R v Benbrika & Ors (Ruling no 5)

[2007] VSC 332

IN THE SUPREME COURT OF VICTORIA Not restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1544  of  2006

THE QUEEN

v

ABDUL NACER BENBRIKA, IZZYDEEN ATIK, AMER HADDARA, AIMEN JOUD, SHANE KENT, ABDULLAH MERHI, AHMED RAAD, EZZIT RAAD, FADAL SAYADI, HANY TAHA, SHOUE HAMMOUD, MAJED RAAD and BASSAM RAAD

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JUDGE:	BONGIORNO J
WHERE HELD:	Melbourne
DATE OF HEARING:	7 September 2007
DATE OF RULING:	7 September 2007
CASE MAY BE CITED AS:	R v Benbrika (Ruling No. 5)
MEDIUM NEUTRAL CITATION:	[2007] VSC 332

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TRIAL – Criminal trial – One accused pleads guilty and turns Queen’s evidence – Suppression of publication of plea and sentence – Interference with other accuseds’ right to a fair trial – Application to vary previous suppression order after cross-examination – Prisoner to be called as Crown witness  before a jury – Public Interest – Application refused – Total suppression order in place -  Supreme Court Act 1986, ss 18 and 19

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APPEARANCES:	Counsel	Solicitors
For the Crown	R. Maidment SC with N. Robinson, D. Lane and L. Taylor	Commonwealth DPP
For the Defendants	R. Van de Wiel QC J. Montgomery SC G. Barns	Doogue & O’Brien Robert Stary & Associates Slades & Parsons
For the Media interests	J. Quill ( solicitor)	Corrs Chambers Westgarth

HIS HONOUR:

1. On 23 August 2007, this court imposed suppression orders in respect of the publication of information concerning a plea of guilty to two terrorism offences by one Izzydeen Atik and the sentence imposed upon him following that plea.  Those suppression orders have remained in place since that date for the purpose of protecting the trial of 12 of Atik's co-accused which is currently at interlocutory stages and is due to commence before a jury on 4 February 2008.

1. Since the suppression orders were made Atik has been cross-examined by counsel for the other accused on a preliminary inquiry and the Crown has announced that he will be called as a witness at the forthcoming trial.  No proof of his evidence to be given at that trial has yet been served and it can be confidently predicted that after it is served there will follow legal argument as to the admissibility of at least part of it.

1. Various media organisations have now sought, by oral application, to have the suppression orders referred to varied so that some, at least, of the information concerning Atik now suppressed can be put into the public domain.  Mr Quill, of Corrs Chambers Westgarth, sought and was given leave to appear to behalf of the Herald and Weekly Times Ltd, interests associated with Channel 7 and Channel 9, the Australian Broadcasting Corporation and Nationwide News Ltd.

1. Mr Quill initially sought to have the suppression order lifted in respect of all of the information contained in paragraphs 1, 2, 48 and 61 and following of the court's published sentence concerning Atik.  Subsequently, he narrowed the application somewhat to confine it to paragraphs, 1, 2, 48 and 74, so as to permit publication of the fact that Atik had pleaded guilty to two specific charges and had been sentenced to certain terms of imprisonment. Mr Quill further conceded that if there were other matters in those paragraphs which he sought leave to publish which were inappropriate, they could also be deleted.  He relied upon the fact that the Crown now intend to call Atik as a witness so that his existence, at least, will be a matter before any jury ultimately empanelled to try the case.  Specifically, he referred to a comment in the court's sentencing remarks to the effect that the fact that Atik has pleaded guilty to certain offences will rapidly become known to any such jury.  Mr Quill submitted that the necessity for total suppression of Atik's situation no longer existed, and the public interest demanded that his disposition be now made public.

1. A number of counsel for others of the accused opposed Mr Quill's application.  They contested the fact that his plea of guilty will, as a matter of course, be put before the jury as it, of itself, is irrelevant to any fact in issue on the trial of his co-accused.  Further, they submitted that one of the central facts to be proved by the Crown in the case, namely that a terrorist organisation existed to which their clients and Atik belonged, is strongly contested.  It goes to the heart of the case and to the heart of the their defence.  The question of whether such an organisation ever existed will be a central issue for the jury in this case to consider and ultimately determine, they argued.

1. Publication of the fact that Atik has pleaded guilty to being a member of such an organisation and has thereby admitted its existence will, irremediably prejudice their client's case.  In effect, the existence of the organisation will itself become a public given fact.

1. At this stage of this proceedings it is impossible to predict what use will be made of Atik's evidence in this case.  Undoubtedly, very severe warnings will need to be given to the jury concerning his credit, not just because he has turned Queen's evidence, but also because of the considerable inroads made in respect of his credit by cross-examination on the recent preliminary inquiry. Again, whether his plea will ever be put before the jury, either simply or in detail, cannot be predicted until the trial before the jury is under way.

1. Having considered this matter carefully and having borne in mind the prima facie position that a plea of guilty in, and a sentence imposed by, the courts of this state should in the ordinary course be able to be made public contemporaneously with their occurrence, there are exceptions, and this is one of them.  It is imperative that this case proceed in February 2008.  The accused are in custody and the law is such that it is difficult for them to satisfy the onus cast upon them to justify their being bailed.  Any further delay would cause a grave injustice to them.  If that delay was caused because of the necessity to allow time, or more time, to go by in respect of unfortunate publicity, the injustice would be even greater.  Although it might be concluded that it would be possible, by skilful legal drafting to edit the facts surrounding Atik's plea and sentence to an anodyne formula, which might be able to be published, one could never reach a state of satisfaction that even then a problem would not be created which cannot be foreseen.

1. In the circumstances, the suppression orders of 23 August 2007 will remain in force.  To them will be added now a further order totally suppressing publication of the fact of this application having been made and of its outcome, including these reasons for judgment.