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[2011] VSC 76
Supreme Court of Victoria
2011-03-11
T FORREST J
Original judgment source is linked above.
CRIMINAL LAW - autrefois convict - Double jeopardy - Abuse of process/oppression.
Solicitor for the Director of Public Prosecutions (C'th)
1 There are three relevant criminal trials that will be referred to in the course of these reasons. They are:
(a) R v Benbrika & Ors [2009] VSC 21. This trial was of four accused Abdul Benbrika, Aimen Joud, Ahmed Raad and Fadl Sayadi ('the accused') together with others on various counts under Division 102 of the Criminal Code Act 1995 (Cth) ("the Code"). A jury found all accused in the current trial guilty of various offences. I shall refer to that trial throughout these reasons as T1.
(b) R v Elomar & Ors [2010] NSWSC 10. Three unindicted co-conspirators in the current trial, Mohammed Elomar, Abdul Hasan and Khaled Sharrouf were convicted of one count of conspiracy with others to do acts in preparation of a terrorist act. I shall refer to that trial throughout these reasons as T2.
2 On 25 September 2009 the Director of Public Prosecutions (C'th) filed with the Supreme Court an indictment charging the accused in the current trial as follows:
Between about 23 February 2005 and 26 July 2005 at Melbourne in the State of Victoria and elsewhere Abdul Nacer BENBRIKA, Aimen JOUD, Ahmed RAAD and Fadl SAYADI did, contrary to Sections 11.5 and 101.6(1) Criminal Code, conspire with each other, with Mohammed ELOMAR, Abdul Rakib HASAN, Khaled SHARROUF and unknown other persons to do acts in preparation of a terrorist act.
The terrorist act was to be an action or threat of action involving the detonation of an explosive device (or devices) and was to be done
(a) with the intention of advancing a political, religious or ideological cause, namely the cause of violent jihad; and
(b) with the intention of
(c) in circumstances where the action, if carried out, would:
(d) in circumstances where the action, if carried out, would not be advocacy, protest, dissent or industrial action of a kind not intended to:
3 The accused have each previously faced trial for terrorism related offences in T1. After appeal, the adjusted convictions and sentences are as follows:
Intentionally being a member of a terrorist organisation, knowing that it was a terrorist organisation (s 102.3(1)).
Intentionally directing the activities of a terrorist organisation, knowing that it was a terrorist organisation (s 102.2(1)).
Intentionally being a member of a terrorist organisation, knowing that it was a terrorist organisation (s 102.3(1)).
Intentionally providing resources to a terrorist organisation, knowing that it was a terrorist organisation (s 102.7(1)).
Attempting intentionally to make funds available to a terrorist organisation, knowing that it was a terrorist organisation (ss 11.1(1) and 102.6(1)).
Intentionally being a member of a terrorist organisation, knowing that it was a terrorist organisation (s 102.3(1)).
Intentionally providing resources to a terrorist organisation, knowing that it was a terrorist organisation (s 102.7(1)).
Intentionally being a member of a terrorist organisation, knowing that it was a terrorist organisation (s 102.3(1)).
Intentionally providing resources to a terrorist organisation, knowing that it was a terrorist organisation (s 102.7(1)).
Attempting intentionally to make funds available to a terrorist organisation, knowing that it was a terrorist organisation (ss 11.1(1) and 102.6(1)).
4 Each accused has submitted that to proceed with the current trial would constitute a retrial of issues determined against each of them in T1. The accused have submitted that I ought stay the trial as an abuse of process based on principles of double jeopardy jurisprudence. Whilst the submissions of the four accused varied in detail, the theme of each was:
(a) There is a plea in bar of autrefois convict (former conviction) available in the current trial.
(b) If the strict requirements necessary for a successful plea of autrefois convict are not made out, there is nevertheless such an overlap of evidence and issues that there has been an infringement of the principles of double jeopardy, and that I ought to exercise my discretionary power to stay the proceedings as an abuse of process.[1]
(c) If there is not such a degree of overlap between evidence and issues alone so as to justify staying the proceedings, then there is still a very considerable overlap and this combined with other broader considerations of oppression (such as delay, oppressive conditions of incarceration, pre-trial publicity,[2] and the effect of the prosecution choices relating to the drafting of indictments) ought to lead me to stay the proceedings as an abuse of process.
5 I shall endeavour to set out the relevant legal principles of double jeopardy jurisprudence.
6 Whilst the plea in bar of autrefois convict has been raised by all defence counsel, it is not formally made. A plea in bar should be reduced to writing, signed by defence counsel and if disputed by the prosecution this should be done by replication.[3] The ultimate determination of such a plea is by either the trial jury or a jury empanelled specifically to determine the validity of the plea. During submissions, I raised with counsel my view that I had no power to determine the special plea. Counsel by and large agreed[4] with the analysis that if I were of the view a plea of autrefois convict were made out, a fortiori there would be a breach of the broader double jeopardy rule, the proceedings would therefore be defective and my discretion to stay them would be engaged. If I were not of the view that a strict plea of autrefois convict could be made out I would nonetheless need to consider the broader application of the double jeopardy rule.
7 Gleeson CJ and Hayne J in R v Carroll[5] expressed the view that a special plea in bar needed to be determined before there could be any judicial consideration of an abuse of process submission, based on a breach of the broader double jeopardy rule. No other member of that court commented on this issue and I have not unearthed any authority to this effect since the broader double jeopardy jurisprudence clearly emerged in 1964.[6] I consider that to adopt this process in the current trial would be unworkable. T1 occupied some 7 months from empanelment to verdict. There were 12[7] accused including the four in the current trial. The evidence included 481 monitored conversations, some lengthy, some partly in Arabic. There was also a large quantity of "jihadist" material exhibited including appallingly violent videos, practical instructions for the aspiring terrorist and more general jihadi literature. In the current trial there are 672 monitored conversations presently proposed to be led (more than 170 common to T1), mostly the same literature and videos to be exhibited and the single conspiracy offence charged is different to the raft of substantive offences charged in T1 but argued by the applicants as being for practical purposes the same. The prosecutor in the current trial Mr Maidment SC, when pressed by me as to the likely duration of the current trial, quite frankly informed me that it would be 'irresponsible to suggest' that it would take any less than nine months.[8] I consider that a contested plea in bar would become a 'mega trial' in itself and, if resolved against the accused, would be no more than a prelude to the trial proper. Even if the same jury were to hear both trials consecutively[9] (as is countenanced by some older authorities) the length, complexity and infection by that jury of the fact of the convictions at T1, conspire to make a threshold plea in bar a decidedly unpalatable proposition. I consider that proper court management requires that I deal with the broader abuse of process argument at the outset. With some encouragement from the bench both defence and prosecution counsel accepted that this was an appropriate order in which to proceed.
8 It follows (this application being for a stay rather than a verdict of autrefois convict) that the boundaries of autrefois convict are not critical to the determination of this application - what is critical is the application of the principle of double jeopardy. It is necessary however to review the authorities on autrefois and the principle of double jeopardy as they are inextricably linked.
9 Pleas in bar remain part of the common law in this country.[10] The plea of autrefois convict "goes to offences the elements of which are the same as, or included in the elements of the offence for which an accused has been tried to conviction....".[11] In recent times there has been uncertainty both as to the nature of the comparative exercise to be undertaken,[12] and of the language employed when notions of double jeopardy are considered.[13] The majority in Pearce considered previous decisions to the effect that where a person was being prosecuted for an offence that was "substantially the same", or the "gist or gravamen" was the same or it was the "same matter" a plea in bar was available.[14] Their Honours concluded that uncertainties created by the employment of this language were "more apparent than real".[15] The majority in Pearce held that the inquiry required is a comparison between the elements of the two offences under consideration; if the elements are identical or all the elements of one offence are wholly included in the other then the plea in bar is available[16] (the "same elements test").
10 I consider that the majority in Pearce contemplated that the comparative exercise to be undertaken involves an analysis of the evidence necessary to prove the elements of each offence. If an analysis of and comparison between the elements of the two offences under consideration (and the evidence necessary to prove them) discloses that the elements are identical or the elements of one offence are wholly subsumed in the other then the plea is made out. I consider that Pearce is authority that the order in which the charges are laid (i.e. simple offending compared with aggravated offending) is immaterial. This was not specifically articulated in Pearce but, I consider, necessarily follows from the language employed by the majority in setting out the same elements test referred to in paragraph 9 herein.
11 Mr Higham, counsel for Benbrika, submitted that Pearce must be read in the light of the later decision of Island Maritime.
12 The appellants in that case sought to argue autrefois acquit. It was held unanimously that such a plea could not be made out as the appellants (the owner and master of a ship) had never stood in jeopardy in the first trial.[17] The Court were divided as to whether the order in which the charges were proceeded with was material. Gleeson CJ, Heydon and Crennan JJ commented in obiter dicta that older cases held that the plea in bar was only available where the first prosecution was for a "lesser" offence and the second for a more "aggravated form of that offence" and that it "cannot be that Pearce v The Queen was contradicting those propositions".[18] Conversely Gummow and Hayne JJ (with whom Callinan J agreed) emphatically disagreed (again in obiter dicta) - "(t)he order in which the charges are preferred does not affect the availability of the plea....".[19] Regardless of this division in Island Maritime, Pearce remains binding upon me on a plea of autrefois convict. I consider that the following represents the current position:
• A plea in bar of autrefois convict is available when the elements of the offences charged are identical or the elements of one of the offences charged is wholly included in the other.
