R v Benbrika (Ruling No 3)
[2011] VSC 342
•1 July 2011
| 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]
[1][2011] VSC 76
[2][2011] VSC 471
[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 substantially reduced the evidence it proposed to adduce. My best estimate then (and now) is that if the conspiracy trial were to proceed it would occupy between 20 and 30 weeks of court time (i.e. 4½ to 7 months). [6] On 25 March 2011 I ruled that the trial ought to proceed. I concluded that the “ruthless paring” exercise had reduced the oppressive aspects of the conspiracy trial to a level below that required to produce an abuse of process of such quality as to require the trial to be stayed permanently.
[6]No issue was taken with this estimate either in the Court of Appeal nor before me in this remitted application.
I granted each accused leave to pursue an interlocutory appeal. On 3 June 2011 the Court of Appeal allowed the appeals in part and remitted the further hearing of the stay applications to this court for re-determination. It is unnecessary to recite the full reasoning of the Court of Appeal, however, I consider it is appropriate to set out, in very short compass, certain aspects of the judgment:
(a)The plea in bar/autrefois convict submission made by each accused was rejected.
(b)The ‘double jeopardy abuse’ submission also made by each accused was rejected.
(c)The characterisation made by this court of the ‘residual unpunished criminality’ as modest or moderate was adopted.[7]
(d)Neave JA (with whom Ashley and Weinberg JJA agreed) set out at [134] a helpful summary of factors necessary to be considered when conducting the ‘balancing process’ between the public interest in ensuring persons accused of criminal offences are brought to trial and the competing public interest that the law not be used as an instrument of oppression. Whilst many of these factors were given weight when I previously attempted to conduct this process an additional factor has been identified. “Even where the prosecutorial discretion has not been exercised for any improper or ulterior purpose, the objective effect of its exercise may be unfairly oppressive.”[8] I shall return to this aspect later in these reasons.
(e)Too much weight was originally given in the balancing process to the proposed reduction in the length of the trial.[9]
(f)Factors discrete to individual accused need to be given individual attention. [10] Each application needs to be considered individually.
(g)If I were of the view that the trials of some but not all of the applicants were oppressive and ought to be stayed, I would need to consider the possibility of a public perception of unfairness relating to the remaining accused.
[7]Joud & Ors v The Queen [2011] VSCA 158 [134] and elsewhere.
[8]See Joud & Ors v The Queen [2011] VSCA 158, [134(a)] and [136].
[9]See Joud & Ors v The Queen [2011] VSCA 158, [143].
[10]Joud & Ors v The Queen [2011] VSCA 158, [147].
Oppression
I should say at the outset that a permanent stay of a criminal trial is an extraordinary remedy to be exercised only in extreme and incurable circumstances. The onus rests fairly on the applicants for such stays to demonstrate the existence of those circumstances.
When considering the oppression argument as part of Ruling No 1, I observed that any criminal trial involves some level of oppression, and that almost invariably that is a price the community is prepared to meet in the greater interest of bringing those alleged to be responsible for criminal conduct to justice. I say almost invariably, because there is a point at which the criminal justice system ceases to be an instrument of orderly determination of controversy between the State and a party, and becomes a blunt instrument of oppression exercised by the State to the detriment of that party. There are no bright lines marking out where that point lies. The combination of circumstances capable of amounting to an oppression significant enough to require judicial intervention are endlessly variable. What is clear, however, is that the power to stay a criminal trial permanently must be exercised with great caution. That power will only be exercised in an extreme case where there is a fundamental defect that goes to the root of the trial and of such a nature that nothing a trial judge can do in the conduct of the trial can relieve against its unfair consequences.[11]
[11]See Jago v District Court of NSW (1989) l68 CLR 23, 24 (per Mason CJ).
It follows, therefore, that an application of the type made by each accused involves a balancing of competing public interests. The public has a vital interest in bringing those alleged to be responsible for criminal conduct to justice – this public interest underpins the effective implementation by the State of the rule of law. The public has an equally vital interest in ensuring that citizens are not oppressed by the State through the organ of its prosecutorial power – this public interest also underpins the effective implementation by the State of the rule of law. Striking a balance between these public interests is the ‘balancing process’[12] that I must conduct.
