R v Benbrika & Ors (Ruling No 29)

[2008] VSC 337

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:	18 June 2008
DATE OF RULING:	19 June 2008
CASE MAY BE CITED AS:	R v Benbrika and ors (Ruling No. 29)
MEDIUM NEUTRAL CITATION:	[2008] VSC 337

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CRIMINAL LAW – Trial – terrorism offences – intention – alternative fault element of recklessness – ss 101.4 and 102.10 Criminal Code Act 1995 (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. Sub-section 101.4(6) of the Criminal Code Act 1995 (Cth) provides for an alternative verdict on a trial of an accused for an offence against sub-s 101.4(1) where the ‘trier of fact’ is not satisfied of the accused's guilt on that charge. The alternative offence, which carries a lesser penalty, is committed when the fault element of sub-s 101.4(1), namely intention, is not proved, but an alternative fault element, recklessness, is.

1. A provision identical in effect but dissimilar in form is found in s 102.10 and applies the same regime to all relevant offences created by Division 102 of the Code. In each case is it a condition precedent to a finding of guilt by the ‘trier of fact’, in respect of the alternative, that the accused has been accorded procedural fairness.

1. In this trial, sub-s 101.4(1) and s 102.10 have potential relevance to a number of the accused – all of those charged with offences where the mental element of recklessness is included as a statutory alternative to the principal mental element of intention. However, neither the Crown nor any of the accused argue that alternative verdicts should be left to the jury in this case on any of the counts they must consider. Indeed, no accused took the position that an alternative count was available against him.

1. The question of alternative verdicts was not raised by anyone in this trial until Mr Maidment raised it in response to an application by three of the accused for directed verdicts of acquittal.  He did so, it appears, as a fallback position should any of those applications be successful.

1. In the event, no further reference was made to alternative verdicts until Mr Montgomery raised the question again in respect of his client's position. 

1. The according of procedural fairness to an accused facing the possibility of an alternative lesser verdict to a terrorism offence is required by the Code.  It is mandatory.  It is a requirement, it would seem, to a valid conviction on such lesser offence. 

1. The Code itself does not specify any particular procedure as satisfying the requirement of procedural fairness in any particular case.  Accordingly, what would be required to accord an accused such procedural fairness is not altogether clear.  However it must require more than merely advising him of the existence of a possible alternative verdict.  That is a matter of law which is clear from the statute, itself.  Procedural fairness must require, as a minimum, that an accused be formally advised of the intention of the Crown to seek such a verdict, in the event that it does not succeed in its principal allegation.  Notice of such intention would have to be given, at or before the commencement of the trial, or at least sufficiently early in the trial to give the accused a full opportunity of contesting the facts which might support such a verdict and prepare a case to meet it.  The Crown would be relieved of this obligation only in the circumstance of an accused himself raising the possibility of such a verdict.

1. In Victoria, it would not be contrary to proper prosecutorial practice to include the alternative offence as a count on a presentment or indictment, thereby clearly and formally alerting the accused to the Crown's intention.  Indeed, this would appear to be the most appropriate method of ensuring procedural fairness to the accused.

1. Absent some such notice, the accused would not be accorded procedural fairness, so that any verdict purportedly obtained in the alternative would be liable to be set aside as not having been obtained according to law. 

1. In the present instance, the Crown does not contend that it has given any notice to the accused and does not seek to have the alternative verdict considered by the jury.  No accused seeks to have the alternative available in his case put to the jury.

1. In the circumstances, there is no basis for putting the alternative counts to the jury.  It will be confined to considering the counts on the indictment itself.