R v Mohamed, Chaarani and Moukhaiber (Ruling 1)
[2019] VSC 26
•4 February 2019
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2018 0068
S CR 2018 0069
S CR 2018 0070
| THE QUEEN | |
| v | |
| AHMED MOHAMED, ABDULLAH CHAARANI & HATIM MOUKHAIBER | Accused |
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JUDGE: | Tinney J |
WHERE HELD: | Melbourne |
DATES OF HEARING: | 30 January and 1 February 2019 |
DATE OF RULING: | 4 February 2019 |
CASE MAY BE CITED AS: | R v Mohamed, Chaarani & Moukhaiber (Ruling 1) |
MEDIUM NEUTRAL CITATION: | [2019] VSC 26 |
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CRIMINAL LAW – Relevance of evidence – Terrorism offences – Arson of Shia Muslim mosque – Perpetrators claimed link with Islamic State – Identity of offenders in issue – Evidence pointing to adherence by the accused to ideology of Islamic State – Some evidence pointing to ill-feelings of accused specifically towards Shia Muslims – Whether evidence showing adherence to broader Islamic State ideology, not limited to anti-Shia sentiment, is relevant – Evidence relevant and permitted to be led, subject to any further ruling – Evidence Act 2008, s 55(1).
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr N Robinson QC with Mr A Sim | Commonwealth Director of Public Prosecutions |
| For the Accused Mohamed | Mr J Kelly SC with Mr M Page | Leanne Warren and Associates |
| For the Accused Chaarani | Mr P Tehan QC with Mr L Richter | James Dowsley and Associates |
| For the Accused Moukhaiber | Ms F Gerry QC with Mr J Anderson | Stary Norton Halphen |
HIS HONOUR:
Introduction
The first two accused are before the Court facing charges in relation to the attempted destruction by fire and then the successful destruction by fire of a mosque in Fawkner. The third accused faces only the charge in relation to the completed act. The charges on the indictment are charged as attempting to engage in a terrorist act and engaging in a terrorist act respectively, for reasons which will become apparent in this ruling.
I am called upon to decide the admissibility of certain items of evidence sought to be led by the Crown, as set out in the Summary of Prosecution Opening (‘the Summary’) filed in this matter.
The matters in question are canvassed in outlines of submissions filed on behalf of the prosecution and each accused person. Each outline was tendered during the hearing.[1]
[1]Prosecution outline as Exhibit A, Mohamed outline as Exhibit AM1, Chaarani outline as Exhibit AC1, and Moukhaiber outline as Exhibit HM1.
Background
The focus of the two alleged offences was the Imam Ali Islamic Centre, a Shia Islamic community prayer and religious education centre located at 90 Lowson Street, Fawkner (‘the mosque’). The mosque comprised various rooms including separate male and female prayer rooms.
At about 1.30 am on 25 November 2016, two males, alleged to be Mohamed and Chaarani, attended at the mosque and lit two fires on the floor of the male prayer room. A flag was removed from the wall and placed on the floor prior to the fires being lit, and there are indications accelerant was spread on the flag and underlying rugs. The offenders quickly departed the scene. The fires did not take hold and only minor damage was caused before the fires self-extinguished. CCTV footage recorded some of the activities of the offenders in the mosque. The appearance of the men on the footage is consistent with the then appearance of those two accused.
At 2.28 am on 11 December 2016, three men, alleged to be the three accused, attended at the mosque. CCTV footage detected one of the men, alleged to be Chaarani, using an aerosol can to spray paint some words in black on the white external wall of one of the buildings of the mosque. The words were in Arabic and in two lines. The first line was later translated to mean ‘The State of Islam’. The second line translated to the word ‘Remaining’, which the prosecution will assert was an abbreviation of the Islamic State motto, ‘Remaining and Expanding’. A short time later, two other men alleged to be the other two accused approached the sliding door to the foyer of the male prayer room. One of the men, alleged to be Mohamed, was carrying a car tyre and a large, white coloured plastic container. It is alleged this container contained petrol.[2] The other man, alleged to be Moukhaiber, was also seen to be carrying a car tyre. All three men gained access to the male prayer room. After access had been gained there, again, the man alleged to be Chaarani, spray painted some words on a nearby wall. Again, the words were in two lines, but this time, in a combination of Arabic and English. On the top line, the words in Arabic were translated as being, ‘The State of Islam’. The second line contained the words in English, ‘The Islamic State’. The tyres were placed on the floor of the prayer room and petrol was poured on the tyres and the surrounding floor. The tyres were set alight. The three offenders departed the scene.
