Chaarani & Ors v The Queen

Case [2020] VSCA 88


SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2019 0164

ABDULLAH CHAARANI Applicant
v
THE QUEEN Respondent
S APCR 2019 0182
AHMED MOHAMED Applicant
v
THE QUEEN Respondent
S EAPCR 2019 0198
HATIM MOUKHAIBER Applicant
v
THE QUEEN Respondent

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JUDGES: PRIEST, KAYE and T FORREST JJA
WHERE HELD: MELBOURNE
DATE OF HEARING: 19 & 20 March 2020
DATE OF JUDGMENT: 17 April 2020
MEDIUM NEUTRAL CITATION: [2020] VSCA 88
JUDGMENT APPEALED FROM: R v Chaarani & Ors (Unreported, 9 May 2019, Supreme Court of Victoria, Justice Tinney (Conviction))

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CRIMINAL LAW — Appeal — Conviction — Offences of engaging in and attempting to engage in a terrorist act under Criminal Code (Cth) — Whether permissible for uncharged State offence to be alternative to charged Commonwealth offence — Whether State offences of arson and attempted arson should have been left to the jury as alternatives — Whether trial judge should have stayed the trial until State offences added to indictment — Arson and attempted arson not alternatives to engaging in and attempting to engage in a terrorist act — Appeals dismissed.

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APPEARANCES: Counsel Solicitors
For the Applicant A Chaarani Mr P Tehan QC
with Mr L Richter
James Dowsley & Associates
For the Applicant A Mohamed Mr J Kelly SC
with Ms G Connelly
Leanne Warren & Associates
For the Applicant H Moukhaiber Ms F Gerry QC
with Mr J Anderson
Stary Norton Halphen
For the Respondent  Mr N Robinson QC
with Mr A Sim
Commonwealth Director of Public Prosecutions

PRIEST JA
KAYE JA
T FORREST JA:

Introduction and overview

  1. An indictment filed in the Supreme Court charged Ahmed Mohamed (‘Mohamed’) and Abdullah Chaarani (‘Chaarani’) with attempting to engage in a terrorist act (charge 1);[1] and charged Mohamed, Chaarani and Hatim Moukhaiber (‘Moukhaiber’) with engaging in a terrorist act (charge 2).[2]

    [1]Criminal Code (Cth), ss 101.1(1), 11.1(1) and 11.2A. The maximum penalty is life imprisonment.

    [2]Criminal Code (Cth), ss 101.1(1) and 11.2A. The maximum penalty is life imprisonment.

  1. A jury, empanelled on 1 April 2019, returned verdicts of guilty against the three on the charges laid against them on 9 May 2019; and, on 24 July 2019, the judge sentenced them to lengthy periods of imprisonment.[3]

    [3]On 24 July 2019, the trial judge sentenced Mohamed and Chaarani each to total effective sentences of 22 years’ imprisonment (representing eight years’ imprisonment on charge 1, and 18 years’ imprisonment on charge 2, with effective cumulation of four years), and fixed a non-parole period of 17 years; and Moukhaiber to 16 years’ imprisonment with a non-parole period of 12 years.  See R vMohamed, Chaarani  & Moukhaiber [2019] VSC 498.

  1. The ‘terrorist act’ the subject of both charges involved attacks upon a Shia Islamic community prayer and religious centre, the Imam Ali Islamic Centre (‘the mosque’), located in Fawkner.  Mohamed and Chaarani set fire to the mosque in the early hours of 25 November 2016, intending to destroy it, but failed in that attempt (charge 1).…

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Details
AGLC
Abdullah Chaarani v The Queen , , Ahmed Mohamed , the Queen , , Hatim Moukhaiber and the Queen [2020] VSCA 88
Case
[2020] VSCA 88
Decision Date

CaseChat Overview and Summary

Chaarani and others appealed against their convictions for engaging in and attempting to engage in terrorist acts, as defined by the Criminal Code (Cth). The appellants argued that the trial judge should have allowed the jury to consider alternative charges of arson and attempted arson under state law, and should have stayed the trial to allow these charges to be added to the indictment. The appeal was heard by the High Court of Australia.

The central legal issue was whether it was permissible for uncharged state offences to be considered as alternatives to the charged Commonwealth offences of engaging in and attempting to engage in a terrorist act. The appellants argued that the state offences of arson and attempted arson should have been left to the jury as alternatives, and that the trial judge should have stayed the trial until these state offences were added to the indictment. The court needed to determine whether the state offences were alternatives to the Commonwealth offences, and whether the trial judge should have stayed the trial.

The High Court held that the state offences of arson and attempted arson were not alternatives to the Commonwealth offences of engaging in and attempting to engage in a terrorist act. The court found that the trial judge did not err in not allowing the jury to consider the state offences as alternatives, and did not err in not staying the trial to allow these offences to be added to the indictment. The court concluded that the trial judge's decision was within their discretion and was not an error of law. The appeals were dismissed.

No further orders were made by the court.

Orders

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Background

Background to the litigation

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Evidence

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Decision

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Ratio Decidendi

Legal Principle Established

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