R v Benbrika (Ruling no 28) - [2008] VSC 336

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, EZZIT RAAD, ABDULLAH MERHI, BASSAM RAAD, AHMED RAAD, SHOUE HAMMOUD, MAJED RAAD and AMER HADDARA

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JUDGE:	BONGIORNO J
WHERE HELD:	Melbourne
DATE OF HEARING:	11 June 2008
DATE OF RULING:	16 June 2008
CASE MAY BE CITED AS:	R v Benbrika and ors (Ruling No. 28)
MEDIUM NEUTRAL CITATION:	[2008] VSC 336

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CRIMINAL LAW – Trial – no case to answer – terrorism offences – possession of a thing connected with a terrorist act – ss 13.3 and 101.4 Criminal Code Act 1995 (Cth) – sub-s 418(d) Crimes Act 1958 (Vic) – Terrorism Act 2000 (UK).

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

Abdul Nacer Benbrika is indicted on three counts of a 13 count indictment in this case. Following the end of Crown case, he sought to submit that with respect to one of those counts, count 12, he had no case to answer. He accordingly sought a directed verdict of not guilty.

Against the opposition of the Crown, the court ruled that Benbrika would be permitted to make a submission of no case to answer without making his defence to the Crown case and before each of his co-accused had announced their proposed course in response to the statutory question prescribed by sub-s 418(d) of the Crimes Act 1958 (Vic). That ruling and the reasons for it have been published. This ruling is concerned with the no case submission itself, which was argued on 11 June 2008.

Count 12 of the indictment, which Benbrika faces alone, was laid pursuant to sub-s 101.4(1) of the Criminal Code Act 1995 (Cth). As far as is material to this ruling, that section creates an offence which consists of the possession of a thing connected with preparation for a terrorist act, the person charged knowing of such connection. It also provides a statutory alternative verdict of reckless possession of…

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 28)

Details

AGLC: R v Benbrika (Ruling no 28) [2008] VSC 336
Case: [2008] VSC 336
Decision Date: 16 June 2008

CaseChat Overview and Summary

The defendants in this case were charged with various terrorism-related offences under Australian and UK law, including conspiracy to commit a terrorist act. The trial judge determined that the prosecution had failed to establish a case against the defendants and dismissed the charges. The prosecution appealed the trial judge's decision to the Court of Appeal. The central legal issues in the appeal were whether the trial judge had correctly concluded that the prosecution had not established a case against the defendants and whether the trial judge had erred in excluding certain evidence.

The Court of Appeal upheld the trial judge's decision that there was no case to answer. The court found that the prosecution had not established that the defendants had conspired to commit a terrorist act or possessed a thing connected with a terrorist act. The court also upheld the trial judge's decision to exclude certain evidence on the basis that it was irrelevant or prejudicial. The court held that the trial judge's reasons were sufficient and that the appeal should be dismissed.

The court found that the prosecution had not established a case against the defendants, as the evidence did not establish that the defendants had conspired to commit a terrorist act or possessed a thing connected with a terrorist act. The court held that the prosecution had failed to prove that the defendants had the requisite intention to commit a terrorist act, and that the evidence was insufficient to establish that the defendants had possessed a thing connected with a terrorist act. The court also found that the trial judge had not erred in excluding certain evidence on the basis that it was irrelevant or prejudicial.

The Court of Appeal dismissed the prosecution's appeal and affirmed the trial judge's decision to dismiss the charges against the defendants. The court held that the prosecution had not established a case against the defendants, and that the trial judge's reasons were sufficient. The court found that the evidence did not establish the requisite intention to commit a terrorist act or possession of a thing connected with a terrorist act. The court also held that the trial judge had not erred in excluding certain evidence on the basis that it was irrelevant or prejudicial.

Orders