R v Benbrika & Ors (Ruling no 25)

[2008] VSC 451

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:	6, 7 and 8 May 2008
DATE OF RULING:	13 May 2008
CASE MAY BE CITED AS:	R v Benbrika and ors (Ruling No. 25)
MEDIUM NEUTRAL CITATION:	[2008] VSC 451

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CRIMINAL LAW – Trial - terrorism offences - bail application during course of trial - accused suffering from physical and mental illness - standard of treatment available in prison - length of time in prison - lack of sunlight in prison - exceptional circumstances not demonstrated - s 15AA Crimes Act 1914 (Cth) - s 4(3) Bail Act 1977 (Vic) - 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. Ahmed Raad, who, together with 11 other accused, is standing trial for a number of terrorism related offences, has brought a bail application before this court.  He claims that his physical health and his psychological state, when combined with the incidence of his incarceration, including the length of time he has been in prison, constitute the exceptional circumstances necessary to justify his being bailed for the balance of the trial. 

1. That he must demonstrate exceptional circumstances justifying bail is a statutory requirement imposed by s 15AA of the Crimes Act 1914 (Cth). Apart from the application of that provision by a law of the Commonwealth, his bail application falls to be determined at common law as modified and in accordance with the proceedings laid down in the Bail Act 1977 (Vic). He is, of course, not a person awaiting trial or committal or in one of the other circumstances referred to in s 4(1) of the Bail Act 1977 (Vic); rather, he is a prisoner in the custody of the court undergoing his trial.

1. Raad is currently being tried on four offences: knowingly being a member of a terrorist organisation and counts of assisting a terrorist organisation in various ways.  The membership count carries a penalty of ten years' imprisonment.  The other counts each carry a term of 25 years' imprisonment.  However, that is not all.  Raad is also the subject of a further indictment upon which he is charged with three of his co-accused, with one count of doing an act in preparation for a terrorist act, which carries a penalty of life imprisonment.  To be of any practical benefit to the applicant, this application must encompass not only the indictment upon which he is currently on trial, but also that upon which he is awaiting trial.

1. The applicant's bail application was made orally on 1 May.  To avoid interrupting the trial and thus unduly fragmenting the criminal process, the Court decided that it should be heard largely outside ordinary court hours.  In the event, it took considerably longer than expected and was heard in the late afternoon of 6, 7 and 8 May and after the trial was adjourned in accordance with its ordinary timetable on Friday 9 May, on which date the Court also inspected the conditions of the applicant's accommodation at the Metropolitan Assessment Prison.

1. The applicant was arrested in November 2005 so that he has now been in incarcerated for two and a half years.  He has never sought bail because, as his counsel observed, none of his co accused who did so were successful.

1. Until 15 March of this year he was held in Acacia Unit at Her Majesty's Prison, Barwon, a unit designed for the incarceration of convicted prisoners classified by Corrections Victoria as being high security.  On that date he was transferred to the Metropolitan Assessment Prison psychiatric unit when his psychological state deteriorated to a point where he could not be appropriately cared for at Barwon.  Coincidently, a few days later, on 20 May, this court published a ruling which would have had the effect of staying this trial if all of the accused had not been removed from Barwon and accommodated at the Metropolitan Assessment Prison for the rest of the trial.  They were moved and are all, including the applicant, now accommodated together in Unit Eight at the Metropolitan Assessment Prison, a high security section of that prison which fortuitously has 12 single cells and associated prison facilities, a small covered exercise yard, a couple of pieces of gym equipment, clothes washing facilities and a stove.

1. The accused also have access to a bigger gymnasium on another floor of the building and to the "courtyard", a very large covered space in the centre of the prison.  Such access to these facilities is, however, only available to the accused at set times each week. 

1. This application is argued both by counsel for the applicant and by the prosecutor as if it were an application brought pending trial or pending committal. As has already been noted, that is not Ahmed Raad's situation. He is on trial and as such is in the custody of the Court. Even without s 15 AA of the Crimes Act 1914, there would be no presumption as to bail in his case at this point in his trial.  His detention is now solely within the discretion of the Court.

