R v Benbrika & Ors (Ruling no 26)

[2008] VSC 452

V Benb

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, EZZIT RAAD, ABDULLAH MERHI, BASSAM RAAD, AHMED RAAD, SHOUE HAMMOUD, MAJED RAAD and AMER HADDARA

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JUDGE:	BONGIORNO J
WHERE HELD:	Melbourne
DATE OF HEARING:	21 May 2008
DATE OF RULING:	21 May 2008
CASE MAY BE CITED AS:	R v Benbrika and ors (Ruling No. 26)
MEDIUM NEUTRAL CITATION:	[2008] VSC 452

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CRIMINAL LAW – Trial – exhibits video of execution of search warrant – release to media organisations – discretion – privacy of non-party – danger of inadvertent identification of Australian Security Intelligence Organisation officers – release refused – Australian Security Intelligence Organisation Act 1979 (Cth).

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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 Ezzit Raad	Mr G Barns	Slades & Parsons
For the Accused Taha	Mr J Montgomery SC	Robert Stary & Associates
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 Haddara	Mr A D Trood	Robert Stary & Associates
For the Accused Merhi	Mr M Taft SC	Robert Stary & Associates
For the Accused Ahmed Raad	Mr J McMahon	Robert Stary & Associates
For the Accused Sayadi	Ms N Karapanagiotidis	Robert Stary & Associates
For the Accused Majed Raad	Mr G P  Mullaly	Slades & Parsons
For the Accused Bassam Raad	Mr B Lindner	Robert Stary & Associates
For the Accused Kent	Mr J O’Sullivan	Robert Stary & Associates
For the Accused Hammoud	Mr D Brustman	Victoria Legal Aid

HIS HONOUR:

1. In the course of this case, counsel for one of the accused cross-examined a federal police officer concerning the execution of a search warrant at premises in North Fitzroy on 27 June 2005.  In the course of that cross examination, a video of that search was shown to the jury, which video went for something over an hour.  In the course of the video, a number of police officers were seen to be moving about the house, some of them wearing jackets with "Australian Federal Police" on them, some of them not.  One officer, who was clearly a member of the Australian Security Intelligence Organisation because he identified himself as such, whose face was pixelated, appears a number of times in a number of rooms in the house.  His voice is clearly heard on the video.  Counsel for ASIO, who opposes the application I am about to describe, has said that there were other ASIO officers also present.  That may well be so.  They could well have been among the other officers who were in the house.

1. An application has been made by the owners of Channel Ten television station for access to that video as it is now an exhibit in this case.  Mr Hoyne of counsel appearing for Channel Ten has argued that the video should be able to be used by Channel Ten in the course of its dissemination of news and in making the application, he proffered two significant undertakings on behalf of his client:  one, that the video would be shown without any sound; and the second, that the ASIO officer or officers, presumably, would be deleted from the film which was shown publicly.  He added that the editing of the program would be done by one editor.

1. The application is opposed by Dr Donaghue on behalf of ASIO, essentially relying upon the ordinary public interest immunity that exists in the nondisclosure of the identity of ASIO officers and which public interest is emphasised by s 92 of the Australian Security Intelligence Organisation Act 1979 (Cth).

1. Mr Hoyne referred to two cases, R v Pomeroy; Ex parte the Herald and Weekly Times, [1] a decision of Teague J of this Court, and a decision of Kirby J of the Supreme Court of New South Wales, R v Xu (No 1).[2]  Each of those cases, it seems to me, on the brief reading I have had of them, speaks of the discretion in the trial judge to deal with exhibits in an appropriate manner, notwithstanding that they have been exhibited in open court.  Teague J actually says as much and Kirby J relies partly upon a practice note of the Court of which he was a member and partly upon an inference from other cases. 

   [1][2002] VSC 178.

   [2](2005) 152 A Crim R 17.

1. It must be said that in this case, I have taken the view that generally, and in the absence of other reasons, there should be access to the exhibits.  That has been for a number of reasons which I outlined in a statement I made to the press before the case started.  That is not to say, of course, that in any particular case there should not be the proper exercise of a discretion on appropriate material, that is to say, a discretion either to grant or refuse access.

1. In the circumstances, having viewed the video and having seen slightly over an hour of it, I am satisfied that there would be some danger of disclosure of the existence of a particular ASIO officer, or the identification of an ASIO officer engaged in this case. The intention of the legislature by the enactment of s 92 is clear – that the identity of ASIO officers is to be protected. The arrangements which have been made in this case to prevent their having to give evidence, and thereby to allow the Court to remain open, is one which also respects that particular public interest.

1. In this instance, there is another matter and that is that the private home of a citizen not involved in this case was, of necessity, violated by the police execution of the warrant.  It seems to me that despite the fact that she no longer lives in the home, she has an interest in protecting the privacy she had when she did live there, as the wife of one of the accused. 

1. In the circumstances, in the exercise of the discretion to which both of the judges referred to have acknowledged exists, and in the discretion that I have exercised in releasing other exhibits, I am not prepared to release the exhibit in this case.  Accordingly, the application is refused. 

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