R v Benbrika & Ors [2009] VSC 142 | Case summary

R v Benbrika & Ors [2009] VSC 142 | Case summary | Zoe

This is a ruling concerning the relevance and admissibility of evidence concerning items which were found at the scene of a campfire at the Louth property shortly after the Louth excursion.
The items are described as the remains of a six-volt lantern battery and five heat-affected spark plugs. The evidence also seems to suggest that a spark plug or spark plugs were attached to a terminal or terminals on the battery by some sort of wire or spring - perhaps the distorted terminal of the battery itself.
The Crown says that the finding of this object would enable a jury to draw an inference that the relevant accused, or some of them, were engaged in an exercise in trying to make an incendiary device of some kind; that is to say, a device which would create a spark and ignite explosives or similar substances.
All of the defendants oppose the admission of evidence that these objects were found at a former campfire at Louth on two grounds. Those grounds are as follows. First, that the objects themselves have no probative value; they are irrelevant because they do not mean anything; they are simply commonplace articles which might have been there for a long time and might not have any connection with anybody. Second, in any event they cannot be connected to the Melbourne accused.
So far as the first argument is concerned, the Crown says that a jury would be entitled to view that material as a device, the intention of which was to create some sort of a spark, and that they could infer from that, that the accused were experimenting with it to try to create a spark to ignite some sort of incendiary device. The fact that the forensic scientist, John Kelleher (and indeed anybody who has had even a passing acquaintance with any form of electrical circuit), was of the opinion that it would not work, is, the Crown says, beside the point.
The question the Court has to determine in deciding the relevance and admissibility of these objects is whether they pass a threshold test for relevance. Relevance is often a matter of degree. The finding of a battery by itself would not have raised, one would have thought, the relevance of it as an item of evidence in this case to a sufficient level to make it admissible. But a battery found connected to a spark plug would enable a jury to draw an inference that somebody was trying to create something that would create a spark. The jury would not need any special electrical knowledge to draw that inference, even if the person who had the knowledge then went on to say: "But it is not going to work". As Mr. Robinson put it, it is common knowledge that a dry-cell battery contains an electric charge, wires transfer current, the concept of a spark plug conveys the idea of a spark, and that a spark is needed to ignite things, particularly inflammable or explosive substances. In my opinion, the evidence does reach the threshold for admissibility on the case as it is presently stated.
The second limb of the defence contention is that nothing connects the Melbourne accused to these objects. There is no doubt that some of the Melbourne accused went to Louth, and there is no doubt that the Sydney residents can be linked to the area surrounding this campsite. That they were friends of the Melbourne accused can be established. That they were at the property at the same time can be established. The inference that the jury could draw is that they camped together and camped in the same area. If they drew that inference, there would be a connection between the Melbourne accused and the campsite, and, accordingly, with the campfire and with what was found in the fire. The inference need not be the only inference open; the evidence is not central to the Crown's circumstantial case.
Whether that inference is drawn is a matter for the jury after hearing the evidence and argument. In the circumstances I will admit the evidence that this material was found in the campfire at Louth. If, as I indicated in argument, there is some change in that evidence before this matter is finally put before the jury, there may be another argument available, but on the material as it presently stands, that evidence - the evidence of Kelleher and the evidence of the police officers of finding the material - is relevant and admissible.

[5]

The Crown seeks to tender expert evidence from a forensic scientist, John Kelleher, as to a number of different matters. That evidence is objected to by defence counsel. Mr. Kelleher has provided two statements dated 13 September 2005 and 8 August 2007.
In his first statement, Mr. Kelleher provides expert opinion as to whether the directions and instructions for making explosive and/or incendiary devices found in publications seized from the accused, or some of them, would be effective for the purposes described therein.
Defence counsel argued against the admission of this evidence, submitting, in essence, that the publications speak for themselves and need no commentary from Mr. Kelleher. Of course, that submission is correct as far as it goes. Mr. Kelleher would not be permitted to summarise the material in these publications for the jury for much the same reasons that the A3 chart has been excluded. The jury must have the publications themselves, but once the publications are before the jury, the question of the efficacy of the instructions they contain becomes an issue of fact in the trial, an issue upon which the jury need expert opinion from someone suitably qualified. It could not be said that a jury would, in the ordinary course, be able to make a judgment as to whether chemical formulae or mechanical devices would or would not be able to achieve the end which the publication suggested. That is a matter of expert evidence and a matter upon which the expert would need to be qualified in the appropriate field.
As there is no challenge to Mr. Kelleher's expertise in this regard, he would appear to be the appropriate person to give expert evidence to the jury along the line indicated. The challenge to Mr. Kelleher's evidence in this regard fails. His evidence may be led.
If there is any issue as to the detail of Mr. Kelleher's evidence or how far he can go in proffering an opinion about the issues raised, further argument can be addressed at the appropriate time.
The other matter that Mr. Kelleher dealt with was an opinion concerning the items located in the fire at Louth. That matter has already been dealt with, and, insofar as he describes those items and reaches the conclusion that the battery/spark plug device could not have detonated an incendiary or explosive device, he is entitled to give that evidence.

