R v Benbrika & Ors (Ruling no 8)

[2007] VSC 404

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:	30 October 2007
DATE OF RULING:	1 November 2007
CASE MAY BE CITED AS:	R v Benbrika (Ruling No. 8)
MEDIUM NEUTRAL CITATION:	[2007] VSC 404

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CRIMINAL TRIAL – Terrorism offences –  Evidence – Demonstration of explosive device to alleged leader of organisation – Relevance to case against other accused – Commonwealth Criminal Code 1995 s 100.1(2).

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr R Maidment SC with Mr N Robinson, 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 GP  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:

1. This application, brought by all accused other than Benbrika, seeks the exclusion of all evidence of and concerning the detonation of a small explosive charge made from fertiliser at Mt Disappointment, Victoria, on 6 October 2004.  The explosion was effected by an undercover police officer, SIO 39, who had infiltrated the Benbrika organisation in the period immediately prior to this date.  What is sought to be excluded, as became clearer in the course of argument, was evidence of the explosion itself and evidence as to its being arranged by SIO 39 and Benbrika beforehand, including evidence of some intercepted conversations concerning it. In truth, the application was for a direction that the evidence could not be used against any accused other than Benbrika as it was clearly admissible against him on a number of different grounds. 

1. On 22 September 2004 SIO 39, who had previously attended religious instruction classes conducted by Benbrika, went to Benbrika’s home and had a conversation with him.  He talked about obtaining explosives from Tasmania where he had previously worked.  Benbrika asked to be shown how to use explosives and queried SIO 39 as to whether he had ever thought of "doing something here."   Benbrika told SIO 39 he needed to know about explosives.  He asked him if he could tell him about explosives and, "Show me as soon as possible how to do it."  

1. At about 12.30 pm on 6 October 2004 SIO 39 went to Benbrika’s house, picked him up and took him to Mt Disappointment, a bush area east of the Hume Highway, near Kilmore, to the north of Melbourne.  On arrival at a remote spot, in what appears to have been a National park or similar reserve, Benbrika assisted SIO 39 to carry a small amount of fertilizer explosive from the car to a clearing where, after one unsuccessful attempt, it was detonated using a fuse and a detonator. 

1. After the demonstration SIO 39 and Benbrika returned to Melbourne.  The whole episode was filmed by two static surveillance cameras so that a permanent record of what actually occurred is available as part of the evidence. That record amply demonstrates what occurred.

1. The Crown case as to the relevance and admissibility of this evidence was argued by Mr Lane.  He submitted that the evidence logically tended to establish the existence of a fact in issue, namely that the organisation of which all the accused are said to have been members was a terrorist organisation within the meaning of the relevant statutory provisions.  He pointed to a number of conversations between various of the accused including Benbrika when the objects and methods of jihad and the damage to be inflicted by it on the population generally were discussed.  In none of these conversations, however, did Benbrika describe the Mt Disappointment demonstration or the fact that SIO 39, known to the other alleged members of the organisation as "the Turkish boy" or some similar title, had demonstrated explosives to him. 

1. Mr Montgomery SC argued that evidence of the Mt Disappointment episode was inadmissible because it was irrelevant to any issue in the trial.  In particular, he sought to counter the Crown argument that it was relevant to the issue of the nature and the objects of the organisation by pointing out that there was no evidence that Benbrika had ever shared knowledge of the Mt Disappointment demonstration with any other members of the organisation.  He rhetorically asked how could it be relevant to the nature of the organisation if no‑one else in the organisation knew of it.  Benbrika was off “on a frolic of his own” outside the organisation.  If it was an organisation activity he would have told the others about it. 

1. Mr Lane replied to Mr Montgomery by pointing to evidence that suggested that the organisation had always  operated on the basis that individual members were only told details of the group’s activities and plans on a "need to know" basis.  There is also evidence of Benbrika himself being careful and warning others to be careful about talking about the group: "... the more there are brothers who don’t know each other the better."  He explained this as leading to greater security and less chance of one member of the group being able to be forced to reveal information detrimental to all. 

1. But this explanation of the way the group operated is not necessary to demonstrate the relevance of the Mt Disappointment evidence.  Its relevance can be justified by concentrating on what the Crown must prove to establish count 1 against any accused.  The Crown must prove that the organisation referred to in count 1 is a terrorist organisation, that is to say it is an organisation having one or more of the characteristics attributed to a terrorist organisation by s 102.1 of the Commonwealth Criminal Code.  Integral to the definition of a terrorist organisation is the concept of a terrorist act which is defined in s 100.1(1) of the Code.  That definition incorporates the characteristics of a terrorist act set out in s 100.1(2).  They include causing serious harm or death to people, causing serious damage to property, creating serious risks to the health or safety of the public, et cetera. 

1. Count 1 on the indictment alleges that the organisation referred to in that count was a terrorist organisation because it was engaged in fostering or preparing the doing of a terrorist act.  Thus it is an essential part of the Crown case that it prove the organisation fostered or prepared the doing of such an act. 

1. Evidence that someone watched a demonstration of an explosive device is relevant to the question as to whether that person was preparing the doing of something involving the explosion of an explosive device.  With other material it could form an important part of a circumstantial case as to the preparation of a terrorist act. 

1. Evidence that the leader of an organisation took part in a demonstration of an explosive device is relevant to the issue as to whether the organisation itself was preparing the doing of a terrorist act as that concept is referred to in s 100.1(2) of the Criminal Code.  Whilst one explanation is, of course, that Benbrika was off on a frolic of his own and this had nothing to do with the group, it is also a reasonable inference that it did.  Combined with other evidence in a circumstantial case, a jury may well regard it as the only reasonable inference open and thus be entitled to use it to reason towards a conviction. 

1. The Mt Disappointment event does not prove of itself that any of the other accused was a member of the organisation.  That evidence must come from elsewhere but the fact that Benbrika told no‑one of the demonstration does not make it any the less relevant to prove the raison d’etre of the organisation itself.  Had Benbrika or any of the accused undertaken a course of private study in explosives or been in possession of books or manuals on explosive techniques, that evidence, too, would be relevant to the same question.  Whether all the evidence ultimately proves that the organisation is a terrorist organisation will be a matter for the jury.  The evidence sought to be excluded is relevant to the issue discussed and will be admitted.

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