[12]Joud & Ors v The Queen [2011] VSCA 158, [134].
The point at which a proposed trial becomes incurably oppressive at its root level is necessarily a question of fact and degree. Ultimately it requires an intuitive assessment of the combination of circumstances on both sides of the balancing process. If the point is reached, then it is a trial judge’s duty to stay the trial permanently.
I propose to review the factors relied upon by each accused in the course of their submissions. Some of those factors are common to all accused, although the impact of them varies as between accused. I will review the common factors first. I will then review factors personal to each accused.
Common Factors
The following factors are common to all accused.
A.The prosecutorial decision to indict each accused separately for conspiracy (the current trial) and for offences under 5.3 of the Code (the first trial) was a decision made in good faith.[13] Its objective impact, however, has been to indict each accused twice in very lengthy, complex trials when a second trial for each accused was entirely avoidable. Neave JA at [138] set out the other prosecutorial options. One trial alleging the full criminality of the four accused could have been achieved:-
[13]See Ruling No 1 [50]. This finding was not challenged on appeal, nor before me on the further hearing of the remitted applications.
(a)by introducing the Haines evidence at the first trial as a particular of the membership and other counts; or
(b)by indicting these four accused separately from the other accused either:
(i)with an offence of doing an act in preparation of a terrorist act (Code s 101.6); or
(ii)with conspiracy alone, as were the members of the Sydney group.
The first trial involved 12 accused, 481 monitored conversations, thousands of pages of exhibits and the calling of a large number of witnesses. Preliminary argument commenced in November 2006. It proceeded throughout 2007.[14] The jury was empanelled in early February 2008 and verdicts were delivered in mid-September 2008, nearly two years after the first preliminary arguments. In the current trial it is proposed to adduce evidence of 365 monitored conversations, call 97 witnesses[15] and tender (in large part) the same exhibits that were tendered at the first trial. As I have said I consider this trial would occupy between 4½ and 7 months barring unforeseen and substantial interruptions. It follows that the decision to indict the accused in the way that has occurred is a significant factor in the combination of factors said to amount to oppression. A second trial was avoidable. If it proceeds it will be lengthy, complex and expensive. The financial cost will probably be met by the community. The emotional cost will be met by the accused men and their families. This emotional cost is superimposed upon the emotional cost already extracted by the first trial. I will return to this aspect when I come to consider factors personal to each accused. Another consequence of the decision to pursue two trials against each accused is that the current trial, if it proceeds, would commence nearly six years after their activities were detected. I will also return to this aspect when considering factors personal to each accused.
[14]18 Rulings were delivered before trial.
[15]These figures might be subject to insignificant downwards revision by the prosecution.
B.During the early part of the first trial the circumstances of each accused’s imprisonment and transportation to court were appalling and required the intervention of the trial judge. They were held in maximum security at a regional prison.[16] They were woken each day at approximately 6.00am. At 6.50 am each court day they were strip searched, shackled, handcuffed and placed in small box-like compartments on the prison van and transported to Melbourne over a period of 65-80 minutes. At the end of each day they were transported back to the prison and again strip searched. They were locked in their cells at 9.00pm.[17] This regime was altered in compliance with the order of the court on 20 March 2008. I shall return to the individual effect of this regime where it has been significant in respect of certain of the accused.
[16]H.M. Prison Barwon. Approximately 60 km from the Melbourne CBD.
[17]R v Benbrika & Ors (No.20) (2008) 18 VR 410.
