R v Benbrika & Ors

2 There are also two other issues which need to be addressed before Atik gives his evidence, namely whether the accused should be permitted to cross-examine him further on the voir dire before he gives that evidence and whether the Crown can legitimately lead evidence-in-chief from him as to his psychiatric condition.

3 In the course of argument most of the remaining objections of the accused to parts of Atik's proof were resolved by agreement or by concessions made by the Crown, leaving it necessary for the Court to rule only on some of those parts of his evidence concerned with a conversation he says he had with Benbrika in late August 2005. He says that Benbrika told him of the intention of members of the group to target a number of different public venues for terrorism attacks, specifically the AFL grand final, the NAB Cup and Crown casino. The relevant conversation is first referred to by Atik at paragraph 51 of his proof, however, specific objection is taken particularly to material in paragraphs 54 and 55 and to a lesser extent in paragraph 53.

4 In paragraph 55 Atik referred to having asked Benbrika who knew about the plan to undertake a terrorist attack. The proof says that Benbrika "named a number of the accused". He also asked Benbrika "Who is going to sacrifice themselves?" The proof says that, in reply, Benbrika named two of the accused.

5 Mr Maidment for the Crown submitted that this evidence was relevant and admissible as being probative of the Crown's circumstantial case as to the existence of an organisation and its nature as a terrorist organisation. It is also evidence of Benbrika's participation in the organisation, he argued. However, he specifically disavowed any intention to rely on the evidence as demonstrating conduct by Benbrika in furtherance of the object of the organisation - a so-called Tripodi[1] or Ahern[2] basis. Mr Maidment said he would only seek to rely upon the evidence in that way if it was held to be irrelevant to the issues to be identified.

6 Because all parties are in possession of Atik's original statement to the police made on 20 July 2007, it is known that Atik's evidence is, in fact, that Benbrika named Abdullah Merhi and Bassam Raad as potential suicide bombers and that those who knew about the plan were, in fact, nominated as named individuals by Atik to Benbrika who assented to their being involved. As will be seen, the distinction between Atik's proof and its apparent source or sources will become important even if the sources, namely Atik's statement of 20 July 2007 (and possibly his record of interview) are somewhat lacking in clarity as to who said what in the alleged conversation.

7 Mr Montgomery, who put the principal argument on this question, argued that the conversation between Atik and Benbrika did not provide evidence of the existence of an organisation or evidence as to the nature of the organisation if it existed.

8 Alternatively, he argued that as a matter of discretion paragraph 55 should be excluded as, even if it does contain admissible evidence of the existence and nature of an organisation, the mention of the names of some of the accused in the way Atik could mention them, either in evidence in chief or possibly in cross-examination, would create enormous prejudice to the cases of those accused: prejudice unlikely to be eliminated by a direction that the evidence was only relevant to the existence and nature of an organisation, alleged by the Crown to be a terrorist organisation, and of Benbrika's participation in it.

9 To correctly describe the situation, such a direction would have to point out that Benbrika's statement, to the effect that Merhi and Bassam Raad were prepared to be suicide bombers, could be used by the jury to support conclusions that an organisation existed and that it was a terrorist organisation, but not that Merhi and Bassam Raad were members of it. Mr Montgomery argued that the mention of names or even, as in paragraph 55, a reference to some of the accused without names, would create enormous prejudice even if a direction in the form suggested was given as to the limited nature of the relevance of the evidence. He submitted it should be excluded.

10 Mr Taft added to Mr Montgomery's argument by specific reference to his client and the particular sensitivity of his position having regard to what Atik said in his statement of 20 July 2007.

11 Following the argument on Friday, the matter was stood down to enable a compulsory discussion to occur between counsel to see if the impasse created by Atik's proof, as it currently stands, could be resolved. That discussion, unlike many similar which have occurred in the course of this case, did not resolve the matter so that it must now be resolved by decision of the Court. To this end, further argument was put by Mr Mullaly, Mr Barns, Mr Brustman and Mr O'Sullivan. They each put the matter from their client's point of view, with Mr Montgomery and Mr Trood adding further argument along the same lines with respect to paragraph 54 of Atik's proof. Mr Trood argued that references to "some brothers" doing inspections of possible targets raised similar problems to those already identified by Mr Montgomery in paragraph 55. The source material from which paragraph 54 appears to have been derived does not refer to "some brothers", but rather names a number of specific individuals.