[2]A white 20 litre plastic container matching the description of the one seen on the CCTV footage was seized during the execution of a search warrant at Mohamed’s house on 22 and 23 December 2016. It was forensically examined and found to contain residue of petrol.
On this occasion, the fire took hold. Extensive damage was caused to the mosque, leading to it being later assessed by an insurance company as requiring demolition.
The prosecution case in brief
The case against each of the accused is summarised in some detail in the Summary. In a nutshell, as set out in paragraphs 7 to 11 of the Summary, it is alleged that the three accused followed an extreme brand of Sunni Islam propounded by the terrorist organisation, Islamic State, which had as one of its central aims the waging of violent jihad against its perceived enemies around the world. Followers of this international ideological movement had pursued violent jihad in Syria since civil conflict commenced there in 2011.
Insofar as the preceding paragraph refers to Islamic State, there is a very detailed Expert Witness Report in the depositions by Dr Adrian Gully[3], an expert on a number of matters including Islamic history and culture, which provides an overview of the history of the Muslim religion and its major branches, with a particular focus on the Sunni and Shia sects, the establishment of the Islamic State terrorist organisation, including its origins, activities, beliefs and objectives, and other matters.
[3]Depositions 2385.
My understanding is that Dr Gully may be required for cross examination on the voir dire by Ms Gerry, counsel for Moukhaiber, later in the pre-trial proceedings. For now, I simply note that the material available to the prosecution in respect of Islamic State would seem, on the face of it, to be capable of bearing out the various assertions contained in the Summary.
To quote the Summary:
The prosecution case against the accused in relation to both incidents is that they are terrorist acts rather than arson, due to the extremist views held by the accused against the Shia Muslim community, which the accused perceived as an enemy to the extreme brand of Sunni Islam that the accused followed. Further, the prosecution case is that both the attempt to burn down the mosque on 25 November 2016 and the successful destruction of the mosque on 11 December 2016 were done to intimidate the Shia Muslim community.
According to the extreme ideological views held by each of the accused, Shia Islam is regarded as an enemy of Sunni Islam. Consequently, the accused believed that they had not only the religious authority but also an obligation to undertake violent action against Shia Muslims in Australia.[4]
[4]Summary [10] – [11].
The prosecution case against each accused is a circumstantial one made up of various facets of evidence, as outlined in paragraph 16 of the Summary as follows:
a) CCTV footage from the mosque on 25 November 2016 showing Mohamed and Chaarani attending and attempting to burn it down (charge 1), and CCTV footage from the mosque on 11 December 2016 showing the three accused attending and burning it down.
b) CCTV footage from Chaarani’s house on 11 and 12 December 2016.
c) Intercepted telephone and listening device conversations between the accused and also between the accused and other uncharged persons. (The crown will separately prepare a chart of recordings it intends to rely upon at trial).
d) Electronic communications found stored on mobile phones that were either seized or copied by law enforcement authorities. This includes, for example, conversations conducted via communications platforms such as ‘WhatsApp’ and emails sent and received.
e) Evidence of internet activity of the accused.
f) Evidence of photographs stored on mobile phones seized from the accused whether they were downloaded from the internet, received from others, were screenshot by the user, taken using the devices (sic) camera or otherwise.
g) Evidence from a tracking device installed in a vehicle.
h) Various items seized by the police and forensic analysis of those items.
The Summary goes on to outline the evidence sought to be admitted against each accused. The evidence includes, in no particular order, evidence concerning:
i.the origins, activities, doctrines, beliefs and objectives of Islamic State, as touched upon in paragraph 10 of this ruling;
ii.unsuccessful attempts by each of the first two accused to travel overseas in 2015, when they were prevented from leaving Australia and their passports cancelled;
iii.the possession by the accused of materials on their mobile phones and otherwise, much of it having originated from Islamic State, which depicted beheadings, torture, and the like;
iv.the possession of other written or pictorial material on their mobile phones and otherwise indicating adherence to the ideology of, and support for, Islamic State;
v.internet access from the mobile phones of the accused to material related to Islamic State;
vi.individual and group messaging by the accused on their mobile phones using WhatsApp in which statements supportive of Islamic State and Shia Muslims were made;
The law in respect of the charges
The indictment in this matter comprises two charges. Charge 1, concerning the first two accused, is a charge of attempting to engage in a terrorist act. Charge 2, concerning all three accused, is a charge of engaging in a terrorist act.
