the proceeding commenced by the second indictment. The same goes for the trial of the counts severed from this indictment. If the trial of those counts is prejudiced by anything which occurs in this trial, this court has ample power to issue ameliorating orders right up to a total and permanent stay of the proceeding, although such a course would be warranted only in the most extreme of cases[2].

   [2]R v Glennon (1992) 173 CLR 592

1. There is a proper public interest in the free reporting of the trial of the indictment upon which the accused in this case have been arraigned as there is in all criminal trials.  The seriousness of the offences alleged, the number of the accused, the activities in which they are alleged by the Crown to have engaged and the issue of terrorism generally, all combined with probably many other factors as well, make it necessary to allow the principle of open justice to operate without restriction in this trial.  The Court would not be justified in preventing that occurring because of the pending trial of another indictment which has no trial date fixed and which realistically will not be heard in the ordinary course for some time after this trial concludes and which, in any event, can be postponed even further if that course is necessary to ensure as far as possible a fair trial.

1. The application by Mr Benbrika and all the other accused who joined in it is accordingly refused.  However, the suppression order granted on 13 December 2007 in respect of this application will continue until further order and it should also be pointed out that the law of sub judice contempt will continue to apply and will need to be specifically observed by all media organisations, particularly in this case having regard to the fact that there is at least one and possibly two pending trials following this trial.

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