R v Benbrika & Ors (Ruling No 7)
[2007] VSC 425
•30 October 2007
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. 1544 of 2006
| THE QUEEN |
| v |
| ABDUL NACER BENBRIKA AND OTHERS |
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JUDGE: | BONGIORNO J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 22, 23, 24 October 2007 | |
DATE OF RULING: | Tuesday 30 October 2007 | |
CASE MAY BE CITED AS: | R v Benbrika (Ruling No. 7) | |
MEDIUM NEUTRAL CITATION: | [2007] VSC 425 | |
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TRIAL – Criminal trial – Terrorism – Evidence - Application to exclude evidence – Nature of terrorist organisation – Fostering the doing of a terrorist act by associated Sydney accused – Unfairness to accused – Judicial case management – Forensic disadvantage – Danger in cross-examination – Application dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr N Robinson with 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:
The 12 accused remaining in this trial each face one count of knowingly being a member of a terrorist organisation, that is to say, knowingly being a member of an organisation which, in this case, directly or indirectly was fostering or preparing the doing of a terrorist act contrary to s.102.3(1) of the Commonwealth Criminal Code. To gain a conviction on such a count the Crown will have to prove the existence of an organisation having the characteristics of, “fostering or preparing the doing of a terrorist act.”
The Crown case is that the organisation existed and that it actively fostered the doing of a terrorist act both in respect of its own members and in respect of other persons who were not or will not be proved to be members of it. Among those persons were four young men, Abdul Rakib Hasan, Khaled Sharouf, Khaled Cheikho and Mohammed Elomar, all of whom reside in Sydney or New South Wales but who associated with members of the organisation in Sydney and in Melbourne and on one occasion in Louth, a remote area of western New South Wales about 850 kilometres northwest of Sydney.
In proof that the organisation fostered the doing of a terrorist act by these four young men the Crown seeks to prove their association with four members of the organisation on various dates in late 2004 and 2005. The Crown says that evidence of those associations, of certain activities in which they engaged, and all the surrounding circumstances, are relevant and admissible in support of a circumstantial case that the organisation fostered them in the doing of a terrorist act. The specific evidence which the Crown intends to lead falls into seven distinct categories and may be summarised as follows:
1. 5 to 7 December 2004.
On the weekend of 5 to 7 December 2004 the accused Joud, Sayadi, Majed Raad and Benbrika went to Sydney. Benbrika flew, the others went in a hired car. They stayed in a motel in Casula and although they went to various parts of Lakemba and got out of a car near Abdul Rakib Hasan’s home there is no evidence of their having had contact with Hasan or the other Sydney men, unless such can be inferred from the fact of Majed Raad’s saying to a co‑accused Merhi, who remained in Melbourne, “Oh, we are just with the brothers.” However, the facts as able to be proved appear at least to put them in close proximity to Hasan on this weekend.
2. 7 December 2004.
On 7 December 2004 Joud phoned Atik, the accused who has now pleaded guilty to two counts and has been sentenced, and asked him to acquire an airline ticket or tickets from Sydney to Melbourne. Atik did so using a fraudulently acquired credit card or credit card number. The tickets were used by Benbrika and Joud to return to Melbourne but before they did so Hasan visited them at the Casula motel. Sayadi and Majed Raad drove back to Melbourne in the hired car.
3. 29 December 2004.
On this day Hasan went to Benbrika’s house in Melbourne and told him that Mohammed Elomar was in Melbourne and asked him if he, Benbrika, wanted to meet Elomar in a park. The Crown case is that the inference from this meeting is that Benbrika fostered Elomar and possibly Hasan in the doing of a terrorist act.
4. 10 January 2005.
The Crown seeks to lead evidence of a conversation at Benbrika’s residence between Benbrika, Khaled Sharouf and Atik concerning violent jihad. Part of the conversation is theological in tone and concerns martyrdom in the cause of Allah of someone who “makes a migration,” a phrase which the Crown says means violent jihad in the context in which it was used.
5. 23 February 2005.
On the morning of this day, the Crown says, a New South Wales registered motor vehicle which Hasan had driven to visit Joud and Benbrika on 7 December 2004 was parked near Benbrika’s residence in Dallas. Later that day the New South Wales vehicle and a vehicle driven by Benbrika were seen near Benbrika’s residence. Later still, another vehicle driven by Sayadi with three or four passengers in the back drove away from the area of Benbrika’s residence. It later returned with Sayadi and Joud in the front seat and three passengers in the rear seat. Later still it travelled away from the area of Benbrika’s residence with only Sayadi and Joud in it.