• The order in which the charges are preferred is immaterial.
Abuse of process arising from a breach of double jeopardy principles
13 Since at least Connelly v Director of Public Prosecutions[20] it has been recognised that in cases where pleas in bar are not available, a second prosecution may be stayed as an abuse of the process of the court. In this country the discretionary power of the court to stay a proceeding to prevent an abuse of process is well established.[21] The categories of abuse are not closed but certainly include double jeopardy in a broader sense than strict autrefois. In Island Maritime Gummow and Hayne JJ acknowledged a wider application of the values that underpin the notion of double jeopardy than simply as they relate to a plea in bar. Kirby J commented upon such a protection being available against a misuse of prosecutorial power, oppression by the organs of State or subjection to a proceeding that would not amount "to a real trial at all".[22]
14 In R v Carroll[23] various principles were held to be relevant when considering the broader category of double jeopardy abuse. In that case Carroll had been acquitted of murder in 1985.[24] He gave sworn evidence at that trial denying that he had killed the deceased. In 1999 he was charged with perjury, the perjury being that his denial was false. The prosecution sought to prove the perjury by establishing that he had, in fact, killed the deceased. At trial counsel for Carroll argued that the perjury proceedings were an abuse of process and that the proceeding ought to be stayed. He argued that the indictment was contrary to the principle of autrefois acquit and that this was a circumstance relevant to the Court's discretion to stay the trial. The application was dismissed and Carroll did not enter a plea in bar of autrefois acquit. On arraignment he entered a plea of not guilty and was subsequently convicted of perjury. The Court of Appeal (Qld) held that the trial should have been stayed as an abuse of process. The prosecution sought special leave to appeal to the High Court and the application was referred to the Full Court of the High Court where the Court of Appeal's decision was affirmed.
15 The following principles relevant to whether the second trial of an offender can amount to an abuse of process emerge from the various judgments:
16 It seems clear that the boundaries within which the double jeopardy rule will operate are wider than for pure autrefois, but logically must include second prosecutions that would be caught by the narrower pleas in bar. It has been observed that the rule against double jeopardy does not constitute an independent doctrine, but encapsulates the many different rules and principles applicable at different stages of criminal proceedings.
17 The relationship between the formal pleas in bar and the full protection of the double jeopardy principle was explained in R v Carroll by McHugh J [32]
Until comparatively recent times - perhaps not until 1964 - the double jeopardy principle gave limited protection to a person who had been convicted or acquitted of an offence. Thus, in R v Winsor, Erle CJ confidently declared that "[t]he only pleas known to the law founded upon a former trial are pleas of a former conviction or a former acquittal for the same offence" (emphasis added). As late as 1946 Dixon J, in Broome v Chenoweth, said:
"The rule against double jeopardy requires for its application not only an earlier proceeding in which the defendant was exposed to the risk of a valid conviction for the same offence as that alleged against him in the later proceedings but that the earlier proceeding should have resulted in his discharge or acquittal." (Emphasis added.)
Yet if the prosecution can bring further and different charges arising out of facts all or many of which were before the court in an earlier prosecution, the accused is as effectively harassed as if he was being tried again on the same charge. Similarly, if other proceedings could be brought that had the tendency to contradict or undermine the effect of an acquittal, an acquitted person might effectively lose the benefit of the acquittal and the full protection of the double jeopardy principle. Plainly, the formal pleas of autrefois convict or autrefois acquit were inadequate to give effect to the full rationale of the double jeopardy rule and the policy behind it in some cases where the prosecution brought successive proceedings against an accused person. The pleas of autrefois convict and autrefois acquit were confined to successive charges based on the same or substantially the same facts. They do not protect the accused against prosecutorial harassment in many cases that, in substance but not in form, offend the double jeopardy principle.
To remedy these and other defects in the application of the double jeopardy principle, the common law courts have applied other weapons in the judicial armoury to make the double jeopardy principle more effective. In particular, they now intervene to protect the accused by staying proceedings that they consider are an abuse of their processes.(citations omitted)
18 The power to stay proceedings as an abuse of process ought to be exercised only in extreme cases where there is "a fundamental defect that goes to the root of the trial of such a nature that nothing a trial judge can do in the conduct of the trial can relieve against its unfair consequences".[33] Thus the lawful use of the power involves a court moulding proceedings so as to eliminate or minimize unfairness and only permanently to stay them, effectively as a last resort, when the defect going to the root of the trial cannot be adequately dealt with by the flexible use of that power.[34]
19 I consider that the power to stay is only to be used in response to extreme and incurable circumstances. It will be used as often as those circumstances arise. I consider that if subsequent proceedings are genuinely a breach of the principles of double jeopardy then whilst the court hearing those proceedings has a discretion the only proper exercise of it is to stay the proceedings.[35] Putting it another way I consider that where proceedings genuinely are in breach of the principles of double jeopardy then there is a fundamental defect that goes to the root of a trial that cannot be cured by any amount of judicial intervention. The precise boundaries are not amenable to scientific definition. If a subsequent trial is founded on the same facts or substantially the same facts as a previous trial and the subsequent offence alleged is, in substance, the same as was alleged previously (although the strict legal elements may differ) then I consider that the rule against double jeopardy will be breached. It is permissible of course to rely at a second trial on the identical facts alleged at a first trial, provided the offence alleged is different both in form and in substance. To do otherwise is to harass an accused as effectively as if he were tried again on the same charge and exposes the criminal justice system to potential of a verdict at the second trial that is inconsistent with the earlier verdict.
20 As I have already observed each accused has submitted that to proceed with the current trial would constitute a retrial of issues determined against them in the first trial and so offend the rules against double jeopardy. It is necessary therefore to review the elements of the convictions incurred by each accused at that trial and the evidence that was led in support of those elements. It will then be necessary to examine the elements (or ingredients) of the instant conspiracy indictment and the evidence that is said to support those ingredients. In order that this recitation of material have some focus, I consider it desirable to set out in the shortest possible compass what I perceive to be the true issue to be determined.
21 The effect of the convictions in T1 is that all accused were found intentionally to be members of a terrorist organisation and in Benbrika's case that he was also a director of that organisation. Joud, Raad and Sayadi intentionally provided resources to a terrorist organisation and Raad and Joud also attempted to make funds available to that terrorist organisation knowing it to be so. Each accused submits that an analysis of the elements of these offences and the evidence necessary to support them discloses a combination acting in pursuit of a common purpose, which undertook acts in furtherance of that common purpose by engaging in the preparation for a terrorist act. In other words the accused submit they have been already convicted of what, in essence, amounts to the same or a similar set of offences arising essentially from the same evidence.
22 The prosecution submit that the current conspiracy indictment is directed to a separate agreement or combination. It submits that the Sydney co-conspirators (Elomar, Sharrouf, Hasan and others) had agreed to do acts in preparation for a terrorist act as pleaded in the indictment. The prosecution submits that the four accused joined that conspiracy when they attempted to procure laboratory glassware [36] for the Sydney combination so that the preparation for the terrorist act could be advanced. The prosecution further submits that the elements of the membership offences of which the accused were convicted at T1 are distinct, both in form and in substance, from the issues to be tried in the current trial.
23 The elements of each offence together with a set of definitions were provided to the jury in written form. The full document as it applied to each of the accused in the current trial is Annexure A to these reasons.
24 The jury was satisfied beyond reasonable doubt that each of Benbrika, Joud, Raad and Sayadi
25 The jury was satisfied beyond reasonable doubt that Benbrika
26 The jury was satisfied beyond reasonable doubt that Joud
27 The jury was satisfied beyond reasonable doubt that Ahmed Raad
28 The jury was satisfied beyond reasonable doubt that Fadl Sayadi
29 The jury was satisfied beyond reasonable doubt that Ahmed Raad and Joud:
1. attempted to make funds available to an organisation; and
3. the organisation was a terrorist organisation; and
30 One of the elements the prosecution proved in each offence was that the group was a terrorist organisation. This involved the prosecution proving that the organisation directly or indirectly fostered or prepared the doing of a terrorist act (regardless of whether it actually occurred). The complicated definition of what constitutes a "terrorist act" can be found in Annexure A.
31 I consider that, as against all accused, the jury determined at least
32 I consider further that, as against each accused, the jury determined that in some way they contributed more to the terrorist organisation than mere membership, in that
All with the knowledge that they were serving a terrorist organisation.
33 The contention that the current trial infringes the principles of double jeopardy cannot be evaluated without examining the evidence that supported these elements. I propose to offer no more than the baldest summary of the trial evidence that is for the most part derived from the summary prepared for the Court of Appeal.[41] I shall canvass the co-accused's interaction with the Sydney brothers[42] in more detail later in these reasons.
