R v Benbrika & Ors (Ruling No 33)
[2008] VSC 487
•16 September 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, ABDULLAH MERHI, BASSAM RAAD, AHMED RAAD, SHOUE HAMMOUD, EZZIT RAAD, MAJED RAAD and AMER HADDARA |
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JUDGE: | BONGIORNO J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 25, 26 and 27 August 2008 | |
DATE OF RULING: | 1, 15 and 16 September 2008 | |
CASE MAY BE CITED AS: | R v Benbrika and ors (Ruling No. 33) | |
MEDIUM NEUTRAL CITATION: | [2008] VSC 487 | |
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CRIMINAL PROCEDURE – trial – suppression orders – whether any longer required – access to affidavits and exhibits by media – undertaking to Court – order subject to verdicts disposing of trial and further argument – orders made after delivery of verdicts.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr R Maidment SC and Mr N Robinson SC with Mr D Lane and Ms L Taylor | Commonwealth DPP |
| 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 Kent | Mr J O’Sullivan | James Dowsley & Associates |
| For the Accused Sayadi | Ms N Karapanagiotidis | Robert Stary & Associates |
| For the Accused Taha | Mr J Montgomery SC | Robert Stary & Associates |
| For the Accused Merhi | Mr M Taft SC | Robert Stary & Associates |
| For the Accused Bassam Raad | Mr B Lindner | Robert Stary & Associates |
| For the Accused Ahmed Raad | Mr J McMahon | Robert Stary & Associates |
| For the Accused Hammoud | Mr D Brustman | Victoria Legal Aid |
| For the Accused Ezzit Raad | Mr G Barns | Slades & Parsons |
| For the Accused Majed Raad | Mr GP Mullaly | Slades & Parsons |
| For the Accused Haddara | Mr A D Trood | Robert Stary & Associates |
| For the media organisations | Mr S Mukerjea Mr J Cashen Ms I Lueckenhausen | Minter Ellison Lawyers Kelly Hazell Lawyers Tress Cox Lawyers |
| For the Chief Commissioner of Police | Mr G Maguire | Victorian Government Solicitor’s Office |
HIS HONOUR:
This ruling is concerned with the revocation of a number of court orders made before and during this trial to protect the integrity of the trial process, and to ensure as far as possible that publication of material having the potential to prejudice the fairness of the trial was kept to a minimum. It is also concerned with the question of access by the media to certain exhibits tendered in the course of the trial, for the purpose of informing their reporting of the trial and the verdict.
Applications by the media for revocation of orders and access to exhibits were foreshadowed in a letter from Minter Ellison of 4 August 2008 circulated to all interested parties. The applications were made orally in argument commencing on 25 August, after the jury retired to consider its verdict. They were heard before verdict to attempt to accommodate time pressures on media organisations. However it must be made clear that no orders will actually be made until verdicts are returned, and then only if they are appropriate.
On those applications, Mr Mukerjea, solicitor of Minter Ellison, was given leave to appear for The Age Company Ltd, publisher of The Age, Fairfax Digital Ltd, publisher of The Age online website, and the Australian Broadcasting Corporation. Mr Cashen, solicitor, was given leave to appear for the Herald and Weekly Times, Nine Network Australia, Channel Seven Melbourne and Nationwide News. Ms Lueckenhausen, solicitor, was given leave to appear for Network Ten Melbourne. Mr Gerard Maguire of counsel appeared, by leave, for the Chief Commissioner of Police.
By letter dated 14 August 2008, Marshalls & Dent, solicitors, advised the Court that they were instructed to join the application made by media organisations on behalf of a company called 360 Degree Films Pty Ltd. However, despite having been advised of the hearing set for 25 August, no application has been made, nor has leave been sought, to intervene in the proceeding to seek any appropriate relief on behalf of that company.
All those who appeared were given leave to do so having regard to the nature of their applications and their clients’ obvious legitimate interest in obtaining the revocation of suppression orders and access to exhibits.
