R v Mohamed, Chaarani and Moukhaiber (Ruling 5)
[2019] VSC 124
•4 March 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 HOUKHAIBER | Accused |
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JUDGE: | Tinney J |
WHERE HELD: | Melbourne |
DATES OF HEARING: | 28 February 2019 1 March 2019 |
DATE OF RULING: | 4 March 2019 |
CASE MAY BE CITED AS: | R v Mohamed, Chaarani & Moukhaiber (Ruling 5) |
MEDIUM NEUTRAL CITATION: | [2019] VSC 124 |
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CRIMINAL LAW - Subpoena issued on behalf of accused Moukhaiber to Victoria Police, Australian Federal Police and Australian Security Intelligence Organisation - Subpoena for production of documents associated with participants in WhatsApp chat group - Application to set aside subpoena by all three organisations on basis of no legitimate forensic purpose for subpoena - Legitimate forensic purpose found - Application refused.
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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 |
| For the Australian Federal Police and Australian Security Intelligence Organisation | Ms C Fitzpatrick | Australian Government Solicitor |
| For the Chief Commissioner of Police | Mr A Denelli | Victorian Government Solicitors Office |
HIS HONOUR:
Introduction
The accused Hatim Moukhaiber faces a terrorist charge relating to the destruction of a mosque by fire in the early hours of 11 December 2016. The two other accused, Ahmed Mohamed and Abdullah Chaarani, face the same charge, and an additional charge laid over an attempt to destroy the same mosque some weeks before.
Subpoenas to produce documents have been issued on behalf of Moukhaiber to Victoria Police, the Australian Federal Police (‘the AFP’) and the Australian Security Intelligence Organisation (‘ASIO’) (‘the organisations’). Each organisation objects to the production of the material sought on the basis that there is no legitimate forensic purpose demonstrated for the production. Each, therefore, seeks to have the respective subpoenas set aside.
Facts
I will not set out the facts of the case against the three accused. These are contained in the Summary of Prosecution Opening and are referred to in two earlier rulings in the trial of the three men.[1] Suffice to say for present purposes that there is a circumstantial case made against all three accused which will be relied on by the prosecution in establishing that the three men who destroyed the mosque were the three accused, that they were acting jointly when they did so, that the mosque was destroyed with the aim of advancing the cause of Islamic State (‘IS’), and that the three accused were supporters of that organisation, and adherents to its extremist ideology.
[1]R v Mohamed, Chaarani & Moukhaiber (Ruling 1) [2019] VSC 26; R v Mohamed, Chaarani & Moukhaiber (Ruling 2) [2019] VSC 72.
The subpoenas
Part of the evidence to be called against the three accused concerns certain messages sent over a free messaging application known as WhatsApp. All three accused were members of a chat group on WhatsApp. There were, as I understand it, as many as 11 other members outside the three accused.
The subpoenas issued on behalf of Moukhaiber seek the production by the three organisations of information in the possession of the organisations concerning the members of the chat group. The documents and things originally sought were contained in the schedule attached to the subpoena. That schedule has since been modified twice, and indeed, substantially reduced in its scope. The material sought now is contained in a document entitled Further Amended Subpoena Schedule[2] which is attached to this ruling. I will say more about the contents of that schedule later in the ruling.
[2]Exhibit HM4 in the pre-trial proceedings.
Counsel for each of the organisations seek to have the subpoenas set aside on the basis that there is no legitimate forensic purpose for the production of the documents specified in the final amended schedule. Previously, there was a further complaint as to the asserted oppressive nature of the subpoenas. In light of the reduction in the scope of the material sought, that complaint is no longer pursued.
I note that in the event that the subpoenas are not set aside, it has been indicated that claims of public interest immunity are likely to arise. Indeed, in view of the nature of the material sought, I consider such claims would be inevitable.
The law
The applicable law is clear enough, and is not in dispute between the parties. The objection having been taken to the subpoenas, it is incumbent upon Moukhaiber to identify expressly and precisely the legitimate forensic purpose for which access to the documents is sought.[3] A legitimate forensic purpose is shown where the Court considers, having regard to its fundamental duty to ensure a fair trial, that there is a reasonable possibility, or to use the phrase used by Chief Justice Gibbs in Alister v The Queen,[4] that it is ‘on the cards’, that the documents will materially assist the defence.
[3]Commissioner of the Australian Federal Police v Magistrates’ Court of Victoria & Ors [2011] VSC 3 (J Forrest J).
[4](1984) 154 CLR 404, 412.
