terror trial
17 Sep 2008
What if it Doesn't Walk Like a Duck?
Going to jail for talking about terrorism? Benbrika and his associates may be mad and bad, but they've been convicted of offences that amount to little more than guilt by association, argues Kirk McKenzie
As is often observed, the protection of the law becomes specially important when it is claimed by the unpopular and the despised accused of grave wrong-doing.
Justice Michael Kirby (The Queen v Tang, 28 August 2008).
It is likely that the majority of our fellow Australians will be relieved and pleased to see that Abdul Nacer Benbrika has been convicted and will be sentenced to a lengthy term in prison. They will correctly see him as an extremist who has expressed support for a terrorist assault on this country with the intention, however misguided, of advancing the cause of radical Islam.
This man is an obvious menace to the community. Whether he should be jailed for up to 15 years based on what he has been proved to have done is another question altogether.
After a seven month trial, Benbrika was convicted earlier this week on three charges: intentionally directing the activities of a terrorist organisation; being a member of such an organisation, and possessing a CD containing terrorist information. Six of his associates were convicted of being members of the same organisation, but interestingly, a further four co-accused were not convicted, and the jury remained deadlocked concerning the remaining accused.
So, why should these convicted terrorists not go to jail for a long stretch?
The following is not in dispute:
First, there was no evidence before the Court that the seven convicted men were members of any of the listed terrorist organisations specifically banned in this or any other country, by law.
Second, there was no evidence that any of the seven had committed a terrorist act, had attempted to commit a terrorist act, had taken a step in preparation or planning for a terrorist act or had even agreed to take a step in preparation or planning for a terrorist act.
During the trial, the prosecution called evidence of no less than 482 recorded telephone and other conversations and yet the most serious offences with which the seven individuals were charged involved membership of their own social group which, under our widely drafted anti-terrorism laws, can constitute a terrorist organisation. Under these laws, if a loosely linked social group indirectly fosters the commission of a terrorist act, even unintentionally, and regardless of whether the group itself is involved, the group falls within the definition of a terrorist organisation.
Once that occurs, an informal member of the organisation is guilty of a serious criminal offence punishable by up to 10 years jail. There is no need for any evidence that the accused has intent to engage in terrorist activity or even that he or she has made any agreement to later engage in terrorist activity. If you are proved to have intentionally directed a group, like Benbrika, the maximum penalty, without any further behaviour, is 25 years jail, one of the heaviest penalties applied in our legal system.
It could be argued that the consequences of terrorist activities are so devastating and amount to such an assault on the Australian way of life that extreme laws like this are justified.
That is an entirely respectable opinion and not to be ridiculed.
Nevertheless, one wonders whether Benbrika and his associates are the real problem in this or any other community. They have been convicted because they have been stupid enough to talk about their views. Benbrika has even been crazy enough to give media interviews in which he discussed his extreme position. On one view, he may just be a big talking, big noting, would-be jihadist who, despite many extravagant statements, and months or years of surveillance by ASIO and the federal police, has never planned or taken a single step in preparation for a specific terrorist act or even terrorist acts in general.
The question needs to be asked, what precisely has this man done, except talk?
One may say that some of Benbrika's talk amounts to incitement of violent acts. If this is so, why was he not charged with such an offence? The answer is that evidence linking him and his friends to specific offences would be necessary, and that evidence does not exist.
It is true that one key prosecution witness did allege that Benbrika and his associates intended to bomb the 2005 AFL Grand Final or alternative events. However, the trial Judge directed the jury to ignore that evidence unless it was corroborated, because the witness was an admitted fraudster and liar.
There is one clear danger in the conviction of these seven men — that they will come to be seen as victims of a legal system biased against Islam and its adherents, given they have been convicted of offences which, when boiled down, amount to little more than guilt by association. Sure, several of the men have also been convicted of possessing CDs containing terrorist material, but that is a long way from the commission of acts of violence.
A key factor involved in the mature assessment of these convictions will be the sentences imposed by the Judge, the respected Bernard Bongiorno.
