Trial and error

Jury mistakes, overbearing security and outspoken commentators almost derailed the terror trial five times. Karen Kissane reports on the drama behind the scenes.
THE jury room is a sacred site. What goes on in there is meant to remain utterly confidential. It is illegal for a juror to tattle about what went on behind those closed doors, or for anyone else to publish details if they should happen to find out.
But part of what went on in the jury room – and in particular, what went into the jury’s wastepaper bin – at the Benbrika terror trial became known to the court and almost derailed this complex, socially and politically sensitive trial.
It was one of the many potholes on the long and bumpy road to a verdict. The trial, which has cost millions of dollars and on which the fate of 12 men rested, nearly fell over five times in behind-the-scenes dramas that could not be reported until now.
On June 27, Justice Bernard Bongiorno told the court that one of his associates routinely cleared a special bin in the jury room that was for material that must be shredded for security reasons. The day before, the associate had discovered in it a bundle of printouts from the internet.
It seemed the jury had defied the judge’s orders not to consider any material other than what was put to them in the courtroom – another important principle of law, which had been emphasised to the jury by the judge many times during the trial.
“There is no suggestion that any of the accused were Googled, or anything of that nature,” Bongiorno reassured the lawyers.
But the defence lawyers for several accused applied to have the jury discharged, even though, as barrister Gerard Mullaly put it, this would be “an utter calamity”.
They said there could now be little confidence in the jury following the judge’s other directions about how to do their work, and that it was possible the jury had come across legally “poisonous” material.
By the following day, the lawyers were also concerned that radio host Derryn Hinch had referred on air to the finding of papers in a bin at a Melbourne trial and had suggested that a jury might be discharged.
Bongiorno decided to question the jurors in a closed courtroom. He then ruled that the trial should continue.
There was a similar drama again this month when the jury was found to have brought a dictionary into the room.
The Benbrika trial was a vast, lumbering beast of a legal proceeding that could easily have toppled over. It was held together largely by the co-operation of its lawyers – their agreements on how to proceed cut about three months off the trial – and the determination of its judge, who held fast to the mantra he expressed at the beginning: “This trial will go ahead.”
Defence lawyers twice applied to have the trial “stayed” or stopped, arguing that the conditions that the defendants were being kept in were so harsh that it undermined the court’s ability to provide a fair trial.
The judge agreed. He said he would hear bail applications for the accused unless their conditions improved. He even threw open that part of the court’s proceedings to the media. Normally, the media cannot report anything that happens in court in the way of legal argument; if the jury is not there, it must not be published.
Bongiorno was effectively threatening to pull the pin on the incarceration of allegedly dangerous men in a trial in which three police agencies had invested heavily – and he let the world know it.
The threat of the grenade was enough. Victoria’s Justice Department buckled to his demands that the men be moved from high-security Barwon Prison and that their security regime be eased.
Defence lawyers applied to have the jury discharged no less than four times. The first time was over the discovery that courtroom guards had been doing security sweeps of the jury room; this breached the principle of jury confidentiality. The second application for discharge was over the documents found in the jury room bin, and the third was over the dictionary.
The fourth, which came at the crack of doom, was over comments by federal Attorney-General Robert McClelland who, as the first law officer of the Commonwealth, is in some ways the person at the top of Australia’s system of justice.
On Monday, the jury was asked to return the verdicts it had already decided. Then it went back to its deliberations to decide the rest.
McClelland called a press conference to welcome the first guilty verdicts. It is risking contempt of court to comment on a case before the jury has finished because the jury must not be subjected to any pressure from outside, although it should be noted that McClelland’s comments were quite general and arguably not likely to pressures the jury.
Antony Trood, lawyer for Amer Haddara, said of the press conference, “One shakes one’s head in slight bewilderment at the thought that he would do it.”
Justice Bongiorno replied, “They all do. It is very hard to shut them up.”
For the fourth time in seven months, he refused to discharge the jury. He pointed out that he had warned them the night before not to watch or read any news reports about the verdicts.
Twenty minutes later, the jurors announced they had their final verdicts.
The trial was in some ways a grand endeavour. It was so large it had to be held in the imposing ceremonial court in the County Court building in William Street, even though it was a Supreme Court case.
