R v Benbrika & Ors (Ruling No 30)
[2008] VSC 477
•3 July 2008
| 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: | 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 case I'm considering a member of that organisation; did he intend to be a member of the organisation; and did he know it was a terrorist organisation?
Mr Maidment then pointed out that the evidence as to these elements was different against each accused. The Crown relied, he said, upon the acts and statements of each individual in proof of this part of the case against them. He made this point clear. He said at page 3800 of the transcript:
It doesn't matter what somebody else said about accused A outside his presence, it's what accused A was actually doing and saying that will enable you to decide whether they were a member, whether they intended to be a member and whether they knew that it was a terrorist organisation.[1]
[1]Transcript of Proceedings, R v Benbrika (Supreme Court of Victoria, Bongiorno J, 20 June 2008) 3800.
As to the existence of the terrorist organisation, the prosecutor said that the jury was entitled to look at all the evidence, including the acts and statements of all the accused, to form a patchwork or mosaic which, he argued, would reveal an organisation meeting the criteria necessary for it to be a terrorist organisation.
Over the next few days, Mr Maidment developed his argument by reference to the evidence already referred to and concluded early on 27 June. At this point, Mr Montgomery, counsel for Hany Taha, sought a discharge of the jury because of the way in which Mr Maidment addressed the jury. He argued that the prosecutor's address caused a situation which required the discontinuance of the trial ‘in the exercise of discretion’. He referred to R v Boland[2] and Crofts v The Queen,[3] both of which decisions recognise the discretion which a trial judge has, in appropriate circumstances, to order that a jury be discharged without verdict and that the accused be tried upon the indictment filed against him before a new jury empanelled for the purpose.
[2][1974] VR 849.
[3](1996) 186 CLR 427.
In Boland, the Court of Appeal (Adam, Little and McInerney JJ) expressed the principle thus:
The power of a trial judge to discharge a jury when some incident occurs during a trial which may adversely affect its fairness depends for its exercise upon the principle stated in Winsor v The Queen (1866) LR 1 QB 390. The principle is really one of necessity. There must be evident ‘a high degree of need for such discharge’, that high degree being ‘such as in the wider sense of the word might be denoted by necessity’: per Erle, CJ, at p 394. Vide also Swinburne v David Syme, [1909] VLR 550, at pp 562-3; 15 ALR 579; Keddie v Foxall, [1955] VLR 320, at p 321; [1955] ALR 835; R v Harrison, [1957] VR 117, at pp 119, 125 and 126; [1957] ALR 92; Watson v Hammence, [1957] VR 319; [1957] ALR 817.[4]
[4][1974] VR 849, 866-67.
In Crofts, the High Court (Toohey, Gaudron, Gummow and Kirby JJ) said:
No rigid rule can be adopted to govern decisions on an application to discharge a jury for an inadvertent and potentially prejudicial event that occurs during a trial. The possibilities of slips occurring are inescapable. Much depends upon the seriousness of the occurrence in the context of the contested issues; the stage at which the mishap occurs; the deliberateness of the conduct; and the likely effectiveness of a judicial direction designed to overcome its apprehended impact. As the court below acknowledged, much leeway must be allowed to the trial judge to evaluate these and other considerations relevant to the fairness of the trial, bearing in mind that the judge would usually have a better appreciation of the significance of the event complained of, seen in context, than can be discerned from reading transcript. [5]
[5](1996) 186 CLR 427, 440-41.
In Crofts, the court was dealing with a discharge application consequent upon the prosecutrix in a sexual assault case giving evidence of other sexual assaults by the accused upon her which were not the subject of counts on the presentment. This evidence was given in contravention of the County Court judge's express ruling that such evidence should not be led. He rejected the application, opting, rather, for a direction to the jury to ignore the evidence. The High Court considered that the trial judge's discretion had thus miscarried because he failed to take into account or give sufficient weight to a number of discretionary considerations to which he ought to have had regard.[6]
[6](1996) 186 CLR 427, 436, 452.
Mr Montgomery’s application
Mr Montgomery's application in this case, in which eventually all other counsel except for Mr van de Wiel, for Benbrika, joined, was based upon a number of instances in which he submitted Mr Maidment had inappropriately invited the jury to use evidence which, although admissible as to the existence and nature of the terrorist organisation which the Crown alleged existed, was not admissible to prove membership of any accused and, in particular, his client, of that terrorist organisation. He argued that the prosecutor should have separated the organisation element from that of the membership of any accused and dealt with it first. He should then have dealt with the membership of each accused separately, stressing that there were 12 separate trials.