The completed offence is charged under section 101.1(1) of the Criminal Code (Commonwealth) (‘the Code’) by virtue of section 11.2A of the Code, reflecting the fact that the accused are charged with the joint commission of the offence.[5]
[5]For convenience, I will generally refer in detail only to Charge 2 in this ruling. The same considerations apply in most cases to Charge 1.
Section 101.1(1) states:
A person commits an offence if the person engages in a terrorist act.
Penalty: Imprisonment for life.
Section 100.1(1) contains the definition of ‘terrorist act’. It is there stated:
terrorist act means an action or threat of action where:
a)the action falls within subsection (2) and does not fall within subsection (3); and
b)the action is done or the threat is made with the intention of advancing a political, religious or ideological cause; and
c)the action is done or the threat is made with the intention of:
i.coercing, or influencing by intimidation, the government of the Commonwealth or a State, Territory or foreign country, or of part of a State, Territory or foreign country; or
ii.intimidating the public or a section of the public.
Section 101.1(2) states in part :
Action falls within this subsection if it:
…
b) causes serious damage to property; or
…
d) endangers a person’s life, other than the life of the person taking the action; or
e) creates a serious risk to the health or safety of the public or a section of the public.
…
Section 101.1(3) is a provision designed to remove certain actions taken in the course of advocacy, protest, dissent or industrial action from the operation of the terrorism provision.
The charges and elements[6]
[6]My view of the elements of the offences set out in this ruling is based on my current perception of the elements flowing from the relevant legislation and assisted by the Crown document entitled, ‘Prosecution’s Elements of Offences on Indictment’ which was filed on 31 October 2018. The elements have not been discussed in pre-trial discussions to date, and my view of the precise way in which the elements will be stated to the jury is subject to change.
For present purposes, it will suffice to set out Charge 2, which concerns all accused. It reads, in part, as follows:
And the said Director of Public Prosecutions further charges that on or about the 11th day of December 2016 at Fawkner and elsewhere in Victoria AHMED MOHAMED, ABDULLAH CHAARANI and HATIM MOUKHAIBER together intentionally engaged in a terrorist act.
Particulars of terrorist act
The “terrorist act” was an action involving the lighting of a fire at the Imam Ali Islamic Centre. The action was done with the intention of advancing a political, religious or ideological cause, namely the advancement of Sunni Islam, and with the intention of:
a)coercing, or influencing by intimidation, the Government of the Commonwealth or a State, Territory or foreign country, or part of a State, Territory or foreign country; and/or
b)intimidating the public or a section of the public.
The action caused serious damage to property and/or created a serious risk to the health or safety of the public or a section of the public.
The action was not advocacy, protest, dissent or industrial action.
…
Statement of Offence – Engage in a terrorist act contrary to sub-section 101.1(1) of the Criminal Code (Cth) by virtue of section 11.2A of the Criminal Code (Cth).
This offence and the attempt charged in Charge 1 are charged as offences of joint commission, as prescribed in section 11.2A of the Code, which relevantly reads:
(1) If:
a)a person and at least one other party enter into an agreement to commit an offence; and
b)either:
i.an offence is committed in accordance with the agreement (within the meaning of subsection (2)); or
…
the person is taken to have committed the joint offence referred to in whichever of subsection (2) or (3) applies and is punishable accordingly.
Offence committed in accordance with the agreement
(2) An offence is committed in accordance with the agreement if:
a)the conduct of one or more parties in accordance with the agreement makes up the physical elements consisting of conduct of an offence (the joint offence) of the same type as the offence agreed to;
…
(3) For a person to be guilty of an offence because of the operation of this section, the person and at least one other party to the agreement must have intended that an offence would be committed under the agreement.
In respect of Charge 2, the prosecution would need to prove beyond reasonable doubt, as against the accused whose case was being considered:
i) that he intentionally entered into an agreement with at least one other accused to commit an offence of engaging in a terrorist act;
ii) that when he entered into the agreement, the accused and at least one other party to the agreement intended that the offence of engaging in a terrorist act would be committed in furtherance of the agreement;
iii) that the offence as agreed was committed in accordance with the agreement, and that the conduct constituting the physical element was engaged in by at least one of the accused who was a party to the agreement.