The orders of which revocation was sought were conveniently tabulated by Mr Mukerjea in a document entitled ‘Suppression orders as at 4 August 2008’. In that document, those orders of which the media sought revocation were shaded in grey. A copy of that document will remain on the Court file for reference.
In a separate ruling delivered on 26 August 2008, the Court dealt with a number of orders concerned with the prevention of cross-referencing between this trial and a trial involving nine men currently being prepared in Sydney. The general result of the Court's review of those orders was that they would remain in place and, in one case, be extended. This was due to the imminence of another trial in this Court, concerning four of the present accused, which the Crown seeks to have heard shortly, and also because two counts excised from the original indictment in this trial have not yet been tried.
Consistently with the approach taken in that ruling, the question of whether orders now sought to be revoked should be revoked must be considered in light of the fact that one similar trial, and another potential trial involving a total of five of the present accused, are likely to be heard some time next year. The first of them could possibly be heard as early as the first quarter of next year, although such a timetable may be somewhat ambitious in the prevailing circumstances.
The pending case against four of the current accused is the subject of an indictment filed on 4 June 2007. Each of them is alleged to have engaged in preparation for a terrorist act by seeking to buy laboratory equipment from a firm called Haines, although such equipment was never actually obtained.
The two counts which were excised from the indictment currently being tried concern two of the accused who are said to have downloaded jihadi material from a website and modified it. By doing so, says the Crown, they provided support to a terrorist organisation, namely al-Qaida, contrary to s 102.7(1) of the Criminal Code Act 1995 (Cth), and made a document connected with preparation for a terrorist act contrary to s 101.5(1) of the Code.
The Crown's intention, as expressed by the prosecutor, Mr Robinson SC, is to seek to try the second indictment as soon as possible, and defer consideration of the severed counts until after that has occurred. It was noted in the Court's ruling of 26 August 2008 that the Crown looks forward to a trial of the second indictment commencing in the first quarter of next year.
How realistic the Crown's expectation is will depend upon a number of matters: the conclusion of this trial, including, if necessary, the imposition of any sentences rendered necessary by its result; the number, complexity and progress of preliminary applications on the second indictment; and administrative arrangements and judicial resources within the court. As a working assumption, a trial of the second indictment should be seen as likely to commence not earlier than the second quarter of 2009.
Izzydeen Atik
A number of the orders under consideration relate to Izzydeen Atik, who was originally an accused on the current indictment. Prior to the commencement of the trial, Atik pleaded guilty to the two counts he was facing. He was sentenced and subsequently gave evidence at the trial for the Crown.
A number of orders were put in place at various times to ensure that Atik's plea of guilty, by which he acknowledged the existence of a terrorist organisation – a proposition contested by other accused – was not published in such a way as to prejudice the trial. These orders extended to a prohibition on publishing the fact of his plea, his plea hearing and his sentence. Thus, although that plea hearing occurred in open court and he was sentenced publicly, the press has, to date, been unable to publish the details of that plea hearing or its result. Atik is currently serving a term of imprisonment the reasons for which have never been published outside the court room or in the mass media.
The suppression of publication of the imposition of a custodial sentence upon a person is a serious matter. Of suppression orders, it must be regarded as among the most extreme, to be resorted to only when absolutely necessary to serve the ends of justice, and then only for the minimum time necessary.
If the accused in the current trial, or some of them, are convicted of any of the offences of which they are charged, that fact will almost certainly be published widely, including, if it is the case, that they have been convicted of being members of a terrorist organisation. That Atik has admitted that he was also a member of such an organisation would appear to add little to the overall story. Realistically, it is reasonable to conclude that that fact would be completely overshadowed by the jury verdict in respect of those found guilty, if indeed there are any guilty verdicts. The effect of any such verdicts on the trial of the second indictment, and of the severed counts of this indictment, would likely be far greater than the revelation that Atik pleaded guilty and was sentenced last year.
