IN THE SUPREME COURT OF VICTORIA	Not Restricted	
AT MELBOURNE
Criminal Division
S ECI 2020 03527

MINISTER FOR HOME AFFAIRS 	Plaintiff	
		
v  		
		
ABDUL NACER BENBRIKA	Defendant	

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JUDGE:	TINNEY J	
WHERE HELD:	Melbourne	
DATE OF HEARING:	30 November; 1, 2, 3, 7, 8 , 9 and 10 December 2020	
DATE OF RULING:	24 December 2020	
CASE MAY BE CITED AS:	Minister for Home Affairs v Benbrika (Ruling No 1)	
MEDIUM NEUTRAL CITATION:	[2020] VSC 886	

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PUBLIC LAW – Evidence – Application for a continuing detention order under the Commonwealth Code – Admissibility of various aspects of the evidence relied upon by the plaintiff – Relevance – Whether evidence met requirements of business records exception to hearsay rule – Whether evidence met requirements for admission as expert opinion - Whether evidence should be excluded in exercise of discretion under s 135 of Evidence Act 2008 – Whether Court should limit use of evidence under s 136 of the Act – All challenged items of evidence admissible – No basis for exclusion of any evidence or limitation on its use – Evidence Act 2008 ss 55, 59, 60, 69, 79, 135, 136.

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APPEARANCES:
	Counsel	Solicitors	
For the Plaintiff	Ms R Orr QC with
Mr A Berger QC,
Ms A Lord and 
Ms R Avis	Australian Government Solicitor	
			
For the Defendant	Mr B Walters QC with 
Mr S Moglia and
Ms R Khan	Doogue + George Defence Lawyers	

HIS HONOUR:
Introduction
1	The plaintiff brought an application for a continuing detention order (‘CDO’) in relation to the defendant, Abdul Nacer Benbrika. The hearing of the application proceeded before me over a number of days in November and December 2020. The bulk of the evidence was placed before the Court by the way of affidavits which were generally tendered in evidence on the first day of the hearing. In addition, two witnesses were called by the plaintiff, and one by the defendant.
2	Prior to the hearing, it was indicated orally and in writing by the parties that there were matters of evidentiary admissibility which would need to be decided by the Court. The hearing of oral submissions by the parties on these questions of admissibility was put off until the close of the plaintiff’s case. As it turned out, the submissions were heard on 7 and 8 December 2020.
3	The following is my ruling on these questions of admissibility. This ruling will precede the handing down of the decision in the application for a CDO. For an understanding of the significance of the evidence in question, refer to the judgment in the substantive application delivered this day. 
What was sought to be excluded?
4	The defendant sought the exclusion of a number of items or areas of evidence. These were:
a.	The records of the CISP sessions in which the defendant participated and other material connected with CISP;
b.	Material obtained from the FBI about an interview of Jamil Choucair;
c.	Evidence as to the contact between the defendant and  associates;
d.	Opinions based on inadmissible material. 
The CISP material
5	Mr Walters QC sought the exclusion of this material on the basis that it was hearsay and did not satisfy the business records exception to the hearsay rule contained in the Evidence Act 2008 (‘the Act’). The hearsay rule is contained in s 59 of the Act. The business records exception is contained in s 69. 
6	For reasons spelt out in detail, Mr Walters submitted that the CISP records did not meet the requirements of s 69 for admission as business records. That was his primary submission. 
7	The secondary submission of Mr Walters was that the records were inadmissible because [redacted]. It was submitted that the records do not satisfy the requirements for admissibility of expert opinion evidence under s 79 of the Act. 
8	In the alternative to the above two bases for exclusion, Mr Walters urged the exclusion of the evidence pursuant to s 135 of the Act on the basis that its probative value is substantially outweighed by the danger that the evidence might be unfairly prejudicial to the defendant, or be misleading or confusing. 
9	On this score, Mr Walters submitted that the material did not constitute original records of what the defendant or other participants in the [redacted], or what occurred. They were [redacted]. 
10	It was submitted in respect of all of the material that it would be unable to be tested, something which the authorities pointed to by Mr Walters indicated would be a strong factor militating against the admission of the evidence. 