In the 1990s, Bongiorno QC was Victoria's Director of Public Prosecutions. He took an independent path in discharging his responsibilities and got right up the nose of then Victorian Premier Jeff Kennett. Kennett's response was to pass legislation which effectively neutered most of the DPP's powers and gave them to a deputy. Bongiorno promptly resigned and returned to the Bar, earning the respect of his peers and the public for refusing to surrender the independence of his office.
If that independent attitude results in relatively short sentences for these Melbourne men, it will be a good indication of what Justice Bongiorno thinks of the laws. However, his decision may not be the end of the matter. In addition to being controversial, the legislation grounding these convictions is vague and uncertain. It would therefore be surprising if the convictions are not appealed all the way to the High Court in Canberra.
Now also, it is revealed that further charges are to be brought against four of the men for acts "in preparation of or planning a terrorist act" — a provision heavily criticised for criminalising activity well before the time at which legal theory suggests a crime can be committed. The allegation is that they ordered laboratory equipment. If convicted the penalty is life imprisonment.
Abdul Nacer Benbrika will await the conclusion of the legal process before he knows his fate. But with a conservative High Court unlikely to be troubled by these laws and Justice Kirby retiring next March, even one of Kirby's celebrated dissenting judgements will be beyond his hopes.
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He is definitely a nuisance, consuming not only the resources of ASIO, but several other government departments as well(immigration and welfare). What a pest! He talked of blowing up the society that was feeding, housing and educating his own family. That’s gratitude for you.
Probably the greatest mistake of these men is in being Muslim in Australia, the land of the followers of GWB! Also of being bloody stupid! But being locked up for 25 years for being stupid is not beyond the draconian laws introduced by Howard and backed enthusiastically by Labor. Seems they have already been held in Guantanamo conditions for three years by our "Justice" system.
Why..because they look like ‘foreigners’, and have beards!
What happened to the good ole ‘kick up the backside’ and sent home for father to chastise?
We can expect nothing better from McClelland, who has already committed two glaring boners against jurisprudence. That man should be sacked!
Dazza.
Your statements re: the Law and Benbrika are way over my head. Are you trying to tell us that all the evidence was circumstantial? Aren’t the legal profession, always trying to back out of confrontation with Muslims, on the basis that the rest of the Muslim population in Australia will be against ‘The European legal system?’. I find your comments to be offensive and racist. You, straight away, make the assumption that all Muslims are simplistic morons, and they will only admire people who are weak in the face of evil.
As for Abdul Nacer Brinbrika. I am outraged by his not deigning to get a job for all those years. Not only has he not worked, but he has prevented his wife from all knowledge of contraception, and charged the Taxpayer, for all his little manly cock-of-walk boasting to his mates about his prowess in bed. For the whole of his worthless life he has screwed the country he purports to love. Now it’s our turn to screw him. By locking him up for 25 years, that will be 25 more children the Taxpayer DOESN’T have to subsidize.
No, Venise is quite right of course, we should throw every unemployed bludger on welfare and who has the cheek to form a political opinion straight into jail for a VERY long time!
That’ll teach them!
Lucky they couldn’t read my mind or I could be charged with treason.
There is a fair whack of witch hunting going on in regards to ‘terrorists’. Perhaps if they started drinking alcohol they would have an excuse for talking big.
I’m not sure that the ‘powers to be’ have protected us from an imminent threat or just rounded up the new bunch of usual suspects. Haneef doesn’t set a good precedence.
Catch-all legislation may calm the hearts of some in society who fear difference but it is sloppy legislation. This will be thrashed out again and it will do the law no service. Customised laws for a perceived threat is just another version of Calvinball.
As usual, I agree with Rockjaw! Lock up everyone who isn’t a success. Success is available to everyone with the guts to stand on their own two feet, or one foot if they only have one, or no foot if they’ve no feet, and claw their way to the top of the heap!