If anything is going to delay the trial of the second indictment beyond the second quarter of next year, it will be remedial orders rendered necessary because of the jury verdict in this trial, not orders relating to the publication of Atik's plea and associated matters, including his subsequent abandoned appeal to the Court of Appeal.
That he is listed as a Crown witness in the trial of the second indictment would not appear to be relevant, although the media will need to be acutely aware of their sub judice responsibilities regarding his status as a witness, as they must always be when reporting complex interrelated criminal proceedings.
Subject to the verdict of the jury, it is now appropriate to revoke all orders relating to Atik's plea of guilty, his sentence, his appeal and the surrounding circumstances. Those orders which are currently operative would appear to be those of the 6 September 2007 (Ezzit Raad's bail application), 17 December 2007 and 11 February 2008. The last of these, although made by the Court of Appeal, may be revoked by this Court pursuant to a specific order of that Court.
Before leaving Atik, it is necessary to deal with an order made in respect of a charge of contempt in the face of the Court, heard and determined on 25 February 2008. The contemnor, a relative of one of the accused on trial, entered the courtroom wearing a T-shirt with the words ‘Izzy is a Rat’ prominently displayed on it. He was convicted, reprimanded and released. Reporting of the proceeding was suppressed in the interests of the trial which was then proceeding. As Atik gave evidence which, while implicating some of the accused, was subject to a very strong Faure accomplice warning, there would appear to be no necessity for or even utility in continuing the suppression order once a verdict in this case has been reached. Subject to any argument after verdict, it should be revoked.
Armytage and Anderson Affidavits; Order of 1 April 2008
After a hearing at which the Secretary of the Department of Justice, Penelope Armytage, was given leave to intervene and appeared by counsel, the Court made an order which, inter alia, required Ms Armytage personally, or by her nominee, to make and file an affidavit deposing to the accuseds’ then and proposed incarceration by reference to a series of conditions set out in the Court's ruling. In fact, two affidavits sworn on 31 May 2008 were filed, one by Ms Armytage and one by the Correctional Services Commissioner, Kelvin Anderson, purportedly on Ms Armytage's behalf. The affidavit of Ms Armytage contained 19 numbered paragraphs; that of Mr Anderson, 46 numbered paragraphs. The affidavits were said to be ‘in response’ to the Court’s ruling.
The order of the Court as to the requirement for the filing of an affidavit was specific in its terms and specific as to the matters to which the Secretary of the Department of Justice must depose. Rather than complying with that order in the terms required, each of the deponents to these affidavits inappropriately canvassed the Court’s ruling. The affidavits contained irrelevant and inappropriate comment which was in no way authorised by the order pursuant to which they were purportedly filed. Compliance with orders of the Supreme Court by those to whom they are directed, whether senior government officials or otherwise, is required by law to be precise. By its order the Court did not require, or indeed even permit, an affidavit ‘in response’ to its ruling. It required precise obedience to that ruling – no less and no more.
At the time the affidavits were filed, the Court was concerned to ensure that the accuseds’ trial resumed as soon as possible. Accordingly, the two affidavits were permitted to remain on the file in the form in which they were sworn, although, because of their failure to comply with the Court's order, a suppression on their publication was imposed.
Although notice of the application by the press for access to these affidavits was given to the solicitors who acted for the deponents of these affidavits, they did not appear to object to any order which might be made. The question now arises not only as to the lifting of that suppression order, but as to general media access to the affidavits themselves, which, being on a criminal file, would not normally be available. Had the Court not been concerned to resume the trial as soon as possible, it would have been appropriate then to reject the affidavits and require compliance with the Court's order in its terms. Little would be achieved by requiring that to be done now. However, it is appropriate that the offending material in the affidavits be now struck out as irrelevant. Whilst the form of each of the affidavits renders such a course difficult, it must be pursued. The original affidavits will remain in the Court file in a sealed condition. Redacted versions of the affidavits, complying as far as possible with the Court’s order, will be placed on the file and will be available to be searched.