Insofar as the offence of engaging in a terrorist act itself is concerned, the prosecution would need to prove beyond reasonable doubt:
(i) that an accused engaged in a terrorist act; (Physical element – Conduct – s 4.1(1)(a))
(ii) that he did so intentionally, that is, he meant to engage in a terrorist act. (Fault element – Intention – s 5.2(1))
The definition of terrorist act contained in the Code makes it clear the prosecution would have to establish that:
(i) the accused engaged in the action of setting fire to the mosque;
(ii) he intended in doing so to engage in a terrorist act;
(iii) his act caused serious property damage;
(iv) the act was done with the intention of advancing a political, religious or ideological cause;
(v) the act was done with the intention of intimidating the public or a section of the public;
(vi) the act was not advocacy, dissent or industrial action.
The subject matter of this ruling
In their outlines filed in respect of the pre-trial matters, counsel for each accused seek the exclusion of items of evidence sought to be led in the prosecution case. They do so on the basis first of relevance, and then pursuant to section 137 of the Evidence Act 2008 (‘the Act’).
At the request of the prosecution, not opposed by the defence, I decided that the issue of the relevance of the impugned evidence should be decided as the first issue, following which, depending on my ruling, there may then need to be consideration given to the possible exclusion of items of evidence held to be relevant under section 137. I acknowledge the fact that in the written outlines filed on behalf of the accused, in many cases the questions of relevance and exclusion under section 137 were in a sense combined. I am of course well aware that in respect of many of the items of evidence, there would be substantial prejudice attaching to the evidence were it to be admitted. In deciding the question of relevance, I have put those matters to one side for future consideration.
Is the impugned evidence relevant?
The starting point is a consideration of section 55(1) of the Act, which states:
The evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding.
My brief summary of the facts and my statement of the elements of the offence of engaging in a terrorist act would be instructive as to the facts in issue in this case. Ms Gerry QC for Moukhaiber submitted that the central facts in issue in the case were two in number, namely, who set the fires, and was it done in the advancement of a terrorist cause. Whilst those are important facts, I do not accept that a consideration of the facts in issue should be so confined. As the prosecutor Mr Robinson QC submitted, there are many more facts in issue than those two.
It must be understood that in considering the question of the relevance of a particular item of evidence, the item of evidence must be considered not in isolation, but in the context of the evidence in the overall case.[7]
[7]Bayley v The Queen [2016] VSCA 160 [130] – [132] (Warren CJ, Weinberg and Priest JJA); Evans v The Queen (2007) 235 CLR 521 [177] (Heydon J).
In this case, there will be evidence indicating that the attempted destruction of the mosque and the following successful accomplishment off that task were terrorist crimes carried out in the name of the terrorist organisation known as Islamic State. Strong evidence in support of that proposition is to be found in the words spray painted onto walls at two locations shortly before the lighting of the fires which caused the destruction of the mosque.
The prosecution seeks to be permitted to prove the important aspects of the ideology of that organisation, an organisation which, on the prosecution case – and there can be no doubt of this – has as one of its central aims the waging of violent jihad against its perceived enemies around the world. Those enemies include Shia Muslims, who are considered by Islamic State and its followers to be an inferior class of people who are deserving of contempt, condemnation, and attack. The ideology of Islamic State, however, goes well beyond hatred of Shia Muslims. The prosecution seeks to be able to establish the true reality of the ideology.
The prosecution also seeks to be able to prove that the three accused were supporters of Islamic State and strong and enthusiastic adherents to its ideology and aims. Part of that adherence and support concerned great ill-will towards Shia Muslims.
In short, the defence in each case seek to limit the material able to be presented to the jury, as to both the details of the ideology of Islamic State and the material in possession of and actions of the respective accused pointing to their adherence to the relevant ideology, to matters going to anti-Shia beliefs and inclinations.
Submissions
Crown submissions
In his submissions, as contained in his written outline and oral submissions in Court, Mr Robinson QC, who appears with Mr Sim for the prosecution, submitted that the prosecution should be permitted to lead evidence about all aspects of Islamic State’s ideology, and all evidence pointing to the accused being supporters of Islamic State and adherents to its extremist ideology. As he submitted, the full picture of the ideology of Islamic State, and the full picture of the beliefs of the accused in that regard, are relevant in this case in a number of ways.
