R v Benbrika (Ruling No. 19)

IN THE SUPREME COURT OF VICTORIA	Not Restricted
AT MELBOURNE CRIMINAL DIVISION

No. 1544 of 2006

THE QUEEN

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:	20 February 2008
DATE OF RULING:	21 February 2008
CASE MAY BE CITED AS:	R v Benbrika and ors (Ruling No. 19)
MEDIUM NEUTRAL CITATION:	[2008] VSC 48

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CRIMINAL LAW – Trial – Terrorism offences – Suppression of publication of evidence to protect trial in another State – power to make effective order - grounds for making such order – ss 18, 19 Supreme Court Act 1986.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr R Maidment SC and	Commonwealth DPP
Mr N Robinson SC with Mr D Lane and Ms L Taylor
For the Accused Benbrika	Mr R Van de Wiel QC with	Doogue & O’Brien
Mr A Halphen
For the Accused Joud	Mr T E Wraight	Lethbridges
For the Accused Kent	Mr J O’Sullivan	Robert Stary & 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	Mr B Lindner	Robert Stary & Associates
Raad
For the Accused Ahmed	Mr J McMahon	Robert Stary & Associates
Raad
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 interveners	Mr P Lange and	Lawyers Corp Pty Ltd
Mr C Waterstreet
For the Crown (Sydney trial)	Mr Bellew SC	Commonwealth DPP
HIS HONOUR:

The trial of the 12 accused in this case commenced before a jury on Wednesday, 13 February 2008. The prosecutor, Mr Maidment SC, began to open the case for the Crown. He said the opening would take several days to complete. As was to be expected, the Crown opening attracted significant media attention so that newspapers and the electronic media in this city and beyond published much of that opening on Wednesday evening. They have continued to publish extensive reports each day since. The names of each of the accused have been prominently mentioned in almost every report, with particular prominence given to the first accused, Abdul Nacer Benbrika. It can be confidently expected that this coverage will continue throughout the rest of Mr Maidment’s opening and thereafter as the evidence outlined by him unfolds before the jury.
It is part of the Crown case that Benbrika and some of the other accused were familiar with a number of men in Sydney, who, it is alleged, were of like mind to them: promoters of violent jihad in what they claimed was the Islamic cause. There were trips made by Benbrika and others to Sydney for meetings with these men and at least one reciprocal visit when some Sydney men came to Melbourne.
The Crown alleges that the organisation it says Benbrika headed in Melbourne was, in fact, fostering the doing of a terrorist act or acts by the Sydney men. It alleges that on one occasion some of the Melbourne accused attended a training camp with a number of the Sydney men on a property at a place called Louth in outback New South Wales, beyond Bourke. Thus, the existence of the Sydney men and their alleged interest in violent jihad has been, or will be, put before this jury in Mr Maidment’s opening and subsequently in the evidence, although there is no allegation that the Sydney men were part of the Benbrika organisation, nor is there alleged any conspiracy between the two groups to engage in any joint enterprise of violent jihad or any other criminal activity. Overall, the Sydney connection would seem to play a relatively minor role in the Crown case in this trial, but it does play some role and the Sydney men have been and will be mentioned as the trial proceeds.
Nine Sydney men, including some at least of those already referred to, have been indicted by the Commonwealth Director of Public Prosecutions on one count of conspiracy at common law to do acts in preparation for a terrorist act or acts. The trial of that indictment is due to commence with a series of motions put on by a number of the accused on Monday next, 25 February, before Whealy, J in the Supreme Court of New South Wales sitting at Parramatta. When those preliminary matters have been disposed of a jury will be empanelled to try the conspiracy alleged.
On Friday of last week, this Court was informally advised by counsel for the nine Sydney accused that these men would seek leave to intervene in the Melbourne proceeding and, if granted such leave, would seek certain non-publication or suppression orders in respect of any reference in this trial to any of them having any connection with the Melbourne accused and, in particular, Benbrika. Specifically, they sought to achieve the desired suppression by an order of this Court which would require the media to refer to Benbrika in connection with this trial only by a pseudonym - “C” or “Mr C”. It would prohibit the naming of the Sydney accused either individually or by any collective title and would prohibit publication of any connection between them and the accused in this trial. These orders would, it was said, protect the Sydney accused from being tried by a jury chosen from a population which had been exposed to media reports of this trial as it progressed and, in particular, exposed to the Crown’s allegations against Benbrika and the other accused and their connection with the Sydney accused.
In the event, the foreshadowed application was argued on Wednesday, 20 February by Mr Lange and Mr Waterstreet of Counsel for the Sydney accused. It was opposed by the Commonwealth Director of Public Prosecutions, who appeared on the application by one of the prosecutors in the Sydney trial, Mr Bellew SC. Mr Montgomery SC, Mr van de Wiel SC and Mr Wraight on behalf of all the accused in this trial also opposed the proposed interveners’ application. Dr McEvoy of counsel appeared, by leave, for the media interests - The Age Company Limited, John Fairfax Publications Pty Ltd, The Australian Broadcasting Corporation, The Herald and Weekly Times Pty Ltd, Nationwide News Pty Ltd, Nine Network Australia and Channel 7, Melbourne - thus all major local and national media except for Channel 10 and SBS were represented.
The applicants’ interest in seeking to intervene to try to obtain these orders was, of course, to prevent the undesired publication in the area from which the jury pool would be chosen for their trial: that is to say, New South Wales and specifically Sydney or, perhaps even more specifically, Sydney West.
Intervention
Mr Lange argued that the applicants should be permitted to intervene in this trial because they had an interest to protect in seeking the orders they did. No other party opposed the intervention. It would, accordingly, be convenient to permit intervention to enable the applicants to seek the remedy they claim rather than require them to institute other proceedings seeking the same remedy. Accordingly, there will be an order that the nine Sydney accused, by name, be added to this proceeding as interveners.
Jurisdiction
