R v Benbrika (Ruling no 4)

[2007] VSC 290

IN THE SUPREME COURT OF VICTORIA Not restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1544 of 2006

THE QUEEN

v

ABDUL NACER BENBRIKA, IZZYDEEN ATIK, AMER HADDARA, AIMEN JOUD, SHANE KENT, ABDULLAH MERHI, AHMED RAAD, EZZIT RAAD, FADAL SAYADI, HANY TAHA, SHOUE HAMMOUD, MAJED RAAD and BASSAM RAAD

---

JUDGE:	BONGIORNO J
WHERE HELD:	Melbourne
DATE OF HEARING:	8, 13 and 14 August 2007
DATE OF RULING:	15 August 2007
CASE MAY BE CITED AS:	R v Benbrika and Ors (Ruling No. 4)
MEDIUM NEUTRAL CITATION:	[2007] VSC 290

---

TRIAL – Criminal trial – One accused pleads guilty and turns Queen’s evidence – Suppression of publication of plea – Interference with other accuseds’ right to a fair trial – Supreme Court Act 1986, ss 18 and 19.

---

APPEARANCES:	Counsel	Solicitors
For the Crown	Mr D Lane with Ms L Taylor	Commonwealth DPP
For the Accused Atik	Mr M G O’Connell	Galbally & O’Bryan
For the Accused Ezzit Raad	Mr G Barns	Robert Stary & Associates
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 GP  Mullaly	Robert Stary & Associates
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:

1. On 18 December 2006, 13 men were arraigned in this court on a total of 17 counts of terrorism related offences created by the Commonwealth Criminal Code.  They all pleaded not guilty to all counts.  Their trial is due to commence before a jury on 4 February 2008. 

1. On 5 July 2007, one of the accused, Izzydeen Atik, was re-arraigned on his own application and pleaded guilty to the two counts on the indictment which related to him, namely being a member of a terrorist organisation and providing material support to a terrorist organisation.  At the time of Atik’s re-arraignment the Court made an order prohibiting publication of any information concerning Atik’s change of plea until further order.  In due course Atik’s plea hearing was fixed for 13 August, following which Messrs Corrs Chambers Westgarth, representing a number of news organisations in both the print and electronic media, namely Herald and Weekly Times Pty Ltd, the Australian Broadcasting Corporation, Channel 7 Limited, Nine Network Australia Pty Ltd and Nationwide News Pty Ltd, gave notice of its intention to seek revocation of the suppression order.

1. The application  for revocation was argued on 8 August by a solicitor of that firm, the aptly named Mr Quill. He sought, and was granted, leave to appear for the media organisations his firm represented.  The application was opposed by all the accused in this case, including Mr Atik himself.  In written submissions and, subsequently, orally Mr Quill put cogent arguments as to why the media should be permitted to publish, not only the fact of Mr Atik’s change of plea but also the evidence and submissions which would be made on his plea hearing on 13 August. 

1. Mr Atik, who upon changing his plea, turned Queen’s evidence, has provided the investigating authorities with two lengthy statements which gravely inculpate all of the other accused in the offences upon which they have been arraigned.  He has also indicated a willingness to give evidence for the Crown and to provide any further assistance requested by police.  It was likely, even at that time that some, at least, of the material in Atik’s statement would be put before the Court on his plea in mitigation of sentence.

1. Mr Atik’s opposition to the lifting of the suppression order was grounded in a fear of reprisals against both him and his family, not only by his former co‑accused, but also by any like‑minded sympathisers who might ascertain his family’s whereabouts or otherwise identify them from media reports. 

1. The remaining accused opposed the lifting of the order on the ground that the free dissemination of Mr Atik’s allegations against them would have the effect of severely prejudicing their right to a fair trial.  In particular, they argued that to make public the fact that by his plea of guilty Mr Atik had acknowledged the existence of a terrorist organisation of which he was a member would be likely to be indelibly printed on the public mind. It would be likely to receive publicity when it was a fact strenuously denied by all of them. They argued that the nature of Mr Atik’s allegations are such that they would attract nationwide banner headlines in the print media and sensational coverage in the electronic media.  There would follow inevitable discussion and speculation about the accused, none of which would be anything other than to their extreme prejudice.  Commentators and politicians would inevitably keep the matter before the public, thus preventing the effluxion of time from having any ameliorating affect.  This would be particularly so if there were other local or international news stories relating to terrorism over the next few months.  These stories would, argued the accused, be the occasion for a visiting and revisiting of the story regardless of the fact of the approaching trial. 

1. In reply, Mr Quill argued that the elapse of time until trial would have the usual ameliorating effect.  He referred to “the six month rule” which he submitted, was approved by the Full Court in Friedrich v The Herald and Weekly Times Limited & Anor[1] and to the operation of the sub judice principle which imposes a discipline on the media which they fail to observe only at their grave peril. 

