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

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
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:

1. 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.

1. 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.

1. 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, Benbrika, Joud, Kent or Merhi.

1. The Crown submitted that those video clips are all relevant to at least four aspects of its case. It argued that they tend to establish the existence and nature of the terrorist organisation alleged, the membership of that organisation of each of the persons in whose possession the clips were found and, in the case of Benbrika, his direction of the organisation, and in the case of Joud and Merhi, the case against each of them of providing themselves as a resource to the organisation.

1. There are several recorded conversations in which various of the accused discussed watching videos of executions. Further, there is other evidence, principally from the former accused, Atik, but also by inference from some of the recorded conversations, that the purpose of the videos was as training material at Benbrika's direction.

1. All of the accused sought exclusion of these video clips on a discretionary basis, the unspeakable activities depicted in them being said to be so prejudicial to a fair trial as to render their exclusion necessary in the interests of justice.

1. Ms Karapanagiotidis, who argued this position on behalf of all the accused, submitted that a jury may well give the video clips more weight than they deserved merely because of their horrendous nature, their brutality and their savagery. Introducing the personality of the victims as actual people added an undue prominence to this material, particularly as some of the victims may have been known from news reports of their killings at the time they occurred, Ms Karapanagiotidis argued. She referred to the High Court decision of Festa v The Queen.[1]

   [1](2001) 208 CLR 593.

1. However, Ms Karapanagiotidis could not deny the highly probative value of the video clips from the Crown's point of view, particularly if it proves that they were used or intended to be used as training materials and/or as propaganda designed to desensitise the members of the alleged terrorist organisation to the killing by beheading of other human beings.

1. Other defence counsel supported Ms Karapanagiotidis with similar arguments. However, Mr Mullaly added a new dimension to the debate by submitting that having regard to the nature of these video clips, there was a foreseeable risk of a juror or jurors being psychologically injured by being required to view them. This submission rested on the not unreasonable assumption that the visual depiction of events such as those in these video clips would be so far outside the experience of the ordinary members of the public who will make up the jury in this case as to pose the risk to which Mr Mullaly referred.

1. The Crown accepted that a jury should not be subjected to viewing the actual execution of the victims of the violence depicted in these videos, and proposed constructing a compilation of the individual clips where, in each case, the screen would revert to black shortly before the assault took place, but after it became clear what was about to occur.

1. The Crown drew the court's attention to a ruling by Fulford J of the United Kingdom High Court of 11 January 2007 in the case of R v Ibrahim & ors[2] in which His Lordship was concerned with similar issues to those which confront this court on this application, although from his description of the material he was considering, it appears to have been considerably more extensive than the nine video clips presently under discussion here. It ranged from film of the September 11 attacks to speeches by Osama bin Laden, as w ell as footage of fighting in Chechnya and other propaganda which, it can be assumed, probably generally extolled the virtues of violent jihad. It included film of executions. Indeed, those executions may well have been some or all of the same executions with which this ruling is concerned. Fulford J was concerned with a trial arising out of the bombing of the London underground and a London transport bus on 21 July 2005.

   [2] Woolwich Crown Court, 11 January 2007, unreported.    

1. Although, fortunately, this trial is not concerned with matters as grave in their ultimate consequence as those with which His Lordship was concerned, it must not be forgotten that the Crown case here is that events of a similar kind to the London bombings were in the contemplation of the accused.  Fulford J was of the view that the material he was considering was probative of a murderous and suicidal intention on the part of some or all of the defendants, and no more shocking than the allegations made against the defendants in the trial with which he was concerned. He rejected the idea that juries, at least in the United Kingdom, are incapable of approaching the trial of alleged terrorists objectively and gave examples of acquittals in the UK of alleged terrorists, notwithstanding hyperbolic publicity which might have been thought to have created a prejudicial atmosphere in which such trials were conducted.

1. Fulford J admitted the evidence whilst urging care on the part of the Crown to present it with a minimum of attention to its shocking characteristics.

1. I have reached the same conclusion as Fulford J. The nine video clips sought to be tendered by the Crown are relevant and admissible. Their evidentiary value in the context of this trial far outweighs their capacity to make the accused's trial unfair.

1. It remains to determine how they are to be handled in court. I do not propose to rule definitively on that question at this time. Rather, it should be the subject of further negotiation between the prosecution and defence counsel. All I will say is that I would not contemplate publicly exhibiting more than a very small selection of the video clips or any video clip showing the actual beheading of a hostage. The parties should, between them, settle the form of a narrative description of those video clips which will not be shown, which can be put before the jury orally or in writing.

1. I also note that it will probably be necessary for the jury panel to be advised of the nature of this material before a jury is empanelled, so as to obviate, as far as possible, any disruption to the trial caused by a severe reaction by a juror or jurors whilst the trial is proceeding.

1. Accordingly, this matter will need to be revisited after discussions have been held, particularly if agreement is not reached either as to the number of video clips which should be shown, or as to the contents of a statement of description of that which is not seen in those video clips, or in the video clips which are not shown.

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