The Crown says the inferences open from all this activity is that Sayadi and Joud met Benbrika, Hasan and Khaled Sharouf and spent time with them until returning them to Benbrika’s residence.
Part of an intercepted conversation between Benbrika, Sharouf and Hasan on the evening of 23 February concerned a 1,600‑page book “Call Of the Global Jihadi Resistance, Your Guide to the Jihad” and Benbrika’s desire to publish and distribute it. Later, Joud joined them and the conversation, apparently led by Benbrika, concerned the necessity for a mujahid to be prepared even for death for jihad in the course of inflicting maximum damage to buildings and people “just to show them”. This is the so‑called “maximum damage” conversation.
6. Louth ‑ 16 to 18 March 2005.
The Crown alleges that Joud, Sayadi and Ahmed Raad attended a training camp at Louth, a remote 130,000 acre cattle station in western New South Wales which had been hired by someone in an assumed name, “Adam Georges.” Also there were Sharouf, Elomar, Cheikho and Hasan. The Crown seeks to lead evidence as to the preparations for this exercise undertaken by those who attended and Benbrika, the arrangements which were put in place for the journey to Louth from Melbourne via Sydney, their accommodation en route and their activities once there. In particular, the Crown seeks to lead and rely upon a number of objects found at the site of what it says was the camp used by the accused and the others. These objects included a crude electrical device involving a battery and a spark plug which, the Crown says, had been constructed by one or other of the attendees at the training camp in an unsuccessful attempt to make a detonator which could be used to detonate explosives. The Crown also seeks to use an intercepted conversation between Benbrika and Ahmed Raad on 17 May 2005 in which the Louth trip is discussed in terms of approval.
7. 4 and 5 May 2005.
The Crown says that on 4 May 2005 Hasan, Sharouf and Elomar came to Melbourne and stayed at a motel in Campbellfield. They visited Benbrika at his home and were visited by Ahmed Raad at the motel. On the following day the three returned by car to Sydney and that evening Atik had a telephone conversation about their visit with Benbrika in which Benbrika warned him to say nothing.
In respect of each of the activities referred to in the seven matters outlined, the Crown seeks to rely on a number of intercepted conversations involving various of the relevant actors at various times discussing the activities of the organization and its members, including numerous references to Sydney and the “Sydney brothers”.
The Crown argues that all of this evidence concerning the seven matters referred to is admissible as going to the nature and existence of the terrorist organisation referred to in count 1 on the indictment, the membership of Benbrika, Sayadi, Ahmed Raad and Joud and the organisation’s fostering of the “Sydney brothers” in the carrying out of a terrorist act.
In arguing the relevance of this evidence the prosecutor, Mr Robinson, submitted that various of the conversations referred to by the Crown encouraged and were supportive of violent jihad. They showed organization, membership, operation and co‑ordination of the organization and they involved individuals who were demonstrating their membership of the organization. The subterfuge concerning airline tickets, the use of borrowed and hired vehicles and attempts, particularly by Benbrika, to prevent disclosure of what was occurring led, submitted Mr Robinson, to an inference that they were fostering a terrorist act by dealing with the Sydney brothers.
The Crown’s case for including the evidence being discussed is that regardless of whether the Sydney brothers were influenced to do any particular thing by Benbrika and the Melbourne accused, or any of them, these accused, and the organization the Crown says they belonged to, “fostered” the doing of a terrorist act by the Sydney brothers. This is so, argues the prosecution, because although the word “foster” has not been defined in the legislation and has not been the subject of argument yet in this case, the acts relied upon by the Crown come within any possible definition of the word. There is no need, submits the prosecutor, for the Crown to prove that any particular person, said to have been subject of an act of fostering, has taken any action as a result; so that anything the Sydney brothers might have done or not done, subsequent to any action by the organization referred to in count 1 on the indictment, will not be adduced in evidence by the Crown. Thus the fact of their having been charged and committed for trial in Sydney on terrorism offences, as well as any act forming any part of the charges they face, will not be part of this trial.
All of the accused sought exclusion of all of this evidence on the ground that it is irrelevant to any issue in the case. Alternatively that it should be excluded in the exercise of the court’s discretion on a number of different bases. Mr McMahon, counsel for Ahmed Raad, presented the argument for exclusion on behalf of all accused. He was supported subsequently by Mr Mullaly, Mr Taft and briefly, Mr Brustman. Virtually all of the accused had, earlier in the proceedings, signalled objection to any evidence concerning any association between them, or any of them, and young Muslim men from Sydney. The objections taken were those finally argued by Mr McMahon.