C.As I have observed the characterisation made by this court of the ‘residual unpunished criminality’ as modest or moderate was accepted by the Court of Appeal. This is not to say that the additional unpunished criminality is trivial or minor. It is not. It is, however, a modest addition to the overall criminal conduct that has already been proven and punished. I refer to and repeat my remarks at paragraphs [62] and [63] of Ruling No 1. I regard this assessment of the additional criminality as critical to the outcome of these applications and that it weighs heavily in the accused’s favour. It is obviously impossible to offer a precise scientific quantification of the additional impact, however, as I am required to consider whether each applicant is likely to receive a significant additional sentence for their part in the conspiracy,[18] I should endeavour to express my intuitive assessment of that additional impact. In the case of each accused I consider that their involvement in the conspiracy adds in the order of 5-20%[19] to their overall criminality – perhaps at the higher end of this range for some, at the lower end for others depending upon their culpability. Put another way, I consider that the accused have already been punished for 80-95% of their overall criminal conduct during the period between 1 July 2004 and 8 November 2005. Any additional sentence imposed (after a second trial) would need to reflect this modest additional criminality but would also need to reflect moderating factors such as the totality principle, the delay in commencing this prosecution and the impact of a second lengthy (and avoidable) trial on the particular individual whose sentence I am considering. Other personal factors discrete to each accused would also need to be considered. I shall express my conclusions about the potential additional sentences when I consider the individual positions of each accused. As I have said this is a powerful factor in considering whether to stay this second trial. I consider this factor is also relevant to the assessment I must make of the public interest in ensuring that persons accused of criminal offences are brought to trial – the greater the unpunished criminality, the greater the public interest in ensuring that the accused are brought to trial. Conversely, if the vast proportion of an acccused’s criminal conduct has been prosecuted and punished, and if further punishment is unlikely to be significant, then I consider that the weight I ought to give to this public interest is diminished.
[18]Joud & Ors v The Queen [2011] VSCA 158, [147].
[19]There is no science to this range – it is simply a quantitative way of explaining what I mean by ‘moderate’.
D. (i) Associated with my assessment of the additional criminality is the extent to which the evidence in the current conspiracy trial overlaps the evidence which was led in the first trial.[20] In Ruling No 1 at paragraph [35][21] I review the evidence proposed to be led at the conspiracy trial. In very short compass the Crown seek to prove again every significant allegation made against each accused in the first trial. It was proved at that trial that Benbrika intentionally directed the activities of an organisation he knew was directly fostering the doing of a terrorist act. Joud, Raad and Sayadi, in addition to bare membership of that organisation, intentionally provided resources to it knowing that those resources would help the organisation directly or indirectly foster or prepare the doing of a terrorist act. Joud and Raad also intentionally attempted to provide funds to that organisation. All of this is proved and punished.[22] All of it will be proved against the accused at the second trial as circumstantial evidence of the fact and nature of the conspiracy and of the individual participation of the co-conspirators. The only further direct evidence of criminality on the part of the accused to be led in the conspiracy trial is the ‘Haines evidence’.[23] If accepted, it amounts to an aborted attempt by the accused to procure glassware sought by the Sydney group and necessary for that group’s efforts to manufacture an explosive device. Thus the overlap of evidence between the first trial and the current trial is very substantial.
[20]Joud & Ors v The Queen [2011] VSCA 158, [134(c)].
[21]See also paras [45], [62] and [63] of Ruling No.1.
[22]At para [62] of Ruling No.1, I set out a summary of the various activities.
[23]Summarised at [35.9] of Ruling No.1.
(ii) Overlap of evidence, even total overlap, is not per se objectionable. It is, of course, permissible to try an accused twice on the identical evidence provided the second offence alleged is different both in form and in substance. Where the same evidence is used, however, to prove not the original criminality, but simply a modest advancement upon it, then this in itself may be a factor relevant to the balancing process. In this case, however, I do not consider the very substantial overlap in the evidence is a factor adding significantly to the oppression contended for. Rather, I consider that it evidences the proposition that the residual unpunished criminality is of modest proportions and, as I have indicated, I regard this as a significant factor in the exercise that I must conduct. Save for one issue that I am about to mention, any oppressive impact occasioned by the overlap of evidence is, I believe, largely subsumed within the residual unpunished criminality factor.