1. However, that is not to say that the ordinary principles concerning bail have no application; rather, that they must be now considered in the light of the stage the trial has reached, its predicted duration and the course which has to date has been followed by the applicant in his defence and the effect of that course on an assessment of the strength of the Crown case. 

1. This trial commenced, for practical purposes, with the accused's arraignment before a jury panel on 7 February 2008.  It has proceeded reasonably smoothly since and although it was originally predicted to run for up to nine months, it is now clear that it is unlikely that it will take that time.  Leading counsel for the Crown, Mr Maidment SC, predicts that the Crown case will conclude before the end of May, whilst Mr McMahon, for Raad, estimated in argument on this application that the trial still had about 12 weeks to run.  He made this estimate without any reference to any course the accused, including his client, might take by way of defence.

1. Even if Mr McMahon is correct, it is relevant to observe at this point that in a case of this seriousness it would be highly unlikely that the court would permit any accused to remain on bail before the end of the Crown case, that is to say, in the present circumstances before about the end of May, if Mr Maidment's estimate is even approximately correct.

1. Ahmed Raad has been in custody since November 2005, an inordinately long time by any measure, although, as I observe elsewhere, this time, at least since committal, has been well and profitably spent by both Crown and defence in narrowing the issues, refining the evidence and generally shortening the time which the case will run in front of the jury.  It is a complex case with many accused and, as already noted, Raad faces a second trial on an even more serious charge when this trial is completed. 

1. The condition of the accused's incarceration at Barwon were always very harsh, perhaps harsher than any prisoner should be required to undergo.  They became intolerable once this trial commenced and the accused had to travel to Melbourne every day to attend Court.  Their present conditions are considerably less harsh although, of course, they are still within a high security prison, even if it is in a more convenient location requiring minimal travelling.

1. The applicant argues that he should be now bailed during his trial for a number of reasons.  He says he is suffering from a number of physical and psychological ailments which are either caused by, or at least aggravated by, his incarceration and which can be alleviated by his being released into the community.

1. Ahmed Raad's principal physical ailment appears to be back pain, which has afflicted him since mid-2007.  He has received treatment for this problem in prison, which treatment has included physiotherapy, and he has been able to engage in appropriate exercise.  He is still receiving physiotherapy.  Currently he can exercise to some extent at least daily, and on some days for extended periods.  He acknowledged the beneficial effect of this exercise.  He said in his evidence that a physiotherapist had recommended daily treatment for some time followed by an exercise program.  Such a recommendation, if it was made, does not appear to have been noted in Raad's medical record and, in any event, would be unlikely to be able to be provided even outside prison other than by a private physiotherapist for fee.  The applicant has no private health insurance and the cost of such intensive physiotherapy treatment would be almost certainly beyond his resources.  I do not accept that he would be able to undertake it, even if he were free to do so.

1. The applicant's other major physical problem is with his urinary system for which he says he has been awaiting investigation by a urologist for some time.  Undoubtedly, were he not in prison he would be able to seek specialist investigation of this problem from a private urologist who would treat him for the Medicare rebate.  However, whether any extensive treatment could in fact be undertaken at the present time, given the current circumstances of his trial, must also be doubtful.  In any event, his out of court custodian, the Secretary of the Department of Justice, has a legal duty to ensure that he receives appropriate medical treatment as a prisoner in the Victorian prison system, a duty which, I am satisfied on the evidence which is before the Court generally and in particular on this application, is taken seriously and discharged appropriately.  I accept that such treatment as is available is of a standard not materially different to that available in the public health system.  In any event, the applicant has recourse to administrative remedies if he is not receiving appropriate treatment at the hands of his custodian, a matter which ought to be being pursued on his behalf if necessary. 

1. The applicant's principal problem, however, is psychological.  He is suffering from anxiety and depression and has been for some time.  He was transferred from Barwon, ahead of the Court's ruling which required that transfer, and has been certified as being unfit to attend Court on some days since because of his psychological state.  His counsel says he is affected by somnolence either caused by his condition, or perhaps by drugs administered to control it or his back pain. 

1. He is also particularly distressed by the procedure of strip searching which is imposed on him frequently, particularly that associated with contact visits with his family. 

