R v Benbrika (Ruling No. 19) - [2008] VSC 48

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Benbrika (Ruling No. 19)

Details

AGLC: R v Benbrika (Ruling No. 19) [2008] VSC 48
Case: [2008] VSC 48
Decision Date: 21 February 2008

CaseChat Overview and Summary

In the matter of R v Benbrika (Ruling No. 19), the parties involved were the respondent, Khaled Sharrouf, and the applicant, the Commonwealth. The dispute revolved around the suppression of publication of evidence in relation to a trial concerning terrorism offences, aimed at safeguarding the integrity of a trial occurring in another state. The case was heard in the Supreme Court of Victoria, presided over by Justice Jane Frances Pullen.

The legal issues the court had to address involved the scope of the Supreme Court's powers to make effective orders to suppress publication of evidence. Specifically, the court needed to determine whether the conditions outlined in sections 18 and 19 of the Supreme Court Act 1986 were met, which pertain to the suppression of publication of evidence to protect the fairness of a trial in another state. The court also had to consider whether the suppression orders were necessary and proportionate to the risk of prejudice to the trial.

Justice Pullen held that the Supreme Court had the power to make the orders sought, as the requirements of sections 18 and 19 were met. The risk of prejudice to the trial in another state was deemed significant, and the suppression orders were considered necessary and proportionate. The court emphasised the importance of protecting the integrity of the judicial process and the rights of all parties involved. The application for suppression orders was granted.

The court made orders suppressing the publication of evidence in relation to the terrorism trial in another state, effective until the conclusion of that trial. The orders aimed to prevent any material that could prejudice the trial from being published.

Orders