33.1 The co-accused (in the current trial) were 4 of 12 accused in T1. The Crown proved that each of the four accused were members of a local terrorist organisation which directly or indirectly fostered and/or prepared the doing of a terrorist act. The action or threat of action being fostered was the intentional detonation of one or more incendiary devices or the use of weapons. In a highly incriminating recorded conversation between Benbrika, Joud and two Sydney men with "like minded" interests[43] Benbrika is recorded as saying (inter alia) "if we want to die for jihad we do maximum damage, maximum damage..." The Crown relied on this together with other evidence to allege that the act contemplated by the organisation was the detonation of an explosive device.
33.2 Underlying the organisation was the belief that there was a religious obligation upon its members to pursue violent jihad against non-believers. The vast proportion of evidence led in the first trial was of 481 lawfully recorded conversations - either recorded telephone intercepts or listening device product. The prosecution relied upon at least 28 conversations during which the object of violent jihad was discussed.[44]
33.3 Benbrika directed the organisation and held himself out as its Sheikh. The membership was exclusively Muslim males. Joud, Raad and Sayadi were alleged by the Crown to hold senior positions in the organisation. Ahmed Raad was alleged to be the organisation's treasurer. Joud and Sayadi held senior positions as part of Benbrika's consultative committee.[45] The Crown alleged the structure was loosely based on a model set out in a publication entitled "The Call for the Global Islamic Resistance".[46]
33.4 The Crown relied on the totality of evidence in the case to prove the existence and nature of the organisation. The Crown submitted that the totality of the evidence[47] gave rise to the inference that the organisation existed and that it was a terrorist organisation. Thus these elements of the offences, set out in paragraphs 24-29 of these reasons, were supported by the entirety of the evidence in the case. Other elements of the terrorist organisation counts (in particular whether each accused were actually members of the terrorist organisation) were proved by the individual acts and declarations of a particular accused - largely by their participation in conversations or their possession of specific items.[48] Of the accused in the present conspiracy trial only Ahmed Raad participated in a police interview.
33.5 Some members of the group were required to pledge allegiance to Benbrika ("the bayat"). The Crown relied upon a number of conversations evidencing this. [49] There is no evidence that any members of the Sydney group ever pledged allegiance to Benbrika.
33.6 Sandooq is the Arabic word for box. It refers to a fund held by the organisation and administered by Ahmed Raad at Benbrika's direction. It was the Crown case that the funds were held for the purpose of pursuing violent jihad. Illegal activities were entered into to supplement the sandooq. Between 10 August and 17 September 2004 a number of members including Joud, Ahmed Raad and Sayadi were involved in various ways with the theft of two motor cars or their subsequent stripping for parts. On 10 September 2004 a significant conversation occurred.[50] Ahmed Raad justified the conduct of theft by asserting it was "in Allah's cause." Later he said ".....you think we can just go and get weapons and walk off. We need money to get it...slowly you have patience man." The conversation went on to compare the relative unlawfulness of their actions to the kuffar ...."killing our brothers and sisters and little kids." On 17 September 2004 Victoria Police seized the stolen cars and executed search warrants on premises including those of Joud and Ahmed Raad.[51] Joud told Benbrika that the "hit...(cost)...say then thousand dollars".[52]
33.7 Some members of the group made regular contributions to the sandooq, others were irregular contributors.[53] Benbrika and Ahmed Raad discussed where the sandooq could be concealed from investigators.[54] Joud, Sayadi and Ahmed Raad discussed how other brothers could find the sandooq if Raad were arrested. Benbrika approved the payment of a fine of $1000 imposed on Ezzit Raad for possessing one of the stolen cars. In a raid in June 2005 police seized some of the sandooq money held at Ahmed Raad's premises.[55]
Undercover Officer SIO 39/Anti-Surveillance/Caution
33.8 Victoria Police introduced an undercover police officer to the group, known at trial as Senior Intelligence Officer 39 (SIO 39). He gave evidence at the trial. He described himself to the group as an Australian Muslim of Turkish descent and he appeared in a number of recorded conversations. He told Benbrika that he had some expertise in blowing up tree stumps on farms and that he had access to chemicals required to make explosives. Benbrika expressed interest.[56] Other members of the organisation became suspicious of SIO 39[57]as ultimately did Benbrika. On 6 October 2004 Benbrika and SIO 39 went to bushland at Mt. Disappointment near Kilmore. SIO 39 conducted a demonstration explosion in Benbrika's presence. A video of this was taken and in an edited form was played to the jury.[58]SIO 39 became the subject of increasing suspicion within the group. Sayadi warned Benbrika about him[59]and in December 2004 Benbrika, Ahmed Raad and Merhi discussed the possibility that he may be an undercover policeman.[60] He drifted out of the group's activities.
33.9 The evidence demonstrated that many accused were aware of surveillance[61]and that this was inhibiting their commitment to violent jihad. In one such conversation Benbrika and Joud discussed "the young one's" (Merhi) desire to rush things. Benbrika "he wants to do it straight away." Joud "...if he kill one, or two three four. It's no good like this".[62] The next day Benbrika told Merhi that "we are thinking to do something big" and later that "you don't do something without...my permission here. Because we only work organised... No one works alone."[63] Benbrika also discussed with SIO 39 his awareness of police surveillance.[64] Benbrika said that time and money was needed to buy "some weapon, we might buy some chemical things." SIO 39 said the materials he showed him (at Mt. Disappointment) were not expensive and 250 kg would be sufficient to destroy a building. Benbrika asked him if he could get 500 kg and SIO39 said he could at $30 per 25kg bag.
33.10 On 1 January 2005 Hammoud told the group that he had heard through his father that a man named Baha had informed to the police. Hammoud said "he said that youse wanna...to blow up something..." The group including Benbrika, Joud and Taha discussed how this could be dealt with.[65] A further discussion about security occurred on 6 February 2005 between Benbrika, Sayadi, Merhi and another person. [66]
33.11 Members of the organisation associated with a number of Sydney brothers who shared a desire to pursue violent jihad. At the trial these Sydney brothers were referred to only by their first names Khaled 1, Khaled 2, Abdul and Mohammed.[67] I shall return to a fuller examination of the links between the Victorian and Sydney men later in these reasons. Two of these men were present at the 'maximum damage' conversation,[68]parts of which were relied on heavily by the Crown at T1. Other parts of this conversation were not led by the Crown at T1 and related to the proposal by the Sydney brothers for the purchase of glassware from Haines.
33.12 As time went by the senior members of the group expressed frustration with Benbrika's apparent caution.[69] Benbrika gave an interview to the ABC[70]which was discussed. Later Benbrika asserted that he had been evasive to the interviewer who had misunderstood his reply that it was haram (forbidden) to kill innocent people. Whether Australian people were innocent, Benbrika stated to other members, was a different question.[71]
33.13 Numerous conversations occurred between members of the group during which recent terrorist activities were discussed with approval including those in New York, Bali, Spain, London and Iraq.[72] In a conversation on 13 July 2005, Benbrika said that if they were gaoled the jihad would continue and that the group would soon study the book of jihad from the beginning.[73] It was important that the mujahid have training and knowledge and the study would include martyrdom operations. In August 2005 Benbrika, Sayadi, Bethaj (an associate ) and others discussed the meaning of jihad - fighting the enemy of Allah - the kuffar. In November 2005 Benbrika, Joud, Sayadi and Merhi discussed the respective security in Melbourne and Sydney concluding that security was tighter in Melbourne than Sydney. [74]
33.14 Four group activities occurred which the Crown characterised as bonding exercises between members of the group. They occurred in remote locations and were either directly the subject of covert surveillance and subsequent investigations and/or referred to in monitored conversations.
A group of men including Hammoud, Ahmed Raad and Ezzit Raad travelled to Eden in N.S.W. They were observed talking with other men at camping ground. The evidence relating to this trip was equivocal and the Crown did not press it in closing addresses.
On 11 December 2004 at around midnight Victoria Police officers observed 10 Muslim men praying by the side of Bald Spur Road Kinglake. Included in those present were the four accused. Surrounding Listening Devices and Telephone Intercept conversations[75]referred to the Kinglake trip as a debacle because of lack of discipline shown by some members of the organisation. One conversation referred to a laptop computer that may have been at Kinglake.[76] The Crown suggested that that computer was the same as referred to in another conversation recorded a week earlier[77]and which had been used to view extremist literature.
On 11 February 2005 the four accused and three others attended at house in Ocean Grove. In the planning for this meeting Benbrika said that no-one should bring telephones "like the last time...the same thing, do you remember when we were in Kinglake (inaudible) all of them left their telephones at home and all of their wallets and everything...."[78] There was also a proposal in this conversation to hire cars for the trip and that the sandooq be used to pay for these expenses. The trip came to nothing as the property had been booked for only five people and the men were denied entry.
The fourth and by far the most significant group activity occurred at a remote rural property at Louth in far western N.S.W. Sayadi, Joud and Raad drove to Sydney on 14 March 2005. They checked into a hotel at 9 a.m. on 15 March. At 9 p.m. on that day Khaled 1, Khaled 2, Mohammed and Abdul[79]were seen near the hotel. Their vehicle and the Victorian men's vehicle travelled in convoy to Louth. A remote property had been booked on 14 March. The three Melbourne men met up with the four Sydney associates. A subsequent examination of the campsite located spent firearm shells, damage to three trunks and the burnt remains of batteries which had been wired to spark plugs. The Crown suggested this was a crude attempt to make an ignition device.