[7]

Early on 22 February 2008, whilst the prosecutor was opening the case, it became apparent that since the trial began before the jury on 13 February, Protective Service Officers ("PSO's") had been conducting examinations known as explosive ordinance reconnaissance ("EOR") "sweeps" of the courtroom in which the trial was being conducted. This involved an inspection of all of the courtroom and adjacent areas including the bar tables, bench and, at least on some occasion or occasions, the jury room.
Upon hearing of this situation, I sought from the police officer in charge of court security, Senior Sergeant Brett Simpson, a report as to what had been occurring during these inspections and how they came to be being conducted. At the same time I directed that no police officers were henceforth to go into the jury room without my express permission communicated by one of my associates.
Later the same day the Court received a written report from Senior Sergeant Simpson which outlined the routine procedure employed by the PSO's for ensuring that a "secure court" was indeed secure. He described the conduct of an EOR.
There was some ambiguity in Senior Sergeant Simpson's initial report as to whether the daily EOR's had included the jury room on every day since the trial commenced. A request from the Court elicited a second report from Senior Sergeant Simpson which was received later on the same day. This report suggested that on only one occasion had a PSO entered the actual jury room in the course of carrying out an EOR.
Upon the facts, as they were then known, counsel for all the accused applied to have the jury discharged. Following submissions from counsel I decided to hear oral evidence from Senior Sergeant Simpson, from the PSO referred to in his second report, PSO Richardson, and from my associate Mr. Patrick Kelly. That evidence, which was led, for convenience, by the prosecutor Mr. Maidment, did not enable any definitive finding as to the number of days on which the jury room had been "swept" by PSO's. In all probability the room was entered by a PSO or PSO's on most mornings on which the Court sat between 13 February and 22 February. In the circumstances I considered it safest to assume for the purposes of deciding this application that the PSO's had carried out an EOR of the whole courtroom, including the jury room, every day the Court had sat between Wednesday, 13 February and Friday, 22 February 2008.
The other evidence elicited from Senior Sergeant Simpson confirmed that the PSO's involved in performing EOR's had no connection with any of the prosecution team or any police officer connected with the investigation of the offences being tried. This evidence, which is hardly surprising, was not contested by any of the accused.
Mr. Kelly gave evidence that, in his capacity as my associate, he obtained jugs of water from the jury room water cooler for use in the courtroom. When he did so, during the relevant period, he never saw anything which would indicate what the jury might be thinking about the case so as to provide material that someone entering the jury room might see and from which inferences might drawn.
Protective Service Officers are not members of the Victoria Police except for matters pertaining to their employment, discipline, complaints and investigations into their conduct. They are appointed pursuant to Part VIA of the Police Regulation Act 1958. They are appointed by the Chief Commissioner of Police for the purpose of providing services for the protection of persons holding certain official or public offices and of certain places of public importance. They have no role in the investigation or prosecution of crime. They are regulated by a separate command structure from members of the Victoria Police though they are subject to the direction of the Chief Commissioner.
Mr. Taft put the principle argument for the discharge of the jury on the ground that the security of the jury room had been breached by the PSO's in carrying out these ESO sweeps. His argument for a discharge of the jury was not put on the basis of any actual interference with the jury by the PSO's who conducted sweeps of the jury room during the period 13-22 February 2008. He argued, rather, that their activities created a perception that the PSO's were, or may have been, in the jury room for a wrongful purpose. He argued that the perception is the greater in this case because of the constant surveillance all of the accused have been under by police and other agencies over a long period. He likened the perception to that which would be created if it became known that prosecution or defence counsel had entered the jury room.
Mr. Maidment replied to Mr. Taft's argument by submitting that any perception relevant to the application would have to be the perception of a reasonable, fair-minded observer - not a flight of fancy or a paranoid perception.[1] He referred to the functions and duties of PSO's, and submitted that, even if they had had the opportunity to see material such as notes made by jurors, there would be no more sinister perception created than would be created should a judge's associate or other court official see such material.
There was no suggestion by Mr. Taft, nor could there be, that there was any actual interference with the jury or any of its members. It is not suggested that they knew anything of the activity of the PSO's who "swept" the jury room. This complaint is of a perception that the PSO's may have been in the jury room for a wrongful purpose. He did not articulate that purpose, but it had to be to advantage the prosecution or prejudice the accused in some way by communicating information obtained from the jury room to some person or persons outside. But a fair minded and informed member of the public who knew anything of the trial which was then commencing, the statutory functions of PSO's, the task they were in fact undertaking when they went into the jury room, and their apparent lack of any connection to the prosecution or investigation of these offences could not come to such an apprehension or suspicion reasonably. It would be much more likely that such a person would apprehend that the PSO's were going about their ordinary function of checking the courtroom for incendiary or explosive devices and thus protecting the users of the Court, including the jury.
That the accused may have a heightened concern about surveillance is not to the point. It is the reaction of the hypothetical fair-minded person to the true facts which must be assessed by the Court. A test in these terms has been applied by Australian and New Zealand courts with respect to questions concerning the apprehended bias of judges and juries: Webb v R;[2] R v Hodgkinson;[3] Duff v R;[4] R v Papadopoulos [No. 2].[5]
It is only if the Court came to the conclusion that a fair minded person who knew all the facts might reasonably apprehend that the accused might not get a fair trial by reason of the actions of the PSO's that it would be appropriate for some relief to be extended. Having regard to the ignorance of the jury of the PSOs' activities, it must be extremely doubtful as to whether a discharge of the jury would be appropriate even if the PSO's could have been perceived to have been engaged in some inappropriate activity. However, having regard to the conclusion which I have reached it is not necessary to speculate as to what relief might have been appropriate had my finding not been as set out above.
The application for a discharge of the jury was refused.

