R v Benbrika (Ruling No 2)

[2011] VSC 471

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. SCR 2009 1445A

THE QUEEN

v

ABDUL NACER BENBRIKA & ORS

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JUDGE:	T FORREST J
WHERE HELD:	Melbourne
DATES OF HEARING:	31 January, 1,2,3,4,7,8,9,10,11,14,15 and 16 February 2011
DATE OF RULING:	25 March 2011
CASE MAY BE CITED AS:	R v Benbrika & ors (Ruling No 2)
MEDIUM NEUTRAL CITATION:	[2011] VSC 471

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CRIMINAL LAW – autrefois convict – Double jeopardy – Not an abuse of process – Oppressive nature of trial sufficiently cured – Certificate granted to pursue interlocutory appeal pursuant to s 295(3)(b) Criminal Procedure Act 2009.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr R Maidment SC and Ms L Taylor	Solicitor for the Director of Public Prosecutions (C’th)
For Benbrika	Mr P Higham and Mr S Moglia	Doogue & O’Brien
For Joud	Mr M Cahill and Ms S Keating	Lethbridges
For Sayadi	Mr S Johns and Ms M Mykytowycz	James Dowsley & Associates
For Raad	Mr J McMahon	Robert Stary Lawyers

HIS HONOUR:

1. On 11 March I delivered the first part of this ruling[1].  I considered that the accused had not made out an argument that this trial constituted a breach of the rules of double jeopardy, however, I took the view that the trial itself was, as it was then constructed, oppressive to such a degree that if it remained in that form I would stay the trial permanently.  My reasons for this conclusion can be found at paragraph 64 and following of that part of the ruling.

   [1]R v Benbrika & ors (Ruling No 1) [2011] VSC 76.

1. The power to stay proceedings as an abuse of process is only to be exercised in extreme cases where there is a fundamental defect that goes to the root of the trial.  That defect must be of such a nature that there is nothing that a trial judge can do to relieve the unfair consequences of that defect.  In other words, if the defect is curable or if the unfairness that results from it can be moderated to an acceptable degree then the case is no longer in that extreme category and the need to permanently stay the trial will be averted.

1. In this case I took the view that the Crown case was of such magnitude that that fact combined with other factors operated to render the proposed trial of the accused so significantly oppressive as to call for my intervention.  In its original evidentiary form the Crown case was constituted by 681 items, 456 were recorded conversations of electronic surveillance, 160 witnesses and a significant amount of physical exhibits.

1. I observed in Part 1 of the judgment that when asked for an estimate of the duration of the jury trial itself, Mr Maidment (who having prosecuted R v Benbrika No.1 and R v Elomar was well placed to offer an estimate) stated that it would be irresponsible to suggest that it would take less than nine months.  No upper estimate was offered by any counsel.

1. In paragraph 67 of Part 1 of this ruling I offered the Crown the opportunity to conduct what I called a process of ruthless paring of the evidence it was proposing to rely upon.  I considered that if such a process could be successfully conducted then it may be that the oppression that I perceived could be relieved sufficiently so as to make a trial compatible with ordinary precepts of fairness.

1. The Crown have undertaken a review of the evidence it proposes to call.  That review has been predicated upon 15 assumptions that have been made about what need and what need not be proved at trial.  I am assured by defence counsel that if any of those assumptions are inaccurate it will only be an inaccuracy in fine detail.

1. I am grateful for that assurance, as I am more generally, for the intelligent and balanced submissions that I have received from both ends of the Bar table.

1. Those assumptions relate to issues such as continuity, voice identification, accuracy of transcripts and translations, proof of photographs, videos and the like.  I shall annex a full copy of those assumptions to this ruling.

1. The Crown now propose to call approximately 97 witnesses, as compared with the original proposal of approximately 160 witnesses.  The Crown also now propose    to rely upon 365 recorded conversations, this compares with the 456 proposed originally.

1. Perhaps more significantly, the total playing time for these recorded conversations has been reduced from 44 and a half hours to just under 29 hours.  In other words, there has been a reduction of about a third.

1. Experience tells us that a maximum playing time of four hours of recorded conversations per day is all that is reasonably achievable in the context of a jury trial and, as Mr Higham points out, there will be days when, for whatever reason, significantly less is achieved.