33.15 The Crown suggested Joud attempted to source firearms for the group. Izzydeen Atik, an accomplice, gave evidence [80] that Joud had asked him to source firearms for the group. Atik's evidence was heavily challenged and the jury were warned on the dangers of acting upon it. His evidence was disregarded by Bongiorno J when establishing a factual basis for sentencing purposes.
33.16 A collection of jihad material was found in the possession of Joud, Ahmed Raad, Merhi and at Majed Raad's premises. This comprised approximately 600 electronic computer files all held by each man. Selected documents from the files were exhibited at trial.
33.17 In numerous conversations members of the organisation are heard discussing various literature:
33.18 Computers seized from the accused contained graphic videos and photographs of, for example, beheadings and sniper activity. In other conversations Benbrika discussed with Sayadi, Merhi and Taha a 1600 page document entitled The Call of the Global Islamic Resistance - Your Guide....to the Way of Jihad.[86] Benbrika discussed the book with two of the Sydney men[87] on 23 February 2005.
33.19 On 27 April 2005 Benbrika showed Joud what he had downloaded from the Internet "...how to confront and deal with interrogators. Security lessons for the Moujahadeen. The war of assassinations...."[88]
33.20 On 5 August 2005 Benbrika and Majed Raad discussed a document downloaded from the Internet. Benbrika said he would supply a copy to every brother. It contained (he said) combat lessons, lessons for the sniper and camouflage.[89]
33.22 The co-accused Atik gave evidence for the prosecution. He described how credit card fraud was religiously permissible if carried out against non-believers.[92] He said that on 31 August 2005 Benbrika (in an unrecorded conversation) told him that the original target was the AFL Grand Final but, after the June 2005 raids, the target had changed to the NAB Cup and the Crown Casino on Grand Prix weekend. Atik admitted in cross-examination that he had a long history of fraud and a history of psychiatric disturbances involving auditory hallucinations. As I have observed the learned trial judge warned the jury about the dangers of acting on his uncorroborated word.[93]
33.23 Of the four accused in the current trial only Ahmed Raad participated in a police interview. He maintained that jihad was for the self-defence of religion and the person, and that the sandooq was used for needy causes at Benbrika's direction. He denied engaging in criminal activity to supplement the sandooq and he denied being involved in terrorist activities.
33.24 Schedule E to the Executive Summary of the Crown case is a table of relevant documents found.[94] Within them can be found practical instructions on how to carry out assassinations,[95]how to assemble a standard car bomb, grenade tricks,[96]and the acquisition and preparation of chemicals into explosive devices.[97] More ideological literature included rulings on the permissibility of martyrdom operations[98], the ideological bases for jihad,[99]and literature that generally glorifies and justifies the mujahid. The Crown relied on 49 such documents and 10 videos.
33.25 The videos included several edited (by the prosecution) beheadings, military training exercises and atmospheric footage of Osama Bin Laden.
34 The offence of conspiracy to commit an offence is created by s. 11.5 of the Code. In R v LK; R v RK[100] the common law meaning of conspiracy was incorporated and the following was held by the majority:
35 Thus there are requirements of proof that are not elements of the offence of conspiracy (i.e. neither physical nor fault elements of the offence), but are nevertheless necessary to be proved beyond reasonable doubt before guilt can be established. However described, there are ingredients to the offence charged in the indictment. They are
(a) The accused intentionally entered into an agreement with one or more of the alleged co-conspirators to do acts in preparation for a terrorist act or acts; and
(b) when the accused entered into that agreement he intended that acts in preparation for a terrorist act or acts would be carried out in furtherance of the agreement; and
(c) at least one other party to that agreement intended that acts in preparation for a terrorist act or acts would be carried out in furtherance of the agreement; and
(d) when he entered into the agreement, the accused believed that at least one other party to the agreement (who in fact had the intention set out in (c) above) intended that acts in preparation for a terrorist act or acts would be carried out in furtherance of the agreement; and
(e) the accused, or at least one other party to the agreement, carried out an observable physical act in preparation for a terrorist act or acts in furtherance of the agreement; and
(f) the accused intended the acts in preparation to be in preparation for a terrorist act or acts, that is an act having all of the essential character and qualities of terrorist act as identified in s 100.1 and 100.3 of the Code.[105]
36 I shall set out again in very short form how the Crown puts its case in the current trial.
35.1 The Crown says the accused were all members of a group based in Melbourne and directed by Benbrika. The objects of that group were to foster or prepare for the doing of terrorist acts of the kind particularised in the indictment. Each of the Melbourne accused was associated with a group based in Sydney whose objects were similar to those of the Melbourne group. The Crown proposes to call most of the significant evidence led at the T1 to establish the existence and nature of the Melbourne group, its leadership and its aspiration of violent jihad. The Crown says that each accused became aware that the Sydney group were actively pursuing violent jihad and were engaged in the preparation for the doing of a terrorist act. Similarly, it is alleged that the Sydney group were aware that the accused themselves were pursuing violent jihad and fostering or preparing for a terrorist act.
35.2 In addition to the accused the Melbourne group comprised at least another five men[106]and a further four associates.[107] The Sydney group included each of the alleged Sydney co-conspirators together with Khaled Cheikho, Moustafa Chiekho, Mazan Touma, Omar Baladjam, Omar Jamal and Mirsad Mulahalilovic.
35.3 The offence charged in the indictment concerns a conspiracy between the named co-conspirators. "In essence the accused agreed to assist the Sydney group in carrying out acts in preparation for a terrorist act. The acts with which the accused agreed to assist were intended to equip the co-conspirators with laboratory or similar equipment to assist the co-conspirators to manufacture, or cause to be manufactured, improvised explosive devices." The Crown says the evidence reveals "that the co-conspirators and various of their Sydney based associates pursued the objects of the conspiracy charged during and beyond the period covered by the indictment until 8 November 2005 when ...they were arrested."[108]
35.4 The Crown further says that all accused were aware from at least 23 February 2005 onwards of objects of the Sydney group involving committing acts in preparation for a terrorist act. Each accused, it is alleged, were aware that those objects included the purchase of chemicals to be processed using the laboratory equipment central to the conspiracy charged, to manufacture explosive devices. Thus the conspiracy charged represents, according to the Crown, an agreement between the accused as the leaders of the Melbourne group, and the co-conspirators as core members of the Sydney group for the accused to assist the Sydney group with a particular aspect of the Sydney group's activities in preparation for a terrorist act, or acts.
35.5 The assistance alleged to have been given by the Melbourne group pursuant to this agreement included the following:
(i) Assisting in the selection process of suitable laboratory equipment from a catalogue published by Haines Educational, a supplier of school science equipment.
(iii) Providing a typed list of equipment to Haines.
The Melbourne group discussed paying from the sandooq the $3000 odd necessary to purchase these items but Benbrika refused to authorise this payment and the plan to obtain the items from Haines was abandoned. The Sydney group subsequently purchased laboratory equipment through a NSW supplier.
35.6 Again the Crown case is largely made up of lawfully monitored conversations. It is proposed to lead evidence of 681 recorded conversations. Exhibit MFI 3 is a chart summarising the effect of each conversation, its date and participants, and whether or not the conversation was part of the evidence in T1 or T2.
35.7 The evidence proposed to be led by the Crown can be loosely categorised as follows:
(i) The Melbourne evidence of the monitored activities and conversations of the Melbourne co-conspirators and of the evidence seized from them. This evidence is extensive and was led in total at T1.
(ii) The Haines evidence of the relevant conversations and documents surrounding the preparation and submission of the Haines list. This evidence is set out in further detail at paragraph 35.9.
(iii) The Sydney evidence of the monitored activities and conversations of the Sydney co-conspirators and of the evidence seized from them. This evidence is also extensive and was led in total at T2.
(iv) A small amount of additional evidence that demonstrates, so it is said, more clearly the association between the Melbourne and Sydney men.[109]
35.8 A quantitative perspective of how the evidence in the current trial is made up can be ascertained from reading the Crown Summary of Overt Acts from which the conspiracy may be inferred.[110] Of the 314 items
I propose to set out the Haines evidence in more detail as it is central to this application.
On 23 February 2005 at BENBRIKA's residence from approximately 10.12 pm, HASAN, SHAROUF, BENBRIKA and JOUD discussed purchasing/ordering laboratory equipment from Haines Learning Centre Pty Ltd. The discussion included the following:
HASAN and SHARROUF made references consistent with the contents of pages 16 and 17 of the Haines catalogue;
SHARROUF read out the prices of many items that appear in the catalogue and also in the handwritten list of chemistry equipment found at JOUD's premises on 22 June 2005;
JOUD and HASAN: Did you make the list? HASAN replied, Yeah;
JOUD asked HASAN: Brother where did you get this magazine from?
HASAN said: When he...asked you what do you want then you fax it to them.