Mr Montgomery referred to a number of examples where he said the prosecutor made the error of which he complains. The first was where the prosecutor was dealing with a telephone intercept recording made at 10:24 pm on 8 September 2004 involving Fadl Sayadi and someone called Abu Steif.[7] The call is from Sayadi in Australia to Steif in Lebanon. Steif tells Sayadi that his, Sayadi's, name has been recorded by Lebanese State Security as being involved with ‘a certain society’. A very short time later Sayadi phones Ahmed Raad and asks for Aimen Joud. He tells Ahmed Raad that a matter of importance has arisen and they should ‘race down here’. The prosecutor invited the jury to infer from these conversations that Fadl Sayadi, Ahmed Raad and Aimen Joud, who the Crown alleges constitute the consultative committee of the terrorist organisation, were thus meeting to deal with a crisis revealed by the phone call with Abu Steif.
[7]Transcript of Proceedings, R v Benbrika (Supreme Court of Victoria, Bongiorno J, 20 June 2008) 3839.
The next piece of evidence referred to by Mr Maidment involved a phone call from Sayadi to Shoue Hammoud in Beirut a few minutes later, in which Sayadi apprised him of the information he had received from Steif and expressed concern not only for him but for Ahmed Raad, who was also overseas. In that phone call, Shoue Hammoud asks Fadl Sayadi to ‘get the brothers together, man, get some money together or something.’ Mr Maidment argued that the jury should see this evidence as a recognition by Shoue Hammoud and Fadl Sayadi of the existence of an organisation, that is to say, an admission by them against interest. As such, it seems to be, arguably at least, evidence that goes to the existence of an organisation, and if and insofar as they each make such admissions, evidence of their membership. However, Mr Montgomery argued that by putting its argument this way, ‘the Crown has either deliberately or otherwise implicated Ahmed Raad, who is not a party to any of the conversations, which cannot be used against him.’
The argument cannot be accepted. Not only did the prosecutor not mention Ahmed Raad when putting this part of the evidence against Sayadi and Hammoud, he made it clear at the beginning of his address that membership could only be inferred from acts and declarations of the accused making them. In any event, that position will be made abundantly clear to the jury in the directions they will be given in due course. There is no substance in this point.
The second matter Mr Montgomery referred to was the so-called ‘garage conversation’, a conversation at Ezzit Raad's garage between him, Ahmed Raad and Aimen Joud on 10 September 2004 at 11:19 pm.
The prosecutor began this part of his argument by pointing out that Hany Taha was not present at the garage conversation, but that there is ample evidence to show that he was heavily involved in the exercise there being discussed. This was the handling and disposal of a stolen Honda motor vehicle acquired with considerable assistance from Taha for the purpose of enriching the sandooq, which the Crown case designates as the common fund of the alleged terrorist organisation. This involvement is demonstrated, inter alia, by a conversation he has with Benbrika and Aimen Joud on 1 September.
Late in his address Mr Maidment again stated that Hany Taha was not present at the garage conversation.[8]
[8]Transcript of Proceedings, R v Benbrika (Supreme Court of Victoria, Bongiorno J, 26 June 2008) 4132.
Mr Montgomery complained that the prosecutor ran these two conversations together, so as to suggest that it was open to the jury to use the garage conversation as evidence against Hany Taha as to membership of the terrorist organisation, particularly that part of it which referred to using funds for the purchase of weapons. The prosecutor told the jury that the garage conversation was evidence against its participants as to their involvement in a terrorist organisation, and as to their guilt on count 6, attempts to provide funds to a terrorist organisation. Mr Maidment went on:
You couple that conversation and the activities that were going on in the garage with the conversations involving Mr Taha and his involvement in the process leading to the garage, and the Crown says there is clear evidence against Mr Taha of his participation in count 6. So it's powerful evidence, the Crown says, in support of the Crown case against all of the accused in the sense of providing circumstantial evidence of the existence of a terrorist organisation, identifying the nature of the organisation so far as all of the accused are concerned, and direct evidence against the participants in the conversation of their membership of the organisation and their knowledge that this was a terrorist organisation of which they were members.[9]
[9]Transcript of Proceedings, R v Benbrika (Supreme Court of Victoria, Bongiorno J, 20 June 2008) 3848.