[9]

There were, in this trial, over 480 separate intercepted conversations recorded from listening devices and intercepted telephone calls played to the jury. The jury were provided with individual copies of transcripts of these intercepted conversations for use by them in following the conversations as they were reproduced. Fortunately, the overwhelming majority of these conversations were in English, and where they were not the parties were agreed (with some few exceptions) as to the appropriate English translation.
Regularly throughout the trial the jury were given directions that the evidence they must act upon was what they heard as the conversations were reproduced in the courtroom, not what they read in the transcripts provided. They were told that those transcripts were provided as a means of assisting their understanding of the evidence of the recorded conversations. This direction was in accordance with the High Court decision in Butera v DPP (Victoria).[6] Indeed, the direction was repeated so often that the jurors often smiled as I commenced to give it - so familiar were they with its content. It can be found sprinkled through the transcript, usually immediately after the Court resumed after a break.
Whilst the recorded conversations were being played in the courtroom, the jury generally followed them in their copies of the transcripts. Those transcripts were provided in individual lever-arch files. The jury were also provided with highlighters and pens, and were encouraged to mark those transcripts for their own convenience in later identifying what struck them as being important. Contemporaneously, a transcript of a recording being played was projected on a large screen on the opposite side of the courtroom from the jury box. Thus, it would be possible for a juror to follow the conversation being played on the screen rather than in the copy which he or she had. An operator, provided by the Crown, displayed the transcript, page by page, on the screen as the recordings were played.
Before the trial commenced, the Crown and counsel for each of the accused, with the encouragement of the Court, negotiated the deletion from the intercepted conversations of material which was agreed to be irrelevant, or otherwise inadmissible or unduly prejudicial having regard to its probative value. As a result the conversations played to the jury were edited, such editing being obvious as it was noted where appropriate on the transcript, although not, of course, in the audio reproduction. It was explained to the jury that such editing was necessary to exclude irrelevant and other inadmissible material.
Unfortunately, on Tuesday, 8 April 2008, whilst conversation 242 was being played to the jury, a version of the transcript of that conversation was projected onto the screen which was different to that contained in the jurors' folders and which had been agreed as between counsel. The pages which were displayed and which ought not to have been were pages 1849, 1854 and 1855. The conversation, which occurred on 27 January 2005, was between Benbrika, Sayadi, Joud and another person, Ahmed Khalek, who was not an accused. They were discussing a police raid on Joud's home and the fact that during that raid Joud had told the police that he had a gun under his bed. In the course of the three pages the word "gun" was mentioned seven times in the context of its ownership being attributed by Joud to himself.
Prior to the trial commencing, on 24 December 2007, the Court had ruled as inadmissible evidence that the police had found a gun and other items in Joud's possession on 17 December 2004.[7] This ruling led to the significant editing of conversation 242 and particularly of the pages to which reference has been made to eliminate mention of the gun found at Joud's home.
On the basis of what had occurred, Mr. Wraight for Joud, and subsequently all other counsel on their client's behalf, sought a discharge of the jury. He submitted that the fact that parts of the transcript of conversation 242 which had been agreed to be edited out had been displayed in such a way that the jury might have seen them created the necessary pre-condition for the exercise of the Court's discretion to discharge the jury and commence the trial again. He likened the situation to that in Crofts v R[8] where inadmissible evidence of instances of sexual misconduct other than that relevant to a trial was put before the jury notwithstanding its having been ruled as inadmissible by the trial judge. As he ruled the evidence inadmissible the trial judge had said that if it was led it would inevitably result in "overwhelming prejudice" to the accused.
In the event, the prosecutor asked a number of questions in re-examination which elicited the inadmissible evidence. The trial judge refused an application to discharge the jury and, instead, gave the jury a general warning against using irrelevant evidence in the course of their deliberations. He said it "should be totally excluded from your consideration."
The High Court considered that the trial judge's discretion in refusing to discharge the jury had miscarried because:

[11]

There was no evidence as to how long the offending material was shown on the screen. Mr. Wraight said that one member of counsel in Court had seen p 1849 "for the longest time" and that another said he looked at "it" for about 15 seconds, although whether that referred to the same page or the whole of the offending material is not apparent. Mr. Wraight argued that the fact that the Court had specifically excluded evidence of his client's possession of a gun rendered the situation more serious. He also referred to the fact that the editing process which had been undertaken with all of these transcripts resulted in many of them having the words "words deleted" where editing was undertaken. There is a danger, he said, that if the jury saw one or more of the references to his client's gun it might conclude that much of the other editing in the case concealed similarly interesting but inadmissible material.
The Crown opposed the application for a discharge of the jury on the basis that there was no high degree of need to undertake that course made out in the circumstances. Mr. Maidment characterised the situation as being "an unfortunate error". He conceded that it was really impossible to exclude the possibility that at least one juror might have glanced up and looked at the screen, but that the offending material was displayed for only a relatively short period of time. Mr. Maidment said that the reality of the situation is that, having regard to the period the material was on the screen, it would be "almost superhuman" of any juror to have absorbed sufficient of the material and to have put it together to draw any adverse inference against anybody.
Mr. Maidment submitted that the jury should not be discharged but should be given a direction in general terms which did not refer to the specific event which occurred because there was a strong likelihood that no-one saw the offending material. The direction should be, said Mr. Maidment, that the jury should focus on what they heard and what is in the transcript before them, and not be concerned about anything else which might have appeared on the screen. Mr. Wraight, in essence, agreed with Mr. Maidment as to the direction that should be given if his application was unsuccessful. He said the direction should be:

[13]

I did not see the offending material on the screen as I was following the transcript in my own properly edited copy and marking it as appropriate. It was considerably easier to do this than to watch the transcript on the screen which was not infrequently slightly out of synchronisation with the audio broadcast. Synchronisation of the display of transcript with the broadcast was effected, as I understand it, manually by the operator who was listening to that broadcast as she manipulated the transcript.
To my observation during the trial - there were many weeks of such audio broadcast - the jury generally appeared also to follow the audio broadcast on their own copies of the transcript. Most of them appeared to mark the transcript, although there may have been some that did not. Having regard to the way in which the jury handled the transcript generally, it is certainly possible that none of them saw the offending material. Equally, of course, that one or more did so cannot be eliminated as a possibility.
The case to which Mr. Wraight referred, Crofts, was a much more serious example of inadmissible evidence getting before a jury than this case. The majority judgment in the High Court considered the prosecutor's conduct to have had the appearance of having been deliberate, a fact not given sufficient weight by the trial judge in refusing the application for discharge. The evidence itself was of sexual misconduct "many times" by the accused, none of which related to the acts charged in the presentment. The High Court also referred to the difficulty, in that case, for the judge of fashioning a direction to the jury which would help them to eradicate from their minds the highly prejudicial evidence. This was because a reference to the evidence would have re-enforced the prejudice.
In the present case each juror had in his or her own possession in the jury box and in the jury room a proper transcript of conversation 242. They had no copy of the errant transcript. The audio broadcast which they heard was only of the admissible conversation. The jury were told on countless occasions that the evidence upon which they were to rely in deciding the case was that which they heard in the broadcast of the sound recordings. The equipment which they had access to in the jury room enabled them to play and replay those recordings only in the correct, admissible form.
There was no suggestion here, nor could there be, of any malfeasance on the part of the Crown or, indeed, anyone else. Although the mechanism by which the wrong transcript was displayed was never explained, it was accepted, by all parties, that its display was an unfortunate mistake; thus one of the discretionary considerations which should have led to a discharge in Crofts, according to the High Court, is notably absent here.
In Crofts, the High Court (Toohey, Gaudron, Gummow and Kirby JJ) said:[9]

[21]

After the problem arose early in this trial concerning access to the jury room by Protective Service Officers, I instituted some simple practices designed to ensure, as far as possible, the integrity of the jury and its deliberations for the rest of the trial. One such practice was that the jury would be provided with a box into which they could discard paper material for which they had no further use so that it could be shredded in a secure environment. The box was emptied from time to time by my associate in the ordinary course of his duties.
On 26 June 2008, after Court hours, my associate was emptying the jury's discard box when he found a bundle of documents which appeared to have been printouts from the internet. There were six such documents:
1. A printout from the "Wikipedia" website of eight pages being an article regarding the word "organisation".
2. A printout from the "Wikipedia" website of one page concerning the word "intention".
3. A printout from the "Wikipedia" website of one page concerning the word "member".
4. A printout from the "Reference.com" website of three pages concerning the word "membership".
5. A printout from the "Reference.com" website of three pages concerning the word "intentional".
6. A printout from the "Reference.com" website of four pages concerning the word "organisation".
Each of the documents found by my associate appeared to have been printed at about 1:30 p.m. on 29 February 2008. With the exception of the first document concerning the word "organisation", each of the documents appeared to be a printout of a dictionary definition supplied by the website concerned. The first document concerning the word "organisation" appeared to be a "Wikipedia" encyclopaedia entry as to the meaning of "organisation" in various contexts. It is considerably more detailed than each of the other documents.
The following morning, 27 June, I supplied counsel with copies of each of the documents.[12] Upon being supplied with the material, Mr. Mullaly, on behalf of all of the accused, made an application that the jury be discharged. He supplied the Court with an extensive outline or argument supported by a bundle of authorities. Mr. Mullaly's argument can be summarised briefly as raising three specific contentions. First, he submitted that the presence in the jury room of the material found by my associate constituted a "material irregularity" in the trial. He justified this description by referring to the fact that on a number of occasions I had told the jury that they were to decide the case on the evidence they heard in the courtroom and nothing more. Thus, to have searched for and found the material discovered constituted a material irregularity.
Second, Mr. Mullaly argued that by having this material the jury demonstrated bias or at least would raise in the mind of a fair-minded observer an apprehension of bias. Third, and more generally, he argued that the presence of that material in the jury room constituted unfairness in a relevant sense such that the trial needed to be aborted.
Mr. Mullaly's arguments were supported by Mr. van de Wiel Q.C., Mr. McMahon and Mr. Barns, each of whom placed emphasis on different aspects of the problem. Mr. van de Wiel, in particular, submitted that the jury had wilfully disobeyed my directions concerning the material they could use in determining the issues in this case.
Mr. Robinson S.C., for the Crown, opposed the application for a discharge of the jury, submitting that no question as to whether there was a high degree of need to take that course was even raised by the material found in the jury room. In developing this argument, he submitted that the fact that the material was found abandoned in a situation where the jury could expect that it would be confidentially destroyed meant that it had little or no significance. It had existed, apparently, since the end of February but before the jury came to consider its decision at the end of the case they had abandoned it, he said. Whatever its significance might originally have been, its significance at this point was demonstrated by what the jury did with it.
Mr. Robinson argued that there had been no disregard by the jury of directions given to them by the Court. Such directions, being general in nature, were not sufficiently specific to require the jury not to have done what they did.
No defence counsel who argued the case for a discharge of the jury descended to a close analysis of the material which was found in the jury room. But such an analysis has to be central to the question of whether the jury's access to that material has resulted in an unfair trial or even the risk of an unfair trial.
The most extensive of the documents, that which deals with the concept of "organisation", appears to be an encyclopaedia article about that word viewed from a sociological or similar perspective. If the person who acquired this material from the Wikipedia was hoping for some talisman with which to unlock the meaning of "organisation" in the context of a terrorist organisation proscribed by the Commonwealth Criminal Code, I fear he would have been sadly disappointed. It is replete with the jargon of sociology but, despite this, it does not suggest any meaning of the word "organisation" which would be antipathetical to the proper application of the directions the jury were ultimately given concerning that word in the context of this case. It refers to various theories of organisation, but not in any way which would lead a juror to consider the word "organisation" in any other than the way the jury were subsequently directed to do - both in the written materials they were given to assist them to understand the law and in the expansion of those materials in the oral directions which followed.
A close reading of this document does not reveal any material prejudicial to the interests of the accused or any of them. Counsel for no accused submitted that it did. It constitutes, at worst, an irrelevant distraction in much the same way as might be a newspaper or magazine article which bore some peripheral relationship to a matter the jury had to decide.
The other two Wikipedia documents consist of definitions of the words "member" and "intention". Nothing in those definitions detracts in any way from the directions which were subsequently given to the jury with respect to their consideration of those terms in this case. The same can be said for the three extracts from Reference.com concerning the words "membership", "intentional" and "organisation".
Even if, contrary to my finding, there was some noxious idea conveyed by any of this material, it must be remembered that the jury voluntarily discarded it at the end of June 2008. Subsequent to so doing, they heard 13 addresses from counsel and many days of direction from me. Combined with directions as to the binding nature of the judge's charge, and having regard to the content of the material, it borders on the fanciful to suggest that this material is of any significance on the question of whether the accused had a fair trial or not.
Whilst it is true that the jury were given a number of directions as to not consulting outside sources with respect to matters in this case, I am not satisfied that by collecting the material in question it, or any of its members, deliberately flouted any direction they were given. Typical of such directions is that found at p 67 of the transcript. After giving a warning to the jury that they had to be careful of a number of things such as discussing the case with others I said:

[23]

Similar directions were given on a number of other occasions, a full list of which was referred to by Mr. Robinson in his submissions. On a strict lawyer's reading of those directions, it might be said that the jury were directed not to go to the internet at all. But it is equally possible that that direction and others similar to it were interpreted by the jury as meaning that they must not seek any information about this case. That is to say, it is possible that they thought they were being warned not to seek from the internet or elsewhere information about the accused, or what they were accused of having done. As Mr. Robinson pointed out, had the jury deliberately intended to disobey the Court's directions as to these matters, the internet material to which they would have had resort would have been far more dangerous and prejudicial than the somewhat anodyne encyclopaedia references which were found by my associate. Mr. van de Wiel told the Court that there were many internet references to his client, available on a simple search, which painted him in a very unfavourable light. If the jury had had material of that nature there may have been sometime more in the discharge application.
All parties acknowledged that the test to be applied to determine whether this jury should have been discharged was that there must be a "high degree of need" for that step to be taken to prevent an unfair trial.
I had reached this conclusion before Court commenced on 3 July 2008, and intended to deliver this ruling that morning. However, upon the Court convening, Mr. Mullaly raised a further matter which complicated the issue somewhat. The Court was informed that a notorious Melbourne radio broadcaster, Mr. Derryn Hinch, had made a reference to this trial in a program which he conducts in the late afternoon on a Melbourne radio station. The reference by Mr. Hinch to this trial was in the context of a trial in Queensland which had been permanently stayed by a judge there because of adverse publicity which affected the accused's right to a fair trial. Hinch said that he predicted that a long trial in Melbourne was about to be aborted because of something which had been found in the jury room. He did not identify this trial further.
This revelation caused many counsel to seek to re-open the argument for a discharge of the jury and to add to it the mischievous interference of Mr. Hinch. Submissions were made by many counsel to the effect that the jury would either have heard Hinch's program or, if they had not they would have been told of it by someone else, and would thus have realised that the finding of something in their jury room had put the trial in jeopardy.
I heard all counsel who wished to be heard, including Mr. Robinson for the Crown. He maintained the Crown's opposition to a discharge of the jury notwithstanding the Hinch comments.
Having considered the submissions and the matters generally, I reached the conclusion that the comments of Hinch, mischievous as they were, did not alter the situation with respect to the question of discharging the jury. There was no evidence that any juror knew anything of them and they were not specific enough to identify this trial with any certainty. In any event, the comments were not themselves prejudicial to a fair trial.
However, it seemed appropriate to reinforce in the minds of the jury that the Court was concerned to ensure that they were approaching their task in an impartial way, unconcerned by anything which might have occurred outside the Court or, for that matter, within the Court but to which they ought not to pay attention. No counsel had suggested that I should conduct an inquiry (either under s 78B of the Juries Act or otherwise) into either the internet material or the Hinch addendum to it for various, sometimes conflicting, reasons. Accordingly, I decided to take a course which involved addressing the jury on these issues without disclosing any of the detail; that is to say, without disclosing the Court's knowledge of the internet material or of the possibility that one or more of them might have heard or heard of the comments that Hinch made. After that address, I asked the jurors individually to communicate with the Court in writing as to whether they had any concerns as to their capacity to approach this case in the way that they had sworn to. The address which I delivered to the jury is at p 4343 of the transcript and need not be repeated here.
Upon the completion of that address, I asked the jury to hand their written responses to my associate which they did. Each of the 14 jurors, individually, confirmed that they were able to determine this case on the material before the Court without distraction and without any concern as to any outside influence. Some of them were effusive in stating this. The jurors' notes were then placed in an envelope which was sealed and placed on the Court file with an order that it be opened only by or on the order of a judge.
There was nothing in the Hinch material which caused me to revise the ruling which I had intended to give with respect to the internet material, and there was nothing in what Hinch said which would, of itself, warrant any interference with the trial. The application (or applications) for the jury to be discharged were then dismissed.