Mere fishing expeditions are not permitted.
The party issuing the subpoena must establish that ‘fish of a particular kind are in the pool.’ It is not permissible to ‘drag the pool in order to find out whether there were any such fish there or not’.[5]
[5]Associated Dominions Assurance Society Pty Ltd v John Fairfax & Sons Pty Ltd (1952) 72 WN (NSW) 250, 254; R v Saleam (1989) 16 NSWLR 14, 17.
This test has been described as a low threshold, but it is clear that it is a threshold.
It is also the law that a liberal approach must be adopted by the Court to such matters in criminal cases. Special weight must be given to the fact that documents or information gleaned from them may assist an accused person.
Moukhaiber’s submissions
The basis on which it is asserted on behalf of Moukhaiber that there is a legitimate forensic purpose for the material sought is set out in detail in the defence Outline of Submissions.[6]
[6]Exhibit HM 5 on pre-trial.
Stated very simply, it is this. The prosecution case is that Moukhaiber was a late-comer to the plan of the other two accused to burn down the mosque. The case against Moukhaiber depends on the jury being satisfied that the other two accused were two of the three men who destroyed the mosque and then, acting on a body of circumstantial evidence, determining that Moukhaiber must have been the third offender.
The defence point to a series of characteristics or criteria apparently possessed by Moukhaiber which make him a good candidate for being the third offender. It is, of course, denied that Moukhaiber is that offender. A reasonable alternative hypothesis consistent with innocence would be that the third offender was a person other than Moukhaiber who possessed some or all of the following characteristics:
I.Has an association with Chaarani and/or Mohamed and is in contact with them around the time of the arson;
II.Has a strong interest in, and adherence to, the ideology of Islamic State;
III.Is of a large/muscular build;
IV.Has a motive to commit an act of terrorism on Australian soil. This would be consistent with someone that (sic) had an adherence to Islamic State that had been denied the ability to leave Australia (given the relevance of the 2014 Fatwa);
V.Lives within the general area of Mohamed, Chaarani and the Mosque (the northern suburbs of Melbourne).[7]
[7]Outline [11](g).
Because of the circumstances of the WhatsApp chat group, including the inclusion in the group of the three accused, and a number of other features, the members of that group represent a likely-looking pool from which the third offender might have been recruited by Mohamed and Chaarani.
The material requested under the subpoenas may well advance the proposition that a member of the group other than Moukhaiber is a good candidate for the third position in the team of terrorists.
As the question was cast by Mr Anderson in his submissions on behalf of Moukhaiber in support of the subpoena:
Is there a reasonable possibility that these documents will materially assist Mr Moukhaiber in showing that there is a reasonable possibility that another person other than him is the third person?[8]
[8]Transcript 1253.
He submits that in all the circumstances, the answer to the above question is clearly yes.
In support of his submission, counsel took me to some aspects of The Queen v Mokbel (Ruling No. 1) (‘Mokbel’)[9] and Ragg v Magistrates’ Court of Victoria & Corcoris (‘Ragg’).[10]
[9][2005] VSC 410, (Gillard J).
[10][2008] VSC 1, (Bell J).
In respect of Mokbel, Mr Anderson submitted that in paragraphs 71 to 73, Justice Gillard amplified the importance of disclosure in criminal cases, and the importance of a certain level of deference being accorded to defence counsel who may be in a far better position than a judge to make an appraisal of information contained in a document.
In respect of Ragg, counsel made mention of the application of the equality of arms principle in the criminal law, as discussed by Bell J at paragraph 50.
Mr Anderson summarised the WhatsApp material, noting that there were more than 10,000 messages, containing numerous sharings of YouTube videos and enclosed documents. There were numerous mentions of Islam, the Qur’an, Hadith, Allah, the term Shia, the Hume Islamic Youth Centre (‘HIYC’)[11] , and the terms ‘gym’ and ‘training’.
[11]An Islamic Centre attended by all three accused.
He submitted that in circumstances where the prosecution case was that the three accused, all of whom were participants in the WhatsApp group, had radical and extremist views regarding IS, it was highly relevant that the WhatsApp group communicated frequently about the sorts of matters discussed above, and shared images and videos.
He further submitted that in the circumstances, it was reasonable to infer that it was not a moderate interest in Islam which had brought the members of the group together.
Whilst it was not submitted that all of the group members necessarily shared the views of Mohamed and Chaarani, it was certainly on the cards, and was a reasonable possibility, that they engaged in the sharing of extremist ideology, and that much, if not all, of the content of Moukhaiber’s phone had come from the WhatsApp group.