11	On the misleading and confusing aspect of s 135, it was submitted that drawing inferences from statements said to have been made by the defendant, then translated from Arabic to English, had the potential to mislead the Court. It was submitted the Court simply could not draw any rational inferences from such statements attributed to the defendant ‘without a nuanced and informed expert opinion’ on the statements. This could only come from the [redacted] who were not called by the plaintiff. Furthermore, [redacted] in seeking to understand the changing ideology of the defendant, would also have a tendency to mislead the Court. 
12	In the further alternative, even if the material was not excluded for one of the reasons considered above, Mr Walters urged me to limit the use to be made of the evidence pursuant to s 136 of the Act, in order to alleviate the unfair prejudice which would flow to the defendant from its unbridled use, and to alleviate the danger of the material being misleading. 
The FBI material
13	The defendant sought the exclusion of the evidence contained in the affidavit of Kelly Smith as to a ‘Letterhead Memorandum’ prepared by the FBI which set out, amongst other things, an account of  a conversation by FBI agents in Syria with a man named Jamil Choucair while he was in custody in that country. Choucair, a proven associate of the defendant, told the agents that he had been smuggled from Turkey to Syria in 2013 and had joined and fought with Islamic State in the conflict there before being captured. 
14	Mr Walters submitted that this evidence failed the test of relevance in s 55 of the Act. It was submitted that it was not capable of rationally affecting the assessment of the probability of the existence of a fact in issue in the proceeding. The only evidence as to a connection between the defendant and Choucair was that the latter visited the former in custody a number of times between 2009 and 2012 before he departed Australia. Even if he was a proven foreign fighter, it was submitted that this would be of little moment unless the substance of any communication between the two men would advance the plaintiff’s contention as to the unacceptable risk posed by the defendant. This was not the case. 
15	In the alternative, Mr Walters submitted that even if relevant,  the FBI evidence would be hearsay and would not satisfy the business records exception to the hearsay rule. 
16	Finally, he sought its discretionary exclusion under s 135 of the Act as its probative value is substantially outweighed by the danger that the evidence might be misleading or confusing. The record provided only a partial conversation and did not purport to be a verbatim transcript of what was said. The admission of the evidence would be based on the assumption that all salient portions of the interview were recorded and that the conditions of the interview did not impinge upon the quality of the answers given. Those assumptions should not be made. 
The associates evidence
17	Evidence from a number of witnesses touching on the apparent connection between the defendant and numerous males who were in some way connected with him, was also the subject of objection. The material included evidence as to the cancellation of various passports and the refusal of application for passports, travel documents and movement records relating to individuals, and details of a number of named individuals. These individuals were generally known or suspected foreign fighters, or in other ways were persons of interest. The individuals included two sons of the defendant. Many of these individuals visited the defendant in custody before, in most cases, travelling overseas, and often, never returning to this country.
18	Mr Walters objected to the admission of this body of evidence on the basis of relevance. He submitted that the evidence in question could not rationally affect the assessment of the probability of the existence of a fact in issue in this proceeding. It was submitted that the plaintiff relies on the executive determination about the defendant’s associates:
as if doing so can and should relieve this Court of its primary task – determining whether there is something in those associations that touches upon or proves whether Mr Benbrika poses an unacceptable risk.
19	In support of his submission, he referred to State of South Australia v Totani and anor in which French CJ stated what Mr Walters described as a bedrock principle of Australia’s common law heritage and which supplies principles for the interpretation and operation of the Constitution, namely, ‘Courts and judges decide cases independently of the executive government’.
20	In the alternative, Mr Walters sought the exclusion of this body of evidence pursuant to s 135(b) of the Act. It was submitted that without the substance of the conversations between the defendant and any of the named individuals being known, the evidence would be misleading or confusing because it would invite speculation as to the content of the conversations, leading to a possibly incorrect assessment as to the weight of the evidence. 
Use of inadmissible material by Ms Dewson and Dr Mischel
21	This final application for exclusion depended on a positive finding for the defendant in respect of the earlier applications. It was submitted that the admissibility of parts of the evidence of these two witnesses turns on the admission into evidence of the source material on which they relied. If the evidence in question was excluded, then the opinions of the experts would be significantly undermined, and their opinion evidence should be discounted accordingly. 