12 The starting point for a resolution of this problem is to examine Atik's actual evidence, not merely the version of it in the proof of 4 February 2008. In the absence of agreement reached between counsel to avoid the necessity for the Court to rule on an admissibility question, it is not legally possible for Atik to give evidence as foreshadowed in paragraphs 54 and 55 of that proof. As a matter of strict admissibility he can only say what he heard Benbrika say. He cannot paraphrase it to avoid a problem or perceived problem, so that whilst the efforts of the Crown to overcome the problem of prejudice to the accused raised by Atik's actual evidence as detailed in his statement of 20 July 2007 were well intentioned, they have, to some extent, caused the problem the Court now faces without, in fact, protecting the accused, or some of them, from the possibility of being exposed to prejudice of a considerable degree if the real evidence goes before the jury.

13 Recasting paragraphs 54 and 55 of Atik's proof in terms of what he actually said was said in the car by him and Benbrika in August 2005 (remembering that his side of the conversation is admissible as well as Benbrika's if the Crown is correct on the issue of relevance) involves naming a number of the accused as having performed certain acts or as having expressed their willingness to perform certain acts of an undeniably terrorist nature. That is Atik's evidence as detailed in his statement of 20 July 2007 at pages 119 to 121. Benbrika did not say "some brothers" were doing inspections of proposed targets. He said Sayadi, Joud and Haddara were doing them. The distinction is important as it is only by preserving that distinction that the true nature of the problem raised by this evidence and the way it is sought to be presented is properly exposed.

14 Similarly, Atik would not be permitted say, "Benbrika named a number of the accused" or, "He named two of the accused" as set out in paragraph 55 of his proof. In fact, his evidence is that he put the names of all the accused to Benbrika in the form of an interrogation on the subject of whether they knew about the proposed targets of terrorist attacks. Benbrika replied by affirming the knowledge of all the accused, except for Ezzit Raad, Hammoud and Majed Raad. Again, Atik's actual evidence as to Merhi and Bassam Raad being prepared to be suicide bombers seems to be confined, at least on page 120 of his statement of 20 July 2007, to a statement by Benbrika that they were going to sacrifice themselves, although his proof puts these words into his mouth; not into Benbrika's.

15 Assuming, then, that evidence otherwise admissible could be led from Atik as to the conversation with Benbrika which described the involvement of various of the accused in these activities, would it be relevant to any matter in issue in this trial? The Crown says it is relevant to prove the existence and nature of the terrorist organisation which it alleges exists and is also relevant to prove Benbrika's involvement in that organisation. Mr Montgomery and, by extension, those of the accused who relied on his argument, say it is merely a narrative in which Benbrika describes various things which some of the accused have done or are prepared to do. It is not itself probative.

16 The touchstone of relevance is a logically probative connection between the proposed evidence and a fact or facts in issue in the litigation. If two men have a conversation about the activities of a number of others, and it is possible to infer from the activities described and the degree of participation of various people in them that they are the activities of a group or body of people which could be properly referred to as an organisation, the mere fact that that conversation occurred must be some evidence of the existence of that organisation. If the activities referred to in the conversation are in the nature of terrorist activities or matters connected with terrorist activities, the conversation must constitute some evidence of the nature of the organisation which it is sought to prove by the same conversation. Thus, if it was led in proper form, the evidence foreshadowed in paragraphs 54 and 55 of Atik's proof is relevant and accordingly admissible to prove an element or elements of the Crown case.

17 The Crown does not contend, nor could it, that this conversation provides any evidence that anyone apart from Benbrika was a member of a terrorist organisation. It follows that a conversation which could be led for a legitimate purpose by the Crown would nevertheless be inadmissible to prove the facts stated by the participants to that conversation: facts which on their face are damning of a number of the accused, perhaps especially Merhi and Bassam Raad. The jury would have to be warned that although, for example, Benbrika is said by Atik to have said that these two accused had offered themselves as suicide bombers, or had agreed with Atik that this was the case, the conversation provided no evidence that they had, in fact, done so. Even if the jury believed Atik, the conversation provided no evidence at all against Merhi or Bassam Raad. The same direction would have to be given in relation to the implication of each of the other accused named in the conversation.

18 Although such a direction would, taken at face value, prevent misuse by the jury of the evidence of the Benbrika/Atik conversation, the risk of the jury inadvertently using the evidence impermissibly or even misunderstanding the direction must be recognised. But it is a direction of some subtlety. The damning nature and sensational effect of the conversation as Atik would recount it cannot be overlooked. It is the risk of the jury being overwhelmed by Atik's account which must be weighed against the probative value of the evidence to the Crown to determine whether, on balance, it should be excluded in the exercise of the Court's discretion.