It seems quite clear to me that ASIO gave up waiting for them to actually do anything because after so much time spent on the case they saw no evidence of impending terrorist activity. If they were about to actually do something there would have been no danger in ASIO letting them progress their cause to the point where there would have been solid evidence of an real crime. I think we can safely call these people political prisoners (neither our first nor likely to be our last) but it is not like we have a reputation to save anyway…
hi kirk,
great article thanks for this. can you explain what avenues are available to the four co-accused who have been found not guilty? They’ve been locked up for four years for no reason. are there avenues for compensation?
thanks
jd
Believe it or not folks, I was attempting to take the mickey out of the pompous legal fools who solemnly wear gowns and wigs, trailing their dinky little bags on wheels behind them. Wigs were invented, originally, to disguise judges so the condemned felon couldn’t send his/her family around to bash the tripes out of them. I still think the Legal profession is making a colossal assumption when they imagine there are no Muslims who value a just sentence, for a determined crime. The bit about Benbrika being locked up for 25 years, and therefore unable to add to his brood was more or less sincere in as much as I believe Australian Governments, at some stage, will have to bring in a one-two child policy. We, the most fragile country on earth, ecologically speaking, cannot afford to allow endless over population.
I can’t comment on the sentences because of my lack of expertise with the law. Sure, I know there’s a hideous perception of all Middle Eastern men being terrorists. Indeed, I have a daughter who I am never going to speak to again. She saw two Middle Eastern guys taking photos of each other with the St. Kilda fun fair in the background. Immediately she rang the Terrorist ‘Hotline" to register her protests. The guy who answered the phone read her the riot act about racism. It turns out she got all her racist hatred from a European migrant (Denmark) who worked in her office. So not only am I bitter about having a daughter who can’t even think for herself. I’m doubly bitter because when I was in Syria about 4 years ago, I fell madly in love with a Jordanian-we met in Damascus! I’ve met incredibly nice people in Iran, Syria and Jordan. People who have absolutely nothing in common with trash like Benbrika.
It may have all come out wrong in my original comment. From now on I will cut out the irony.
Thanks peterbest, it is truly heartwarming to know we share the same views, it really means a lot to me.
By the way, apart from those economic horses and donkeys you were telling us about in Ben Eltham’s forum, do you have any interesting vignettes about domestic animals and the lessons they can teach us about sarcasm?
Jack03
As to compensation for the four acquitted, the answer is:
None available
- apart from ex gratia payments which are a remote possibility in this case.
Kirk McKenzie
I think we underestimate the danger these men posed. They are on the record as having spoken about going under the "need to hold it up bit" of the West Gate Bridge and planting a "thingo" there.
As the Herald Sun said, chilling stuff.
And to think that 25 years ago or more in Northern Ireland, people were arrested outside chapels for distributing copies of An Phoblacht - even though they themselves may have been pacifists, albeit Republican pacifists.
Then, under the Utopian regime that was the Thatcherite government, one could spend the night in the cells for just buying a copy of said publication.
Welcome to our world, Australia (although at the same time, if they were planning on wreaking havoc in Australia, it is only right and proper that they should be locked up).
I think there is a big difference between the ‘possibility’ of these men being dangerous and them actually being dangerous. I agree with Mr Crapulent, if they were actually going to do something then ASIO would have waited for some more evidence. It’s just a shame that the presumption of innocence in our legal system has been eroded to such a point to which talking about a "thingo" underneath the "need to hold it up bit" of a bridge has become a crime potentially punishable by decades of imprisonment.
Is that the worst thing they could come up with after 482 telephone conversations? I’m pretty sure I could be charged with a variety of offences if every thing I said in my last 482 phone calls was taken to be my actual intentions.
Dear ASIO,
I was referring to possible parking and responsible service of alcohol offences. Surveillance not required.
Yours sincerely,
Kurt
Well, I often make phone calls in which I talk at length about laying in vast stockpiles of C4 with which to set off simultaneous explosions in the centre of every capital city and cripple the financial and political powerbases of the nation, but that’s just a figure of speech.
And so is telling someone you are going to kill them. But of course no one ever says that.
I prefer to say: "I’m going to hit you in the scone with that thingy".
What a terrible newmatilda article. Filled with part truths and glaring inconsistencies. This is the kind of sloppy rhetoric that borders on stupidity, and turns people like me off left-aligned politics. Ít’s not a questions of whether one is ‘for’ or ‘against’ those on trial: it’s about whether justice has been served (Kirk McKenzie ought to read Geoffrey Roberson). This is ill-researched journalism, and it does nothing for critical debate in this country.
