R v Benbrika & Ors (Ruling no 23)

[2008] VSC 137

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 HEARING:	29 April 2008
DATE OF RULING:	29 April 2008
CASE MAY BE CITED AS:	R v Benbrika and ors (Ruling No. 23)
MEDIUM NEUTRAL CITATION:	[2008] VSC 137	Revised 27 October 2008

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CRIMINAL LAW - Trial - identity of witnesses - right to confront one’s accusers - Australian Security Intelligence Organisation personnel - evidence given remotely via video link - pixelation of facial features to preserve anonymity - R v Lodhi (2006) 163 A Crim R 508 and R v Lodhi (2006) 65 NSWLR 573 - s 15YV Crimes Act 1914 (Cth) - s 42E(1) Evidence Act 1958 (Vic).

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr R Maidment SC with Mr N Robinson SC, 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	Revill & Papa Lawyers
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 Trood	Robert Stary & Associates

HIS HONOUR:

1. In this trial the Crown wishes to call an undercover Victorian police officer who is said to have infiltrated the terrorist organisation to which, on the  Crown case, all of the accused belonged.  Already mentioned in evidence, he has been designated as SIO39. 

1. The accused apparently knew him as Ahmet Sonmez, a Turkish Australian Muslim who appeared to be sympathetic to their beliefs and supportive of their activities. 

1. The question now arises as to how SIO39’s evidence should be received by the Court having regard to his status as a police officer who generally worked in covert situations using a false identity.  His evidence consists of his observation of the activities of the accused as well as the reporting of what various of them said in his presence.

1. The Crown wishes to preserve SIO39’s anonymity, at least from the accused, even though on its case he has associated with all of them over a considerable part of the period during which the alleged terrorist organization existed.  Mr Maidment explained this apparently inconsistent position by informing the Court that SIO39 had changed his physical appearance significantly since the accused knew him and that it was of importance for his and his family’s safety, and to law enforcement generally, that his new appearance be not publicly disclosed.

1. Different positions were taken by various parties interested in this case concerning SIO39’s evidence.  Dr Donaghue, for the Federal Attorney‑General, made submissions concerning not only SIO39, but also ASIO witnesses who were originally scheduled to give evidence.  However, by the time the question comes to be determined, all of the ASIO witnesses in the case have been eliminated by arrangement with defence counsel so that only SIO39 remains as a candidate for special consideration.

1. Dr Donaghue’s submissions included a set of draft orders designed to provide for SIO39’s evidence to be given in closed court with his identity and physical appearance protected from disclosure to the accused or anyone else except the judge, jury, certain court officials and the accuseds’ lawyers.  The orders also provided for the public release of the transcript of SIO39’s evidence as soon as practicable after 6 pm on the day that it is given, thereby giving the Attorney‑General time to seek permanent suppression of any parts of the evidence thought to have adverse implications for national security or the security of witnesses, et cetera, before such evidence gets into the public domain.

1. Dr Donaghue relied upon an affidavit of Christopher Murray, a detective senior sergeant in the Victoria Police sworn 25 January 2008, and a number of exhibits to it.

1. Mr Mukerjea, who appeared, by leave, for a number of press organisations, opposed the closing of the Court or the delay in the capacity of the press to report what occurred in Court.  He relied upon the usual powerful arguments grounded in the important principle of open justice and the right of the public, as a general rule, to be kept informed of what occurs in courts, particularly criminal courts, as it occurs. 

1. Mr Maidment, for the Crown, generally endorsed Dr Donaghue’s position and sought to protect SIO39’s identity by the use of a system recently used in New South Wales in R v Lodhi.[1]  In that case, the jury could see and hear the witness on a video monitor, whereas the accused could not see him because the screen in front of him was, in fact, blank, although the jury would naturally have thought it showed the witness as their screens did.  Thus, the witness’ features were not revealed to the accused and his anonymity, to that extent, was protected.

   [1]R v Lodhi (2006) 163 A Crim R 508; R v Lodhi (2006) 65 NSWLR 573.

1. Mr McMahon, who made submissions on behalf of all of the accused, did not oppose the anonymity of SIO39 being protected by the use of an audio-visual link, the name SIO39 and the pixelation of his facial features so as to make him unrecognisable, whilst allowing the jury some measure of perception of him as a person, rather than as a disembodied voice. 

1. Mr Maidment opposed the pixelation solution because, he argued, the jury should be able to see the witness to assess his credibility in the usual way.  Mr McMahon replied to this submission by pointing out that SIO39 was a professional actor who lived his whole public life as a carefully constructed lie, so that any assessment of him by the jury would have to be made subject to this.