19 There has been already placed before the jury in this trial evidence of many conversations between the accused and involving Benbrika which go to the issue of the existence and nature of an organisation which the Crown contends existed at the relevant time. There will be a lot more evidence of a similar character before the trial is concluded. The impugned conversation itself, even if modified to delete references to the accused other than Benbrika either by name or description, provides more evidence to the same effect. In the circumstances the probative value of leading the Atik/Benbrika conversation in full is slight when compared to the risk of prejudice to the accused of the type already described. Accordingly, it is appropriate that Atik's evidence of his conversation with Benbrika in the motor vehicle in early August 2005 be confined to those parts of it which do not implicate any of the other accused. Specifically, the Crown must not lead, even in proper form, the evidence in paragraph 54 of Atik's proof of 4 February 2008, nor must it lead the evidence in paragraph 55 after the word "subject" in the third line of that paragraph.

20 The matters excluded are excluded in the exercise of the Court's discretion to ensure that the risk of a miscarriage of justice occurring because the jury misunderstood an appropriate, if subtle, direction is overcome.

21 In conclusion on this aspect of the case, I should add that even if the Crown was able to make evidence of the conversation referred to in paragraphs 54 and 55 of Atik's proof admissible pursuant to the principle expounded in Tripodi v The Queen[3] or Ahern v The Queen[4], the same discretionary considerations would result in its being similarly excluded even if, which is by no means certain, it was admissible on the Tripodi/Ahern principle.

22 The second matter with which this ruling is concerned is whether the Crown, in leading Atik's evidence, is entitled to prove he has a mental illness, namely schizophrenia, a fact which might be thought by the jury to have relevance to an assessment of his credibility as a witness.

23 Although not expressly stated by the prosecutor, it would appear that the Crown argument proceeds on the basis that the evidence would come from Atik, himself, although how he could proffer an admissible medical opinion as to his own mental condition is not immediately apparent.

24 The prosecutor relied upon Toohey v Metropolitan Police Commissioner,[5] an authority for the proposition that medical evidence is admissible to show that a witness suffers from some disease or defect of mind that affects the credibility of his evidence. It overruled a previous English case, R v Gunewardene.[6] In Toohey the defence called medical evidence to suggest mental instability in a Crown witness. The House of Lords approved this course, even though by calling such evidence the defence was seeking to litigate a collateral issue. But the more pertinent question in this case is not whether evidence is admissible as the House of Lords held in Toohey's case, but whether the Crown can impeach the credit of its own witness: a witness who, ex hypothesi, is tendered by the prosecutor as a witness of truth. If the prosecutor does not believe Atik to be a witness of truth, it ought not to be calling him. If it has evidence of some possible unreliability, such as mental instability but still regards him as a witness of truth, it should provide that evidence to the defence who can use it to cross-examine Atik or even call medical evidence as in Toohey's case.

25 The rule that a party cannot impeach the credit of his own witness is old. It goes back at least to the beginning of the 19th century: Ewer v Ambrose,[7] Bradley v Ricardo,[8] Freedlander v London Assurance Company.[9] It is preserved, even if in slightly modified form, by s 34 of the Evidence Act 1958. It is at least arguable that having regard to the particular duty cast upon the Crown with respect to the witnesses it calls, the rule applies a fortiori to it. In the circumstances, the Crown will not be permitted to lead evidence in chief from Atik as to his mental state, either at the time at which he says he was a member of a terrorist organisation, or now as he gives his evidence.

26 The final matter upon which a ruling is required with respect to Izzydeen Atik is whether defence counsel should be permitted to now cross-examine him on the voir dire before he is called as a witness. It would appear that Atik peremptorily abandoned an appeal against the sentence imposed upon him by this court on 23 August 2007 upon his pleading guilty to those counts on the then indictment preferred against him and the accused now on trial. As Mr McMahon, in arguing the point, said, there may be a significant credit issue behind Mr Atik's change of position with respect to his sentence. This having occurred since he was cross-examined on the voir dire last year, Mr McMahon argued that it should now be permitted to be explored. I accept Mr McMahon's submission. If there is any such credit issue, it should be exposed before the jury hears his evidence.

27 In the circumstances, defence counsel will have leave to cross-examine Izzydeen Atik as to the circumstances surrounding the abandonment of his appeal to the Court of Appeal from the sentence imposed by this Court. Such cross-examination must be limited to that issue and must not, of course, infringe the principles of client legal privilege.

[1] Tripodi v The Queen [1961] HCA 22; (1961) 104 CLR 1.

[2] Ahern v The Queen [1988] HCA 39; (1988) 165 CLR 87.

[3] [1961] HCA 22; (1961) 104 CLR 1.

[4] [1988] HCA 39; (1988) 165 CLR 87.

[5] [1965] AC 595.

[6] [1951] 2 KB 600.

[7] [1825] EngR 86; (1825) 3 B & C 746; 107 ER 910 (KB).

[8] [1831] EngR 377; (1831) 8 Bing 57; 31 ER 321 (CA).

[9] [1832] EngR 773; (1832) 4 B & Ad 193; 110 ER 428 (KB).