Mr McMahon’s argument embraced relevance and discretionary exclusion on the basis of unfairness. The unfairness stems, he argued, from a number of different circumstances. First, there is the fact that the Crown has put its total case in three indictments: the one this court is concerned with now; the second indictment filed in this court concerning Benbrika, Joud, Sayadi and Ahmed Raad; and the Sydney indictment which will be also tried next year and in which the Sydney men already referred to are accused. Splitting its case in this way, submitted Mr McMahon, creates unfairness because the Crown will lead only a portion of its evidence in this case leaving the rest to be adduced in the second trial and/or perhaps in the Sydney trial. As an example of unfairness arising from this circumstance, Mr McMahon pointed to the conversations sought to be adduced here in which Benbrika refers to jihad inflicting “maximum damage” ‑ the “maximum damage” conversation. He says that that was merely the end of a much longer conversation which will be adduced in the second trial which includes extensive discussion about a chemical catalogue published by Haines Chemicals and about buying equipment and chemicals from Haines. Any attempt by an accused in this trial to deal with the “maximum damage” conversation may result in this evidence being put before the jury, either by the Crown or by cross‑examination by an accused of a relevant witness. This, says Mr McMahon, is unfair because of the forensic disadvantage visited upon the accused by reason of the fact the Crown has not led its whole case. He cannot risk cross‑examination. He cannot tackle the issue, says Mr McMahon. Alternatively, it may be in some accused’s interests to open up all this highly prejudicial material, such that other accused are placed at a forensic disadvantage, so the argument goes. All of this creates unfairness as to enliven the unfairness discretion, that is to say, the residual general discretion to exclude even relevant and admissible evidence when relevant unfairness to an accused person would result from its admission: R v Peirce,[1] R v. Driscoll[2], and R v. Swaffield[3]. The relevant form of unfairness is related to the law’s protection of the rights and privileges of an accused: Tofilau v The Queen.[4]
[1](1992) 1 VR 273.
[2](1977) 137 CLR 517, 541, Gibbs CJ.
[3](1998) 192 CLR 159, 189, Toohey, Gaudron and Gummow JJ.
[4](2007) HCA 39, Gleeson CJ at paragraph 3.
Again, Mr McMahon submitted that unfairness would result to one or more of the accused if Atik, the accused who turned Queen’s evidence, was permitted to give evidence concerning the accuseds’ links to the Sydney men. He would be unable to be properly cross‑examined because he would be unlikely to be able to be confined to responsive answers to questions and a cross‑examiner would be unable to control the evidence. Further, Mr McMahon pointed to a large number of telephone intercept and listening device recorded conversations which he said disclosed close links between the accused and the “Sydney brothers” which would inevitably lead the jury to speculate about the relationship between the accused and people charged in Sydney who will probably be standing trial before the New South Wales Supreme Court at the same time as this trial is being heard. Mr McMahon submitted that all of the difficulties raised by the Sydney evidence would be overcome if it was “surgically removed” from the trial.
A close analysis of Mr McMahon’s submissions reveals three things. First, they do not really involve any substantive argument that any of the evidence which is the subject of the accused’s applications for exclusion is inadmissible because it is irrelevant; secondly, it is essential to Mr McMahon’s argument as to unfairness that it be accepted that linking the accused to the Sydney brothers is prejudicial to the accuseds’ case because of the fact that the Sydney men are or are about to be on trial for serious terrorism offences; thirdly, any unfairness arising from the limited nature of the Crown case arises not from the evidence sought to be adduced itself, but rather from the fear that any attempt by any accused to probe that evidence, whether by cross‑examination of Atik or anyone else, or by taking any other step in their defence, will involve a risk of further relevant and admissible evidence probative of the accused’s guilt being adduced either deliberately or by accident.
The first of these observations needs little comment. All of the evidence sought to be led is relevant and admissible. The Crown case is largely a circumstantial one depending upon inferences from circumstances: many and varied circumstances, any one of which would probably be insufficient to prove guilt but all of them possibly capable of doing so in the aggregate. The accused’s association with the Sydney brothers culminating in the Louth trip is capable of being accepted by the jury as involving the fostering of an unspecified terrorist act by the organization referred to in count 1. The Louth trip itself is an important piece of evidence as to the nature and purpose of the organization itself and of some of the accused’s participation in it.
The second observation that unfairness or prejudice affects this evidence or this part of the Crown case because of the fact that the jury will know of the Sydney brothers trial on terrorism offences itself raises two considerations. First, on 20 March 2007 this Court made an order suppressing publication of any reference to the Sydney charges to be tried next year. That order is and will remain in force for as long as is necessary to protect this trial. It has been properly publicized and is unlikely to be breached. If it is, such steps as are then necessary will be taken to ensure as far as possible that these accused suffer no prejudice as a result of publicity such as to render their trial unfair.