Mr Robinson pointed to the following matters in support of the relevance of the material in question:
a)It is an element of the crime required to be proved that the action in question was done with the intention of advancing a political, religious or ideological cause;
b)The words written on the walls of the mosque prior to the setting of the fires, on the face of them, were indicative of the fact the crime was being committed by its perpetrators to show support for Islamic State and to advance its cause;
c)It will be necessary, therefore, for the jury to properly understand the ideology of Islamic State to properly understand the crime;
d)The ideology of Islamic State is not confined to hatred of Shia Muslims. To seek to so confine it is to set up a false dichotomy. It would be artificial and misleading to confine the evidence of the ideology in that way. It is the true nature of the ideology, not merely the identity of one of the known enemies of the ideology, that is relevant;
e)It is wrong to view this crime as being simply a sectarian, anti-Shia, offence. It is a terrorist crime;
f)In circumstances where it seems clear the crime was committed to advance the cause of Islamic State, it is highly relevant if it can be established the accused supported Islamic State and adhered to its extremist ideology. All of the impugned material is relevant to deciding that fact in respect of each accused;
g)No item of evidence should be viewed in isolation when it comes to deciding relevance. The prosecution is entitled to rely on the united force of the evidence;
h)As well as being relevant to establishing the accused adhered to the extremist ideology of Islamic State, much of the material is relevant to the question of the extent or strength of that adherence to the cause;
i)The impugned material in respect of each accused is relevant to the existence of a motive he may have had to carry out an attack upon those of the Shia Muslim faith;
j)The impugned material in respect of each accused is relevant, therefore, to the likelihood or probability that he may have seen fit to carry out this extreme attack;
k)The impugned material in respect of each accused is relevant to the question of whether he may have been willing to enter into an agreement to commit a joint offence;
l)The overall impugned material is relevant because it would enable the offence to be seen in context, making it more comprehensible to a jury that an extreme crime such as this would have been carried out in the circumstances which existed.
Mohamed submissions
Mr Kelly SC, who appeared with Mr Page for Mr Mohamed, in his outline and oral submissions, drew a distinction between material which may demonstrate an interest by the accused in the wider Islamic State ideology and material which specifically demonstrates antipathy towards Shia Muslims. Whilst the latter would be relevant and should be admitted, the former would not be relevant because there would need to be a link between that interest and the allegations in the trial, and there was no such link. Mr Kelly disputed the Crown contention that this reasoning involved an artificial dichotomy.
In respect of the evidence of the activities of the accused in October 2016 relating to bomb-making, this featured prominently in the previous trial faced by the first two accused,[8] and nothing had been said in that trial about the proposed bomb being used ‘for the immolation of a mosque or anything like that’.[9]
[8]Described by Mr Kelly as Kastelholm 1, a trial involving the accused Mohamed and Chaarani and another accused, held before Beale J in 2018.
[9]Transcript 75.
Returning to the issue of the admissibility of material showing antipathy towards Shia Muslims, Mr Kelly submitted that that evidence would be capable of explaining what motivated the offending here.
He contrasted that with the broader evidence, which, if put before the jury, would involve them in drawing a conclusion ‘on some nebulous way’[10] that the material had informed his state of mind.
[10]Transcript 76.
He submitted the prosecution could fasten on relevant aspects of the ideology in furnishing a motive. Merely putting before the jury the prospect of adherence to an ideology would not be relevant. What is important is whether there was a preparedness to specifically act on the ideology to damage a Shia mosque.
Mr Kelly submitted that the prosecution was capable of demonstrating an exposure by the accused to material and possession of material, but the next step, namely, evidence of a preparedness to act, is missing.
When asked by me why, if the evidence would demonstrate an adherence to an ideology which, amongst other things, would have Shia Muslims as the enemy, it wouldn’t be relevant, in that it would increase the likelihood that he might act on the material, or might provide a motive for doing so, he responded that the demonstration of antipathy itself would be sufficient to do that.
On a different point, Mr Kelly submitted that exposure to the material could not be equated to belief in or support for it.
The submission of Mr Kelly was that it could not be the case that the ideology as a whole would go in, or that any interest in or exposure to the ideology would necessarily be relevant. It would only be relevant to the extent that it rendered more probable the accused man’s participation in what was alleged. To that end, he submitted, it is the expression of anti-Shia Muslim sentiment that was the motivator.