(iii) The substantial overlap, however, has another relevance to the balancing process. The very great majority of direct evidence concerning the activities of each accused has already been the subject of convictions and substantial criminal sanctions. If the jury were oblivious to this (as they would be in a criminal trial proceeding along orthodox lines) I consider that there is an exceedingly high risk that it would focus on this conduct and reason impermissibly from it. As I see it, if the jury entertained some doubt about either the existence of the impugned agreement, or a particular accused’s participation in it, the risk is that this doubt may be determined against that accused on the basis of his prior, and to the jury’s knowledge unpunished, conduct. In other words, a jury may reason that because of the quality of the overall criminality alleged, criminal sanctions are called for and then proceed to reason impermissibly to conviction on the conspiracy count. I cannot conceive of a judicial direction that adequately addresses this risk without tacitly encouraging a jury to take that risk. The other way of addressing this risk would be to alert the jury to the fact and ambit of the convictions of the first trial and to direct them, in that context, to focus on the elements and ingredients of the particular conspiracy charge they are considering. Adopting this course necessarily involves the jury becoming aware of each accused’s prior convictions for offences of the same general character and based on most of the same evidence. This carries with it its own risks of impermissible reasoning. If pressed, I prefer this latter course,[24] but neither is satisfactory. This latter course would require the consent of all counsel before I would contemplate it. Unanimity of consent may be elusive as the interests of individual accused may differ in this regard. This Yossarian-like choice is another objective consequence of pursuing two trials rather than one.
[24]It occurred, for example, in R v Dupas [2010] VSC 540 upon an application by counsel for Dupas.
Individual Factors
At paragraph [147] of Joud & Ors v The Queen,[25] Neave JA set out examples of factors that were not common to all accused and which required individual attention. These included the uncertain mental health of Raad and that Sayadi, Raad and Joud are likely to have served their non-parole periods before the conspiracy trial is completed. I am also required to consider whether a particular accused is likely to receive a significant additional sentence for his involvement in the conspiracy. This latter requirement, I think, means that I must look briefly and broadly at each accused’s overall criminality and endeavour to make some assessment as to his additional criminality consequent upon a conviction on the conspiracy charge. I shall also consider other factors personal to each accused.
[25][2011] VSCA 158.
Benbrika
(i) Additional unpunished criminality.
I consider that the very large proportion of Benbrika’s criminality has already been detected, tried and punished. He has been convicted of intentionally directing an organisation that he knew was fostering or preparing the doing of a terrorist act. He held himself out as the organisation’s Sheikh and required on occasions that members of the group pledge allegiance to him (the Bayat). He directed that Raad administer the Sandooq and no payments were made from it without his approval. He dealt with SIO 39 – the undercover officer – and was present when the demonstration explosion was conducted at Mt. Disappointment. He conducted the ‘maximum damage’ conversation[26] with other members of his and the Sydney group. He conducted Dars classes during which the objects, means, and justification for violent jihad were discussed. In short, Benbrika has already been punished for controlling the direction and momentum of an organisation that fostered and encouraged its members to engage in violent jihad.[27]
[26]F.t.n.s. (first trial numbering system) 291.
[27]See R v Benbrika & Ors (2009) 222 FLR 446, [65]. Sentencing remarks of Bongiorno J. re Benbrika.
Taking the Crown case in the conspiracy trial at its highest, I consider that his contribution to the additional criminality exhibited in the conspiracy alleged is of mixed quality. There is no doubt that during the highly incriminating 23 February 2005 ‘maximum damage’ conversation he was the most significant participant. This conversation was a striking example of Benbrika directing his organisation and was led as such in the first trial. At that trial, the Haines discussion was edited from that recording. Aside from his presence and his leadership role during the overall conversation on 23 February 2005, Benbrika took little part in the specific discussions to do with the proposed Haines purchase. Nevertheless he was part of the agreement to effect the Haines purchase from 23 February 2005 onwards. I consider the most significant aspect of his criminality during this period is that as director of the organisation and spiritual leader of these young men he placed his imprimatur on the agreement. There is force in the argument that this is just another example of his activities as director of this organisation and that he has been punished substantially for all the other examples detected. I also consider that his moral culpability is diminished to some extent by the fact that he actively frustrated the execution of the agreement. As delivery of the glassware became imminent, he refused to release funds from the Sandooq to complete the purchase. I consider that Benbrika’s additional criminality is quite modest when considered as a proportion of his overall conduct. I consider that it falls in about the middle of the range that I have proposed in paragraph 11.C.
(ii) Other factors.
Benbrika’s practitioners have not placed before me any evidence of the psychiatric or psychological impact of his travels through the criminal justice system to date. Notwithstanding this, I consider the following factors have made his incarceration more onerous:
a)He has been in custody nearly six years. He, like the other accused, has had to contemplate the fact that the sentence imposed at the first trial provided him with no certainty as to his future.
b)He has had to participate in a very lengthy first trial.
c)He has had to endure the disgraceful conditions that resulted in Ruling No.20 in the first trial.
d)He has had to confront the spectre of a second, potentially even lengthier, trial.
e)He could legitimately conclude that he has already been punished for the large majority of his criminality.