The plaintiff’s position 
22	In respect of the CISP material, the position of the plaintiff was that it was admissible for a non-hearsay purpose pursuant to s 60 of the Act, and also admissible pursuant to the business records exception to the hearsay rule contained in s 69.
23	Developing the first basis of admissibility, Mr Berger QC submitted that the CISP records were provided to the plaintiff’s experts at the request of the defendant. An affidavit exhibiting some email correspondence and the sworn evidence of Ms Rachel Deane, the plaintiff’s instructor, supported that contention. The records in question were considered by each of the experts, and were part of the material upon which their opinions were based. 
24	Mr Berger relied on the authorities of R v Lawson and R v Welsh in support of the contention that a history given to a medical practitioner is admissible to establish the assumptions upon which the expert’s opinion is based, and s 60 of the Act then operates to make the history admissible as an exception to the hearsay rule. In that manner, the representations contained in the history, being admissible for a non-hearsay purpose, would also be able to be relied upon for the truth of their contents. 
25	Mr Berger submitted that on this basis, the CISP records would be admissible. Then it would be a matter of whether or not the Court should exclude the evidence pursuant to s 135, or limit its use pursuant to s 136. Mr Berger submitted that I should not take either of those steps. 
26	[Redacted], Mr Berger invited the Court to look at the representations the plaintiff relies upon as contained in the written and oral openings and determine their admissibility. 
27	Turning to the alternative route to admissibility, Mr Berger addressed the Court in detail about s 69 of the Act. He submitted that the evidence should be admitted under the business records exception to the hearsay rule, in particular focussing upon s 69(2). In the circumstances, I will not set out a summary of these submissions. 
28	Mr Berger further submitted that to the extent any aspects of the records amounted to opinions, they met the requirements for the admission of expert opinion evidence under s 79 of the Act. 
29	In addition, Mr Berger submitted that notwithstanding the submissions of Mr Walters, s 69(3) of the Act had no application. 
30	Turning to the discretions in ss 135 and 136, Mr Berger submitted that neither of these should be exercised to exclude or limit the use of the evidence. First, he submitted that the probative value of the evidence was very high. This was so in circumstances where the Court is expressly required by s 105A.8(1)(e) to consider any treatment or rehabilitation programmes in which the defendant has participated. The probative value of the material showing the progression of the defendant through such programs is very high, and to exclude the material would be a very big step. Furthermore, the Court is required to consider other relevant factors. The question of whether or not the defendant has renounced his commitment to violent jihad is important amongst these. 
31	In light of the substantial probative value of the material, very significant countervailing considerations would be required for exclusion or limitation of the use of the evidence to be warranted, he submitted. 
32	It was submitted that there would be nothing unfairly prejudicial about the evidence being admitted. First and foremost, it was the defendant who asked the plaintiff to provide the material to the experts, and include it amongst the material in the application. Secondly, the defendant had had Inspector Cruse’s affidavits for a considerable time. The defendant was himself a participant in the sessions. He could reasonably be expected to know whether the information recorded in the records was correct or not. It was not correct to say that the material could not be tested. As to the suggested danger flowing from the drawing of inferences from material translated from the Arabic, there was no evidence elicited by the defendant seeking to contradict the accuracy of the information contained in the CISP records. A third reason pointing against exclusion or limitation in the use of the CISP evidence was that evidence favourable to the defendant from that material was already before the Court, and it would be unfair to the plaintiff to exclude the very records which would place the favourable material in context. 
33	Mr Berger submitted, in fact, that no unfair prejudice would flow to the defendant from the admission of the evidence. 
34	In respect of the foreign fighter evidence, it was submitted that evidence of the defendant’s association with these individuals was relevant for at least three reasons. First, in assessing the risk he poses of committing a serious Part 5.3 offence in circumstances where that risk stems primarily from his role as an influencer, the evidence of his association with people who were known or suspected to have travelled overseas to fight with an extremist terrorist group is very relevant to the central issue in the case. It would also be relevant to the defendant’s potential use of members of his family as intermediaries. 
35	Mr Berger urged me to look at the evidence not in isolation, but in the context of the overall evidence in the case. Whilst a visit from one of the individuals to the defendant may not be significant, the visits from a large number of them reinforced the relevance of each visit. 
