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Chaarani & Ors v The Queen

Chaarani & Ors v The Queen

Case [2020] VSCA 88 17 April 2020

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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

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.

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.

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).…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Chaarani & Ors v The Queen

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: 17 April 2020

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