Mr Kelly contrasted the kind of case in Kastelholm 1 and this case, on the basis that the former concerned allegations of a plan to carry out extreme acts contemplating the taking of lives and the commission of suicide, whereas this case concerned an arson on a place of worship, a type of crime which Mr Kelly described as ‘nothing too unusual’.[11]
[11]Transcript 87.
Amongst specific aspects of evidence objected to in the outline, Mr Kelly submitted evidence of the Fatwa referred to in the Summary should not be admitted as it did not incite hatred of or violence towards Shia Muslims, and in any event, the Crown could not prove the accused was aware of the Fatwa or approved of it.
Further, objection was expressed to evidence being led of the thwarted attempt by the accused to travel overseas.
Finally, objection was taken to evidence being led of the accused having seemingly viewed an Islamic State propaganda video on 22 December 2016 with the accused Chaarani. In this regard, it was submitted that:
It is irrelevant in demonstrating support by this accused for violence towards Shia Muslims and it is insufficiently linked in time to the events of 11 December or 25 November 2016 to render it probative of the accused’s state of mind at the relevant time.[12]
[12]Exhibit AM1 [7].
Near the end of his submissions, Mr Kelly submitted that the only material the jury should hear in connection with the accused was material which specifically concerned either his or Islamic State’s hatred of Shia Muslims.[13]
Chaarani submissions
[13]Transcript 84.
Mr Tehan QC, who appeared with Mr Richter for Mr Chaarani, in his outline and oral submissions, conceded that so much of the impugned material as would go to establishing the nature of Islamic State and the parts of its ideology which concern violence towards Shia Muslims is relevant. In respect of the Islamic State material, he conceded that additional material which would permit the jury to understand in a contextual way the history and ideology of that organisation would also be relevant.
I note, also, that Mr Tehan did not submit that any material showing ill-will or hatred by the accused towards Shia Muslims should be excluded.
Mr Tehan commenced his submissions in Court by reading paragraphs 9 to 11 of the Summary. He submitted that so doing ‘concentrates attention upon the relevance of anti-Shia ideology as being at the heart of the Crown case’.[14]
[14]Transcript 89.
As Mr Tehan made clear, his focus was principally on the ‘material which shows explicit violent or emotive imagery’.[15] He submitted:
…the fundamental basis on which we say that such material is irrelevant is that it cannot be said to show a particular connection to the anti-Shiite motive articulated in paragraphs 9, 10 and 11 of the prosecution opening which is the foundation for this motive-ideological material. That is our fundamental objection.[16]
[15]Transcript 90.
[16]Transcript 90.
Later, Mr Tehan submitted that such material was very graphic, very emotive, and not at all relevant to what he described as the issue pleaded in paragraphs 9 to 11.
In his oral submissions, Mr Tehan asserted that it was clear that the motive alleged for this crime was anti-Shia ideology, rather than the more general ideology of Islamic State. Indeed, in the outline, it was asserted that a ‘sectarian dispute’ was at the heart of the case, and the attack was ‘apparently a sectarian, anti-Shia, offence’.[17]
[17]Exhibit AC1 [23] – [24].
In the outline, a contrast was drawn between the ‘ordinary’ terrorism case where the aim of the plot is mass casualties or the like, or some other attack which would be seen as an attack on the population as a whole, and this case, in which it was not an attack upon the general populace. In the former sort of case, admission of the type of material impugned here, which would leave the jury feeling that they personally, as members of the community, were or could well have been the target of the ideological animosity attributed to the accused, may be justified. In this case, however, that would not be so, in light of the true target of the offending.
Amongst specific aspects of evidence objected to in the outline, it was submitted that the failed attempt to travel overseas was not relevant, and that evidence of bomb and gun related material found on the accused’s phone was not relevant because this case concerned property damage only, rather than a plan to harm any person.
Moukhaiber submissions
Ms Gerry QC, who appeared with Mr Anderson for Mr Moukhaiber, in her outline and oral submissions, submitted there had been a lack of compliance with section 182 of the Criminal Procedure Act 2009 by the prosecution in the drafting of the Summary. She made a number of complaints on that score, and even went as far as to invite me to require the prosecution to comply more fully with the provision. She asserted that ‘the assessment of relevance is inextricably linked with the necessity to comply with s. 182(2)(b) of the Criminal Procedure Act.’[18]
[18]Transcript 107.
Ms Gerry submitted that there were only two facts in issue in this case. These were, firstly, who set the fire, and secondly, whether or not that was done in the advancement of a terrorist cause. Later in her submissions, she described these two questions as ‘the key factors’,[19] and later still, ‘the major facts in issue’.[20]
[19]Transcript 111.