36	The second basis of relevance was the comments made by the defendant himself about the visits. He admitted himself that he had received visits from people who then went and fought overseas. 
37	Thirdly, there was expert evidence which suggested that these sorts of associations are a relevant matter in determining the risk posed by the defendant. 
38	Dealing with the FBI evidence, Mr Berger submitted that the evidence was clearly relevant, that it was admissible by virtue of the business records exception to the hearsay rule, again, by virtue of s 69(2) of the Act, that it did not infringe s 69(3), and that there would be no call for its exclusion pursuant to s 135. It possesses substantial probative value, and the unfair prejudice relied on by the defendant was really theoretical rather than practical, and in any event, could never outweigh the probative value, much less substantially outweigh it.
39	As for the other foreign fighters evidence, Mr Berger relied on the Commonwealth records exemption contained in the Evidence Act 1995 (Cwth) which has a wider application than s 69 of the Victorian Act. Many of the records would be admissible under the Commonwealth provision.
40	On the question of the possible exclusion of the evidence under s 135 of the Act, the probative value is substantial, and would comfortably outweigh any unfair prejudice. 
The law
41	Section 55(1) of the Evidence Act 2008 (‘the Act’) provides:
(1) The evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding. 
(2) In particular, evidence is not taken to be irrelevant only because it relates only to – 
(a) the credibility of a witness; or 
(b) the admissibility of other evidence; or 
(c) the failure to adduce evidence. 
42	Section 59(1) of the Act provides:
Evidence of a previous representation made by a person is not admissible to prove the existence of a fact that it can reasonably be supposed that the person intended to assert by the representation.
43	Section 60 of the Act contains an exception to the hearsay rule. It relevantly provides:
(1) The hearsay rule does not apply to evidence of a previous representation that is admitted because it is relevant for a purpose other than proof of an asserted fact.
(2) This section applies whether or not the person who made the representation had personal knowledge of the asserted fact (within the meaning of section 62(2)).
44	Section 69 of the Act provides:
(1) This section applies to a document that  
(a) either 
(i) is or forms part of the records belonging to or kept by a person, body or organisation in the course of, or for the purposes of, a business; or 
(ii) at any time was or formed part of such a record; and 
(b) contains a previous representation made or recorded in the document in the course of, or for the purposes of, the business. 
(2) The hearsay rule does not apply to the document (so far as it contains the representation) if the representation was made  
(a) by a person who had or might reasonably be supposed to have had personal knowledge of the asserted fact; or 
(b) on the basis of information directly or indirectly supplied by a person who had or might reasonably be supposed to have had personal knowledge of the asserted fact. 
(3) Subsection (2) does not apply if the representation  
(a) was prepared or obtained for the purpose of conducting, or for or in contemplation of or in connection with, an Australian or overseas proceeding; or 
(b) was made in connection with an investigation relating or leading to a criminal proceeding. 
(4) If  
(a) the occurrence of an event of a particular kind is in question; and 
(b) in the course of a business, a system has been followed of making and keeping a record of the occurrence of all events of that kind  
the hearsay rule does not apply to evidence that tends to prove that there is no record kept, in accordance with that system, of the occurrence of the event. 
(5) For the purposes of this section, a person is taken to have had personal knowledge of a fact if the person’s knowledge of the fact was or might reasonably be supposed to have been based on what the person saw, heard or otherwise perceived (other than a previous representation made by a person about the fact). 
45	Section 76 of the Act provides:
Evidence of an opinion is not admissible to prove the existence of a fact about the existence of which the opinion was expressed. 
46	An  exception to the opinion rule is contained in s 79, subsection (1) of which provides:
If a person has specialised knowledge based on the person’s training, study or experience, the opinion rule does not apply to evidence of an opinion of that person that is wholly or substantially based on that knowledge. 
47	Section 135 of the Act provides:
The court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might – 
a)	be unfairly prejudicial to a party; or
b)	be misleading or confusing; or
c)	cause or result in undue waste of time; or
d)	unnecessarily demean the deceased in a criminal proceeding for a homicide offence.