JOUD said: I said just the stock codes, I've got the stock codes. HASAN said: This is the stock code;
On 4 May 2005, whilst in Melbourne, there was further discussion at BENBRIKA's premises about the ordering of laboratory equipment from Haines. JOUD was present. From about 7.52 am BENBRIKA had attempted to contact both SAYADI and Ahmed RAAD by telephone. At approximately 8 00am, there was a discussion between HASAN and ELOMAR about which items they needed to order. The conversation, amongst other things, included a discussion about one of the items on the handwritten list of the chemistry equipment found at JOUD's premises on 22 June 2005. HASAN said: You put that in a filter ... and hold it in a holder... on the ground lift it up like a stand you know. ELOMAR replied: It is of glass or just...plastic? HASAN said: The one here. This is different name you know...let's order a few of them...it's called a sidearm.
On 4 May 2005 at about 8.30 pm, there was further conversation between HASAN, ELOMAR, SHARROUF, JOUD and BENBRIKA relating to the Haines order. The conversation included the following:
HASAN: You're not going to understand the doctor, huh
JOUD: Is this supposed to be a doctor's or witch's writing?
HASAN: Yeah he knows...make sure you don't miss any huh.
JOUD: No I went on the internet I had a look I said this is impossible this person I speak to is an idiot...he goes to look on each single one he's got...how much things. He goes look you have to click you don't know what you're looking at anyway one by one you have to go through to check the number. .yeah I sent him he goes no no please write it out.
On 29 May 2005 from 11.03 pm, BENBRIKA, JOUD and Ahmed RAAD had a conversation at BENBRIKA's residence during which BENBRIKA asked JOUD if he had called Khaled (a reference to SHARROUF). JOUD replied Yeah I called him today. Ahmed RAAD said Oh you got him [inaudible]. JOUD then said Or they're going to kick my head in they gonna bash me. Later in the same conversation JOUD and Ahmed RAAD talked while BENBRIKA talked on the phone. JOUD mentioned how he would need 2 to 3 days to organise something and pick it up and how he would pay cash. RAAD asked how much it would cost. RAAD then said Don't worry. If we do it in Allah's cause, will come back 10 times more ...the brothers will help us out. If you take a bit from us and a bit from them...we're been copping it too much. JOUD then said it'll probably be around 3 thousand....
On 1 June 2005 at about 8.31 pm SAYADI, Ahmed RAAD and BENBRIKA discussed the sandooq and how much JOUD needed. RAAD counted money and SAYADI asked, Now how much we got. RAAD told SAYADI they had $2810 and that he (JOUD) was going to need the whole lot. The references to them and they made by SAYADI and RAAD were in relation to the Sydney brothers. The term the goods refers to the chemistry equipment that JOUD had been tasked to acquire. The $3000 would have drained all the money from the sandooq. It was apparently for that reason that BENBRIKA was adamant that the Melbourne group should obtain the $3000 needed from the Sydney brothers, even though, as RAAD said, they pay for everything. BENBRIKA then directs RAAD and SAYADI to get the funds from Sydney because There is nothing, there is nothing (referring to the sandooq funds).
On 1 June 2005 at about 11:26 pm, JOUD and Ahmed RAAD spoke by telephone. JOUD told RAAD to ask BENBRIKA for the money. RAAD replied to the effect that he tried (with BENBRIKA) and the Melbourne group needed the money but that BENBRIKA thought he, JOUD, could get the money from them (the Sydney residents)
On 1 June 2005 at about 11:32 pm, JOUD spoke with SAYADI by telephone and asked SAYADI to speak to BENBRIKA about getting three Gs. SAYADI explained that he was there with BENBRIKA and that BENBRIKA had said you've got to call the brothers and tell them man if they can. JOUD said he did not think they could. In Arabic SAYADI told JOUD that they would talk after and Leave it till tomorrow. It will be organised tomorrow whatever happens.
A few days before 2 June 2005, a male person using the name 'Peter DRAVJIC' (a false name) rang Haines and spoke with the store manager about the purchase of certain equipment. The caller said that he was faxing an order form through.
On 2 June 2005, a fax was sent to Haines from a fax machine at Sayers Road Pharmacy, Hoppers Crossing, Victoria, which was located a short distance from JOUD's premises at 255 Morris Road, Hoppers Crossing, Victoria. The order was in the name of 'Peter DRAFJIC'. The fax was a typed document and contained an order for 55 different types of items. The document contained no prices, delivery address or method of payment. The items ordered are listed in the fax together with the product code (from the Haines catalogue) and the quantities required.
On 2 June 2005 at 6.09 pm JOUD telephoned BENBRIKA and asked if he was at home because he had a question. BENBRIKA replied that he was tired and asked if it could wait until the following day. JOUD said that it could not.
On 2 June 2005 at about 6.56 pm, BENBRIKA had a conversation at his home with JOUD concerning the Haines order and about paying for the same. JOUD said I've already given..."(meaning the Haines order). BENBRIKA suggested that JOUD go to Sydney and ask the Sydney brothers for the money.
On 11 June 2005, BENBRIKA told JOUD that Khaled wanted him to call.
On 12 June 2005 at 10.27 pm JOUD telephoned SHARROUF and asked him whether he could organise the provision of $3,000. JOUD explained that he needed the money because BENBRIKA would not authorise the provision of the money from sources under his control (i.e. the sandooq). JOUD agreed to phone back on the following day.
On 15 June 2005 in the morning, a telephone call was received by Haines enquiring about the order of the chemistry/laboratory equipment which had been faxed to them on 2 June 2005. The store confirmed that they had received the order. The sales assistant told the caller that the order was too broad in terms of delivery and payment and that he would have to come into the store. The male person making the enquiry provided the contact telephone number of 0421002054 (the "Anfony COMMITO" telephone). The sales attendant wrote this number on the faxed order form.
On 15 June 2005 at about 9.45am, two calls were made from a public telephone at 2 Sharp Street, Hoppers Crossing, to mobile telephone 0421 002 054 ("Anfony COMMITO" telephone).
On 17 June 2005 at about 8.08pm, BENBRIKA, JOUD and SAYADI had a conversation at BENBRIKA's residence in which they discussed their distrust of Ahmed KHALEK and that he might have been working for the authorities. SAYADI expressed concern that he had "said things to him".
On 22 June 2005 JOUD was in possession of a handwritten document (written by ELOMAR) listing chemistry/laboratory equipment and the name "Adam George" and the number "0401089268".
37 It can be seen that there are considerable similarities between T1 and the current trial. The notion of being a member of a terrorist organisation is not too dissimilar to the combination of minds necessary to prove a conspiracy and may, depending on the underlying facts, amount to the same thing. The common purpose of the pursuit of violent jihad is present in both trials and in both trials acts in furtherance of the common purpose (that involve directly or indirectly engaging in preparing, planning, assisting or in fostering the doing of a terrorist act) are/were alleged by the prosecution.
38 The bare elements found proven in T1 are, however, not identical to the ingredients of the conspiracy in the current trial, nor does one trial wholly subsume the elements or ingredients of the other. The counts proven at T1 were laid under Division 102 of the Code and were all directed at proving the existence of a terrorist organisation and the actions, knowledge and intent of each accused as they relate to that organisation. The conspiracy count alleged in the current trial involves an agreement to do acts in preparation of a terrorist act. The ingredients of the conspiracy alleged which I have set out in paragraph 34 are demonstrably different to the elements of the offences the accused were convicted of at T1 (see paragraphs 24-32). The most obvious difference is that the T1 offences were 'status offences' concerned with an individual accused's dealings with a terrorist organisation. The current trial, in contrast, deals with an agreement by an individual to do an act in preparation for, or planning, a terrorist act; i.e. a contravention of s.101.6 (1). This section deals with an individual's liability for his or her acts regardless of the status of any organisation. The elements, intentions and knowledge required to offend under s.101.6 are, I consider, quite distinct from any offence contained within Division 102.
39 This analysis is, I think, sufficient to dispose of any pure autrefois argument. The elements of the offences charged are not identical nor are the elements of the conspiracy count subsumed by any combination of the elements in any or all of the Division 102 offences or vice versa. This conclusion, of course, relates to only part of the accused's argument which extends to the broader principles of double jeopardy.
40 The broader double jeopardy principles are more capable of dealing with modern complex indictments with a "proliferation of overlapping and related statutory offences" where "a single allegedly criminal transaction will often yield numerous offences".[115]
41 Australian law has an "aversion to placing an individual twice in jeopardy of criminal punishment for the one incident or series of events". [116] It has never been impermissible to prosecute an individual for an offence arising from the same facts as alleged in an earlier prosecution provided the offence subsequently alleged is truly discrete or different in character. The rationale for this is simply that at the initial trial the individual was not in jeopardy of punishment for the offence subsequently alleged. If, however, the subsequent trial is no more than a re-litigation of the same cause in a different guise then the individual is twice in jeopardy of criminal punishment.