[35]

On 21 May 2008, Mr. McMahon, for Ahmed Raad, cross-examined a police officer as to a number of things which were removed from Ahmed Raad's house during a raid on 22 June 2005. Among those things were three invoice books containing entries which were at least consistent with the sale of phone cards, a business in which other evidence disclosed Ahmed Raad engaged.
The books were tendered by Mr. McMahon as evidence that his client operated a business and he used them to support an argument that, although Ahmed Raad did keep financial records for his business, no financial records of the sandooq had ever been found, either at his place or elsewhere, thus making it less probable that he was, in fact, in the position of treasurer of a terrorist organisation.
In the course of his address, Mr. Brustman, for Shoue Hammoud, has seized upon an entry in one of Ahmed Raad's account books dated 3 December 2004 which appears to record the receipt by Raad of $150.00 from Hammoud for phone cards supplied. This entry, argues Mr. Brustman, throws doubt on the Crown case that, on 6 December 2004, Shoue Hammoud gave money to Ahmed Raad as a payment to the sandooq and thus to a terrorist organisation, the count alleged against Shoue Hammoud in count 11 on the indictment.
That count depends upon a statement by Shoue Hammoud in an intercepted telephone conversation on 7 December 2004 to the effect, "I gave him money yesterday" and, of course, other circumstantial evidence which establishes the relationship between Shoue Hammoud and Ahmed Raad and others of the accused.
The Crown objects to Mr. Brustman's use of the entry in the book because the book has not been proved. In particular, Mr. Maidment argued that s 58D of the Evidence Act 1958 had not been complied with so as to render the book an admissible book of account pursuant to Division 3A of that Act.
A perusal of the subject invoice book reveals some curious irregularities. The first entry on p 51 is dated 28 November 2004. Entries between it and p 92 appear to run serially, that on p 92 being dated 30 December 2004. Then the sequence changes. 93 is dated 3 January 2004 (sic), perhaps a common error at that time of the year, but 94 is dated 3 December 2004, as is 95, the entry to which Mr. Brustman wishes to refer. 96 returns to a more likely sequence, it being dated 4 January 2005.
When the books were tendered by Mr. McMahon, no objection was taken by the Crown and no limitation was placed on their use as evidence. Mr. McMahon has already used them to argue that his client was in business because these were his account books. The Crown did not address this issue. The objection now by the Crown has arisen because the prosecution did not foresee the use Mr. Brustman might make of these materials and of a phone call in which his client speaks of phone cards. Coming as it does, in the course of counsel's address, and having regard to the Crown's attitude to date, it would be unjust now to prevent Mr. Brustman from using the book in the way he wishes to do.
The entry may or may not assist his case. However, should he use the book in the way foreshadowed, the jury will have to have pointed out to them, in the course of my charge, the problematic nature of the dates on the entries to which I have referred, although what they make of those entries and of the book will, of course, in the end be a matter for them.
In the circumstances, I am satisfied that notwithstanding non-compliance with s 58D of the Evidence Act, the conduct of the case to date, including the concessions made by the Crown, are sufficient to have these invoice books treated as books of account within the meaning of the Evidence Act, and, accordingly, Mr. Brustman will be entitled to use the document as he wishes.

[37]