48	Section 136 of the Act provides:
The court may limit the use to be made of evidence if there is a danger that a particular use of the evidence might – 
a)	be unfairly prejudicial to a party; or
b)	be misleading or confusing.
Analysis
49	In his submissions in reply, having heard the plaintiff’s justification for the admission of the CISP material, based on s 60 of the Act and in the alternative on s 69, Mr Walters frankly conceded, ‘We think they’ve got us on s 60, your Honour’.
50	I think, with respect, that Mr Walters was correct. In those circumstances, I see no need to go on and determine the question of admissibility under s 69. The challenged CISP evidence would be admissible under s 60, subject to any later exclusion pursuant to section 135 or s 136. I can say that had I been required to go on and decide the point, it seemed to me that Mr Berger advanced a compelling submission in favour of admissibility under s 69(2)(b), a part of s 69 to which little if any attention was devoted by Mr Walters. 
51	As for the submission by Mr Walters asserting that the evidence or some aspect of it would fall foul of the rule against opinion evidence, I accept, for the reasons advanced by Mr Berger, that opinions contained within the material would meet the requirements for admission as expert opinion under s 79 of the Act. 
52	Turning to the endeavour of Mr Walters to have me exclude the evidence on a discretionary basis under s 135, it seems to me that the evidence possesses substantial probative value for the reasons advanced by Mr Berger. If there is any unfair prejudice attaching to the evidence, and I could see none, it would go nowhere near outweighing the probative value, much less substantially outweighing it. Nor would there be any real potential for the evidence to be misleading or confusing. 
53	Furthermore, there would be no reason to limit the use to be made of the evidence under s 136 of the Act. 
54	The FBI material, it seems to me, is certainly relevant. The person Jamil Choucair visited the defendant numerous times in the period 2009 to 2012 before he travelled overseas and joined and fought with Islamic State. In light of what the plaintiff is required to prove in this case, and the way in which he seeks to do so in part by relying on the drawing of inferences in a circumstantial case, it seems to me to be relevant that a person who can be shown to be a foreign fighter for an organisation which espouses the same sorts of views and ideology which led to the offending of the defendant, saw fit to visit the defendant in prison some years after his incarceration. It is relevant evidence to the question of the state of his beliefs at that time, which may cast light on those beliefs now, and also as to his status as an influencer. 
55	The FBI evidence would be admissible under the Commonwealth business records hearsay exception, or under s 69 of the Victorian act. 
56	As for the question of discretionary exclusion under s 135, there would be no call for that. The evidence possesses significant probative value in the context of the case, and I do not consider there would be any unfair prejudice attaching to it. 
57	I turn now to the associates evidence, which concerned a number of aspects of evidence essentially touching on a large number of individuals who visited the defendant in prison, and then disappeared overseas, in many cases never to be seen again in this country, in circumstances where there is reason to consider they may have become foreign fighters in the name of Islam. There was a challenge to the admissibility of this body of evidence on the grounds of relevance. I do not accept that challenge, and consider that it failed to recognise the significance of the evidence. 
58	The relevance of these visits to the defendant in prison by the suspected foreign fighters cannot hinge on what is known about any discussions they had. Each visit must be seen in the context of the visits by all of the other men, and indeed, all of the other evidence in the case. If the defendant had been visited by one seemingly problematic person many years ago, that would be one thing. But he was visited by 15 problematic individuals over some years from the time of his incarceration. This may tend to throw light on whether the defendant maintained his previous extreme ideology, and may have seen fit to impart it on others, or been considered by others to be willing to play that role. It may be relevant in some cases to the defendant’s potential use of members of his family as conduits to others. Furthermore, the defendant admitted in comments he made about some of the visits that the individuals concerned had, indeed, subsequently gone overseas to fight. Finally, there is expert evidence that suggested that the very fact of a person having associations with individuals such as these may be a risk factor for future terrorist offending. 
59	To my mind, the evidence is clearly relevant. Furthermore, there would be no call to exclude the evidence under s 135 of the Act. It possesses significant probative value, and there would be no danger of the evidence being misleading or confusing. 
Conclusion
60	For the reasons stated above, all of the challenged evidence is relevant, and there is no basis for its exclusion under s 135 of the Act, or any limitation being exposed on its use under s 136.
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