THE first defence lawyer rose to his feet. The jury he wanted to convince of his client’s innocence had already sat through a five-month avalanche of evidence, including the testimony of about 80 witnesses and recordings of 482 conversations. The torrent of words had produced thousands of pages of transcripts.
So when Remy Van de Wiel, QC, finally reached the moment when he could speak for his client, alleged terrorist leader Abdul Nacer Benbrika, he greeted the jury wryly. “I feel a bit like Elizabeth Taylor’s fifth husband on their wedding night. I know what to do; I just don’t know how to make it very interesting.”
He told the jury his client was not a terrorist leader.
“He couldn’t lead ants to sugar. He’s the eldest, that’s for sure, (but) he is not an innovator, not the creator of ideas or plans. He’s not someone who inspires, let me suggest to you, or encourages action … he’s the person who responds to the suggestions and inputs of others. That is all he ever does,” he said.
Last week, a month after Mr Van de Wiel began his address, the last of the lawyers defending the 11 men on trial with Benbrika for alleged terror offences rested his case. This week Justice Bernard Bongiorno has been “charging” the Supreme Court jury, summing up the prosecution and defence cases and telling the jurors how they must consider the evidence in terms of the law.
Yesterday he warned jurors not to let prejudices towards Muslims cloud their judgement. “Prejudice, sympathy and such things have no part in a criminal trial,” he said.
He said the jury must also exclude outside influences such as the media and the internet.
“It is important that you determine the case on the evidence you have heard, not on any other idea or comment you may have heard,” he said.
Now the end of this long and complex trial is in sight. The jury is expected to retire tomorrow or on Monday to consider its verdicts on 12 Muslims from the northern suburbs of Melbourne accused of being members of an organisation fostering or preparing a terrorist act in the pursuit of violent jihad. Ten of the men also face other charges. All have pleaded not guilty.
Izzydeen Atik, a former associate of the men who claimed he helped Benbrika and others by using credit card numbers fraudulently to pay for airline tickets, alleged that proposed targets of terror included the 2005 AFL grand final and 2006 NAB Cup, as well as the Crown Casino on Grand Prix weekend in 2006. But the defence painted Atik as an unreliable witness because of his history of schizophrenia and his criminal history of fraud.
The body of the evidence was the 482 conversations covertly taped by investigators over 16 months through listening devices, particularly in Benbrika’s Dallas home, and telephone intercepts.
Senior prosecutor Richard Maidment, SC, said the conversations showed Benbrika was a self-appointed sheikh, or religious leader, who had taught the men that violent jihad was a religious duty for Muslims. This was particularly so in a “land of war” such as Australia, whose troops were killing Muslims in Iraq.
“There are plenty of utterances of that kind: ‘If they kill our kids, we kill their kids,’ ” Mr Maidment alleged.
Benbrika was covertly recorded in February 2005 telling two Sydney associates: “We want to die for jihad. We do maximum damage, maximum damage. Damage their buildings with everything, and damage their lives just to show them. That’s what we are waiting for.”
Mr Van de Wiel said that Benbrika was not taken seriously by the rest of the group.
“You might regard him as a ‘gunna’. You know these words; there is the ‘shoulda’, ‘coulda’, ‘woulda’ and ‘gunna’. Great expressions (for) people who talk and don’t do anything,” he said.
Talking to one of the other accused, Abdullah Merhi, Benbrika was recorded as saying that it was best to act not alone but with a leader, and to kill not just “one, two or three” but to do “a big thing”.
Merhi asked: “Like Spain?” Benbrika said: “That’s it.”
The prosecution argued this was a reference to bomb attacks on train travellers in Spain in 2004, which killed 191 people and injured more than 1800.
The prosecution also argued that the phrase “do something” – peppered through the recordings – was code for committing a terror attack.
Benbrika told Merhi: “Here in Australia, when you do something, they stop to send the troop (sic) … If you kill – we kill – here 1000, the government is going to think.”
Several defence lawyers said that when their clients used the phrase “doing something”, they meant doing something to help the plight of Muslims, not violence.
Defence lawyers argued that not only were the men not terrorists, but they did not even constitute an “organisation”. They argued this was a loosely connected group in which 10 of the 11 young men were born in Australia of Lebanese parents; they had strong Muslim identities and were seeking spiritual guidance.
Some accused socialised together and four were from the same family: Ezzit, Ahmed and Majed Raad are brothers and Bassam Raad is their cousin. Shane Kent, once described by one of the defendants as “the Aussie dude”, is a convert to Islam.
Mr Maidment said the group had run a collective fund called a “sandooq” to which they contributed money, including funds from a car-stripping scam and credit card fraud. The defence argued that this was a charitable fund akin to a church collection plate.
Several defendants allegedly shared “a common jihadi library” of CDs containing texts including what the Crown called “the Mansura web”.
The CDs lionised suicide bombings as a road to martyrdom, contained handbooks on making car-bombs and other explosives and included videos that showed the ritual beheadings of Western captives by Muslim militants.
Mr Van de Wiel said: “People are not their books. They are not necessarily what is in their library. They are not what they watch. My kid would be a homicidal maniac if that was the case. He’s got all these videos about these action killings.”
Evidence was also given by a police spy planted into the group, known as SIO 39, whom the defence described as an agent provocateur.
He told Benbrika he could find fertiliser for explosives, and Benbrika had discussed what quantities he could buy. SIO 39 later took Benbrika to a remote bush clearing at Mount Disappointment and showed him how to create a small explosion.
There was no evidence that other defendants knew of this outing.
Benbrika and others made a trip to Sydney where they met NSW associates. The prosecutor said trips by several of the men to Louth, NSW, and to Ocean Grove, Victoria, were, at the very least, bonding exercises for the organisation.
The defence said they were camping and fishing trips.
Some of the men are heard on the tapes talking about their fears of surveillance and arrest. Defence lawyers argued they were paranoid because Melbourne Muslims generally had become fearful of what they saw as political repression and prejudice against them following the September 11, 2001, attacks, the Bali bombings and changes to Australia’s terror laws.
“The (Muslim community in Melbourne) felt besieged and victimised,” said John O’Sullivan, lawyer for Kent.
Lawyers argued that threats of violence towards particular outsiders by some of the accused had never translated into violent deeds, and this was just the hot air of young men from a minority group keen to big-note themselves.
What Benbrika had done, said Aimen Joud’s defence lawyer, Trevor Wraight, “was to provide to … young people like him a way to feel empowered”.
Mr Wraight also said terror attacks overseas had led to the creation of a harsh new class of laws, “preparatory offences”, which risked leading to injustice.
“Seeking to criminalise people at a point that is very remote from ultimate harm also puts at risk the freedoms we … have enjoyed and tried to protect for hundreds of years,” he said.
The trial continues.

First published in The Age.