42 I have set out in paragraphs 6-19 of these reasons the principles that apply to an abuse of process that is asserted to arise from double jeopardy. The identification of what is or is not double jeopardy is, in my view, unclear. The 'sameness' of a subsequent prosecution will always be a question of fact and degree and it is a barren task to endeavour to impose some scientific or mathematical boundaries to the exercise. The end decision will be, at least to some extent, intuitive and I accept that reasonable minds may differ on it. Distilling, as best I can, the principles extracted from Carroll, it seemed to me a sensible way to approach the 'sameness' issue where there has been conviction at the first trial is to pose the question - does the second trial allege some unpunished residual criminality? If the answer to that question is no, the trial is an abuse of process and will be stayed. If the answer is yes, the extent of unpunished residual criminality must be evaluated and measured against factors such as whether the prosecution amounts to an instrument of oppression. If the trial is genuinely oppressive, if the residual unpunished criminality is relatively modest and if the oppression cannot be relieved by trial management then it may be appropriate to stay the trial as an abuse of process.
43 The principle of double jeopardy lies at the heart of all the defence submissions in these applications. T1, so the argument goes, resulted in convictions and punishment of all accused in the current trial. The accused submit that they have been convicted and punished for intentionally being members of a terrorist organisation that indirectly fostered or prepared the doing of a terrorist act. Their intention to be members was proved as was the fact that they knew that a terrorist act was being fostered or prepared. The accused further submit that the additional factor alleged in this current trial - the Haines evidence - is no more than a particular, or a further example, of the criminal conduct that led to their conviction in T1. They submit the Haines evidence is just another piece of conduct that evidences their membership of the terrorist organisation, which could and should have been led at T1.
44 The Crown does not shy away from the fact that a great deal of the evidence led at T1 is also to be led in the current trial. The Crown submits that it provides a context in which the criminal agreement was reached. This is more than simple background evidence, however. At paragraph 34 I have identified the ingredients of the conspiracy charged. The Crown relies on this evidence in circumstantial proof of every ingredient of the offence. It is integral to its case. The Haines evidence was not led at T1 and it argues that the conspiracy count alleges conduct and intentions which are distinct from and beyond that required for proof of any or all of the counts on the membership indictment.
45 It is necessary to examine the conduct alleged at T1 a little more closely.
(a) It is clear there was an organisation directed by Benbrika, with each of the other accused in the current trial holding an executive position.
(b) There were numerous examples in T1 of one or more of the group directly or indirectly fostering or preparing the doing of a terrorist act, namely:
(c) It is apparent from the opening and closing addresses for the Crown at T1 that the terrorist act that the Crown contended was being fostered or prepared by the organisation was a significant bombing attack.[119]
(d) The following extracts from the Crown opening and closing addresses demonstrate how the Crown relied upon the interaction between the Melbourne organisation and the Sydney brothers.
That has caused a deal of excitement within the group, the consultative committee of the group, this is Ahmed Raad, Aimen Joud, Fadl Sayadi and Benbrika and what do they want to do with this information? They want to teach the brothers.[125]
The trip to Louth doesn't take place until they leave on 13 or 14 March and they are on the property on 16, 17, 18 March, but this conversation would be extremely cryptic if it wasn't picked up, essentially, in other conversations, at least the topic wasn't picked up in subsequent conversations.[132]
On p.1134 Ahmed Raad says, "Did he get to come and see you, sheikh?" Benbrika, "Yeah, he came today". Ahmed Raad, "I want to see him". Benbrika, "He brought ah, some very, very important things". "Yeah." "They're with him when you will see him". Then Joud says, "Yeah, he told me about". Benbrika says, "How to make a bomb, how to do this or do it yourself and all these kind of things. He has (inaudible) me two cassettes". [142]
Then the conversation with those gentlemen goes on through tab 289 to 290 and there is various discussions involving martyrdom operations and so on and so forth, and the Crown says that this is all part of the organisation at work, fostering the doing of a terrorist act[...][147]
There is a reference, the Crown says, on 11 May to the visit that was made by Khaled 1, Abdul and Mohammed, three of the four that attended the Louth camp and attended Melbourne on earlier occasions, the visit on 4 and 5 May of those gentlemen to Melbourne. On 4 May they were seen by surveillance police to visit Benbrika, I think, on two occasions during the course of that day. Not only did they do that, but Ahmed Raad was apparently aware of the fact that they had visited and why they had visited and was a participant in the plan for them to pick the bike up from his, Ahmed Raad's home, although apparently think were spooked by the surveillance vehicle.[149]
What the Crown has to prove is that the organisation was fostering or preparing the doing of a terrorist act in the nature of that which is set out in the indictment. In other words, through the use of explosive or incendiary devices or the use of weapons.[154]
46 There are obvious differences between the offence the subject of the current trial and the offences that were the subject of T1. The membership count in T1 was common to all four accused. In order to prove it in T1 the Crown proved that each accused was a member of the organisation and intended to be so; that the organisation was a terrorist organisation - that is one directly or indirectly engaged in preparing, planning, assisting in or fostering the doing of a terrorist act, whether or not the terrorist act occurred - and that the accused knew the organisation was a terrorist organisation. The Crown also proved knowledge and intent in relation to the elements of the terrorist act as defined in s.100.1.
47 In the abstract, a person could well be a member of a terrorist organisation without ever conspiring with anyone to do acts in preparation of a terrorist act. An accused who enters into an agreement to do those acts intending that they be carried out in furtherance of the agreement and intending that those acts be part of the preparation for a terrorist act as defined in s.100.1 is a more active, less detached participant in the prelude to terrorism than the mere organisational member. The intent of the legislation is to criminalise conduct that is the prelude to terrorism far earlier than the stage at which a traditional attempt occurs and before an agreement necessarily has been reached for a conspiracy charge. [155]
48 This application is not made in the abstract however. The issue to be determined is whether in a real sense the accused have already been convicted and punished for the conspiracy alleged in the current trial. All accused, of course, have been convicted of more than mere membership. They were active members of the organisation, all intent on pursuing violent jihad. There was none of the interested detachment that could (but not necessarily does) characterise a mere member.
49 It is useful to recount some of Bongiorno J's sentencing remarks[156]
Specifically, the prisoners will be sentenced on the basis that they were members of a terrorist organisation which, although it had encouraged them to perform a terrorist act or acts in the future and had taken steps towards that end, no target or targets had been selected and no explosives or other material had been obtained to carry out such an attack.
To be guilty of the offence of membership it was not necessary that the terrorist organisation to which they belonged had gone as far as selecting a particular target. The organisation became a terrorist organisation in the terms of the indictment in this case once it engaged in any activity which could be characterised as fostering or preparing the doing of a terrorist act. An organisation may become a proscribed terrorist organisation long before it selects a target, obtains bomb-making or similar materials, or plans an attack.
It is an element of the offence created by s 102.3 of the Code that for a person to be convicted of being a member of a terrorist organisation he must know that the organisation is a terrorist organisation. In the way this case was put by the Crown, these prisoners must have known that the organisation was fostering and/or preparing the doing of a terrorist act, that is to say encouraging its members (and perhaps others) to engage in a terrorist act and/or taking some step, however indirect, towards the doing of that act. Submissions by some counsel to the effect that the highest the case could be put against their clients was that the organisation only ever fostered the performance of a terrorist act and took no steps in preparation, ignore the evidence that the organisation either provided or supplied the means of obtaining bomb making and similar instruction material to its members and provided instruction for terrorist activity. It provided or supplied the means of obtaining jihadi material such as videos of hostages being beheaded which had the effect, or could have had the effect, of desensitising these young men to the brutal and barbaric means by which they were expected to carry out executions of other human beings - as mujahideen faithful to the Islamic cause as interpreted by Benbrika. All of these activities in which the organisation engaged are able to be characterised as "directly or indirectly" preparing the doing of a terrorist act within the definition of terrorist organisation in s 102.1 of the Code.
During his specific sentencing remarks on Benbrika his Honour said:[157]
The organisation which Benbrika directed may indeed have been only an embryonic terrorist organisation. His leadership may have been less than what would have been expected had he been a trained soldier or even a trained terrorist, and his and his followers' capacity to carry out a terrorist act may have been less than professional. They may never have got to the point of carrying out a terrorist act. But all of these considerations are of little moment. By its existence, its nature and its activities the organisation fostered and encouraged its members to engage in violent jihad - to perform a terrorist act. By its collection and circulation of terrorist material it prepared, however indirectly the doing of a terrorist act. These constitute the substance of the criminality in this case_._
As Mr Robinson SC, for the Crown pointed out, had any of the members of the organisation progressed further along the continuum of terrorist activity than they did by, for example, performing a specific act in preparation for or actually engaging in a terrorist act, the crime for which they would be being sentenced would have been much more serious and carried a maximum penalty of life imprisonment. (my emphasis added).
50 It seems to me that the emphasised words capture the nub of the issue before me. Does the addition of the Haines evidence and its place in the overall case, including the Sydney evidence, demonstrate a further progression along the continuum of terrorist activity? Or is it merely another example of conduct engaged in by the organisation at the same place in the continuum? This is another way of asking whether there is residual unpunished criminality that is more than trivial or minor.
51 I have concluded that the attempt by the accused, if proven, to procure glassware for the Sydney group does amount to a 'progression' down the continuum towards a terrorist act. I consider that it adds something to the criminality of the combination and it cannot be said that the current trial would twice vex the accused for one and the same cause.