Hi Bzipper,
With respect, i must take issue with you over your characterisation of support for a handful of half-witted would-be murderers as ‘left-aligned politics’: how on earth can the plotting of random killing of innocent people be left-wing ? Islam is no more or less conservtive than any other religion, perhaps a bit more male-centred and a bit less love-one-another, but the various crackpot spin-offs from it are almost invariably extremely right-wing, reactionary and pre-feudal, regardless of the mindless left-wing support for them.
As for the rest of you smug and holy armchair hotshots, what then ? What would be your minimum position on what might constitute the planning of mass murder ? Any thoughts of your own ? And let’s not go to extremes and talk of blowingup whole cities - what would be your MINIMUM position, the point past which which you would consider someone has taken the first steps towards committing a criminal act ? Buying laboratory equipment ? Possessing videos outlining how to blow up buildings and bridges ? Advising people how to plan to blow up a bridge, and which part is the weakest ? Assigning tasks ?
Come on: beyond your infantile smacking of each and every government around the ears from the safety of your own computers, where would you begin, if you were the minister responsible, to set the minimum boundaries of what might constitute terrorist acts or their planning ?
Piss and wind.
Joe
Hi Joe,
There is a difference between possessing videos outlining how to blow up a building, and buying laboratory equipment. One is an simple act of possession, the other is a positive act of planning or preparation. They aren’t on the same level. The same can be said for discussing how to blow up a bridge, and actually assigning tasks.
Sure, it could be suggested that one leads to the other. But just because it looks like you may do something doesn’t mean you are actually going to do it.
I understand that we are discussing potentially very dangerous acts, as you say: "mass murder". But convicting someone before they’ve even decided to commit the crime is too far. The ends simply do not justify the means.
So Joe, all I, personally, in my holy armchair, want is evidence of a positive act before I will be comfortable with locking someone up for 25 years.
Kurt
Still waiting for an answer.
Joe
After the Marriott Hotel bombing, which so far has killed more than sixty innocent people, I’m still waiting for an answer.
Joe
The role of a society’s justice system is to punish those who commit a crime. As it is not possible to punish a suicide bomber after the event we need to punish him before the crime is comitted.
Terrorism is about scaring a nation’s, a city’s people. An attack doesnot have to be committed in order to have its desired effect. These people have contributed to the nations collective fear and so must be punished.
Whist ever a society like ours wishes to punish; we need to trial and find guily terrorists and others who we fear. Only by ending our need to ‘punish’ can we move forward in our understanding of these people.
Graham p
Were the people sent out to Australia as convicts; sentenced because they stole a loaf of bread? Or were they pounced on because they looked as if they were going to steal a loaf of bread?
Shows you Venise, crime does have it’s rewards! Imagine if they were FORCED to remain in England?
Now THAT would have been inhumane!
George
The point I was attempting to make was that merely expressing extreme views should not be a crime - unless you intend a violent act to result, in the circumstances in which the ALRC says the Treason/Sedition laws should be confined to.
The instant those views crystallize into an agreement to do a terrorist act or incite one, that is different.
It is possible to despise the views expressed by Benbrika but still think he has not committed a crime which justifies a long stretch.
I ask the question - what is the seriously immoral or injurious act which he has done? These are the alternatives-
Lead a group of mates who talk about what they might possibly do in future; be one of those mates who talk….; or possess a CD which could assist any such plans not yet hatched.
That is what has been proved and nothing else. The first and third of these "offences" carry maximum sentences of 25 years.
Kirk McKenzie
PS …and now he is to be charged with buying lab equipment under an offence which Dr Ben Saul told the Haneef Public Forum this morning should not be an offence. Oh and the maximum penalty? ……..Life.
Hi Kirkmck,
Expressing extreme views in concert, in a group, none of whom disagree with those views, each contributing, and then purchasing equipment, circulating videos, talking about bridges’ weak points, buying lab equipment in those circumstances for which he has no reasonable use, etc. - at what point does such activity fall over into potentially terrorist activity ?
As someone noted above, once a suicide bomber has blown himself and other innocent people up, it is a bit late to charge him with disturbing the peace. An act does not have to be done, Kirkmck, for a crime to have been committed, I’m perfectly easy with that, perfectly, no problems. This isn’t some adolescent game of ‘well, you didn’t see me so how do you know I …..’ Yes, 25 years , no worries.