It depended upon the continued good health of 44 people just to kick off each day: 12 defendants, 14 jurors, 17 black-robed barristers and a judge.
Bongiorno had to manage hundreds of legal questions that arose during the seven-month proceedings, as well as the court’s sometimes testy relationship with Corrections Victoria. He also had to decide questions about how the court should accommodate the defendants’ Islamic beliefs.
The judge shortened the jury’s sitting times by half an hour from September 1 to allow the defendants to make it back to jail in time for sunset during the fasting period of Ramadan.
He debated with lawyers how best to manage another issue around court custom. In a Supreme Court trial, the court is ordered to stand for the entrance of the judge, and then the judge and those facing him bow to each other as a gesture of respect for their mutual roles and for the legal process. In this trial, the accused stayed seated during that little ritual.
A Muslim may bow to no one but Allah, the judge was told. This was confirmed by witness Samir Mohtadi, a Muslim community leader, in his evidence to the court: “It’s an act of worship. Shouldn’t be done (even) to a king or a queen.”
The central role of Islamic belief and custom in the evidence led to some interesting cross-cultural exchanges. At one stage, Mohtadi talked about the way his community segregates men and women. Bongiorno leaned forward, curious.
The judge: “Your male friends, married ones, do you know their wives?”
“No, I don’t.”
“You don’t know them at all?”
“No, and they don’t know mine. So when they come to visit me there will be a separate room where the female would go in there, be comfortable, take off their head scarf, speak about female things and us men, you know, sit down and gather and talk about other things.”
“Would you ever have met them?”
“Not at all?”
“I don’t know their name. I don’t know how they look like.”
“And that is even with close friends?”
“What about your family?”
“My family are different.”
“You know your sister-in-law?”
“You know her name?”
“And you associate with her, eat with her?”
“No. If – for example, I can’t come to her house while my brother is away. I can come to their house while my brother is there. Islam is based on prevention. Prevention is better than cure. How many people have entered someone’s house and they like their wives and God knows what happens – but anyway, let’s move on.”
Several of the young women who were the defendants’ instructing solicitors smiled as they listened to the exchange. Given their role as the primary legal contact for the accused, Australia’s legal process must have been a consciousness-raising exercise for the defendants too.
There were many sharp exchanges in court over the consequences of Corrections Victoria classifying the accused as high-risk. Corrections tried to insist on 26 security guards in court (the judge allowed only 12) and wanted the men to sit behind an existing perspex security screen in the dock.
But at the request of defence lawyers, the judge ordered it taken down. The lawyers argued that the screen would prejudice the jury against the men because it suggested they were seen by authorities to be a danger to the community.
The judge also insisted, again over the protests of Corrections, that the men’s lawyers be allowed to enter the dock to talk to them. He said, “I’ve been in many, many cases. I’ve seen people of criminal repute that make these people look like babes in arms where they have got access to counsel … in the dock without any difficulty.”
When a guard protested that the Corrections had no process for handing the accused documents they should read in court, Bongiorno said, “We will not worry about a process. We will just do it. If you have got the key to the (cupboard) door, open it and give them to them.”
But this remained a high-security trial. Lawyers, journalists and members of the public entering Court 3.3 had to submit to a second X-ray and metal detector clearance, show photo ID and have their bags searched by hand.
Finally, Bongiorno had to manage the court’s relationship with the media. This is always a fraught exercise. Judges must balance two principles that sometimes conflict: that nothing should be published that might unfairly prejudice the right of the accused to a fair trial, versus the need for the courts to be open and transparent.
Bongiorno made more than 30 suppression orders during the trial but lifted many – over the protests of some defence lawyers – upon verdict.
He also made decisions that kept the trial open to the public, refusing an application that publication of any reports be banned. But he also kept a watchful eye on media stories to ensure they did not cross any legal line and pulled up ABC radio and television and the Sunday Herald Sun over reports that concerned him.
After about 120 days of hearings that produced 5800 pages of transcript, the first trial of the Benbrika 12 has finished. But, like all good barristers, the lawyers in this case have protested along the way over various issues. Some of these protests might become grounds for appeal.
Exhaustive and exhausting as it has been for all involved, only round one of R v Benbrika and Others can be declared truly over.

Karen Kissane is law and justice editor.

First published in The Age.