R v Benbrika & Ors (Ruling No 31)

[2008] VSC 484

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 RULING:	22 August 2008
CASE MAY BE CITED AS:	R v Benbrika and ors (Ruling No. 31)
MEDIUM NEUTRAL CITATION:	[2008] VSC 484

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CRIMINAL LAW – Terrorism offences – charge to the jury – need for redirection as to basis for acquittal – obligation to put all defences open to an accused – Crown application for redirection as to alternative basis for guilt – risk of material unfairness to accused – meaning of ‘organisation’ – s 100.1 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	James Dowsley & Associates
For the Accused Hammoud	Mr D Brustman	Victoria Legal Aid

HIS HONOUR:

1. Prior to addressing the jury, Mr Trood, for Amer Haddara, raised a question as to whether there would be a case put to the jury allowing for the possibility of his client's acquittal.  He did so on the basis that the Crown had not excluded, beyond reasonable doubt, the possibility that the proposal put to Haddara by Benbrika on 17 September 2005 (tab 441)[1] was a proposal to join, not the terrorist organisation alleged by the Crown in Count 1, but another altogether distinct organisation.  He submitted that this possibility should be put to the jury.

   [1]Tab 441 in the transcripts of listening device and telephone intercept recordings tendered by the Crown.

1. Rather than answer Mr Trood's query at that time, I decided to await his address to see whether and how he would address the issue before the jury.  Not surprisingly, Mr Trood did not advert to the possibility suggested at all.  His case to the jury was that his client had not joined any terrorist organisation, and that the conversation in tab 441 should be so construed in its context as leading to this conclusion.  He suggested that what Amer Haddara was talking about was his father's loss of faith, although he did not directly address the words used by Benbrika at page 3644 of the transcript which, it must be said, are difficult to construct in this way.

1. The charge that I gave to the jury followed Mr Trood's argument, again with no mention of the alternative possibility to which he had referred.  Following the completion of the charge, Mr Trood again raised the matter, submitting that not to put the alternative explanation to the jury, as being something they must consider, constituted a material non-direction.  He said that the charge, as it stands, deprives his client of the possibility of acquittal on Count 1 on the basis that he joined, not the terrorist organisation alleged in that count, but some other terrorist organisation. 

1. After arguing this position for some time, Mr Trood informed the Court, after a short break in proceedings, that his instructions had changed and that he no longer wished to pursue this argument. 

1. The Crown position, as enunciated by Mr Robinson, was that it had no objection to a direction as originally sought by Mr Trood, but that if such direction were given,  it should be accompanied by a direction to the effect that if the jury was not satisfied that the terrorist organisation which the Crown alleges in Count 1 existed, then they should consider whether, in the conversation at tab 41 and other conversations between Benbrika and Haddara surrounding it, Haddara and Benbrika had formed another terrorist organisation with the characteristics of that alleged in Count 1. 

1. The Crown case has been to date that by these conversations, Haddara joined the same terrorist organisation to which it said all the other accused belonged, either simpliciter or by joining a cell or group which was part of it. This situation is specifically contemplated by the definition of ‘organisation’ in s 100.1 of the Criminal Code Act 1995 (Cth). Either way, said the Crown, Count 1 was proved against Haddara.

1. A trial judge is bound to put every lawfully available defence open to an accused on the evidence, even if the accused's counsel has not put it and has even expressly abandoned it.  A recent decision of the High Court is on point: Fingleton v The Queen (2005) 227 CLR 166. There are other authorities.

1. Here I consider it necessary to redirect the jury, to permit it to consider the possibility of Amer Haddara's acquittal on the basis discussed, even if that leads to some real or perceived forensic disadvantage.  It will be done so as to eliminate any such disadvantage, or at least to minimise it. 

1. As for the Crown's application to add to any redirection a direction that an alternative basis of guilt should also be put, the same considerations do not apply.  First, the Crown has never put its case on that basis and, secondly, to put such a case would of necessity raise a case against Benbrika, which has also never been put to date.  For each of these reasons, or both of them, it would be materially unfair to both Haddara and Benbrika to accede to the Crown's application. 

1. The jury will be redirected, to the effect that they must consider not only Haddara's case against that of the Crown as put by Mr Trood, but also that they must consider the alternative discussed in this ruling.

1. The proposed direction will be along these lines: 

The Crown case against Haddara is dependent upon conversations between him and Benbrika on 17 September 2005, particularly at tabs 440 and 441.  By those conversations, the Crown says, Amer Haddara accepted a proposition put by Benbrika that he would join a terrorist organisation (at page 3644 of the transcript), either becoming an ordinary member of it, as the Crown says the other accused did, or by becoming or joining a cell which was part of it. 

Mr Trood, for his client, argued that you should not accept the Crown position and that you should not be satisfied beyond reasonable doubt that Amer Haddara joined anything.  He argued that the relevant conversations do not mean what the Crown says they mean. 

However, it seems to me that there is a third possibility, that Amer Haddara joined a terrorist organisation which was separate and distinct from the terrorist organisation which the Crown says existed and to which it says the other accused belong.  If you are unable to exclude this possibility beyond reasonable doubt, then you must acquit Amer Haddara of Count 1 because the Crown will not have proved that he was a member of the terrorist organisation alleged by that count to exist.

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