| 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: | 29 February, 3 and 4 March 2008 | |
DATE OF RULING: | 20 March 2008 | |
CASE MAY BE CITED AS: | R v Benbrika and ors (Ruling No. 20) | |
MEDIUM NEUTRAL CITATION: | [2008] VSC 80 | Revised 9 December 2008 |
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CRIMINAL LAW – Fair trial – Conditions of incarceration and transportation of accused – Effect on psychological and physical health – Effect on fairness of trial – Trial running – Application for stay of proceedings – Fragmentation of criminal process – Exception – Conditional stay of trial – Appearances by audio visual link – ss 42K (2), 42M (2) of
Part IIA Evidence Act 1958 (Vic).
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr R Maidment SC and Mr N Robinson SC with Mr D Lane and Ms L Taylor | Commonwealth DPP |
| 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 Kent | Mr J H Kennan SC with Mr P Doyle | Robert Stary & Associates |
| For the Accused Sayadi | Mr J H Kennan SC with Mr P Doyle | Robert Stary & Associates |
| For the Accused Taha | Mr J H Kennan SC with Mr P Doyle | Robert Stary & Associates |
| For the Accused Merhi | Mr J H Kennan SC with Mr P Doyle | Robert Stary & Associates |
| For the Accused Bassam Raad | Mr B Lindner | Revill & Papa Lawyers |
| For the Accused Ahmed Raad | Mr J H Kennan SC with Mr P Doyle | Robert Stary & Associates |
| 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 J H Kennan SC with Mr P Doyle | Robert Stary & Associates |
| By leave for the Secretary of the Department of Justice intervening | Dr D Neal SC | Corrections Victoria |
HIS HONOUR:
The accused in this case, 12 in number, have been indicted by the Commonwealth Director of Public Prosecutions on a total of 13 counts alleging breaches of that part of the Commonwealth Criminal Code concerned with proscribing activity associated with terrorism. They have all pleaded not guilty and are currently standing trial before a jury in this Court. They were all arrested between about November 2005 and March 2006 and have been in custody since that time. Bail applications by some of them failed for want of the “exceptional circumstances” required by s 15AA of the Crimes Act 1914 (Cth). As a result, all of them have been in custody for at least two years as at this date.
Preliminary arguments in respect of…
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- AGLC
- R v Benbrika (Ruling no 20) [2008] VSC 80
- Case
- [2008] VSC 80
- Decision Date
CaseChat Overview and Summary
The court had to determine whether the conditions of Benbrika's incarceration and the arrangements for his transportation constituted a breach of his right to a fair trial under the law. The legal issues encompassed whether these conditions could be considered an unacceptable impediment to the proper administration of justice, and if so, what remedy, if any, should be applied. The court also had to consider the implications of any such remedy on the fragmentation of the criminal process.
The Supreme Court held that the conditions of Benbrika's incarceration and transportation arrangements did indeed have a significant impact on his health, thereby affecting the fairness of his trial. The court concluded that a conditional stay of the trial was appropriate to address these issues. It ruled that Benbrika could appear via audio-visual link for the duration of the trial, pursuant to sections 42K(2) and 42M(2) of the Evidence Act 1958 (Vic). This decision balanced the need to ensure a fair trial for Benbrika with the necessity of maintaining the integrity and continuity of the criminal process.
The court's final orders included a conditional stay of the trial proceedings, allowing Benbrika to participate through an audio-visual link, pending resolution of the issues concerning his incarceration conditions and transportation arrangements. This ruling was aimed at ensuring that Benbrika could continue to be present and participate in his trial in a manner that would not further compromise his health or the fairness of the proceedings.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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