The suppression order will remain and will be amended to add the words ‘other than in the redacted form authorised by order of this Court of (blank) September 2008’. The date of that order will be after the date of the verdict.
Paragraph 2 of the order of 1 April 2008 will be revoked.
The order of 16 March 2007
On 16 March 2007, the court ordered that there be a general suppression order in respect of two photographs of one of the accused, in which that accused is holding a military firearm said to be an AK-47. The provenance of the photographs has never been accurately established, and although they were apparently tendered at the accused's committal, the Crown never sought to tender them at trial.
These photographs are dramatic. Although probably taken a long time ago and in another country, they are of an accused who is still awaiting two trials. Publication of them is likely to leave a lasting impression on anyone who sees them. Unless those trials are delayed for a long time, they would be highly prejudicial to a fair trial, to which they would be legally irrelevant and, unlike much of the material which is likely to be published as a result of the lifting of the many of the current suppression orders after verdict, would be likely to leave a vivid, lasting impression on anyone who saw them.
Accordingly, the order made on 16 March 2007 concerning those photographs will not be revoked.
Order of 6 May 2008
This order relates to a bail application by one of the accused, Ahmed Raad. Concerns by Ahmed Raad’s counsel regarding its publication appear to have been resolved between counsel for Ahmed Raad, Mr McMahon, and Mr Mukerjea. If this is so, the need for this order no longer exists and, subject to the verdict in this case, it will also be revoked.
Other orders
It is acknowledged by all interested parties that several suppression orders made during this trial will probably no longer be required after verdict. They are orders of 4 June 2007 concerning the second indictment; 12 December 2007 concerning the construction of the prisoner's dock in Court 3.3; the order of 13 December 2007 concerning suppression of publication of the evidence in this trial; and the order of 20 March 2008 concerning some evidence of a witness called Helen Leeson on a stay application.
Subject to the verdict in this trial, these orders will all be revoked.
Access to other affidavits and similar material
In the course of a number of interlocutory applications, affidavits were filed by the accused and officers of Corrections Victoria concerning the custodial arrangements for the accused and other matters. Access is sought to those affidavits and associated material by the media interests.
No opposition to such access was voiced by any of the accused, and neither the Secretary of the Department of Justice, nor Corrections Victoria, who were advised of the application, raised any objection to their being made available for inspection.
As listed in the Minter Ellison letter of 4 August 2008, they were :
Affidavit of Rodney John Wise, sworn 20 March 2007;
Affidavit of Michael Francis Carroll, of unknown date;
Affidavit of Peta Murphy, of unknown date;
Affidavit of Michael Francis Carroll, 4 June 2007;
Affidavit of David Maxwell Prideaux, 28 February 2008;
Affidavit of Steven Nicholas Aird, 28 February 2008;
Transcript of evidence given before Melbourne Magistrates' Court, 26 October 2006, by Dr Douglas Bell;
Affidavit of Roderick John Wise, 28 February 2008; and
Affidavit of the Michael Francis Carroll, 28 February 2008.
All of this material is in the Court file, which would normally be unable to be searched. However, there would appear to be no good reason why, in this case, access to that material should not be permitted. Such access will be at the applicants' expense and will be supervised, as with exhibits in the case, by the Court's Media Liaison Officer. It will be subject to undertakings being given to the Court in a form proffered by Mr Mukerjea to apply to affidavits, exhibits and similar material.
DVDs of Bassam Raad
During the course of an interlocutory application, two DVDs were produced which contain video clips of Bassam Raad in different situations, each involving him in a situation of some agitation and alleged violence. One was of an altercation between him and some TV journalists outside the Melbourne Magistrates' Court, and the other was of an interview between him and AFP officers, in which he was being physically retrained during an attempted police interview. They were part of the evidence presented on behalf of Corrections Victoria on a stay application. They were alleged to demonstrate Bassam Raad's propensity for violence.