Potential Sentence
Should the sentencing phase be reached, Benbrika will have been required to participate in a second very lengthy trial. Given the factors that I have referred to that operate to moderate any additional sentence, Benbrika would not receive a significant additional sentence if convicted of the conspiracy charge.
Joud
(i) Additional unpunished criminality.
Joud was an active participant in the alleged conspiracy. He was present at the 23 February 2005 conversation. It appears he was responsible for placing the order with Haines and following it through to collection. A handwritten list of chemistry glassware was found at his house on 22 June 2005.[28] He dealt with Hasan and Elomar, members of the Sydney group seeking to acquire this equipment. He conveyed the price of the equipment to his co-conspirators,[29] sought Benbrika’s approval to make payment for it through the Sandooq,[30] and sought to organise collection of it from Haines.[31] When Benbrika resisted paying for it he sought the funds from the Sydney group.
This conduct adds to Joud’s overall criminality. It occurred over about four months and in the middle of a much longer period of activity that constituted the charges the subject of the first trial. In that trial, as I have observed, he was convicted of membership of a terrorist organisation, intentionally providing resources to it and intentionally attempting to provide funds to it. He was part of Benbrika’s consultative committee.[32] He attempted to supplement the funds of the Sandooq by purchasing cars known to be stolen and by stripping them. He discussed security with Benbrika and attended ‘bonding exercises’ in remote locations.[33] He attended the Louth camp in March 2005 with Sayadi, Raad and four men from the Sydney group. The Crown case at the first trial was that firearms training was undertaken along with an attempt to assemble a crude ignition for an explosive device. He kept a collection of Jihad material as part of ‘the common library’. In short he was an enthusiastic and highly active follower of Benbrika, who assumed a leadership role in the group. Bongiorno J. (as he then was) described a ‘keen exuberance’ and sometimes an impatience with his leader’s procrastination. His ‘providing resources’ conviction encompassed offering practical assistance to other members, expounding the group’s philosophies to its members and acting as a confidante and sounding board for Benbrika. His Honour found that the attempted supplementing of the Sandooq’s funds by dealing in stolen cars was a serious example of the offence of attempting to make funds available to a terrorist organisation and that had the scheme not been thwarted by the State police the Sandooq ‘may well have been enriched by many thousands of dollars’.[34]
Again, without any attempt at mathematical precision, I estimate that the additional unpunished criminality exhibited by Joud is at the upper end of the range I offered earlier. I consider that his moral culpability is higher than his co-accused in that he was the most actively involved in pursuing the objects of the conspiracy. Having said that, I still regard his overall criminality as only modestly advanced if the conspiracy charge is made out.
[28]This list largely coincided with the equipment ordered from Haines.
[29]See O.A. 111.
[30]See O.A. 116, 117,118.
[31]See O.A. 120.
[32]See Ruling No.1, [33.14].
[33]See R v Benbrika & Ors [2009] 222 FLR 446, [94].
[34]See R v Benbrika & Ors [2009] 222 FLR 446, [110].
(ii)Other factors.
Joud’s practitioners have not adduced any evidence of any currently operative psychiatric or psychological disturbance arising from any of the factors referred to at [134] of Joud & Ors v The Queen.[35] I consider, however, that a number of factors personal to him have operated and may continue to operate to make his incarceration more onerous:
[35][2011] VSCA 158.
a) Joud is a young offender. He was 19 and 20 during the period of offending. He has been in custody since just after his 21st birthday. He will be 27 in October 2011.
b) He will be automatically granted parole in November 2011. If a trial were to be conducted it is most probable that any verdict would be after this date. If granted bail[36] he would face the prospect of returning to custody upon conviction for conspiracy.