   [1](1990) VR 995, 1006.

1. Mr Quill’s principal argument, however, was that, as it was proposed that Mr Atik would be a Crown witness upon the trial of the other accused, any jury empanelled to try this case would undoubtedly be quickly informed of his plea and would hear his allegations in full so that disclosure of this material now would cause the accused  no prejudice as the jury would hear Mr Atik’s evidence anyway. 

1. At the conclusion of the argument on 8 August I reserved my decision until 13 August when I intended to deliver it.  However, upon considering the matter further in the meantime, and, in particular, upon rereading Mr Atik’s statements, I decided that it would be dangerous to accede to the media’s application until the Court was in a position to assess the entire content of the material ventilated on Atik’s plea by both the Crown and by Atik himself.  Thus, before hearing the plea on 13 August, I again deferred ruling on Mr Quill’s application until the plea was completed. 

1. Mr Atik’s plea was commenced on 13 August and completed yesterday.  A very large number of  matters extremely significant to this application emerged during that plea.  It is necessary to make only a general reference to some of them. 

1. First, Mr Atik was demonstrated as having suffered from a severe mental illness amounting to psychosis for many years, including for some years before either of the offences which he now admitted are alleged to have occurred.  It also emerged that he was of very low intellectual capacity, having an IQ of, perhaps, 70 or even less.  He has not yet been cross‑examined on his proposed evidence and the effect of cross‑examination upon his credibility, having regard to these matters, cannot yet be properly assessed.  It may or may not be seriously affected.

1. Secondly, his case on the plea was that because of his psychological make up he was an easy target for manipulation by others of the accused, particularly Mr Benbrika, that he was so manipulated, and that his criminality was considerably less than that of the others.  In the course of making this case a large amount of material damning of the other accused, or some of them, was ventilated. 

1. Thirdly, and most significantly, it emerged that Mr Atik’s appearance in the witness box at the trial of the other accused is by no means certain.  Whether he is called as a witness will depend upon a proper consideration of his value to the prosecution case after he has been cross‑examined on a preliminary examination to be undertaken on 27 August.  Only after that, by the application of appropriate principles of prosecutorial responsibility will a decision be made as to whether he will be called or not.  Even then, much of Mr Atik’s statement may be excluded from evidence for appropriate legal reasons so that there is no certainty whatsoever that everything he has said in his statements will get before a jury at all.  This may well be particularly so in respect of some of the most sensational and therefore the most newsworthy of his allegations. 

1. Having heard Mr Atik’s plea, there can be little doubt that publication of much of the material placed before the Court on that plea would carry a real and substantial risk of an interference with the administration of justice in that it would seriously interfere with the accuseds’ right to a fair trial: Friedrich v The Herald and Weekly Times.[2] Against this risk must be balanced the principle of open justice universally accepted in our jurisprudence as a fundamental principle of the rule of law. See, for example, the statement of McHugh JA in John Fairfax & Sons Ltd v Police Tribunal of NSW.[3] However, there are occasions when higher considerations require modification of this right, albeit for a time, in certain circumstances.  In the circumstances of this case the right of the accused to a fair trial must prevail. If that requires postponing the public’s right to know of Mr Atik’s plea, and even of his sentence, then that right must be postponed.

   [2](1990) VR 995.

   [3](1986) 5 NSWLR 465, 481.

1. The suppression order, as modified yesterday to enable the press interests to have access to certain material before the Court (even though they cannot publish it) and to enable the prosecution and defence lawyers to carry out their professional functions will remain in place until further order.  This judgement, expressing the reasons for not permitting the publication of Atik’s plea must also be suppressed as must the existence of the earlier orders and the reasons for them. For clarity, the orders this Court will now make will revoke the earlier orders and replace them with new orders in the following terms:

1. The Court orders that:

1.The suppression orders made on 5 July 2007 and 14 August 2007 are revoked.

2.   Until further order, no person shall publish in any form whatsoever:

a)The fact that Izzydeen Atik has pleaded guilty to the offences upon which he has been arraigned;

b)Any account of any part of the hearing in this Court of Izzydeen Atik’s plea in mitigation of sentence;

c)Any reference to the suppression orders made concerning this proceeding on 5 July 2007 and 14 August 2007 or to this suppression order or the reasons for any of them being made.

3.Notwithstanding the order expressed in paragraph 2, the Crown and the solicitors for Izzydeen Atik may publish to press organisations copies of the Summary of Crown Case, and Crown Submission on Sentence, and the Outline of Plea made on behalf of Izzydeen Atik.

4.Notwithstanding the order expressed in paragraph 2, the Crown and the solicitors for Izzydeen Atik may, in the ordinary course, provide any document or other information to the solicitors for all of the other accused.

---