Mr Lange argued that this Court had jurisdiction, conferred by sections 18 and 19 of the Supreme Court Act 1986, to prohibit relevant publication outside Victoria, even, perhaps, whilst not prohibiting such publication within Victoria. This proposition was not contradicted by any other party. Mr Lange argued that in this case the Court was exercising federal jurisdiction, conferred originally upon the High Court by The Constitution and then on State Supreme Courts by the Judiciary Act 1903 (C’th). Thus, its jurisdiction was Australia wide as if it were a federal court. He referred to a passage in the judgment of Gaudron J in Commonwealth v Mewett,[1] to the effect that whenever a State court exercises federal jurisdiction it does so unconstrained by state geographical limitations. It exercises jurisdiction not in a State, but in Australia - what the majority (Gaudron, Gummow and Hayne JJ) described in Lipohar v The Queen[2] as “national jurisdiction.”
[1] (1996) 191 CLR 471, 524.
[2] (1999) 200 CLR 485, 513.
Mr Lange argued that in exercising that national jurisdiction, this Court brings with it all its inherent and statutory powers, including those conferred by sections 18 and 19 of the Supreme Court Act 1986. Section 19 provides that a suppression or non- publication order may be made if it is necessary in order not to prejudice the administration of justice. Mr Lange submitted that the phrase “the administration of justice” includes, in the context of federal jurisdiction, the administration of justice throughout the Commonwealth. This is particularly so where what is sought to be achieved is the protection of an accused person’s right to a fair trial in another State Supreme Court, also exercising federal jurisdiction.
Resort to this Court is rendered necessary, so Mr Lange’s argument goes, because there is no equivalent to sections 18 and 19 of the Supreme Court Act 1986 in New South Wales and the Court of Criminal Appeal of that State has held that the inherent jurisdiction of the Supreme Court does not extend to making general non-publication orders which purport to bind persons who are not parties to the relevant proceeding or are not physically or notionally present in court when the order is made: John Fairfax Publications Pty Ltd v District Court of the New South Wales.[3] The only remedy available in the New South Wales Supreme Court, argued Mr Lange, would be a quia timet injunction to restrain a threatened contempt of court, a course not favoured by the law and a power to be exercised sparingly : Herald and Weekly Times Pty Ltd v A,[4] and Pickering v Liverpool Daily Post and Echo Newspaper PLC.[5]
[3] (2004) 61 NSWLR 344, 363 per Spigelman CJ.
[4] (2005) 160 A Crim R 299.
[5] (1991) 2 AC 370.
In this brief summary I fear I have not done justice to Mr Lange’s interesting argument, but as it has not been contradicted by any other party, it may, for present purposes at least, be accepted as broadly expressing the law to be applied to the questions to be decided here, namely whether this Court should grant the orders sought.
In support of their case the interveners relied upon an affidavit of Trisha Randhawa, their solicitor, sworn 19 February 2008 which attested to the publicity that this trial is receiving in the Sydney media and exhibited outlines of the Crown case in both this trial and the forthcoming Sydney trial. It is sufficient to observe with respect to this evidence that media interest in this trial in Sydney mirrors that which it is receiving here as Mr Maidment’s opening of the case continues. Mr Waterstreet, who argued the factual aspects of the interveners’ case, submitted that it could be safely inferred that reporting of this trial would continue in Sydney in the same vein unless there is judicial intervention. He identified three categories of evidence which he said have been highlighted in the opening of this trial which are highly prejudicial to the fair trial of the Sydney accused:
1.        Benbrika’s contact with SIO39, an undercover police officer, particularly with respect to his contact with Benbrika concerning explosives;
2.        References to the accused in this trial wishing to perform terrorist acts with respect to football grounds and railway stations; and
3.        Statements concerning Benbrika and his co-accused which are not part of the Sydney case.
In his opening, Mr Maidment has, by agreement with counsel for the accused in this trial, refrained from mentioning the surnames of any of the Sydney accused, referring to them solely by their first names and resorting to numbers where necessary: for example, Khaled 1 and Khaled 2. However, argued Mr Waterstreet, when a series of first names is used, which happen to be the first names of the Sydney accused, this restraint by the Crown has become ineffective to protect them from being identified as being allegedly connected with the accused in this case.
Mr Waterstreet addressed the question of the likely time between media reporting of this trial and the empanelment of a jury in Parramatta, by optimistically submitting that this could occur within a month, although he finally conceded, when pressed, that it may be as much as three months. If, however, Benbrika’s name and all connections between him, (and presumably all of his co-accused) and the Sydney accused was prohibited from publication, the sting would be removed from the prejudicial situation which, he argued, is being created by the current publicity.
The Crown relied upon an affidavit from a solicitor from the Sydney Office of the Commonwealth Director of Public Prosecutions, Pierrette Louise Mizzi, sworn 19 February 2008, which conveniently summarised the known pre-trial applications which Whealy J will commence to hear on Monday next. There are 11 separate notices of motion already filed covering a number of disparate topics ranging from a change of venue and vacation of the trial date to separate trial applications and applications concerned with the exclusion of evidence. There is also, it would appear, a fitness to plead issue in respect of one accused, which may, itself, take some time to resolve and may require a jury.
These notices of motion have been put on by only five of the nine accused and, as Mr Bellew SC for the Crown submitted, it can be confidently predicted that there will be more, perhaps many more, as the matter proceeds.