[36]Sayadi, whose automatic parole date arose in February 2011, has been released on bail.
c) In October 2008, Dr Danny Sullivan described the impact of incarceration on Joud as significant. At that time he suffered from a vitamin D deficiency (from sunlight deprivation), sleeplessness, exhaustion and tearfulness. Prison notes taken in March 2008 note that he was demoralised, flat, tired and depressed. He was placed in a Muirhead cell overnight.
d) He has already participated in one very lengthy criminal trial.
e) Like the other accused, he has had to contemplate the fact that the first trial provided him with no certainty as to his future. He will have served the whole minimum term imposed at the first trial without knowing when his release may in fact occur.
f) He has had to endure the conditions referred to in Ruling No.20 in the first trial.
g) He is now indicted upon a second long and complex trial, based on much the same evidence as the first trial.
h) He could legitimately conclude that he has already been punished for the large majority of his criminality.
Potential sentence
Given the factors that I have referred to which operate to moderate any additional sentence, Joud would not receive a significant additional sentence if convicted of the conspiracy charge.
Raad
(i) Additional unpunished criminality.
Raad was not present at the 23 February 2005 conversation where the agreement to purchase the Haines equipment seems to have been reached. There is no evidence that he was part of this agreement until 29 May 2005.[37] I am satisfied from the 11.03 p.m. monitored conversation that he was aware of the object of the agreement and a party to that agreement. Raad was the effective treasurer of the group and, subject to Benbrika’s direction, administered the Sandooq. He thereafter kept Benbrika appraised of the balance of the Sandooq and its capacity to meet the cost of the Haines goods.[38] He asserted to Joud that he had unsuccessfully tried to persuade Benbrika to finance the purchase. I consider Raad’s participation in the agreement was largely incidental to his role as treasurer for the organisation (for which he has already been punished). He kept Benbrika appraised of the balance of the Sandooq and apparently made some efforts to persuade Benbrika to proceed. I consider that he entered the conspiracy much later than Joud or Benbrika, and was considerably less active than Joud in pursuing it.
[37]O.A. 111.
[38]O.A. 116.
As I have observed, Raad was the effective treasurer for the Melbourne group and was convicted at the first trial of intentionally providing resources to a terrorist organisation, and attempting to make funds available to that organisation, as well as the membership charge itself. The intercepted conversations make it clear that Raad was closely involved in the “activities and aspirations”[39] of the group. In administering the Sandooq he collected monies, chased up debts and exhorted others to make contributions.[40] His full activities in relation to the Sandooq are conveniently summarised at paragraphs [190] – [194] of Bongiorno J’s sentencing remarks. He was also party to the stolen car scheme which I have described elsewhere. Raad participated enthusiastically in the bonding exercises.[41] He attended all of the bonding exercises including the Louth activity which I have described elsewhere. He possessed the jihad material which formed part of the common library. He was an active senior member of the Melbourne group for the entire time of the investigation. I consider that Raad’s additional criminality is modest when considered as a proportion of his overall conduct, and towards the lower end of the range that I have proposed.
[39]R v Benbrika & Ors [2009] 222 FLR 446, [190].
[40]R v Benbrika & Ors [2009] 222 FLR 446, [190]
[41]Ruling No. 1, [33.14].
(ii) Other factors.
a) Raad’s practioners have adduced psychiatric and psychological evidence as part of this application.[42] Additionally they have supplied me with affidavits in support of a bail application made in 2008,[43] a chronology of Raad’s mental health problems in the early part of the first trial and references to Raad’s mental health difficulties in the first trial transcript. These materials were tendered without objection and Mr Robinson SC did not seek to cross-examine Mr Newton.
[42]Three reports of Mr Patrick Newton, psychologist, dated 13 June 2011, 10 April 2011 and 2 November 2008. Exhibits MFI 18, MFI 23. Mr Newton is a consultant forensic psychologist engaged by Mr Raad’s solicitors.
[43]Affidavits of Grace Morgan (28 April 2008) and Ahmed Raad (30 April 2008).
b) In March 2008 (i.e. after one month of enduring the conditions that led to Ruling No.20 at the first trial) Raad was removed from Barwon Prison to the Melbourne Assessment Prison as a matter of psychiatric emergency.
c) In November 2008, as a consequence of his incarceration, and the transportation and prison conditions set out earlier,[44] Raad was observed to be suffering from severe anxiety impacting physically, emotionally and cognitively. He also suffered significantly from symptoms of depression, including lethargy and sleep disturbance. Mr Newton expressed particular concern about the risk of suicide.