As Mr Anderson submitted:
…the starting point for all of this is, all right, the jury’s accepted that Mohamed and Chaarani are guilty, who else could it be that’s the third person? Well, the obvious starting (sic) is someone who has an association with Mohamed and Chaarani; that is the people in the WhatsApp group…There’s every reason to think that other members, if not all of the members in that group, share extreme views.[12]
[12]Transcript 1282.
It was submitted that Mohamed and Chaarani had ample opportunity to organise a third member for the terrorist team from amongst the members of the chat group. They had much in common, were in regular contact, and seemingly were in close geographical proximity.
Mr Anderson provided to the Court a spreadsheet containing excerpts from the WhatsApp chats, which became Exhibit HM3, in illustration of a select few of the communications.
Mr Anderson acknowledged that Moukhaiber knows the members of the chat group to varying degrees, and that he may well have the material to put to prosecution witnesses raising some of the members as alternative suspects. He submitted, however, that what the defence sought was material which may:
make good certain propositions from the Bar table, or without putting Mr Moukhaiber in a position where he’s bound to give evidence of matters which can otherwise be provided through the investigators.[13]
[13]Transcript 1273.
Mr Anderson challenged the prosecution contention that this was no more than a fishing expedition. For the reasons already briefly stated above, it was very much on the cards and a reasonable possibility that material which would be of assistance to the defence would arise from the subpoena being answered.
Insofar as the organisations had submitted in their outlines that Moukhaiber had not provided sufficient information for the organisations to identify who all the people were, that submission was refuted.
Putting the defence position in slightly different terms towards the end of his submissions, Mr Anderson submitted:
What we’re ultimately attempting to do is elicit evidence that other people have a motive for committing the offence. In this case, the prosecution rely on the contents of the phone not just to…prove the elements of the offence, which relate specifically to whether or not it was a terrorist act, but they rely on the contents of the phone to show identity. So why should the defence be shut out from the same exercise?[14]
[14]Transcript 1300.
Submissions on behalf of the AFP and ASIO
Ms Fitzgerald, for the organisations, provided an outline of submissions and made oral submissions in court.
The position of Ms Fitzgerald was clearly set out in the outline as follows:
In summary, it is submitted that the subpoenas are merely a fishing expedition. Whilst ostensibly a purpose for their issue has been put forward by the accused (generally to seek to identify other people who could have been the ‘third arsonist’), a proper examination of the accused’s submissions reveals that there is no legitimate forensic purpose for the issue of the subpoenas. Rather, the subpoenas are an attempt to ransack the records of the AFP and ASIO to discover whether there is anything that may assist. No legitimacy can be accorded to this exercise by reference to the WhatsApp group which the accused and his co-accused were part of, especially where the accused does not identify the participants.[15]
[15]Outline [3].
Ms Fitzgerald submitted that the Crown case against each accused is a complex and detailed circumstantial one. The Court should have regard to the nature of that case when determining whether or not a legitimate forensic purpose has been demonstrated here.
She submitted that the determination of whether there exists a legitimate forensic purpose requires a consideration of four matters:
a)The issue or issues in dispute at the trial;
b)What the accused’s case may be on that issue or those issues;
c)How the subpoenaed documents will assist the accused in his case;
d)What are the grounds for believing that documents will in fact exist.[16]
[16]R v Saleam [1999] NSWCCA 342; Lipton v R [2010] NSWCCA 175.
As to a), it is submitted, the accused disputes that he was the third person involved in the crime. As to b), the accused will put in issue the probative value of circumstantial evidence relied upon by the Crown to prove that he was one of the three. While the Crown relies on a number of characteristics of the accused as establishing his involvement, there are reasons to suppose that those characteristics may have been shared by others in the WhatsApp group.
In respect of c), as submitted by the organisations, the accused argues that the subpoenaed material will assist him to establish that he cannot be regarded as the only person with the said characteristics. As outlined in paragraph [11](g) of the defence outline, it is a reasonable alternative hypothesis that the third person was another person who possessed some or all of a list of characteristics specified.
Ms Fitzgerald submitted that this approach was flawed, and invited the Court to refer to only a narrow part of the case against the accused. The case consists of a ‘large mosaic of evidence’,[17] whereas Moukhaiber’s approach to certain characteristics said by the Crown to show his guilt ‘is a limited misrepresentation of the totality of the evidence relied upon to establish his guilt’.
