| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2009 1445A
| THE QUEEN |
| v |
| ABDUL NACER BENBRIKA AIMEN JOUD FADL SAYADI AHMED RAAD |
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JUDGE: | T FORREST J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 20 June 2011 | |
DATE OF RULING: | 1 July 2011 | |
CASE MAY BE CITED AS: | R v Benbrika & Ors (Ruling No 3) | |
MEDIUM NEUTRAL CITATION: | [2011] VSC 342 | Amended 22 September 2011 |
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CRIMINAL LAW – Abuse of process/oppression – Multiple applicants – Individual consideration necessary – Residual unpunished criminality modest – Permanent stays granted to all applicants.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr N Robinson 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 and Mr R Lawrence | Robert Stary & Associates |
HIS HONOUR:
This ruling ought be read with my rulings on 11 March 2011 (Ruling No 1)[1] and 25 March 2011 (Ruling No 2)[2] and with the judgment of the Court of Appeal Joud & Ors v The Queen[3] delivered on 3 June 2011.[4]
[3][2011] VSCA 158.
[4]I will also be referring to R v Benbrika & Ors as such or alternatively as the first trial. I will refer to the current trial as such or alternatively the conspiracy trial.
Background
All accused have been indicted for conspiracy to do acts in preparation of a terrorist act contrary to ss 11.5 and 101.6(1) of the Criminal Code Act 1995 (C’th). When this matter was initially before me each accused applied to me to stay the conspiracy charge permanently on the following bases:
(a) a plea in bar of autrefois convict was available; and/or
(b) the trial offended the principles of double jeopardy; or
(c) the trial was so significantly oppressive as to amount to an abuse of process.
On 11 March 2011 I ruled against the accused on the autrefois and double jeopardy arguments, although I considered a finding of guilt on the conspiracy charge would not add substantially to the already proved and punished criminality the subject of the first trial.[5] I considered the trial, as then constituted by the Crown, to be oppressive in all the circumstances and I proposed to stay the trial permanently if the level of oppression could not be lowered to a level that I considered acceptable. At that stage estimates for the trial were that it would occupy a minimum of nine months. No one was prepared to offer a maximum. I invited the prosecution, if it wished, to embark upon a “ruthless paring” of the evidence it relied upon so as to reduce the trial to manageable proportions.
[5]I characterised the residual unpunished criminality as modest.
The Crown accepted my invitation and…
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- R v Benbrika (Ruling No 3) [2011] VSC 342
- Case
- [2011] VSC 342
- Decision Date
CaseChat Overview and Summary
The primary legal issues before the court were whether individual consideration of each applicant's circumstances was necessary, given the collective nature of their applications, and whether the residual unpunished criminality was modest enough to warrant permanent stays. The court had to balance the need for a fair trial against the oppressive conduct of the prosecution and weigh the gravity of the residual criminality against the overarching principles of justice.
The Court of Appeal found that individual consideration was indeed necessary, as each applicant's circumstances and potential prejudice differed. The court acknowledged the oppressive conduct of the prosecution but noted that the residual unpunished criminality was relatively modest. The overarching principles of justice, including the need for a fair trial and the protection of individual rights, led the court to grant permanent stays of proceedings to all applicants. This decision underscored the importance of meticulous and individualised assessment in cases involving multiple applicants and complex criminal proceedings.
The final orders of the court were that permanent stays of proceedings be granted to all applicants. This outcome reflected the court's commitment to ensuring justice in the face of oppressive conduct and the need for individualised consideration in the context of collective applications.
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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