[20]Transcript 119.
Ms Gerry submitted that the generalised ideological material on which the prosecution seeks to rely cannot, of itself, rationally affect the assessment of the probability of the existence of either of those facts in issue. As she put it, this material goes no further than mere conjecture.[21] It does not prove that the accused was necessarily an Islamic State follower, or make it more likely that he would carry out acts of violence or property damage.
[21]Transcript 112.
In fact, Ms Gerry submitted that there was no material in the case that demonstrates that the accused is a follower of Islamic State.
Ms Gerry submitted that I should not consider questions of complicity when I come to consider the issue of relevance of evidence.[22]
[22]Transcript 110.
Ms Gerry asserted that the prosecution were not seeking to prove anything other than intention from the impugned material, so the consideration given by the prosecutor to s. 11(2A) of the Code was interesting.
Ms Gerry was at pains to point out that the prosecution were not seeking to rely on any of the evidence as tendency or coincidence evidence. That, it seems to me, is clearly the case.
The main submission of Ms Gerry was that all of the impugned evidence against the accused should be excluded as irrelevant, even material capable of demonstrating he harboured anti-Shia sentiments.[23] The mere possession of such material, she submitted, would not necessarily demonstrate that the accused was a follower of the ideology of Islamic State, or that he would act in advancement of the cause.
[23]Transcript 115.
In the alternative, she invited me, if I was against her central contention that none of the evidence was relevant, to limit the material permitted to be led to anti-Shia material.
When specifically asked by me why none of the material contained on the telephones of the accused was relevant, Ms Gerry submitted that to be relevant, the material had to be directed to what she described as the two facts in issue, and this material was not so directed.
In respect of other matters in the outline not specifically canvassed in oral submissions, I need not deal with all of those specifically here. The resolution of many of these would be determined by the outcome of my consideration of the question of relevance.
Analysis
In light of the detailed and helpful submissions made orally and in writing on behalf of each accused, I should note that I will not pause to specifically deal with each individual submission. Suffice to say, I have carefully taken into account all of the submissions.
Bearing in mind what is required for evidence to pass the test of relevance under section 55 of the Act, it is instructive to ponder the question of what the facts in issue are in this case. When the facts of the case are considered, along with the elements of the crimes in question, it is readily apparent that, contrary to the submissions of Ms Gerry, there are many facts in issue. Evidence will be relevant if it could rationally affect the assessment of the probability of the existence of any one of those facts.
The two facts posited by Ms Gerry, namely, who set the fires, and whether or not that was done in the advancement of a terrorist cause, are certainly important facts in issue. However, there are many others. I do not purport to state all or even most of them, but some do readily come to mind. These would include:[24]
[24]I limit myself to a consideration of Charge 2 for convenience.
(i) In circumstances where this crime was seemingly committed in the name of Islamic State, what is the ideology of Islamic State and what cause or causes of the organisation might be behind this crime?
(ii) Is there evidence capable of proving that any of these accused was a supporter of or adherent to the ideology of Islamic State?
(iii) To what extent or with what degree of enthusiasm were any of the accused adherents to that ideology? How far would they be prepared to go in support of that cause?;
(iv) By 11 December 2016, had the three accused, or at least two of them, entered into an agreement to burn down the mosque?
(v) What motive did they have for reaching this agreement, and carrying out the eventual crime?
(vi) What were the identities of the three offenders who attended on that occasion?
(vii) If it is established that the accused were the offenders, what was their intention in setting fire to the mosque? Was this action carried out with the intention of advancing a political, religious or ideological cause?
(viii) Was the burning down of the mosque carried out by the offenders with the intention of intimidating the Shia community and/or the wider community?
These would be simply a small number of the facts in issue in the trial to come.
In light of the apparent connection between these crimes and the extremist ideology of Islamic State, any material tending to show a strong connection between the accused and that organisation and its ideology would be capable of advancing the prosecution case in a number of ways. It would advance the proposition that they may have been of the view that the enemies of Islamic State were their enemies, and needed to be viewed and treated accordingly. It would provide support for the proposition that they may have harboured strong ill-will towards Shia Muslims. It would suggest they may have had a motive to destroy the mosque. The extreme nature of some of the material to which the accused had had access, and the serious steps some of them had seemingly made to prepare for a terrorist attack with the use of explosives or firearms, would indicate the considerable strength and enthusiasm of their belief in the cause of Islamic State, and increase the likelihood they may be prepared to take drastic steps in aid of the cause. It might explain why the three men may have been prepared to enter into an agreement to destroy the mosque. It would cast strong light on the identity of the offenders at the mosque on both occasions in question. It would support an inference being drawn that at the time of the offending, the intentions of the accused were those required to be proved for a terrorist act.
