R v Benbrika & Ors (Ruling no 14)

[2007] VSC 544

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:	20 November 2007
CASE MAY BE CITED AS:	R v Benbrika and ors (Ruling No. 14)
MEDIUM NEUTRAL CITATION:	[2007] VSC 544

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CRIMINAL LAW – Terrorism offences – Evidence – Recorded conversation – Discussion of perjury – Potential for jury to infer that accused can give evidence – Prejudicial effect – Permit tender of restricted part of recorded conversation.

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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 G P  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

HIS HONOUR:

1. This ruling concerns the admission into evidence of a conversation between Ahmed Raad and Benbrika on 26 February 2005 in which Raad told Benbrika that his court case was due to be heard on "the 7th", presumably referring to 7 March 2005. He said that he was going to plead not guilty and that if the police do not drop the charges against him, he will have to go to court and swear on the Koran. He then asked Benbrika if, having been sworn on the Koran, he had to tell the truth.

1. Benbrika's answer was that he could "make another intention in himself" and not tell the truth, but only if it was "necessary" for him to do so. The Crown wishes to rely on Benbrika's answer as evidence of the nature of the terrorist organisation to which it alleges all the accused belonged, that is to say an organisation in which lies can be told, even on oath, if it is considered necessary in the cause of promoting the organisation's objectives. 

1. Mr Robinson, who argued the point for the Crown, submitted that it was an important admission because Benbrika was the leader of the organisation and its effective director and the perjury being discussed was related to charges Raad was facing concerning motor cars which had been stolen for the organisation's purposes.

1. Mr McMahon, who argued the contrary, conceded the conversation's relevance, but sought its exclusion on discretionary grounds, namely that its admission would "cast an onus on the accused" to confront the question as to whether he will give evidence in this trial. Because of his reference in the conversation to giving evidence in the other matter, the jury will know, said Mr McMahon, that Raad was able to give evidence in this trial and has had to elect whether or not to do so. By admitting the passage, the court would place the accused in a difficult and unfair position, perhaps amounting even to the breach of the prohibition on comments being made about an accused's failure to give evidence.

1. Mr McMahon's complaint is made good, if it is made good at all, by the admission of Ahmed Raad's statement towards the end of page 21 of the relevant transcript: "If he doesn't drop the charges, then the next one after, I have to go to court and I have to swear on the Koran," and the sentence on the first line of page 22: “Because they make you swear on the Koran”. These passages, said Mr McMahon, convey the information to the jury that the accused can give evidence, even if Raad's words, themselves, erroneously imply some form of compulsion to do so in the case in which he was involved.

1. The Crown's use of the passage it wishes to tender enables it to demonstrate, it says, that the terrorist organisation which it alleges exists, has the characteristics of promoting its cause, or at least protecting itself, by perjury if that is thought to be necessary. But that end can be met by permitting it to tender Raad's question directed to Benbrika which commences in the last line of page 21 and finishes without a question mark on the first line of page 22, and Benbrika's answer to that question as well as the discussion which follows.

1. I have considerable doubt as to whether the consequences submitted by Mr McMahon really do flow from the admission of the whole passage which the Crown wishes to tender. It seems to me to be drawing a long bow to infer that a jury would necessarily conclude that an accused such as Ahmed Raad, or even Benbrika, was able to give evidence in this trial from the discussion reported, but there is a risk that it might, which risk can be eliminated by permitting the tender of a restricted part of the conversation. That I propose to do.

1. The Crown will be entitled to tender the conversation between Ahmed Raad and Benbrika which commenced at 19:28 and finished at 19:46 on 26 February 2005, except for :

1.the passage commencing, "Yeah, because I am pleading not guilty," and ending, "... was what happened," on page 21 of the transcript of that conversation; and

2. the sentence, "Because they make you swear on the Koran," in the first line on page 22 of the transcript.

1. Thus the Crown will have the evidence it wishes to tender without any danger of the unfairness referred to by Mr McMahon flowing to Ahmed Raad or, for that matter, any of the other accused.

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