R v Benbrika & Ors (Ruling no 24)

[2008] VSC 145

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. 24)
MEDIUM NEUTRAL CITATION:	[2008] VSC 145

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CRIMINAL LAW - Trial - accused suffering from anxiety - fitness to stand trial - application for adjournment pending bail application - s 6 Crimes (Mental Impairment and Unfitness to Be Tried) Act 1997 (Vic).

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr R Maidment SC and Mr N Robinson SC and 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 Hammoud	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
For the interveners	Mr P Lange and Mr C Waterstreet	Lawyers Corp Pty Ltd
For the Crown (Sydney trial)	Mr Bellew SC	Commonwealth DPP

HIS HONOUR:

1. The Court has before it an application for an adjournment of this trial to enable the making of a bail application on behalf of one of the accused, Mr Ahmed Raad.  The basis of that application, as it has been outlined to the court by Mr McMahon, will be Ahmed Raad’s medical and, in particular, his psychiatric condition.

1. That application, it is anticipated, can be made within the next two or three days, optimistically Thursday, probably more realistically Friday.  The application by Mr McMahon for an adjournment of the trial in the meantime is based upon the anxiety which he says his client is suffering.

1. The Court has had the benefit today of the evidence of Dr Alexandra Welborn who has now been before the Court in respect of Mr Raad, I think, three times.  Dr Welborn saw him again today and has been in charge of his psychiatric treatment and care at the Metropolitan Assessment Prison since he went there from Barwon some weeks ago. 

1. Dr Welborn told the Court that last night she was contacted by one of her nursing staff with respect to Mr Raad, and that she has seen him today here in the cells. Her opinion is that he is suffering from anxiety, but that he is fit to stand trial within the terms of the s 6 of the Crimes (Mental Impairment and Unfitness to Be Tried) Act 1997 (Vic); that he can follow and is following the proceeding; that he can discuss the proceeding; and that he knows what is occurring. He is, nonetheless, suffering from anxiety. In answer to a specific question from the Court, she said that it would not be cruel for the matter to proceed.

1. The bail application, which is to be made later in the week, will be opposed by the Crown and it must not be thought for one moment that the result of that application has in any way been predetermined.  It has not.  And the question of whether the accused will get bail or not will depend upon the outcome of that application.

1. Mr McMahon’s application now is that the matter be adjourned in the meantime.  I am not prepared to accede to that application.  The evidence of the doctor is such that whether Mr Raad gets bail or not, this trial can proceed and it will proceed.  There seems to me to be no good reason why it should not proceed immediately.  This is not based solely on the question of convenience, although the convenience of everyone involved, including particularly the jury, is of some importance.  But the trial is on, it is running and should continue to run.  The anxiety which Mr Raad is clearly suffering is not sufficient to require the adjournment of the trial pending the determination of his bail application.

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