Being realistic and applying the experience of this Court in pre-trial applications with which it had to deal over the greater part of last year, it could not be reasonably anticipated that a jury will be empanelled in Parramatta in anything like the time contended for by Mr Waterstreet. Insofar as these matters can be predicted at all, I would venture to suggest that six months would be the minimum time which would elapse before empanelment, particularly if, as Mr Bellew noted, interlocutory appeals are taken to the Court of Criminal Appeal, a step available in New South Wales somewhat more freely than it would be here. Of course, on present estimates, the Melbourne trial will not conclude within those six months, so that it is likely there will still be some publication likely of the evidence or argument being placed before this Court at the time the Sydney jury is empanelled, although, having regard to the very minor role the Sydney connection will play in this trial, publication of that connection at an inconvenient time is not particularly likely.
Mr Bellew informed the Court that the Crown in the Sydney case will open and call evidence of the relationship between Benbrika and the Sydney accused as a relevant matter in that trial. In that context Benbrika will be presented as someone holding views similar to those alleged to be held by at least some of the Sydney accused. His association with them will be the subject of evidence. In an exhibit to her affidavit, Ms Mizzi sets out 21 matters on which evidence will be led in the Sydney trial concerning not only Benbrika, but also, in many cases, other Melbourne accused such as Joud, Sayadi and one of the Raads. Thus, it would seem, they will be portrayed by the Crown in Sydney in much the same way as they are currently being portrayed in this Court.
Mr Waterstreet emphasized that to permit proceedings in Melbourne to be fully reported in the Sydney media now will cause Benbrika to be indelibly tainted so that, when his association with the Sydney accused becomes the subject of evidence, he will be seen by the jury as being an undesirable in the context of that association. He will be “carrying baggage” which will be known already to the potential and actual jurors, argued Mr Waterstreet. But of course, such a conclusion depends upon jurors remembering the details of Benbrika which is now being published, or which will be published in the future, and it ignores the effect of warnings which will be undoubtedly given to them by Whealy J that they must decide the case on the evidence presented. The capacity of adverse publicity attaching to Benbrika being productive, as a matter of practical reality, of operative prejudice to the Sydney accused will thus be considerably reduced, if not eliminated. That such warnings and instructions as to how they must approach their task will be heeded by the jury is a fundamental assumption of our system of criminal justice. There is no reason to believe that that assumption will not be justified in all the circumstances of this case. See particularly R v Glennon[6], where Mason CJ and Toohey J acknowledged the possibility of the acquisition by a jury of prejudicial information and emphasized its capacity, nevertheless, to act impartially. As their Honours said:
To conclude otherwise is to underrate the integrity of the system of trial by jury and the effect on the jury of instructions given by the trial judge.
Recently, this principle was applied specifically to a terrorist trial by the New South Wales Court of Criminal Appeal in R v Lodhi.[7] Many other cases illustrate the same principle.
[6] (1992) 173 CLR 592, 603.
[7] (2007) NSWCCA 360.
This trial has already been as fully reported in Sydney as it is likely to be. Benbrika’s name has been mentioned every day. To replace it, suddenly, at this stage with a pseudonym, even if the other accused continue to be referred to by their own names, will itself promote undue interest both from the media and in those reading, watching or hearing media reports. Also, any explanation by this Court to the Victorian population as to why it was now thought necessary to suppress Benbrika’s name would raise significant problems of its own which could be said to affect his right to a fair trial in this Court.
When Whealy J is fully seized of the issues in the Sydney trial he will be in a much better position to deal with fair trial questions than this Court could ever be, having regard to the necessarily limited understanding of the Sydney case it has been able to glean from the material filed. His Honour will have available the full armoury of remedies to ensure the Sydney accused are tried fairly, including the power of adjournment or of injunction to prevent publication of anything he considers may, as a matter of practical reality, have a tendency to interfere with the fair trial of those accused. Even if, as the cases suggest, the remedy of injunction should be sparingly used, if the circumstances require resort to its use then Whealy J will be in a better position to do so than this Court ever would be.
Dr McEvoy, for the press interests, opposed the interveners’ application for the orders they seek. In doing so, however, he put, as a fall back position, a limited form of order as not being offensive, or at least not too offensive, to the principles of open justice. Having regard, however, to the conclusion I have reached with respect to the intervener’s application it is not necessary to consider Dr McEvoy’s concession or his other arguments further.
The interveners’ application will be refused. It is, however, appropriate to order that this application, the hearing of it, and this ruling be the subject of a suppression order preventing publication of such matters until further order. There will be a further order that the interveners be deleted from this proceeding.

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[2008] VSC 48

21 February 2008