[44]Bongiorno J. found that the major cause of Raad’s anxiety and depression in 2008 were the conditions of incarceration at H.M. Prison Barwon and the fear of being returned to those conditions after he was sentenced. See R v Benbrika & Ors [2009] 222 FLR 446, [199].
d) In February 2011 Raad was assessed again by Mr Newton. This coincided with the period leading up to my initial ruling in this matter. I did not require any of the accused to be present for the legal argument. Raad reported a state of generalised psychological distress, a significant level of anxiety and mild depressive symptoms. He expressed as a dominant concern the prospect of a second trial, with apprehension regarding the prospect of daily transportation to court over the course of an extended period. Mr Newton thought his symptoms were sufficiently severe to warrant the diagnosis of ‘Adjustment Disorder with Mixed Anxiety and Depressed Mood’ by DSM – IV criteria. During the proposed trial Mr Newton anticipated that “even with optimal treatment, … Mr Raad would experience marked psychological distress and … (he had) ... considerable concerns for his wellbeing during that period.”
e) By June 2011 the stay applications had been remitted back to this court. Mr Newton considered that Raad’s level of anxiety had increased significantly since February. He is experiencing significant emotional distress impacting across his cognitive, interpersonal, emotional and physical functioning. Mr Newton thought that were a second trial to proceed, it would be necessary “for appropriate precautions to be taken to protect Mr Raad from impulsive acts of self-harm.”
f) I accept Mr Newton’s opinions. I am fortified in this regard by the fact that the Crown did not seek to cross-examine Mr Newton, nor did they seek to have him examined by an independent mental health professional. I am of the view that a second trial would be significantly destructive to Mr Raad’s mental health.
g) Mr Raad has been in custody since he was 22. He is now 28. He will be automatically granted parole in November 2011. I repeat that, were this trial to proceed, it is highly probable that it will conclude after that date. Like Joud, if granted bail he would face the prospect of returning to custody after that date.
h) Like the other accused he has had to contemplate an uncertain future as a result of the delay in prosecuting this matter.
i) He could legitimately conclude that he has already been punished for the large majority of his criminality.
Potential sentence
Raad would not receive a significant additional sentence if convicted of the conspiracy charge.
Sayadi
(i) Additional unpunished criminality.
There is no direct evidence that Sayadi joined the conspiracy before 1 June 2005. On that day he telephoned Raad querying how much money was in the ‘box’ (Sandooq). Raad asked him if he needed it and Sayadi said no, “I’ll talk to your later”. [45] Later that day Raad and Sayadi attended at Benbrika’s home. A full summary of their conversation is item 287 of Exhibit MFI 3. It is part of a longer conversation, only part of which was played at the first trial. Taking the Crown case at its highest, Sayadi knew at this stage of the plan to buy the Haines products, and of the proposal that the Sydney group pay for them. He was present when Benbrika told Raad how to deal with the Sydney group’s request and demonstrated a knowledge that Joud had made the order with Haines. Later that day Joud telephoned Sayadi, apparently in relation to the Haines purchase and asked Sayadi to call Benbrika to tell him that the “brothers” needed “3 grand”. Sayadi seems to have said to Joud that Benbrika would not authorise the payment. Sayadi then proposed that he and Joud would talk about it the next day. Sayadi, cryptically, seemed to be saying that if the Sandooq funds were exhausted by the Haines purchase, then group members’ fines and the like could not be paid from the Sandooq. There is no record of any further direct involvement of Sayadi in the conspiracy. The only other indirect evidence implicating him relates to an attempt by Benbrika to contact Sayadi on 4 May 2005 at a time when he, Joud, Hasan and Elomar were at Benbrika’s house and apparently discussing the Haines purchase.[46]
[45]Exhibit MFI 3, item 284.
[46]See MFI 3, items 248, 249, 250, 251, 252.
I have no concluded view as to whether there is evidence capable of placing Sayadi into the conspiracy, and have not heard argument directly on that issue. Assuming that there is, I consider that his participation in it is minimal and considerably less than the other three co-conspirators.
