R v Benbrika & Ors (Ruling No 30) - [2008] VSC 477

IN THE SUPREME COURT OF VICTORIA

Not restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1544 of 2006

THE QUEEN

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:	27 June 2008
DATE OF RULING:	3 July 2008
CASE MAY BE CITED AS:	R v Benbrika and ors (Ruling No. 30)
MEDIUM NEUTRAL CITATION:	[2008] VSC 477

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CRIMINAL LAW – Trial – applications to discharge jury on basis of impermissible statements in prosecutor’s closing address – criteria for discharge of jury not met – applications refused.

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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:

Between 20 June 2008 and 27 June 2008 Mr Maidment addressed the jury in closing the Crown case. In doing so, he referred to and directed the jury's attention to a considerable number of the 480 listening device and telephone intercept transcripts upon which the Crown case against all the accused was largely based.

Apart from putting an argument as to the importance of the evidence of the former co-accused, Izzydeen Atik, and of SIO39, an undercover police officer, and referring briefly to some of the other largely uncontested evidence, the prosecutor relied almost entirely on the electronically intercepted statements of the various accused. Most of these statements were made by the accused in the presence of other accused, including Atik, and SIO39, but some of them were made to other persons who were not alleged to be part of the terrorist organisation which is central to the Crown case on most of the counts on the indictment.

Mr Maidment opened by suggesting that the jury should consider, first, the question of the existence of this terrorist organisation. If they were satisfied beyond reasonable doubt as to this matter, the central question as to count 1, and a significant issue as to most of the other counts, would become, as Mr Maidment put it:

Was this particular accused whose…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2008] VSC 477
Decision Date: 3 July 2008

CaseChat Overview and Summary

In the case of R v Benbrika & Ors, the defendants were on trial for various criminal charges, including conspiracy to commit terrorist acts. The trial was held in the Supreme Court of Victoria. The prosecution made closing submissions to the jury, and subsequently, the defence moved to discharge the jury on the basis that the prosecutor had made impermissible statements in his closing address. These statements, according to the defence, could have prejudiced the jury against the defendants. The court was required to determine whether the criteria for discharging the jury were met and, if not, whether the applications should be refused.

The legal issues before the court centred on the appropriate criteria for discharging a jury due to alleged prejudicial comments made by a prosecutor. The court considered whether the prosecutor's remarks were such that they might prejudice the jury, and if so, whether this was enough to warrant discharging the jury. The court also examined the effect of these remarks on the fairness of the trial and whether there was any risk of a miscarriage of justice.

The court found that the prosecutor's comments, while potentially prejudicial, did not reach the threshold necessary to warrant discharging the jury. The remarks were not so egregious as to undermine the fairness of the trial or risk a miscarriage of justice. The court held that the criteria for discharging the jury had not been met, and therefore, the applications to discharge the jury were refused. The trial proceeded as planned, with the jury continuing to deliberate on the charges against the defendants.

In light of the above, the court dismissed the applications to discharge the jury and the trial continued. The final orders of the court were that the jury was to continue deliberating on the charges against the defendants, and that the applications to discharge the jury were refused. The case proceeded to its conclusion with the jury delivering its verdict on the charges against the defendants.

Orders