R v Chaarani (Ruling 1)

Case [2018] VSC 387


IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S CR 2017 0176

The Queen
v
Abdullah Chaarani

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JUDGE:

Beale J

WHERE HELD:

Melbourne

DATE OF HEARING:

16 July 2018

DATE OF RULING:

16 July 2018

CASE MAY BE CITED AS:

R v Chaarani (Ruling 1)

MEDIUM NEUTRAL CITATION:

[2018] VSC 387

First revision:  18 July 2018

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CRIMINAL LAW – Terrorism offence – Wife of accused seeking to wear a nikab in court during trial – Principle of open justice – Right of religious freedom – Right to participate in public life – Security concerns if spectators in public gallery have their faces covered – Whether a requirement that spectators in the public gallery have their faces uncovered constitutes a reasonable limitation on principle of open justice and rights of religious freedom and participation in public life – Elzahed v State of New South Wales [2018] NSWCA 103 – NS v The Queen [2012] 3 S.C.R. 726; [2012] SCC 72 - Police v Razamjoo [2005] DCR 408 – R v D (unreported, Crown Court at Blackfriars, Judge Peter Murphy, 16 September 2013) – Charter of Human Rights and ResponsibilitiesAct 2006, ss 7, 14, 18.

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APPEARANCES:

Counsel Solicitors
For the Crown Mr N Papas QC with Mr P Doyle Commonwealth Director of Public Prosecutions
For Abdullah Chaarani Mr S Johns QC with Mr M Dempsey James Dowsley and Associates

HIS HONOUR:

Introduction

  1. Abdullah Chaarani is one of three accused charged with conspiring between 21 October 2016 and 22 December 2016 to do acts in preparation for, or planning, a terrorist act[1]. The terrorist act alleged in the indictment is “an action or threat of action involving the detonation of an improvised explosive device or devices and/or the use of bladed weapons and/or the use of a firearm in the immediate vicinity of Federation Square, Flinders Street Train Station and Saint Paul’s Cathedral in the Melbourne Central Business District.”

    [1]Contrary to ss 11.5(1) and 101.6(1) of the Criminal Code (Cth).

  1. Mr Chaarani’s wife, Aisha Al Qattan, wishes to wear a nikab[2] in court during his trial – that is, a veil that completely covers the head and face except for an opening for the eyes. I have previously indicated that, whilst all are welcome in my court, spectators in the public gallery must have their faces uncovered, chiefly for security reasons. Mr Chaarani and his wife (the applicants) seek a variation of my previous order to that effect.

    [2]“Nikab” is sometimes spelt “niqab”. I have taken the former spelling from the “Explanatory Note on the Judicial Process and Participation of Muslims” by the Australian National Imams Council (ANIC), undated, posted on the ANIC website on 12 December 2017 (“the Explanatory Note”).

Submissions

  1. In written submissions, the applicants submit that it is oppressive for me to prohibit Ms Al Qattan wearing a nikab in court. They submit that it breaches Ms Al Qattan’s right of religious freedom and her right to participate in public…

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R v Chaarani (Ruling 1) [2018] VSC 387
Case
[2018] VSC 387
Decision Date

CaseChat Overview and Summary

The case before the court was between the Crown and Chaarani, involving a terrorism-related offence. Chaarani’s wife sought to wear a nikab in court during the trial, raising issues concerning the principle of open justice, religious freedom, and the right to participate in public life. Security concerns were also raised if spectators in the public gallery wore face coverings. The central legal issues revolved around whether a requirement for spectators in the public gallery to have their faces uncovered constituted a reasonable limitation on the principle of open justice, as well as on the rights of religious freedom and participation in public life.

The court examined relevant case law, including Elzahed v State of New South Wales, NS v The Queen, Police v Razamjoo, and R v D, to determine the balance between the principle of open justice and individual rights. It considered the Charter of Human Rights and Responsibilities Act 2006, particularly sections 7, 14, and 18. The court concluded that a reasonable limitation on the principle of open justice and the rights of religious freedom and participation in public life could be justified when weighed against the need to maintain security and public order in the courtroom.

In light of the evidence and legal considerations, the court ruled that requiring spectators in the public gallery to have their faces uncovered was a reasonable limitation on the principle of open justice and the rights of religious freedom and participation in public life. The ruling upheld the security measures necessary to ensure a safe and orderly courtroom environment. The court's decision allowed for a fair trial while addressing the concerns of all parties involved.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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