R v Benbrika & Ors (Ruling no 18)

[2008] VSC 6

IN THE SUPREME COURT OF VICTORIA Not restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1544 of 2006

THE QUEEN	Plaintiff
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	Defendant

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JUDGE:	BONGIORNO J
WHERE HELD:	Melbourne
DATE OF HEARING:	25 January 2008
DATE OF RULING:	25 January 2008
CASE MAY BE CITED AS:	R v Benbrika & Ors (Ruling No 18)
MEDIUM NEUTRAL CITATION:	[2008] VSC 6

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CRIMINAL LAW – Terrorism offences – Evidence of attempts to acquire firearms – Relevance – Question of relevance not to be determined by other evidence – No basis for discretionary exclusion.

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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 with Mr A Halphen	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 G P  Mullaly	Slades & Parsons
For the Accused Haddara	Mr A D Trood	Robert Stary & Associates

HIS HONOUR:

1. This is an application made on behalf of Bassam Raad for the exclusion of evidence of 14 telephone conversations and two text messages which is sought to be tendered by the Crown.  The conversations and text messages demonstrate, submits the prosecutor, that between 17 October 2004 and 20 November 2004 Bassam Raad was attempting to acquire a firearm or firearms.  In doing so he attempted to use funds allegedly held by the jemaah or group in its sandooq, or kitty.  Thus this attempted acquisition, along with evidence of other conversations between members of the group concerning the acquisition of weapons, constitutes evidence not only as to the existence of the group itself, but also of the group’s purpose or intention, essential matters to be proved by the Crown in respect of count 1 on the indictment and most of the other counts as well.

1. The first two conversations in contention are between Raad and one Ramze Zayat, who is not an alleged group member nor a Crown witness.  They occurred on 17 October and appear to relate to undated earlier conversations in which Raad was seeking to acquire something with Zayat’s assistance.  From later conversations which are also in contention it would be reasonable to infer they related to a .22-calibre weapon of some type, possibly, but not necessarily, a rifle or rifles.

1. Mr Lindner, for Raad, argued that because these conversations refer to some request of Raad’s which could have been made of Zayat prior to the commencement of the indictment period, they are irrelevant.  This submission is entirely misconceived.  There is no basis for assessing the relevance of these conversations by reference to some earlier conversation whether within or without the indictment period.  If the conversations are relevant on their face, then absent other disqualifying factors, they are admissible.

1. The third conversation, also on 17 October and also involving Zayat, has Raad and Zayat talking about something which Zayat can procure.  The inference here is also that the procurement of weapons by Raad through the agency of Zayat is being discussed.  The weapons may include the same type of weapon discussed earlier.  Raad says, “We need a couple of those.” But it also includes other, more expensive and, by inference, more sophisticated weapons:  “The one that sits normally on top of the four-wheel drives.” Nothing in the tone of voice or manner of either of the speakers in anyway diminishes the inference available from this conversation.  Raad is discussing the buying of weapons from someone associated with Zayat, and that those weapons are not confined to something he had earlier discussed with Zayat, but also included other weapons.

1. The fourth conversation is between Raad and “Khaled”, another otherwise unidentified male.  It occurred on 6 November and has Raad talking of getting “iron” which he explains is a gun from Khaled.  Money is mentioned: “two grand”.  This conversation permits an inference that Raad is trying to acquire a weapon from Khaled.

1. The fifth conversation is again between Raad and Zayat.  They are discussing an alleged email Zayat has sent to Raad about the price someone is demanding for “it”.  An inference is available from this and the other conversations between these two persons that they are talking about a weapon, perhaps a .22 or perhaps something else.  The emphasis is on the cost and no mention is made of the object itself.  Raad insists he wants the object being discussed and has plenty of money, although he appears to consider the price “two five” to be excessive.

1. The next three conversations between Raad and his cousin and co-accused, Ahmed Raad, the alleged treasurer of the jemaah, Raad and another unidentified female at the Sheikh, Benbrika’s house, and Raad and Sayadi, another co-accused, all also occurred on 8 November and permit inferences that Raad is trying to raise money to pay Zayat for whatever it is Zayat is acquiring for him.   A subsequent conversation with Zayat is also about money and when it might be available.  Yet another on the same day between Raad and Sayadi is on the same topic, as is one the next day between Raad and his sister, which also concerns money which she has which might belong to him.

1. A relatively inconsequential phone call between Raad and Zayat on 9 November is followed by an exchange of text messages in which Zayat offers Raad a “nine mil, $4,000,” to which Raad replies, “Too much.”  On 11 November there is a conversation between Zayat and Raad about guns from Sydney.  A submachine gun is mentioned by Zayat, but Raad appears to want a .22.   A discussion as to the efficacy of a .22 follows, in which Raad says words which would permit the inference that he is talking of a handgun.  He says, “It’s like a nine mil but it’s small.” The call ends with a discussion about the availability of a nine mil for “four”.  Raad says he will call back.

1. On 15 November Raad has a conversation with an unidentified male about a .45 in a box which has never been used, but Raad insists he wants a .22.

1. On 20 November Raad has another conversation with an unidentified male, probably the same person as the earlier conversation, who, indeed, may well be Zayat, in which guns and prices are again discussed.  No finality is reached but Raad still wants a .22.

1. That conversation was not originally part of Raad’s application for exclusion but was added subsequently so that the application as finally argued involved, in fact, 15 conversations and two text messages.

1. Mr Lindner argued that because Raad only ever wanted a .22 weapon and only ever wanted it for personal use, these conversations and text messages are irrelevant and should be excluded.

1. As the court has already observed, a .22 rifle is not a weapon readily associated with terrorism.  So, Mr Lindner submits, these conversations were about a weapon which could not be said to be a terrorist weapon.  The argument fails on a number of grounds.  Firstly it fails on the facts.  In the third conversation of 8 November, Raad is clearly talking of other weapons, and in each case he speaks of a .22, but he may well be talking not of a .22 rifle but of a handgun and in any event he wants a couple of them.  Mr Lindner’s reliance on earlier rulings excluding evidence of weapons found in the possession of other accused ignores the unknown provenance and age of those weapons as well as their ambiguous usefulness as weapons in a terrorist sense.  Again, whether Raad is seeking these weapons for himself or as part of the jemaah is also beside the point.

1. Mr Lindner’s reference to other evidence, such as that from Atik, that Raad never wanted weapons for the purpose of terrorism is completely irrelevant.  This was pointed out to Mr Lindner in argument; the question of the relevance and admissibility of evidence cannot be determined by the evidence of other witnesses, whether contradictory or confirmatory of the evidence sought to be introduced.  The assessment of evidence is for the jury.  Whether a jury accepts Atik’s evidence or not, or whether the court is inclined to do so or not, can have no bearing on whether these conversations are admissible.

1. As to discretionary exclusion relied upon by Mr Lindner in the alternative, there is nothing to be said.  The only prejudice flowing to Bassam Raad as a result of the admission of this evidence is that which arises if the jury reach the conclusion these conversations prove that Bassam Raad was trying to buy a weapon or weapons, exactly what the Crown wishes and is entitled to prove if it can.

1. There is no basis for discretionary exclusion.  Mr Lindner will be able to argue to the jury that his client only wanted a .22, and a rifle at that, to shoot rabbits.  He can make the same argument concerning some sort of weapon mounted on a 4-wheel drive.  If the jury is so minded it can reject the Crown’s arguments that these weapons were being sought for more sinister purposes.  The decision will be for it to make.  The evidence will all be admitted.

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