This passage makes it abundantly clear that the prosecutor is using the garage conversation to assist in proof of membership only against its participants. It is using the events in the garage and Hany Taha's own actions and declarations as direct and circumstantial evidence of his guilt on count 6, and the same evidence as circumstantial evidence of the existence of the terrorist organisation.
The submission that this is in some way a misuse of the evidence or a contradiction of the Crown's position as outlined by the prosecutor must be rejected.
The next argument put by Mr Montgomery concerned the use by the Crown of a conversation between Benbrika, Hany Taha and Shoue Hammoud on 22 September 2004, in what he says is an impermissible link with a conversation two days later between Abdullah Merhi and Benbrika, at which Hany Taha was not present. This reference resulted, argued Mr Montgomery, in his client, Taha, being ‘lumbered with that on the issue of membership.’
Although Mr Maidment did spend some time referring in detail to this conversation and sequels to it, there is no justification for Mr Montgomery's complaint. There is no suggestion that the Crown is seeking to use any conversation against Hany Taha to which he was not a party, to prove his membership of the terrorist organisation. If there was any doubt as to this, Mr Maidment dispels such doubt at page 4133 of the transcript, where he refers only to the conversation in which Hany Taha participated.
Mr Montgomery turned to Mr Maidment's use of a conversation between Aimen Joud and Benbrika about Abdullah Merhi.[10] His submission is that this conversation was used impermissibly by the Crown to implicate Merhi, ‘coupling and lumbering Merhi with this conversation.’ However Mr Maidment made it clear that he was not doing that at all. He said:
That's not direct evidence against Abdullah Merhi as to Abdullah Merhi's participation in the organisation or his knowledge of the organisation, but it's a piece of circumstantial evidence which you take along with all the other bits of circumstantial evidence, and you are entitled to, in determining what the nature of this organisation is, because if it is an organisation, then you would expect that from time to time A and B have a chat and then B and C have a chat about what A and B have been talking about, and that you begin to see a pattern building up as to what this organisation is about...[11]
There was nothing in Mr Montgomery's submission on this point which, either alone or in combination with other matters, would raise the prospect of declaring this trial a mistrial. The submission is rejected.
[10]Transcript of Proceedings, R v Benbrika (Supreme Court of Victoria, Bongiorno J, 23 June 2008) 3909.
[11]Ibid, 3910.
The next matter raised by Mr Montgomery concerned the Crown address regarding a conversation about Abdullah Merhi, which involved a number of the accused.[12] The conversation occurred on 19 October 2004 at 9:28 pm and involved Benbrika, Abdullah Merhi, Aimen Joud, Fadl Sayadi, Hany Taha and an unidentified male. The extract tendered is relatively short, but contains a statement by Fadl Sayadi to the effect that Abdullah Merhi wished to ask Benbrika a question. After Benbrika says words which, inferentially, at least, indicate that he knows what the question will be, Hany Taha says, ‘Outside, outside.’ These words would support an inference that Hany Taha believed it would be better if any subsequent conversation between Abdullah Merhi and Benbrika was conducted in private, or perhaps outside the possible hearing range of a listening device because he knew what Merhi's question was going to be.
[12]Ibid, 3912.
Mr Montgomery complained that when the prosecutor made this point,[13] he was impermissibly suggesting that this evidence could be used by the jury to prove Hany Taha's membership of the terrorist organisation. One might rhetorically ask, ‘Why not?’
[13]Transcript of Proceedings, R v Benbrika (Supreme Court of Victoria, Bongiorno J, 26 June 2008) 4134.
Accepting Mr Montgomery's interpretation of the way the Crown puts its case, to use these words of Hany Taha in the context in which they were uttered is doing no more than inviting the jury to consider Hany Taha's own declarations and acts to determine whether he is a member of a terrorist organisation. The defence contention in respect of this part of the Crown case is not maintainable.
The next matter complained of by Mr Montgomery is the point in Mr Maidment's argument where he discussed a conversation in which Benbrika, Bassam Raad and Atik were involved.[14] Mr Montgomery's argument is that those accused mention others in the course of that conversation, and the Crown ought to have made it clear that the conversation, at least insofar as it mentioned absent accused, could be used only as to the existence and nature of the organisation. This submission ignores the thrust of the whole Crown address, which proceeded on the basis of the passage from Mr Maidment's speech at page 3800 of the transcript, previously cited. The complaint in respect to this passage is not made out.