Mr Lindner, for Raad, argued that these DVDs should not be available for public inspection, even though they were tendered as evidence in a public court. He cited privacy concerns related to Bassam Raad's psychiatric state.
Such concerns cannot form the basis of a valid objection to the media's access to evidentiary material tendered in a court.
Whilst the Court can clearly withhold such material as a matter of discretion, such discretion must be exercised on appropriate grounds. Raad is not engaged in any pending proceedings so far as the Court is aware, and there would appear to be no other basis for withholding inspection. The DVDs will be released to the media on the usual undertakings after verdict in this case.
Exhibits
Following discussion as to the release of exhibits in the trial to the media, Mr Mukerjea produced a form of undertaking with a list of appended exhibits. Provided any of the represented media organisations gives the required undertaking to the Court, access to such exhibits may be provided to such organisation under the supervision of the Court Media Liaison Officer. All copying of exhibits must be done at the applicants' expense on equipment provided by it. No exhibit must be removed from the Court without an express order permitting such removal.
Liberty to apply generally in respect of exhibits will be reserved.
Rulings
Upon verdicts being returned in this case, in the absence of any contrary submission, a number of rulings which have been corrected, and published as being restricted, will be released and published as unrestricted. This does not apply to rulings numbered 6 and 19. Some rulings are yet to be written and still others are awaiting revision and publication. All of these rulings will in due course be published. They will generally be unrestricted unless the Court decides otherwise.
Conclusion
No orders will be made or revoked today. Following verdicts concluding this case, orders will be made generally in accordance with this ruling. However a final decision as to any order to be made will depend, of course, upon the form and effect of the verdicts returned, and upon any further argument arising out of those verdicts.
Further ruling of 15 September 2008
It was pointed out after the delivery of the Court's ruling on 1 September that two suppression orders have been overlooked, namely those of 21 and 22 March 2007, which were concerned to avoid prejudice to the fair trial of the accused on the indictment currently the subject of the jury's deliberations. They prohibited publication of statements made concerning any prior convictions of the accused, references to Osama bin Laden and al-Qaeda, any links the accused were said to have to terrorists and references to US security services. The suppression orders were made in the context of evidence before the Court on an application by the accused for a stay of proceedings.
As noted previously, a number of the accused in this case are still awaiting trial on another indictment and on counts excised from the current indictment. When those charges will be heard has been the subject of attempted estimate and to some extent conjecture. Having regard to the view the Court has taken that it is unlikely that they will be heard in the first quarter of next year, despite the Crown's optimism in that regard, it seems to me that it is inappropriate for those suppression orders to continue. The law of sub judice contempt should be sufficient to protect the accused from any prejudice arising from the publication of any material. Publication of prior convictions is a serious matter which would normally constitute a contempt, as would the association of the accused with the organisations and persons referred to in the suppression orders.
Accordingly, I propose to rescind those suppression orders upon verdict in this case, along with the other orders I've already said would be rescinded.
The Court’s orders of 16 September 2008
On 16 September the Court ordered:
1. That the suppression orders of this Court dated 22 March 2007, 4 June 2007, 6 September 2007, 12 December 2007, 13 December 2007, 17 December 2007, 25 February 2008 and 20 March 2008 be revoked;
2. That the Court of Appeal’s order of 11 February 2008 be revoked;
3. That the suppression order of 6 May 2008 be subject to a consent order;
4. That paragraph 1 of the order of 1 April 2008 be amended to read, ‘There be no publication by any means whatsoever of any material contained in affidavits sworn by Penelope Armytage and Kelvin John Anderson on 31 March 2008 and filed in compliance with the order of this Court of 20 March 2008, other than in the redacted form authorised by order of this Court of 16 September 2008’, and that paragraph 2 of that order be revoked;
5. That the media be granted access to exhibits and affidavits in the manner foreshadowed in the Court’s ruling of 1 September 2008; and
6. That all rulings other than those numbered 6, 10, 16, 17 and 19 be published.
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