When measured against his other criminal activities over the relevant period, I consider his participation in the conspiracy (assuming for these purposes that he is a co-conspirator) adds very little to his overall criminality. Sayadi was a senior member of the Melbourne group and a confidante of Benbrika. He was convicted of membership of the organisation and providing resources to it all with the knowledge that it was a terrorist organisation. Although only 24 and 25 during the offending period, he described himself as an “elder” and his conviction for providing resources to a terrorist organisation involved him undertaking a leadership/administrative role in the group.[47] He directed his fellow members to terrorist literature websites and videos. He seemed to take a special interest in the security of the group and warned Benbrika of his suspicions of SIO 39. Another man called Nasser Raad passed his scrutiny. He attended the ‘bonding exercises’ at Kinglake, Ocean Grove and Louth. He assisted the group by urging Benbrika to allocate to the members specific tasks,[48] organised rooms for Dars classes and offered suggestions as to the administration of the Sandooq. He was a senior and highly trusted member of the organisation and extremely active in pursuing its objects.
[47]R v Benbrika. & Ors [2009] 222 FLR 446, [131].
[48]R v Benbrika & Ors [2009] 222 FLR 446, [134].
I consider that almost all of Sayadi’s criminality has been captured by the first trial.
(ii) Other factors.
(a) Sayadi was released from custody in February 2011. His parole period commenced and I released him on bail on strict conditions. He spent 5 years and 3 months in custody.
(b) He is now 31 years old. He was married at the time of his imprisonment and has resumed living with his wife. She is expecting to give birth in December 2011.
(c) In October 2008, Ms Lechner, a consultant forensic psychologist, examined Sayadi. She considered that he was evidencing symptoms of depression.[49] No current psychiatric or psychological material was placed before me.
[49]R v Benbrika & Ors [2009] 222 FLR 446, [125].
(d) Like the other accused, for a number of years he has had to contemplate an uncertain future as a result of the delay in prosecuting this matter.
(e) He has endured the conditions that led to Ruling No.20 at the first trial.
(f) He also has had to deal with the prospect of a second lengthy trial.
(g) He could legitimately conclude that he has already been punished for almost all of his criminality.
Potential sentence
Sayadi would not receive an additional sentence if convicted of the conspiracy charge.
Conclusion
As I have indicated earlier, the authorities make it clear that a criminal trial ought only be stayed in extreme and unusual circumstances where an incurable defect goes to the root of the trial.
I have concluded that the proposed conspiracy trial is an abuse of the court’s process and that I ought to stay it permanently in respect of all accused. I have reached that conclusion for the following reasons:
a)The public interest in bringing the accused men to trial is diminished by the fact that they have already been prosecuted and punished for most of their criminal conduct and that they will not receive significant additional terms of imprisonment.
b)While I have found that this second prosecution was commenced in good faith, I consider the objective effect of trying each accused a second time is oppressive. It is oppressive because a second trial was entirely avoidable had different prosecutorial choices been made. It is oppressive because most of the accused’s criminality has already been punished. It is oppressive because each of the accused has already been the subject of a very lengthy first criminal trial involving at times unconscionably harsh conditions of incarceration and transport. It is oppressive because the proposed conspiracy trial, even in its reduced evidentiary form, will last up to seven months and has already been proceeding falteringly for five months. It is oppressive because of the effects of the large overlap in the evidence between the two trials that I have identified in the body of these reasons and it is oppressive because of the individual factors that I have identified pertinent to each accused. The combination of these factors leads me to conclude that there is an incurable oppressive defect that goes to the root of the conspiracy trial of each accused. It is incurable because almost all of the above factors that I have identified arise from the decision to try the accused not once but twice and that decision cannot be reversed.
c)I have considered each application individually. Whilst some of the relevant considerations vary (for example Raad’s mental health is much more precarious than others; another example is that Joud is more morally culpable than certainly Raad and Sayadi), I am satisfied that all four accused men have made out their individual cases for abuse of process on the basis of oppression and for the reasons that I have set out. In each case, in my view, the oppression outweighs the public interest in trying the accused and if necessary sentencing those convicted for their entire criminality.
I order that the charges in the matter of the Queen against Abdul Nacer Benbrika, Aimen Joud, Fadl Sayadi and Ahmed Raad alleged in the Indictment filed on 25 September 2009 be permanently stayed.
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