R v Chaarani (Ruling 1) - [2018] VSC 387

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S CR 2017 0176

The Queen

Abdullah Chaarani

---

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

---

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.

---

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

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).

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

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…

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 R v Chaarani (Ruling 1)

Details

AGLC: R v Chaarani (Ruling 1) [2018] VSC 387
Case: [2018] VSC 387
Decision Date: 16 July 2018

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