R v Benbrika & Ors (Ruling no 27)

[2008] VSC 456

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

---

JUDGE:	BONGIORNO J
WHERE HELD:	Melbourne
DATE OF HEARING:	5 June 2008
DATE OF RULING:	6 June 2008
CASE MAY BE CITED AS:	R v Benbrika and ors (Ruling No. 27)
MEDIUM NEUTRAL CITATION:	[2008] VSC 456

---

CRIMINAL LAW – Trial – no case submission – joint trial – when no case submission should be heard – discretion – considerations – s 418(d) Crimes Act 1958 (Vic).

---

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. The Crown case in this trial has now closed. 

1. The Court is in the process of asking the statutory question prescribed by s 418(d) of the Crimes Act 1958 (Vic).

1. The first accused, Benbrika, who is charged with all other accused with one count of being a member of a terrorist organisation and, alone, with two other terrorism related offences, has announced by his counsel, Mr van de Wiel, that he wishes to submit that the case against him in respect of the second of the two counts upon which he is charged alone, count 12, should be withdrawn from the jury as the Crown has not made out a case for him to answer. That count accuses him of having in his possession a thing, namely a compact disk, connected with the preparation for a terrorist act contrary to s 101.4(1) of the Criminal Code Act 1995 (Cth).

1. Although Mr van de Wiel put a number of propositions in support of an argument that Benbrika has no case to answer on this count, his principal point appeared to be that the Crown has not established, to the standard required at this point in the case, that Benbrika was in possession of the relevant CD on the date alleged in the count.

1. Mr Maidment, for the Crown, has submitted that the Court should not permit Mr van de Wiel to argue his no case submission until the course to be pursued by all other accused has been announced, and any evidence to be led by any of them has been put before the jury.  He referred to a number of authorities on this important procedural question. 

1. In R v Webster,[1] Menhennitt J considered himself bound by a decision of Gavan Duffy J, R v Jones,[2] to adopt a procedure which entailed postponing a ruling on a no case submission until all the evidence in the case was in, including any evidence called on behalf of any co-accused.  His Honour considered himself so bound because Gavan Duffy J's ruling had been specifically approved by the Full Court of this Court (Herring CJ, Sholl and Little JJ) in R v Anthony.[3] 

   [1][1974] VR 457.

   [2][1956] VLR 98.

   [3][1962] VR 440.

1. Although Gavan Duffy J's ruling deals with a situation which can only arise where two or more accused persons are tried together, it is not clear from the report of the case that Jones was in fact tried with another accused.  No other accused is mentioned, and the charge upon which he was tried was attempting to shoot with intent to murder, not a crime which would obviously be associated with a joint enterprise. 

1. Further, it would appear that Gavan Duffy J was not ruling on a no case submission.  The report states that he made the statement attributed to him after the jury had returned a verdict of not guilty at the end of the Crown case, without hearing the case for the defence.  Whether this occurred following an invitation from the judge or on the jury's own initiative cannot be now determined.  Whether Jones was in fact being tried with a co-accused, there was certainly no warrant for suggesting that Gavan Duffy J's statement applied to an offence with which one of a number of co-accused was charged alone, as in this case. 

1. Gavan Duffy J's statement appears to have been in response to the then recent English decision of R v Abbott,[4] where the English Court of Criminal Appeal quashed a conviction which was procured by a co-accused's evidence given after the trial judge had refused to take a case away from the jury at the end of the Crown case, there being no case against the appellant at that point in the trial. 

   [4][1955] 2 QB 497.

1. Although His Honour rejected the English decision as inapplicable in Victoria, somewhat curiously he did not mention that in 1949 and 1950 the judges of this Court had issued Criminal Practice Notes[5] on the same topic.  The substance of the 1950 Practice Note, so far as it is relevant to this case, is set out in Menhennitt J's judgment in Webster.  That the 1950 Practice Note was an expression of the procedural law on this subject was not disputed in this case.  Menhennitt J considered himself bound by it and in R v Wood[6] the Full Court of Appeal of this State endorsed it. 

   [5][1949] VLR 269n and [1950] VLR 153a.

   [6][1974] VR 117.

1. On its face it is applicable generally to trials where "two or more persons are tried together".  It does not distinguish between joint and single charges.  It describes the judge's function in permissive terms, suggesting that the ultimate decision as to the procedure to be followed in any given case is a matter for the exercise of judicial discretion. 

1. Young CJ, in R v Faure & Corrigan,[7] confirmed the existence of this discretion.

   [7][1978] VR 246.

1. Menhennitt J, in Webster's case, expressed the rule somewhat more narrowly than the other authorities to which I have referred, confining its operation to "a joint trial of persons of one crime" (emphasis added).  His Honour considered the rationale of the rule to be that the evidence of an accused person may "throw light and reveal relevant factors as to the whole crime and every aspect thereof". 

1. In a trial of two or more accused charged jointly with the same offence, the Crown is deprived of the power of compulsion with respect to those witnesses who might be expected to know most about the truth of the matter; that is to say, each of the other accused.  To obtain such evidence, the Crown sometimes resorts to the provision of indemnities from prosecution, and the law itself provides inducements for co-accused to assist the Crown by pleading guilty and turning Queen's evidence. 

1. The rule that a court should not rule on a no case submission until all accused have produced such evidence as they intend to produce optimises the possibility that all evidence which might throw light on the crime and all issues involved with it will be put before the jury.  It also prevents the possibility of evidence being given after an accused has been acquitted by direction, which would suggest or, perhaps, even conclusively prove, his guilt, a situation which, for obvious reasons, ought to be avoided.

1. It appears to me to be unnecessary to determine finally, in this case, whether the rule discussed in the cases referred to, and expressed in what remains of the 1950 Practice Note following subsequent legislative intervention, applies to the situation here.  There seem to me to be good reasons why, whatever might be the ordinary situation, Mr van de Wiel's submission of no case to answer should be entertained and ruled upon before the matter proceeds further.  These reasons include, if necessary, the fact that his client faces count 12 alone.  Although there might possibly be relevant evidence available from witnesses called by other accused which bears upon count 12, that possibility is not high, having regard to the nature of the count itself, and the specificity of the object said to have been in Benbrika’s possession.  Even if other witnesses can depose that Benbrika knew of the material on that CD, which is not, I think, disputed, it would not be likely that they could speak as to the particular CD involved in the charge, particularly as there are many other copies of that CD in the alleged possession of other accused and, for all anyone knows, elsewhere.  It would be unfair to subject Benbrika to further trial on count 12 if in fact there is no case made out at present on the Crown case as it is.  Mr van de Wiel's submission, in outline, satisfies me that his no case submission is not unarguable.  If it was, that would result in the discretion being exercised against hearing the application now or, indeed, probably at all. 

1. In the circumstances, I will proceed to hear Mr van de Wiel's application that a verdict be entered by direction in favour of Mr Benbrika on count 12, and then proceed to ask the statutory question of the subsequent accused.

---