Insofar as counsel for at least two, if not all of the accused, sought to have me consider that these crimes can be viewed as sectarian crimes motivated by anti-Shia sentiment, I do not accept that submission. As was submitted by Mr Robinson, these crimes were much more than sectarian in nature. Every indication is that they were carried out in support of the cause of Islamic State, only a small part of whose ideology concerns Shia Muslims. This was not so much an attack against Shia Muslims as an attack in support of the broader cause of Islamic State.
Mr Tehan, relying in particular on three paragraphs of the Summary, asserted that anti-Shia ideology was at the heart of the Crown case. I do not believe that is so, and the submission does not sit comfortably with the way in which the case is comprehensively set out in the Summary.
On that score, I note in passing, that insofar as Ms Gerry submitted there had been a lack of compliance with section 182 of the Criminal Procedure Act 2009 in the drafting of the Summary, I do not accept that submission. I see no failure of detail or specificity in the Summary, which, I note, runs to 101 pages with detailed footnotes. In my view, the summary clearly spells out the way in which the case is proposed to be put on behalf of the prosecution against each accused, and appropriately outlines the evidence to be relied upon.
In their submissions, counsel, in effect, sought to have me consider that for the purposes of this case, the extremist ideology of Islamic State could be divided up into hermetically sealed sections, and that the attention of the jury could be confined to only the anti-Shia section of the ideology and the evidence showing the adherence of the accused to that aspect of the ideology.
I consider that process to be wholly unrealistic. The prosecutor submitted that a false dichotomy was being put forward by counsel. That seems to me to be a reasonable submission.
Mr Kelly submitted that the anti-Shia evidence itself would be sufficient to establish the existence of a motive for these crimes. That may be so, but that in no way answers the question whether the broader ideology is relevant.
He further submitted that whilst the anti-Shia material would go directly to explain the crime, the broader ideology would not, and would involve the jury drawing a conclusion ‘on some nebulous way’, that it had influenced the mind and actions of the accused. Ms Gerry, for her part, submitted that the material as to the broader ideology goes no further than mere conjecture. I do not agree with those submissions. There is nothing nebulous about the process of reasoning that if a crime was committed in support of the cause of Islamic State, material showing the fact and strength of support in the mind of an accused for that very cause would be supportive of the contention that he may have committed the crime. I believe that would be a perfectly legitimate process of reasoning which would have no aspect of conjecture to it.
As for Mr Kelly’s submission that whilst the prosecution was capable of demonstrating an exposure by the accused to the material, the next step, namely, evidence of a preparedness to act, is missing, I do not agree. Whether or not, in the end, any one of the accused was prepared to act on the basis of his belief in a particular cause or ideology will be a matter of fact for the jury to determine. The impugned evidence would be but a part of the evidence to which a jury might have resort in deciding the facts.
To my mind, and bearing in mind the requirement for relevance, it is perfectly clear that the broader ideology ascribed to by Islamic State, and any evidence that would tend to show that the accused were supporters of that organisation and adherents to the broader ideology, would be highly relevant in this case.
Bearing in mind that the cases against all of the accused are circumstantial, the prosecution will of course seek to rely upon the united force of the overall evidence. A combination of many pieces of evidence of different facets will be sought to be relied upon in proving, in respect of each accused, that he was indeed one of the two or three males present when the crimes were carried out, that he had indeed reached an agreement with at least one other of the accused to carry out the offence or offences, that he had a powerful motive to commit these offences, and that he did have the necessary intention at the time of the offending.
When the jury come to consider the evidence in this case and the question of whether the prosecution has proved the guilt of any of the accused beyond reasonable doubt, it would defy belief to think that the jury would not be much assisted by the impugned evidence in this case, which in my view could rationally affect their assessment of the probability of the existence of many of the facts in issue in this case.
Conclusion
The evidence in question is relevant, and subject to any later ruling affecting admissibility, the evidence will be permitted to be led by the prosecution.
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