[14]Transcript of Proceedings, R v Benbrika (Supreme Court of Victoria, Bongiorno J, 23 June 2008) 3941 and thereafter.
At page 3953 of the transcript, Mr Maidment spoke of a conversation on 5 December 2004 at 7:20 pm between Benbrika and Hany Taha in which, Mr Maidment argued, the participants were at cross purposes as to who they were talking about. In the course of this argument, he referred to a conversation on 12 November 2004 in which Benbrika asked Aimen Joud and Fadl Sayadi about their suspicions concerning SIO39, and a similar conversation with Ahmed Raad on 13 November. He argued finally that the conversation with Taha on 5 December was not just revealing as to Benbrika's state of mind, but also as to Hany Taha's knowledge of what the organisation was about.
Mr Montgomery complained that this comment meant that the Crown is impermissibly inviting the jury to find that Hany Taha had certain knowledge of the organisation, based on conversations to which he was not a party.
The complaint is not made out when what Mr Maidment actually said is examined. Clearly he is referring only to the conversation of 5 December 2004 to which Hany Taha was a party, and an examination of that conversation, number 143, amply justifies Mr Maidment's comment.
The next matter Mr Montgomery addressed was Mr Maidment’s discussion of conversation 191,[15] which took place on 21 December 2004, in which Benbrika spoke with Fadl Sayadi and Aimen Joud about members of the organisation and various jobs they were doing. This conversation mentioned Ezzit Raad, Majed Raad, Shane Kent, Shoue Hammoud and Abdullah Merhi, but in his address, Mr Maidment referred only to Ezzit Raad, Shane Kent and Majed Raad. He concluded his discussion of this conversation by saying:
Of course, what I have just said is not evidence against either Yassin, that is Shane Kent, or Majed Raad, as to their participation in the organisation, although it's all part of the circumstantial evidence as to the nature of this organisation. So I keep reminding you of that distinction and it's right that I should, because it's fair to those gentlemen. They also talk about who there is amongst the group and what roles they play, and there is discussion about whether Ahmed Raad or Majed or Ezzit might be the better candidate for taking on topography, and the suggestion is: ‘No, Ahmed is better with his hands, Ezzit or Majed are a bit more academic and they would be more suitable for this role.’ Again, not evidence as to those persons’ participation, but nevertheless evidence as to the nature of this organisation… evidence very much against both Joud and Fadl Sayadi as to their roles in the organisation; also against Benbrika...[16]
Mr Montgomery's complaint is that Ezzit Raad was not excluded from being implicated as a member of a terrorist organisation as a result of this conversation to which he was not a party.
[15]Transcript of Proceedings, R v Benbrika (Supreme Court of Victoria, Bongiorno J, 24 June 2008) 3959.
[16]Ibid, 3959-60.
This criticism of the Crown case is partly justified, but only if no reference is made to the second part of the above quoted passage, which also refers to conversation 191. In the final analysis, Mr Montgomery's criticism, if valid at all, is trivial.
Mr Maidment discussed conversation number 197 at which Benbrika, Fadl Sayadi and Abdullah Merhi and, at some point, Ahmed Raad were present.[17] He referred to page 1390 of the telephone intercept and listening device transcripts, in which Fadl Sayadi spoke of the allocation of various roles to members of the organisation. He mentioned Hany Taha and Shoue Hammoud, who were not present.
[17]Ibid, 3962.
Mr Montgomery argued that Mr Maidment was remiss in not making it clear that that conversation was not relevant to any allegation of membership against Hany Taha or Shoue Hammoud. On this occasion, Mr Montgomery's criticism is well founded. The prosecutor did not, in this instance, make the distinction he was careful to make on each of those occasions referred to so far in this ruling.
At page 3966 of the transcript, the prosecutor discussed the ‘rumour conversations’. It will be recalled that there were a number of conversations concerned with rumours about the group, conveyed by relatives or close friends of Shoue Hammoud.
Mr Maidment pointed out to the jury that the phone calls discussed did not provide evidence as to the truth of the rumours, but that they, or it, gave rise to a conversation at Benbrika's home on 1 January 2005, conversation 212.
Mr Montgomery complained that conclusions can only be drawn from conversation 212 in the case of Benbrika, Aimen Joud and Hany Taha. He argued that the Crown should not have asserted that the ‘rumour conversations’ ‘gave rise to’ conversation 212.