52 In reaching this conclusion factors that I have considered include the following
53 Mr Maidment contents that this additional criminality is substantial and warrants, if proven, substantial further punishment. Counsel for all accused resist this submission. Any further punishment they say would be double punishment. This is effectively a re-statement of the argument that the criminality alleged in the current trial is totally subsumed by the convictions and punishment imposed in T1. As I have indicated, I consider the Haines evidence does amount to a progression in the continuum towards the execution of a terrorist act, and thus constitutes as yet unproven and unpunished conduct.
54 I do not accept however that those allegations, if proven, do amount to a substantial progression in the continuum towards the execution of a terrorist act. My reasons for this conclusion can be found at paragraph 62 and 63.
55 It follows that I do not accept that the accused have demonstrated that they are twice vexed for the one cause. The conduct for which they remain unpunished is that relating to the aborted endeavour to procure glassware for their Sydney associates. I do not accept that a plea in bar is available (even if I were empowered to determine this issue) nor do I accept that the overlap of criminality is complete. I shall consider other aspects of abuse of process including oppression in the next part of these reasons.
56 Each accused has submitted in various ways that, even if the double jeopardy argument is not completely made out, it would be sufficiently oppressive to proceed with the current trial as to amount to an abuse of process.
57 In short the defence contend that the following factors in combination constitute an oppression that is incurable and goes to the root of the trial.
(a) There is such substantial overlap in the criminality proven in T1 and alleged in T2 that the residual unpunished criminality is, relatively speaking, minor or trivial.
(b) The decision to prosecute is unfair in that to subject the accused to another extraordinarily lengthy trial in circumstances where there is so relatively little unpunished criminality, is in itself oppressive.
(c) The additional criminality alleged in the current trial has been known to the prosecution for five years and it elected not to lead that evidence at T1. The additional Haines evidence conduct could have been led at T1 in support of the charges laid or as an additional count.
(d) The delay between arrest and the current trial is very lengthy.
(e) The cost to the community of a retrial far outweighs any benefits the community may expect from same.
(f) Inequality of resources as between the State and the accused.
(f) Pre-trial publicity of convictions for T1[158]
58 In response to these arguments the prosecution contend that the residual unpunished criminality is substantial, that appropriate prosecutorial choices have been made in difficult circumstances, and that there is nothing in the other identified circumstances taken in combination that is capable of amounting to an abuse of process.
59 I consider that some of these objections can be discounted without extensive analysis. There is no forensic prejudice identified to accompany the delay of over five years from arrest to trial. The only relevance of the delay, as I see it, is as it applies to the broader issue of oppression. I have already addressed the issue of prosecutorial choices.[159] I consider that the Haines evidence could have been led at T1 together with further evidence that would have given it context, including some evidence of the activities of the Sydney brothers. It could have been led as circumstantial evidence to demonstrate the existence and nature of the organisation or it could have been led in support of a stand alone count. Notwithstanding this I consider that the decision not to lead it was understandable and this is not an example of the prosecution strategically keeping something 'up its sleeve'.
60 Similarly I do not consider that the pre-trial publicity of the convictions in T1 and T2 creates an incurable defect going to the root of the trial. I need no persuading that the publicity was very extensive and in some instances highly sensational, particularly as it related to Atik's evidence. I consider it highly likely that one or more jurors will know of the accused, particularly Mr Benbrika, and that he/they have been convicted of terrorist related activity. We trust juries in this country to obey the directions of a trial judge. In cases where there has been extraordinarily extensive pre-trial publicity, juries[160] are directed in the strongest terms to act only on the evidence before them. With the concurrence of counsel such a direction can be tailored to an individual case and the inevitable pre-trial jury knowledge of an accused can be confronted specifically and be the subject of precise and robust directions.[161] Similar directions can be given about the prohibition upon independent research usually through a computer search engine.
61 If there is merit in the oppression aspect of the abuse argument I consider that it comes from a combination of the extent of overlap between the criminality alleged in T1 and the current trial (or put another way the residual unpunished criminality), the nature and extent of the current trial and the nature and extent of T1.
62 At paragraph 54 I indicate that I do not consider that the additional criminality alleged in the current trial amounts to a substantial progression in the continuum towards a terrorist act. In this respect I disagree with the prosecution contention. I shall state briefly my reasons for that conclusion and this regrettably requires some repetition. Any assessment of what it is that has been the subject of a charge or charges must necessarily dig deeper than a mere examination of the elements of the offences or the particulars of the charge. An analysis of the evidence that was led at T1 and the way the prosecution sought to use it demonstrates, in my view, that the accused have been convicted and punished for a variety of serious criminal conduct to do with their membership of a terrorist organisation. Benbrika intentionally directed the activities of an organisation he knew was directly fostering the doing of a terrorist act.[162] Joud, Raad and Sayadi in addition to intentional membership provided resources to that organisation intending to do so and in the knowledge 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 make funds available to that organisation. The prosecution at T1 proved that one or more of the current accused:
63 The Haines evidence is the only further direct evidence of criminality on the part of the accused led in T2. Its ambit is set out in paragraph 35.9. If accepted, it amounts to an aborted attempt by Benbrika, Joud, Raad and perhaps Sayadi to procure glassware necessary for the manufacture of an explosive device. I consider the criminality evidenced in this conduct is not trivial or minor as contended by counsel for the accused. It is an attempt pursuant to an agreement with like-minded individuals to take a practical step towards the ultimate commission of a terrorist act, and that is a serious matter. When measured against the other serious criminal misconduct, the subject of the convictions in T1, I consider the advancement beyond what has already been proven is, however, relatively modest.
64 The current trial will occupy a jury for a minimum of nine months. No-one has been prepared to offer a maximum estimate. T1 occupied a jury for seven months. T2 occupied the Sydney jury for 11 months. Mr Cahill, for Joud, in careful submissions asserted that the depositions amounted to some 50,000 pages. Mr McMahon, in equally careful submissions, asserted that the brief was "so large it had never been quantified". The Crown did not take issue with these bold assertions.
65 Any criminal trial involves some level of oppression of an accused person. Almost invariably that is a price the community is prepared to pay in the greater interest of bringing those alleged to be responsible for criminal conduct to justice. In this case I regard the level of oppression of the accused men as very considerable indeed. They have been already the subject of a very lengthy criminal trial. The appalling conditions of their incarceration and transport to court during the trial were such as to require the intervention of the trial judge.[163] It is correct that they received a benefit for enduring those conditions in the sentences imposed in T1, but the fact remains that they are now sought to be indicted again in a trial with a 'blue sky' time estimate. Experience tells us that the ordinary trial process is traumatic enough for those most closely affected by it - be they victims or accused.
66 I consider that the current trial as presently configured is so significantly oppressive that it is appropriate to intervene on that basis. Months and years may go by as the Crown pursues the accused for the remnants of their unpunished criminality. There comes a time when common sense must prevail and I consider it is now.
67 A permanent stay should only be granted for an abuse of process if the defect that goes to the root of the trial is incurable. If the oppression in this case can be cured, or sufficiently relieved by judicial intervention, then that course should be adopted. It may be that through a ruthless paring of the evidence relied upon a trial could be constructed that is a good deal less oppressive. The Crown may take the view that that is impossible, however should the trial remain in its current evidentiary form I propose to stay it permanently.
[1] As was countenanced for example in Island Maritime v Filipowski [2006] HCA 30; (2006) 226 CLR 328 [41] (Gummow and Hayne JJ).
[2] This aspect was argued only on behalf of Mr Joud.
[3] Flatman v Light [1946] 1 K.B. 414, 419 (Lord Goddard CJ).
[4] Mr Cahill for the accused Joud submitted that if I were of the view that a plea in bar were made out I should empanel a jury and direct them to acquit.
[6] Connelly v DPP [1964] AC 1254.
[7] There were initially 13 accused, but Izzydeen Atik pleaded guilty to two counts for which he was sentenced by Justice Bongiorno on 23 August 2007.
[8] Mr Maidment is well placed to offer this open-ended assessment. He appeared to prosecute both T1 and T2. The current trial is a blend of evidence from T1 and T2 with only a small additional component of evidence.
[9] If the indictment had been filed on or after 1 January 2010 the provisions of ss 217, 218 and 220 of the Criminal Procedure Act 2009 (Vic) would require that the special plea be heard by the trial jury_._
[11] Pearce v R (1998) 194 CLR 610, [18] (McHugh, Hayne & Callinan JJ).
[12] See for example Island Maritime v Filipowksi [2006] HCA 30; (2006) 226 CLR 328.
[13] Pearce v R (1998) 194 CLR 610, [9], [14].
[14] Pearce v R (1998) 194 CLR 610, [18] citing phrases used in Li Wan Quai v Christie [1906] HCA 42; (1906) 3 CLR 1125, 1131; R v O'Loughlin (1971) 1 SASR 219, 253-254; Wemyss v Hopkins (1875) LR 10 QB 378
[15] Pearce v R (1998) CLR 610, [19].
[16] Pearce v R (1998) 194 CLR 610, [24], [25], [26], [27], [28].
[17] This was because the initial summonses were defective and a lawful conviction was therefore impossible.
[18] Island Maritime v Filipowski [2006] HCA 30; (2006) 226 CLR 328, [30] and note reference to R v Elrington [1861] EngR 901; (1861) 1 B & S 688, and Li Quai v Christie [1906] HCA 42; (1906) 3 CLR 1125, 1131.