1. It seems clear that, on ordinary principles accepted by the courts in cases like this, SIO39 must be given some measure of protection in giving his evidence.  The public interest requires as much.  Insofar as it is necessary to refer to authority, it is sufficient to cite the Full Court case of Jarvie v Magistrates’ Court of Victoria[2] and particularly the judgment of Brooking J, who briefly reviewed a range of cases on this topic from a number of jurisdictions, particularly those relating to the Sixth Amendment to the United States Constitution on the right of confrontation of an accused by his accusers.  He concluded that the principles which protect the identity of police informers in the public interest should be extended to undercover police officers such as SIO 39. 

   [2][1995] 1 VR 84.

1. An extensive and extremely interesting history and review of the law applicable to anonymous witnesses, referring to the sixth century Institutes of Justinian, the Spanish Inquisition, the Star Chamber and the International Criminal Court, may be found in an article entitled ‛Anonymous Accusers,’[3] by David Lusty.  The article emphasises the importance of the confrontation principle to the rule of law.

   [3] David Lusty, ‛Anonymous Accusers: An Historical and Comparative Analysis of Secret Witnesses in Criminal Trials’ (2002) 24 Sydney Law Review 361.

1. It is in the public interest in this case, on the evidence before the court, that SIO39 be permitted to give evidence from a remote location by audio-visual link, pursuant to s 15YV of the Crimes Act 1914 (Cth), with his facial features pixelated to prevent his recognition. However, his true name and professional address must be provided to the Court in confidence, in accordance with Brooking J’s judgment in Jarvie.  The pixelated view of the witness must be visible throughout the courtroom including to the accused and, of course, the jury. 

1. As far as closing the Court during SIO39’s evidence is concerned, no satisfactory case has been made out for taking this step.  Closing a court is a serious matter to be undertaken only as a matter of necessity.  Having regard to the evidence SIO39 is expected to give, it is extremely difficult to see how any question of national security could conceivably be involved.  Further, any questions directed to disclosing his identity or the answers to which could conceivably disclose his identity or lead to a chain of inquiry that might disclose it can be ruled upon when they are asked.  SIO39 will undoubtedly be alive to the possibility and can be relied upon not to answer any dangerous question unless required to do so after a ruling is made.  In any event, the prosecutor and, if necessary, counsel for the Federal Attorney‑General, will be able to take appropriate objection.  The Court will not be closed so that there will be no need for any arrangements concerning transcript such as were proposed by Dr Donaghue. 

1. The orders the Court will make will be as follows: 

(1) That the witness known as SIO39 be permitted to give evidence by audio-visual link pursuant to s 15YV of the Crimes Act 1914 (Cth), from a remote location using the name SIO39, with his facial features pixelated so as to disguise those features from recognition; and

(2)That before SIO39 is sworn, the Court be provided with SIO39’s true name and professional address and proof of his appointment as a member of the Victoria Police, such information to be kept in confidence by the trial Judge and not to be communicated to any other person other than as required by law.

Further Ruling of 5 May 2008

1. Last week the court ruled that the evidence of SIO39, an undercover Victorian police officer, could be led by the Crown by audio visual link from outside the courtroom with the witness's face pixelated so that he could not be recognised.  The reasons for that ruling were published and on 30 April the video link was set up with a view to taking SIO39's evidence as ordered by the court.

1. However, upon SIO39 appearing on the screen in the courtroom, it became apparent that as the transmission was live, it was not possible to show the witness's features with only his face pixelated.  His whole body had to be shown this way if any of it was to be disguised. 

1. As the Court made the original order for the taking of SIO30's evidence on the understanding that the technology was such that it could be complied with according to its terms, it is necessary to correct the orders which were in fact made. 

As the picture presented with the witness fully pixelated was of no assistance to the jury in seeing him or assessing his evidence in the usual way, if in fact evidence of a professional actor playing a role can be usefully assessed in any real sense, applying the conventional wisdom which relies upon demeanour, reaction, et cetera, it became necessary to seek an alternative solution to the problem of disguising SIO39's appearance.  After discussion, counsel agreed that an appropriate solution involved using only an audio link and the remote witness facility together with such technology as would enable documents to be shown to the witness in the course of his evidence.  This link was set up and SIO39's evidence taken without further incident. 

1. To ensure that the Court record conforms with what actually occurred, it is necessary that the orders made with respect to the taking of SIO39's evidence on 28 April 2008 be revoked and replaced by the following orders made nunc pro tunc: 

1.That pursuant to s 42E(1) of the Evidence Act 1958 (Vic), the evidence of the witness known only as SIO39 be taken by audio link from a place outside the courtroom in which this trial is being conducted; and

2.That before being sworn, SIO39 provide the Court with his true name and professional address and proof of his  employment as a member of the Victoria Police, such information to be kept in confidence by the trial Judge and not communicated to any other person other than as required by law.

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