A perusal of conversation 212 reveals that at Benbrika's house on 1 January 2005, Shoue Hammoud detailed the rumours to those present, namely Benbrika, Aimen Joud and Hany Taha, and some discussion followed. Mr Maidment may have more appropriately invited the jury to reach the conclusion that the ‘rumour conversation’ gave rise to conversation number 212, rather than asserting it as a fact, although in the course of counsel's address to a jury, it is not uncommon to hear the argument being advanced asserted as a conclusion. Nothing turns on any failure of Mr Maidment to express himself in the way Mr Montgomery would have had him do.
At page 4006 of the transcript, Mr Maidment deals with conversation 341. This conversation is between Benbrika and Ahmed Raad about the sandooq. The Crown argued that it proves, or assists in proving, Ahmed Raad's position as treasurer of the terrorist organisation.
Mr Montgomery complained that although in conversation 341 many accused are mentioned, including his client, Hany Taha, Mr Maidment did not point out that the conversation implicates only Ahmed Raad and Benbrika, not all the others.
Mr Maidment dealt with this conversation very shortly. He said:
Then I think I can take you on now, again quite briefly, to a conversation at tab 341 which is particularly pertinent to Ahmed Raad in his role as treasurer, because he and Benbrika have a discussion about who is and who is not making contributions to the sandooq on a regular basis. I don't think I need to go into detail about that conversation.[18]
It is true that the prosecutor did not, by reference to the conversation, repeat the proposition that it was only evidence against those involved of their knowledge and membership, and perhaps of the offices they held in the organisation. However, by this stage of his address, he had said on a many occasions, with respect to many conversations, that they could be used only in respect of those who were parties to them. On this occasion, he mentioned only Ahmed Raad, not anyone referred to in conversation 341, as having paid or not having paid his sandooq contribution. There was no necessity in the circumstances for him to do so.
[18]Ibid, 4006.
Conversation 371 involved Benbrika, Aimen Joud and Ahmed Raad. It was about jihadi publications and the use of them to instruct members. In the course of it, Nasser Raad and Shoue Hammoud are mentioned. Mr Maidment, in dealing with this conversation, described it as an earnest discussion about the importance of lessons in bringing members of the organisation back into line. Again, although Shoue Hammoud is mentioned, the prosecutor did not specifically tell the jury that that mention did not implicate him as a member.
Mr Montgomery's complaint as to this matter is identical to that in respect of conversation 341. It needs no further consideration than that given in respect of that conversation and Mr Maidment's address in respect of it.
In a lengthy interview with journalist Nick McKenzie on 3 August 2005, Benbrika answered many questions about a number of matters, including terrorism and Islam. No other accused was mentioned in that interview. The Crown led the interview in evidence as conversation 423. Mr Maidment concluded his argument as to it by saying: ‘Anyway, you will have an opportunity to view so much of that conversation as you choose, but it certainly bears some careful examination, particularly in the case against Mr Benbrika.’[19]
[19]Transcript of Proceedings, R v Benbrika (Supreme Court of Victoria, Bongiorno J, 25 June 2008) 4059.
Mr Montgomery conceded that the conversation provides evidence of the existence of the organisation. He submitted, however, that the Crown was in error by failing to point out that the conversation did not implicate any of the accused in membership of the organisation. Mr Maidment should have used the word ‘exclusively’ instead of the word ‘particularly’ when describing the relevance of the interview to the jury's task here, argued Mr Montgomery.
If Mr Montgomery's concession as to the relevance of the interview to the existence of the organisation is appropriate, then what Mr Maidment said is literally true. It is evidence against all the accused on the organisation point, and particularly against Benbrika, because he arguably implicates himself in it as leader of it by what he says to McKenzie.
No case for a discharge of the jury which calls for a response was made out on behalf of Hany Taha. Mr Montgomery's application is refused.
Mr Taft’s application
Mr Taft, for Abdullah Merhi, put a separate argument on behalf of his client, in respect of the Crown's dealing with conversations that specifically affected him. He argued that unless the jury was discharged, and a new trial ordered, there was a real danger of the trial resulting in the situation recently dealt with in the Court of Appeal in R v Cuong Quoc Lam.[20]
[20][2008] VSCA 109.
In conversation 55, involving Benbrika, Hany Taha and Shoue Hammoud, there is reference to Abdullah Merhi, who is not present. Mr Maidment referred to the point at which Hany Taha introduces Abdullah Merhi into the conversation.[21] Hany Taha raises Abdullah Merhi's name with Benbrika, in a context which only becomes clear from a conversation two days later, between Abdullah Merhi and Benbrika.