Secondly, the Crown has offered to take steps to disguise the true identity of the four Sydney men involved in this evidence to allay any residual concerns. The prosecutor and defence counsel may reach agreement on this matter should they wish to do so, subject to proper procedures being adopted to ensure that no failure of process is involved. Further consideration should be given by the prosecution to ensuring that the material in intercepted conversations to be put before the jury is confined strictly to matters truly relevant. Should there be any need for the Court to consider these conversations further on an individual basis it will do so on a proper application.
The third observation on Mr McMahon’s submission can be shortly dealt with. The difficulty Mr McMahon referred to is not produced by the Crown’s leading the evidence it seeks to lead. Problems that the leading of that evidence produces will be forensic problems which will have to be dealt with as defence counsel always have to deal with such problems. Whether to cross‑examine and in what way and on what topics will be a matter for forensic judgment. It is not relevantly unfair in this instance for the Crown to seek to lead only some of its available evidence probative of the accused’s guilt and leave out other evidence. The fact that other evidence exists is not a secret. The dangers inherent in cross‑examination of the evidence which will be led will be well known to the accused’s counsel and will be the subject of their professional forensic judgment in due course. No basis exists for excluding that evidence on the ground of relevant unfairness.
Mr Mullaly supported all of Mr McMahon’s arguments. In the case of his client he said he could be swamped by the overwhelming size of the case. He referred to cases where such a danger might lead to some remedial measure being taken. Those cases are not this case. The jury will be carefully directed in due course as to the evidence against each accused on the counts which he faces. Mr Mullaly submitted that “robust case management” should lead the court to exclude this evidence. The evidence is not extensive in amount or disruptive in form and, especially the Louth evidence, may be highly probative of the activities of the organization alleged to exist in count 1 of the indictment. No basis exists for excluding the evidence on case management grounds even if the case was such that it was permissible to do so over the objection of the prosecution.
In his principal submission Mr Mullaly reiterated Mr McMahon’s concern as to difficulties in running an accused’s case where danger lurked in cross‑examination. The answer to his submission is the same as that to Mr McMahon’s; counsel must often make forensic decisions on cross‑examination or other matters which arise in a criminal case. The decision which may be required in this case are not out of the ordinary. In particular care must always be taken when cross‑examining a former accomplice who has turned Queen’s evidence.
Finally, in a supplementary submission received by the court after the hearing was finished, which exceptionally, the Court will entertain, Mr Mullaly argued that to lead this evidence would deprive the accused of the right to choose whether to give evidence himself. The argument goes that, for example, if an accused wish to explain the “maximum damage conversation “ in innocent terms he may have to open up the Haines Chemical conversation which was part of it or preceded it. Or if he did give evidence he might be at risk of cross‑examination on matters not put by the Crown in its case. But these again are merely forensic problems. If the accused found it necessary to give evidence of the Haines Chemical conversation to exculpate himself from the maximum damage conversation he has the right, of course, to do so. He may be in a similar position to an accused charged with murder who may have to give evidence that he was committing an armed robbery elsewhere at the relevant time to establish an alibi. In any event there is an air of unreality about an accused having to expand the Crown case to explain one aspect of it consistent with his innocence. It must be remembered that the Crown maintains that all the evidence in this case is relevant and admissible against all accused.
If the accused was to give evidence the Crown would, in the ordinary case, be precluded from cross‑examining him on a part of its case it did not present, subject always, of course, to any step which the accused took which rendered it appropriate for the Crown to be given leave so to cross‑examine. Again, forensic judgment on the part of the accused’s counsel is required.
There is no unfairness in the relevant sense in what the Crown proposes. No discretionary considerations to justify exclusion of the evidence have been raised.
Finally, Mr Taft raised a similar but separate point concerning the possible need for his client to raise the Haines Chemical conversation to defend his position. The answer to Mr Taft’s submissions is the same as that to Mr Mullaly’s.
In all the circumstances, no case is made out for the exclusion of any of the evidence sought to be led by the Crown. If any agreement is subsequently reached concerning anonymity of the four Sydney men the Court can be informed in due course. Similarly, if any specific intercepted conversations are sought to be excluded as irrelevant or as creating undue prejudice and agreement cannot be reached, a written application specifying the conversation and shortly arguing its exclusion should be filed. It will then be listed and heard.
Finally, it should be realised that all preliminary rulings on evidence are always provisional. Should circumstances change they may always be revisited.
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