1. I believe it is reasonable to estimate between eight and ten days for the playing of the recorded conversations.  The Crown estimate that the evidence to be led from the 97 witnesses would take in the range of 35 days.  There was little cross-examination of mostly the same witnesses in either the first trial or the Sydney trial and the Crown submit that it is not unreasonable to suppose that the same course would obtain in this trial.  All in all Mr Maidment submitted, it would not be unreasonable to anticipate that this trial and its now proposed evidentiary form, could be completed in 16 weeks. 

1. Mr Higham, whose submissions were adopted by counsel for the other accused, disputed this estimate and submitted that double this figure was a more realistic estimate.  He approached the issue in the following way.  In T1 there were 64 witnesses; 47 and three-quarter hours of electronic conversational evidence and the trial took 137 days from empanelment to verdict.  Of that 137 days 42 of them were actually days where evidence was adduced in front of the jury.  Thus the ratio of evidence to actual time duration was about one to three.  If that were the case in this trial, even accepting the rough Crown estimates, the trial would take 35 days of evidence; ten days of electronic evidence and say, five days of other evidence relating to exhibits and the like.  That would come to a total of roughly 50 days and on a ratio of one to three, that would be 150 days or a minimum of 30 weeks of court time.

1. Alternatively, the Sydney trial demonstrates a ratio of about one to two evidence to actual trial duration.  If that were the case the trial would take at least 100 days. 

1. Both counsel for the prosecution and defence accept the obvious proposition that there is no scientifically precise method of determining how long a trial may take and that estimates are just that.  Having said that, I believe I can reach a number of conclusions with some confidence. 

1. This is no longer a "Blue Sky" estimate trial.  There is a basis upon which I can make a rough determination of minimum and maximum duration from empanelment to verdict, or at least retirement. 

1. I consider it is reasonable to estimate that the trial will take somewhere between 20 and 30 weeks.  There will be hiccups along the way and that will be beyond anyone's control, but that is the case with every trial.  The potential for interruptions is obviously magnified by the length and complexity of the trial. 

1. I consider bare statistical comparisons with Benbrika T1 are skewed by the number of accused in that case.  In that case the prosecutor in his final address, needed to address not just the overall evidence adduced but also the case as it was put against each of the 12 individual accused.  That was followed by 12 final addresses.  Here with four accused, in my opinion it is reasonable to presume that this aspect of the trial will be very significantly shorter than T1.

1. If I am right about an estimate of between 20 and 30 weeks, the question then arises has the oppressive nature of this trial been sufficiently cured so as to reduce the unfairness to manageable levels.  I consider that it has.  This is necessarily no more than an intuitive evaluation, as was my initial response to the totality of the circumstances that confronted the accused.

1. It is the fact that each of the accused has already been the subject of a very long and difficult trial.  It is in my view, also the fact that a great deal of their criminality has already been prosecuted and punished.  It, again in my view, is also the fact that their attempts to procure glassware for their Sydney brothers, remains un-prosecuted and unpunished.  I regard the prospect of a four and a half to seven month trial as undoubtedly oppressive upon the accused in these circumstances.  However, I consider that the balance has changed since 11 March.

1. The community's interest in prosecuting those alleged to be responsible for criminal conduct, remains vital and I am of the view that the reduction in the evidence and thus the anticipated trial duration, is such as to relieve that oppression to an acceptable level.

1. I propose to certify pursuant to s 295(3)(b) of the Criminal Procedure Act 2009 for the following reasons; all four accused (despite the fact that Mr Benbrika does not seek leave to appeal) each submitted that the trial ought be permanently stayed as an abuse of process. The fundamental defect that was sought to be identified was a breach of the rules of double jeopardy (including an argument that an autrefois convict verdict was available) and alternatively that the trial of the accused suffered from an incurable oppression.

1. If either of those arguments had been successful inevitably I would have been obliged to stay the trial permanently.  I have ruled this prosecution does not contravene the principles of double jeopardy nor is it incurably oppressive. 

1. Having said that, I am of the view that the argument mounted by all accused is not hopeless by any means and it is apparent from my reasons that I regarded the double jeopardy argument with anxious consideration.

1. Having reached the conclusion that my decision not to permanently stay the trial is of fundamental importance to the trial, there is no question of any discretionary exercise of power.  It is incumbent upon me to certify and I do so.[2]

   [2]See McDonald v DPP [2010] VSCA 45.