The criminal liability of each of the accused in respect to Count 1 on the indictment depends upon the Crown being able to establish beyond reasonable doubt that they each belonged to a terrorist organisation. A further eight counts against various accused and combinations of accused are also dependent upon the existence of a terrorist organisation - for practical purposes the same terrorist organisation. Thus, an important part of the jury's task in this trial is the determination of the question as to whether a terrorist organisation existed during the indictment period.
A terrorist organisation is defined in the Criminal Code (Cth) by reference to the definition of terrorist act. Whilst the interrelationship between these two concepts raises its own complexities, this ruling is not concerned with them. It is concerned rather with the question as to whether the definition of the word "organisation" in the Code gives rise to a question of law upon which the jury must receive binding directions, or whether it concerns only a question of fact which they must decide either unaided or aided only by the arguments of counsel and any comment I consider it appropriate to make.
Section 100.1 of the Code defines the word organisation as meaning "a body corporate or an unincorporated body" having certain other characteristics which are not relevant for present purposes. This definition is, in all material respects, identical with the definition of "body" found in the dictionary contained in the Corporations Act 2001 (Cth) and in various other pieces of federal legislation. As there has been no suggestion here that any accused is a member of any body corporate which could be designated a terrorist organisation, the question to be determined at this point is whether the term "unincorporated body" gives rise to a question of law or merely a question of fact which the jury must determine. If it gives rise to a question of law, then the appropriate direction needs to be considered.
The question of what direction, if any, should be given to the jury about the words "unincorporated body" has been agitated more than once in this trial. On 19 June 2008, following its being raised, I put forward a rough draft of a possible direction, which might have formed the basis of an appropriate direction to the jury in the course of the charge. This draft direction was based largely on the judgment of Mandie J in Kibby v Registrar of Titles,[14] where His Honour considered the characteristics of an unincorporated association. Although that case concerned matters far removed from the present, the consideration His Honour gave to the problem before him is of much assistance in articulating the sorts of criteria which might be relevant to the definition of "unincorporated body" in this case.
No party took exception to the draft charge, and there the matter rested until Mr. Trood, counsel for Haddara, raised the question again. After argument to which a number of members of counsel contributed, it seemed that the central question became whether a direction along the lines of my earlier draft should be expressed as a mandatory direction of law, to which the jury were bound to give effect, or whether they should be made as comments designed to assist them to determine a fact in issue. Mr. Trood argued that a mere comment as to what criteria the jury may take into account, in determining whether an unincorporated body existed or not, would not be sufficient to ensure that the jury carried out its function properly. Mr. Maidment, on the other hand, submitted that the question was merely one of fact, the term "unincorporated body" being an ordinary English phrase requiring no elaboration.
In Collector of Customs v Agfa-Gevaert Ltd[15] the High Court of Australia gave at least qualified support to five general propositions, formulated by the Full Federal Court in Collector of Customs v Pozzolanic Enterprises Pty Ltd,[16] which sought to distinguish questions of law from questions of fact. Although, in Agfa-Gevaert, the High Court was concerned with the distinction between questions of law and questions of fact, in the context of an appeal being limited to a question of law, there is no reason why they should not be applied to the determination of the present question. The qualification which the High Court expressed to the propositions set out in Pozzolanic were related to the complexity of the phrase there in issue, and to the difficulty of determining just what the primary decision-maker had done. They do not seem to affect the question I must determine.
The third of the propositions in Pozzolanic is that the meaning of a technical legal term is a question of law. If further authority is needed for this proposition, it can be found in the judgment of Jordan CJ in Australian Gas Light Co v Valuer-General,[17] and in the words of Lord McNaughton in Commissioners for Special Purposes of Income Tax v Pemsel: "[W]ords must be taken in their legal sense unless a contrary intention appears." [18]
The phrase "unincorporated body" is a technical legal term, if only because the question as to whether a body is or is not incorporated is itself a question of law, or at least a mixed question of fact and law. It follows that the Court must construe the phrase "unincorporated body" for the jury in such a way as to expose and explain the questions of fact which it must determine, in order to decide whether the Crown has established the existence of a terrorist organisation during the period referred to in the indictment or not. In construing the phrase, and thus formulating the criteria which the jury must seek in the evidence to determine the question of whether a terrorist organisation existed or not, regard must be had to the parliamentary purpose of the relevant part of the Code. That intention is clearly the prosecution of terrorism offences and, in this case, of those offences concerned with the existence and activities of terrorist organisations. The instruction to the jury must make it very clear that the only "unincorporated body" which can be a terrorist organisation is one whose aims or objectives include directly or indirectly being engaged in, preparing, planning or fostering the doing of a terrorist act.
In light of the above, and the conclusions I have reached, I have reconsidered the draft direction I formulated on 19 June. I have made a number of minor changes to it, and included a paragraph making it clear that the direction is a direction of law binding on the jury. It now reads as follows:

[38]

Central to this case is the existence of a terrorist organisation. For the purposes of this case, the law defines a terrorist organisation as an organisation that is directly or indirectly engaged in fostering or preparing the doing of a terrorist act. I will deal later with the complex definition of a terrorist act, but for the moment I am concentrating solely on the definition of terrorist organisation.

What I am about to say constitutes a direction of law, which you are bound to apply to the facts of this case as you find them to be. You must do so putting out of your mind any other ideas or notions about other organisations or other terrorist organisations of which you may have read or heard of outside this case. What I am about to say to you will enable you to determine whether the Crown has established beyond reasonable doubt the existence of a terrorist organisation, so as to lay the foundation for those counts on the indictment which depend upon that concept.

The word "organisation" is defined in the law as a "body corporate or an unincorporated body". The term body corporate has no relevance here. It is not suggested by the Crown that the alleged terrorist organisation was a body corporate. The Crown case is that the terrorist organisation it contends existed was an unincorporated body.

An unincorporated body is a body which, of itself, has no separate legal existence apart from its members. It is merely a group or collection of people who have come together for particular shared aims or purposes. To be satisfied that a particular unincorporated body was a terrorist organisation, you would have to be satisfied that those aims or purposes included directly or indirectly fostering or preparing the doing of a terrorist act.

But such a body may have other characteristics which suggest its existence. It may have some sort of structure. There may be a leader or a director. There may be other people who hold or assume other offices in the organisation. Here the Crown alleges that Benbrika, Joud and Ahmed Raad hold leadership positions in the terrorist organisation it contends exists and you will have to consider these allegations in due course.