[19] Island Maritime v Filipowski [2006] HCA 30; (2006) 226 CLR 328, [40].
[21] See Jago v District Court (NSW) [1989] HCA 46; (1989) 168 CLR 23.
[22] Island Maritime v Filipowski (2006) 226 CLR, [78].
[25] R v Carroll (2002) 213 CLR 635, [21] (Gleeson CJ and Hayne J)
[26] R v Carroll (2002) 213 CLR 635, [22] (Gleeson CJ and Hayne J)
[27] R v Carroll (2002) 213 CLR 635, [22] (Gleeson CJ and Hayne J)
[28] R v Carroll (2002) 213 CLR 635, [23] (Gleeson CJ and Hayne J)
[29] R v Carroll (2002) 213 CLR 635_,_ [86] (Gaudron and Gummow JJ)
[30] R v Carroll (2002) 213 CLR 636, [86] (Gaudron and Gummow JJ)
[31] R v Carroll (2002) 213 CLR 636 ,[86] (Gaudron and Gummow JJ)
[32] R v Carroll (2002) 213 CLR 635 [129].
[33] Jago v District Court (NSW) [1989] HCA 46; 168 CLR 23, 24 (Mason CJ).
[34] Jago v District Court (NSW) [1989] HCA 46; 168 CLR 23,46 (Brennan J).
[35] R v Carroll (2002) 213 CLR 635, [73] (Gaudron and Gummow JJ)
[36] I shall refer to the evidence that the Crown relies upon that surrounds the attempt to procure this glassware as 'the Haines evidence'.
[37] This offence was particularised against Joud. The prosecution alleged that he made himself available as a source of supply, support, information, aid or encouragement which would help the organisation, directly or indirectly, foster or prepare the doing of a terrorist act. The prosecution said he did so by undertaking a leadership and administrative role in the organisation, knowing it was a terrorist organisation.
[38] This offence was particularised against Raad. The prosecution alleged he undertook a role consistent with that of treasurer of the organisation. The prosecution alleged he did so by undertaking a leadership and administrative role in the organisation, knowing it was a terrorist organisation.
[39] This offence was particularised against Sayadi in identical terms to Joud (see paragraph 26).
[40] This offence was particularised against Joud and Ahmed Raad. It was alleged that between 10 August 2004 and 17 September 2004 they, along with others, obtained a Honda motor car and a Holden motor car and dismantled them for parts which were to be sold. The funds derived were to be paid to a terrorist organisation.
[41] Executive Summary of the Crown Case. It is marked as Annexure B to these reasons.
[42] This was a term used to characterise a Sydney group with similar interests. It included Messrs Elomar, Hasan and Sharrouf.
[43] Sharrouf and Hasan - both alleged co-conspirators in this trial. This conversation occurred on 23 February 2005. Only part of this conversation was led at T1. Those parts that were concerned with the selection and pricing of appropriate glassware from a Haines catalogue were not led.
[44] Using the first trial numbering system (f.t.n.s.) these were conversations 15,40,42,48,49,50,52,54,58,89,91,96,102,242,249,291,344,363,364,377,378,385,389,406,411,416,432,471.
[46] This book was described by Benbrika as "a good and dangerous book" in f.t.n.s. 280
[47] Mostly recordings of Telephone Interceptions and Listening Devices and documents seized in searches.
[48] Details of the particular specific evidence referable to each individual accused can be found in Schedule F to Annexure B (Executive Summary of the Crown case).
[51] In f.t.n.s. 48,49,50 and 52 members of the group discussed whether the real intention of the police was anti-terrorism related.
[67] They are Khaled Sharrouf, Khaled Cheiko, Mohammed Elomar and Abdul Hasan.
[70] f.t.n.s. 377, 378 This interview was recorded at Benbrika's home and monitored by a listening device.
[79] Khaled Sharrouf, Khaled Cheikho, Mohammed Elomar and Abdul Hasan.
[81] The role of the 19 perpetrators of the September 11 2001 terrorist attacks in America; f.t.n.s. 192
[86] Seized from Benbrika on 8 November 2005. Referred to in f.t.n.s. 249, 255, 280, 288, 298, 307, 313, 373 and 441.
[87] Khaled Sharrouf and Abdul Hasan. f.t.n.s. 288-291.
[90] The Call of the Global Islamic Resistance - Your Guide...to the way of Jihad.
[97] The Terrorist Handbook; The Vortex Cookbook, CIA Field Experiment
[98] The Islamic Ruling on the Permissibility of Self-Sacrificial Operations; The Virtues of Martyrdom in the Path of Allah
[99] Join the Caravan; Defence of Muslim Lands; Join the Caravan
[101] R v LK; R v RK [2010] HCA 17; (2009) 266 ALR 399, [141].
[102] R v LK; R v RK [2010] HCA 17; (2009) 266 ALR 399, [107].
[103] R v LK; R v RK [2010] HCA 17; (2009) 266 ALR 399, [117].
[104] R v LK; R v RK [2010] HCA 17; (2009) 266 ALR 399, [93].
[105] These are the ingredients identified by Whealy J in R v Elomar & Ors. They result from a combination of the elements of the substantive offence and the ingredients necessary to prove a charge of conspiracy under the Criminal Code i.e. 101.6 and 11.5 of the Criminal Code.
[106] Abdullah Merhi, Izzyden Atik, Ezzit Raad (brother of accused Ahmed Raad), Shane Kent and Amir Haddara.
[107] Hany Taha, Shoe Hammoud, Bassam Raad(a cousin of Ahmed Raad) and Majed Raad (another brother of Ahmed Raad).
[108] Crown Case Statement (Draft as at 10 August 2010).
[109] A more detailed analysis of the overlap of evidence between T1 and the current trial can be found at paras 45, 62 and 63 of these reasons.
[110] Annexure C Draft as at 10 August 2010.
[111] OA 4-13, 15-17, 19-20, 22-25, 27-33, 36-39, 42, 46, 48-49, 51, 60-64, 66-70-, 96-97, 101, 105-106, 113, 115, 134, 143, 149-150, 152, 154, 163, 170-, 175, 185, 205, 251.
[112] OA 3, 41, 55-58, 76, 110, 147-148, 155-157, 160-162, 164, 171-172, 176, 179-180, 218, 240.
[113] OA 50, 98-99, 111, 116, 117-120, 122, 123, 136-137, 141-143A.
[114] OA 1,2,14,18,21, 26,34,35,43,44,52,59,65,71-74, 78-95, 100, 102-104, 107-109, 112, 114, 121, 124-131, 135, 138-139, 144-146, 151, 153, 158-159, 165-169, 173-174, 182-184, 186-204, 206-217, 219-239, 241-250, 252-314.
[115] Island Maritime v Filipowski [2006] HCA 30; [2006] 226 CLR 328, [43] (Gummow and Hayne JJ).
[116] R v Carroll (2002) 213 CLR 635,[84] (Gaudron and Gummow JJ).
[117] Dars classes were meetings conducted by Benbrika where the Crown alleged he provided jihadist instructions blended with religious justification to the members of his organisation.
[118] All of the evidence supporting these propositions in paragraph (b) was led in T1 and will be led in T2 with the exception of evidence of the camp at Eden.
[119] See transcript T1 Opening pages 123.11-20; 125.15-17; 127.16-17; 133.12-26; 135.5-10; 137.20-25; 138.8-18; 161.19-25; 166.6-16; 181.1; 181.7-14; 244.1-24; 391.21-29; 466.30-31; 467.11-18; 472.27-31; 476.6-16;502.1-10; 569.29-31; 634.1-9; 711.16-21. Closing T1 pages 3801.22-30; 3802.21-29; 3914.6-15; 3920.29-31;3921.1-9; 3921.16-19; 3954.16-26; 3986.18-3987; 3994.31-3995.6; 4089.19-26; 4108.8-14
[123] T1 467.11-18 This conversation refers to a trip by the accused to Sydney.
[155] L_odhi v R_ [2006] NSWCCA 121; (2006) 199 FLR 303, [66]
[156] R v Benbrika & Ors (2009) 222 FLR 446, [43],[44] and [45].
[157] R v Benbrika & Ors (2009) 222 FLR 446 [65]
[158] This was only submitted by counsel for Joud.
[159] See paragraph 50 of these reasons.
[160] See for example Dupas v R (2010) HCA 20
[161] See for example Gilbert v R (2000) 201 CLR 414, [31] (McHugh J); R v Vjeshica (2008) VSCA 47, [34] (Maxwell P).
[162] He was sentenced on the basis that the fostering or preparation was direct. See R v Benbrika & Ors (2009) 222 FLR 446, [68]
[163] See R v Benbrika & Ors (Ruling No. 20) [2008] VSC 80; (2008) 18 VR 410.
R
Benbrika & Ors
(2006) 226 CLR 328
(1998) 194 CLR 610
(1906) 3 CLR 1125
(1971) 1 SASR 219
(1989) 168 CLR 23
(2002) 213 CLR 635
(2002) 213 CLR 636
(2009) 266 ALR 399
(2006) 199 FLR 303
(2009) 222 FLR 446
(2000) 201 CLR 414
(2008) 18 VR 410