[21]Transcript of Proceedings, R v Benbrika (Supreme Court of Victoria, Bongiorno J, 23 June 2008) 3884.
Mr Taft expressed concern that in conversation 55, Shoue Hammoud referred to ‘martyrdom’. That he is referring to Abdullah Merhi is certainly not clear, even in the context of the later conversation. But Mr Maidment did not specifically tell the jury, with respect to conversation 55, that it did not implicate Abdullah Merhi in membership of the organisation. This leads, submits Mr Taft, to an irremediable situation of prejudice to his client, which can only be relieved by discharging the jury. He referred particularly to prejudice against Abdullah Merhi in respect of count 9, the count in which he is charged with making himself a resource to a terrorist organisation, by effectively becoming a suicide bomber. Mr Taft’s concern is, essentially, that hearsay will be used by the jury against his client.
It is not contested that conversation 55 is relevant and admissible in proof of the existence and nature of the organisation, including Shoue Hammoud's reference to martyrdom, even if that reference is to Abdullah Merhi. However it is clearly inadmissible as implicating Abdullah Merhi in membership of the organisation.
The Crown does not suggest that it implicates Abdullah Merhi in that way. At a number of points in his address, including the blanket reference at page 3800 of the transcript, previously cited, Mr Maidment made the Crown's position clear. His not specifically mentioning the matter in relation to conversation 55 does not detract from the overall impression created by his address. This is particularly true given that the jury will be instructed appropriately, in due course, as to the proper use they can make of the evidence. Mr Taft will no doubt address the jury on this issue as well.
The second example raised by Mr Taft is in relation to conversation 90, in which Hany Taha used the words, ‘Outside, outside’.[22] His complaint is that the prosecutor subsequently refers to the ‘coupling’ of conversations,[23] which creates a risk that conversations in which Abdullah Merhi is not a party will be used with those in which he is. Mr Taft's complaint is really that Mr Maidment has failed to identify the ‘coupled’ conversations, and so risks confusing the jury.
[22]Ibid, 3912.
[23]Ibid, 3914.
Again, however, the jury will be addressed and ultimately instructed as to how these conversations can be used. It would have been better had Mr Maidment been more specific in his comments, but a failure to be more specific, in the total context, does not warrant the drastic remedy sought by counsel for the accused.
The third example quoted by Mr Taft concerned a point at which Mr Maidment referred to conversation 91,[24] which undoubtedly implicates Abdullah Merhi, and links it to a conversation between Benbrika and Aimen Joud a few days previously. Mr Taft again argued that Mr Maidment should here have excluded Abdullah Merhi as being affected by the conversation between Benbrika and Aimen Joud. Again, in context, Mr Maidment's comment does not warrant the remedy proposed, particularly in light of the extensive involvement of Abdullah Merhi in conversation 91, including his apparent acquiescence in Benbrika's reference to ‘something big’.
[24]Ibid.
The final matter raised by Mr Taft concerned the part of Mr Maidment's address in which he put the cases against individual accused as to their membership of the organisation. On some occasions, conversations were relied upon by Mr Maidment, in support of cases against other accused, in which Abdullah Merhi was mentioned but in which he was not involved. Mr Taft also referred to a passage where Mr Maidment spoke of the Kinglake trip,[25] which Abdullah Merhi did not attend, and references to the ‘two diskettes’ which Benbrika, not Merhi, said concerned bomb making.
[25]Transcript of Proceedings, R v Benbrika (Supreme Court of Victoria, Bongiorno J, 24 June 2008) 3957.
All of these matters will be the subject of address by Mr Taft in his turn. He will be able to take Mr Maidment to task using all his forensic skill. In due course the jury will be appropriately directed to confine themselves to the evidence against each accused. Even if, on some of the occasions referred to by Mr Taft, it would perhaps have been preferable for Mr Maidment to have been more explicit in some of his references, the criteria for discharge of the jury have not been met.
Discharge of the jury is an extreme remedy to be resorted to only where the need to do so is manifest. In the circumstances of a prosecutor's address, there would need to be much more than has been demonstrated in this case to justify such a step.
Other applications
A number of other members of the defence Bar adopted Mr Montgomery's submissions on behalf of their client and added comments of their own. Although helpful, these comments do not change the overall picture presented. Their applications are likewise refused.
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