There may be a common fund kept for the purposes of the body. Here the Crown alleges that there is, and that it is called a sandooq - an Arabic word which merely means 'box' but which is commonly applied to a communal fund. Again, you will have to consider this aspect when you come to the issues which raise it.

The body may have some method of including or excluding persons from membership. There may or may not be some degree of formality as to meetings, whether as to time and place, or as to how those meetings are conducted. It may or may not have a name, either publicly known or used internally by its members.

All or some of these characteristics may be present, but whether they or some of them are or not, to be a body there must be more than a fluctuating or amorphous group of individuals. There must be some measure, at least, of stability of membership.

By applying all of these criteria to the facts of this case as you find them to be, you will be able to decide whether the Crown has satisfied you beyond reasonable doubt that between about 1 July 2004 and about 8 November 2005 a body existed which was directly or indirectly engaged in fostering or preparing a terrorist act. If you are not so satisfied, those counts which depend upon the existence of a terrorist organisation will fail and the persons subject to them must be acquitted of those counts.

[47]

The dictionary produced by the Forelady of the jury defined the word "foster" (in the sense relevant to this case) in the following terms: "Promote growth of; encourage or harbour (feeling); (of circumstances) be favourable to."
In charging the jury I left it to them to interpret the word "fostering" as it is an ordinary English word the meaning of which is a question of fact.[19] I said, "You don't need any assistance from me". Later I repeated the statement that "fostering" was an ordinary English word but added, "Fostering can be synonymous with encouraging or something of that nature".[20]
Having told the jury that the word "fostering" was an ordinary English word upon which they needed little or no assistance from the Court, it is hardly surprising that they resorted to a standard English dictionary. There is something faintly ridiculous about criticising lay people who go to a standard reference source for assistance on a question of fact such as the meaning of an ordinary English word when that is exactly what any reasonable person would expect them to do - perhaps especially after the Judge has told them they would need no assistance from him!
The word "fostering" might be an ordinary English word but it is not a word used in every day speech. The dictionary is replete with words which would fall into the same category and in respect of which educated English speakers would seek assistance from a dictionary in properly defining.
However, whether the jury can be criticised for what they did or not and whether s 78A extends to render what they did a crime, the determination of the joint application for a discharge of the jury depended not upon these considerations but upon whether the accused had demonstrated a high degree of need for that course to occur to prevent an unfair trial.
I had no hesitation in dismissing this application for a discharge of the jury. I accept the Forelady of the jury's statement as to the use that the dictionary was put. In the circumstances, however inappropriate the jury's actions might have been, they have not compromised the fairness of this trial.
With respect to Mr. Montgomery's point that the jury were, in some way, defying rulings of the Court in resorting to a dictionary, it may well be that they saw some contradiction in my often repeated directions that they must decide the case solely on material sourced from within the courtroom when I also told them that they needed no assistance as to the meaning of the term "fostering". I am satisfied that their resort to the dictionary was not in any sense contemptuous or in disregard of the instructions I had given them.

[49]

This is an application principally made on behalf of the accused, Shane Kent, but also on behalf of Amer Haddara. They are each still the subject of unresolved counts on the indictment, 24 counts of which charges were dealt with by the jury yesterday.
At 16:15 yesterday, the federal Attorney-General gave a press conference in relation to this case, a transcript of which has been provided to the Court by counsel. It is accepted by all parties as being accurate. In the course of that press conference, the Attorney made comments concerning successful prosecutions of people for terrorism offences and other matters. He effectively congratulated the police and the prosecution team, describing the role of the Victoria Police as "outstanding".
It is abundantly clear that it would have been to the enhancement of the system of justice in this country if those comments had not been made. They were unnecessary and had the potential to cause difficulties in this trial.
Having said that, however, it was foreseeable that material of this nature would get into the newspapers in the 24 hours between the jury delivering its first verdicts yesterday, and this morning. In anticipation of that, I was careful to direct the jury,[21] before they left last night, concerning their not getting into a situation where they could be influenced by anything on television or in the newspapers or on radio. I reminded them of their separation oath, that they were not permitted to talk to anyone about the case, that they should resist the temptation to watch anything on television that related to the trial, and that they should resist the temptation to get the daily papers today. As I gave them that direction, a considerable number of them nodded in agreement. I have no doubt whatsoever that they understood my admonition.
This jury have sat for seven months. They have been warned on very many occasions that they must decide the case on the evidence they hear in this room. This warning has become so repetitive that I only have to commence saying it for them all to recognise that I am about to get on to a topic which is very familiar. Last evening was no exception. The only difference, of course, was that they knew what they had been involved in earlier that day, and, indeed, knew far more than anybody else, including, if I may say so, with respect, the federal Attorney-General.
In the circumstances, I am satisfied that the comments of the Attorney would have had no effect on the jury as they go about their task of the completing the verdicts in this case. This jury are well and truly seized of this matter: they know what their function is, they know what their duty is, and I have no reason whatsoever to believe that they will not act in accordance with that duty and will, in due course, deliver a verdict in accordance with that duty.
The authorities make it clear that there must be a high degree of need for the discharge of a jury. That high degree of need has not been met in this case. Accordingly, the application for a discharge is refused.

R v Benbrika & Ors

At a glance

Court

Decision date

Before

Source

Judgment (65 paragraphs)

Parties

Legislation Cited (2)

Cases Cited (8)