1. Evidence concerning Ahmed Raad's psychological condition has been put before the Court on a number of occasions from Doctors Talents and Welborn, and derivatively at least by Dr Bell, the latter two being consultant psychiatrists and the former being a psychiatric registrar employed by Forensicare, a state-operated forensic psychiatry service. 

1. Dr Welborn and Dr Talents, each time they have been asked, have considered Mr Raad to be fit to be tried within the criteria set out in s 6 of the Crimes (Mental Impairment and Unfitness to be Tried) Act1997 (Vic). Dr Welborn also offered the opinion, in answer to a question from the Court, that it would be not be cruel for Mr Raad to continue to be brought to Court for his trial. She agreed, as did the other doctors, that Mr Raad's psychological state would be undoubtedly improved by his being cared for by his wife outside prison. To say as much is to do no more than acknowledge that prisons are places which, for a large number of reasons, have a deleterious effect on the mental health of their inmates. Whilst our society and the law maintains such places for their present purposes, that situation will continue to obtain as it does in this case.

1. Another of Mr Raad's complaints was of a lack of sunlight available to him at the Metropolitan Assessment Prison.  Having inspected Unit Eight, its small exercise yard and the courtyard and the gymnasium of that prison, I am inclined to agree that sunlight is in short supply, particularly on a dull day.  The skylights over the otherwise open areas are of an opaque, if translucent, material which would let in little sun on other than a very bright day, but in the total context of this case, this complaint is of little moment. 

1. In any event, the effect of the applicable evidence is that Mr Raad appears to prefer exercising in the gymnasium to trying to take the benefit of such sun as might be available in the Unit Eight exercise yard when he was himself available to make use of it.

1. Undoubtedly, the applicant's psychological state is less than optimum. On 29 April, when Dr Welborn gave evidence before this court, she again considered him to be fit to be tried within the criteria set out in s 6 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic).  She considered him to be suffering from an extreme anxiety or acute stress reaction, that is to say an adjustment disorder with anxious and depressed mood.  His reaction was worse than any other case she could think of, although she had heard of extreme reactions occurring. 

1. Dr Welborn's experience, against which this statement might be measured, was not before the Court.  However, despite his somnolence, Dr Welborn considered that the applicant was following what was occurring in Court and she noted that he wanted the trial to proceed so as to conclude as soon as possible. 

1. The bar for the granting of bail in a case where exceptional circumstances must be demonstrated to justify such a course has often been described as a high one.  It is so high that none of the accused in this case who have made bail applications has been successful. 

1. Despite Dr Welborn's evidence and the lengthy and comprehensive submissions made by Mr McMahon on Ahmed's Raad's behalf, I am not satisfied that exceptional circumstances so as to justify bail at this time exist in this case. However, even if they did, the seriousness of the charges upon which the accused is being tried, the strength of the Crown case against him, some at least of the factors referred to in s 4(3) of the Bail Act 1977 (Vic) identified by the Crown and, in particular, the stage the trial has reached, would all be matters relevant to a refusal of bail. In particular, perhaps, the strength of the Crown case should be singled out without detailed reference for obvious reasons. In this regard, the applicant's many statements as recorded in telephone intercepts and listening device evidence including, but not limited to, the conversation recorded on 5 October 2005, are particularly pertinent. For obvious reasons, it is not appropriate to elaborate further on this aspect of the case. Sufficient to say that the Crown case is certainly not weak.

1. Even if bail was granted, it would, on the material before the Court, be only granted until the close of the Crown case, which is probably no more than a couple of weeks away, a very short period in the context of this trial. 

1. Having regard to the conclusion I have reached as to exceptional circumstances, it is not necessary for further consideration of the Crown case on the second indictment to be undertaken; nor is it necessary to consider the question as to whether the joint operation of s 15AA of the Crimes Act 1914 (Cth) and s 4(3) of the Bail Act 1977 (Vic) give rise to but a single consideration as President Maxwell suggested might be the case in Re Asmar [2005] VSC 487. Nor is it necessary to determine the effect on the applicant's case of his failure to put his wife's evidence before the Court, despite its relevance by reason of s 4(3)(b) of the Bail Act 1977 (Vic) and her availability and capacity to give evidence as to the matters referred to in that sub section.

1. In all the circumstances, the application for bail is refused.