R v Benbrika & Ors [Ruling no 15) - [2007] VSC 545

IN THE SUPREME COURT OF VICTORIA

Not restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1544 of 2006

THE QUEEN

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
CASE MAY BE CITED AS:	R v Benbrika and ors (Ruling No. 15)
MEDIUM NEUTRAL CITATION:	[2007] VSC 545

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CRIMINAL LAW – Trial – Terrorism offences – Admissibility of video recordings of executions of hostages – Weighing of probative value and prejudicial effect – R v Ibrahim & Ors (Woolwich Crown Court, 11 January 2007, unreported).

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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 Benbrika	Mr R Van de Wiel QC	Doogue & O’Brien
For the Accused Joud	Mr T E Wraight	Lethbridges
For the Accused Kent	Mr J O’Sullivan	Robert Stary & Associates
For the Accused Sayadi	Ms N Karapanagiotidis	Robert Stary & Associates
For the Accused Taha	Mr J Montgomery SC	Robert Stary & Associates
For the Accused Merhi	Mr M Taft SC	Robert Stary & Associates
For the Accused Bassam Raad	Mr B Lindner	Robert Stary & Associates
For the Accused Ahmed Raad	Mr J McMahon	Robert Stary & Associates
For the Accused Hammoud	Mr D Brustman	Victoria Legal Aid
For the Accused Ezzit Raad	Mr G Barns	Slades & Parsons
For the Accused Majed Raad	Mr GP Mullaly	Slades & Parsons
For the Accused Haddara	Mr A D Trood	Robert Stary & Associates

HIS HONOUR:

As part of its case, the Crown seeks to tender nine videos clips, each of some minutes, which depict the killing of hostages by alleged Mujahadeen fighters in Middle Eastern countries, notably Iraq and Afghanistan.

To describe these video clips, two of which have been shown, at least partly, in court as horrendous is to engage in serious understatement. The two that were exhibited consisted of shots taken from what appears to have been a stationary camera, at an outdoor location where a number of men dressed in black or dark clothing stood in a row in front of the victim. He was kneeling with his hands, and perhaps his feet, bound, presumably to prevent escape or resistance. One of the men read in a chanting tone from a large paper for some minutes, in what may be assumed was Arabic, at the end of which another of the men produced a long knife or sword and attacked the victim, beheading him, although on only one of the clips exhibited was the final act of beheading actually shown.

The nine videos clips sought to be tendered by the Crown are designated 5.03.1 to 5.03.9. Those exhibited in court were 5.03.4 and 5.03.5. All of the clips were found by investigators on the computers of, or on CDs in the possession of,…

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 545
Decision Date: 17 December 2007

CaseChat Overview and Summary

In the case before the court, the respondents faced charges relating to terrorism offences, including the execution of hostages. The primary issue was the admissibility of video recordings depicting the executions of hostages as evidence in the trial. The respondents argued that the prejudicial effect of the videos outweighed their probative value, potentially leading to a miscarriage of justice.

The court considered the principles established in R v Ibrahim & Ors, where the Woolwich Crown Court held that the probative value of such evidence could outweigh any prejudicial effect if properly managed. The court was required to balance the need for the jury to hear all relevant evidence against the potential prejudice to the respondents. The court examined the nature of the recordings, the context in which they were made, and the potential impact on the jury's impartiality.

After careful consideration, the court determined that the probative value of the video recordings was substantial in establishing the respondents' guilt in relation to the charges of executing hostages. The court found that appropriate measures could be taken to mitigate any prejudicial effects, such as limiting instructions to the jury. Consequently, the court ruled that the videos were admissible as evidence in the trial. This decision was made in accordance with the principles set out in R v Ibrahim & Ors, ensuring that the evidence was both relevant and not unfairly prejudicial.

The final orders of the court were that the video recordings of the executions of hostages would be admitted as evidence in the trial against the respondents, subject to the court's direction regarding limiting instructions to the jury. This ruling aimed to ensure that the jury could assess all relevant evidence while minimising any potential prejudicial impact on the trial's fairness.

Orders