Joe
Rockjaw aka George: Very funny and very true. However, it doesn’t answer the question; were they nabbed for the actual thieving a loaf of bread? Or were they nabbed for thinking about stealing a loaf of bread? Think about it George. There may be thousands of descendants of these misunderstood poms, languishing undeservedly in our convivial climate and relaxed ‘she’ll be sweet’ attitudes. You know the sort of people. They hate Muslims and migrants, and believe they have no business coming into this country. They are so quick to tell them to go back to their own country. Now wouldn’t that make for an interesting reversal of fortune? :) :) :)
Cheers
V.
rmg/Joe
You apparently think people should be locked up for decades for merely holding extreme views - not good enough. Assume 1% of Aussies hold such views - you would lock up an extra 200,000.
Do not misunderstand me - I do not support these guys. The moment an agreement is reached to do some terrorist act, a very serious crime has been committed. Benbrika and co just did not get that far.
By the way I have no problem with criminalising possession of the CD but the savage penalty here - 25 years- is unjust. What if a person looked at the CD and was convinced not to become a terrorist? Does s/he really deserve decades in jail?
No, Kirkmuck, not for holding extreme views (otherwise I would have spent the last forty years inside) but for acting in concert to put some of those ideas into action. My question above stil lstands: beyond what point does relatively harmless ‘thinking’ become potentially criminal ‘action’ ? At what point, in the progression from thinking about an assault to picking up a brick to travelling to the place of assault and choosing a potential asaultee, does a thug commit a violent act ?
Joe
A Victorian couple, brother and sister, have just got nine years each for plottingto kill their father: they hired a hit-man, they thought, to run him over - they did nothing, the ‘hit-man’ did nothing but they got nine years. They offered to pay the hit-man $ 14,000 but he was a copper. At what point did plotting and planning become a criminal act, as surely this was ?
Joe
Joe
You have answered your own question - the brother and sister formed a criminal intent and acted on it in relation to a specific act. If they had asked the copper to kill someone at random - same result.
However if they had just talked about how the father or say, other old men deserved to die, or asked each other if they should kill him or others or even said what a good thing it was that a friend had killed someone - no offence has been committed.
The Melbourne lot fall into the latter category.
As to your example about the thug with the brick, if he is merely carrying it while walking down the street - no offence. If he raises it to strike a person - offence. If earlier he comes to an agreement with Thug 2 to each take a brick and walk out on the street to assault the first person they see - an offence occurs at the point of agreement - if it can be proved.
I do not criticise your questions - legal scholars have been thinking about the limits of criminality for centuries.
Kirk
Kirkmuck,
If I met a fairly scruffy person on a dark street carrying a brick, the thought might cross my mind that he represented some transformation in my equanimity. I remember a short film from many years ago when just such a person would approach people with a smile in a dark lane and ask them if they wished to purchase a brick, whereupon they promptly paid him handsomely to remove it to some other location, no doubt the objective of the exercise. You would say that he has done nothing wrong, but I suggest you frequent dark laneways and test your hypothesis.
Cheers,
Joe
Joe
You are running out of arguments. Some years back a Doctor was quoted to the effect that it would be good exercise if people out walking carried a half-brick. For a while hundreds did so.
You would have arrested them. I would not - see above for the reasons.
PS Can’t you do any better than kirkmuck? Answer:?
I’m certainly not saying that a person should be arrested for carrying a brick, but if there were evidence of INTENTION to do something with it, then we might be onto something. How you get that sort of evidence is the hard bit, but overheard conversations, emails and neon signs might help. The purchase over the counter of a single brick may also point in the direction of possible culpability.
Sorry, Kirkmk, slip of the finger.
Cheers,
Joe
Funny, I seem to recall the identical legal discussions over another "terrorist" called Nelson Mandela during the infamous "Rivonia Trials" in South Africa.
Do you think Australia will ever have it’s own Robin Island?
I can just see the headlines in 25 years time "Australia swears into office it’s very own Nobel Peace Prize Winning President and famous political prisoner, President Abdul Nacer Benbrika of the New Muslim Republic of Australia".
"there’s ought queer as folk"
George