[17]Outline [25]
In advancing this submission, Ms Fitzgerald set out some of the others aspects of the Crown case.
The submission proceeded that the nomination by Moukhaiber of the other members of the WhatsApp group as potential alternative suspects was not satisfactorily explained. There was no evidence adduced on behalf of the accused to support the proposition. Indeed, there were nothing more than bald assertions that such persons may possess similar characteristics. There is no proper foundation for that inference to be drawn. The individuals in the groups are unsatisfactorily lumped together as a category of person. The assertions in that regard are purely speculative.
Ms Fitzgerald made the point that the investigation in this matter did not commence by reference to the WhatsApp group. Rather, it commenced with Chaarani and Mohamed as suspects. In order to identify the third suspect, investigators did not identify the WhatsApp group and start with them. The WhatsApp group chat was identified much later in the investigation.
Ms Fitzgerald submitted that no satisfactory submission was made by Moukhaiber which established why participants in the WhatsApp group have been singled out as possible alternative suspects, such that it can be found that there is a legitimate forensic purpose in seeking to obtaining further information about them by subpoena. It is unclear why they had been singled out. There is no evidence that the WhatsApp chat or its members assumed any particular significance in the investigation into the identity of offenders.
Ms Fitzgerald made the point that the mentions of Shia, the HIYC, gym, training, and so on, were limited in number and insignificant relative to the large number of overall messages.
It was submitted that the supposedly similar characteristics of the WhatsApp group members:
do not provide a legitimate basis to trawl through the holdings of the AFP and ASIO in order to find out whether any of those people (whoever they are) might have certain attributes that would make them…a good candidate for a terrorist and, therefore, potential alternative suspects whom the Crown is unable to exclude.[18]
[18]Outline [35].
Ms Fitzgerald made the point that in a number of areas of the defence submissions, written and oral, it was indicated that a particular matter was ‘understood’ by the defence. I should have no regard, it was submitted, to what was ‘understood’. That was no substitute for what was established.
On another matter, it was submitted that there could be no reason to doubt that it remains within Moukhaiber’s ability to identify the WhatsApp participants. There could be no legitimate forensic purpose in requiring the organisations to speculate as to who such persons are. Ms Fitzgerald submitted:
None of the WhatsApp chat members were identified as suspects in relation to the offence. Issuing the subpoena in its current terms would be tantamount to requiring investigators to go off and reinvestigate the matter in accordance with the defence theory.[19]
[19]Transcript 1380.
Ms Fitzgerald invited me to reject the defence contention that a legitimate forensic purpose had been shown.
Submissions on behalf of Victoria Police
Mr Dinelli adopted the submissions made on behalf of the AFP and ASIO. He did not rely on the argument advanced in paragraphs 11 and 12 of his outline.
The accused in reply
Mr Anderson, in reply, made it clear that his position was that he would be content with the provision of material in response to the subpoena in two tranches, with the first tranche limited to material connected with four named individuals. These were Mohamed Abdullah, Hussein Morci, Bakr Benbrika and Wessim Raad.
Mr Anderson elaborated on why it would reasonable to consider the WhatsApp group to be fertile ground for the selection of an alternative suspect.
He refuted the contention by Ms Fitzgerald that the defence were requiring the police to investigate further matters. As he put it:
We’re not requiring the police to investigate a single thing. We’re requiring the police to provide documents that they have. If they do not have them, they have no duty to acquire them. It’s to assist, really, the investigation by defence of the alternative hypothesis.[20]
[20]Transcript 1393.
Analysis
All parties have indicated that they would be content for the provision by me of brief reasons for my decision on the matter at hand. I take that into account in formulating these reasons.
It seems to me that the defence have done what is required in identifying expressly and precisely the legitimate forensic purpose for which access to the documents in question is sought. That purpose is to advance the defence that some person other than Moukhaiber was the third member of the terrorist group. The members of the WhatsApp group have been pointed to and identified with as much specificity as possible, or at least, sufficient particularity for their identities to be known by the AFP and/or ASIO.
A legitimate forensic purpose is shown if I consider there is a reasonable possibility that the documents will materially assist the defence. As Mr Anderson posed the question, and Ms Fitzgerald did not take issue with this being the appropriate question:
Is there a reasonable possibility that these documents will materially assist Mr Moukhaiber in showing that there is a reasonable possibility that another person other than him is the third person?
In light of what is known about the members of the WhatsApp group, it seems to me to be reasonable to consider that if more detailed information is made known about the members of the group other than the three accused, one or more of them may come into sharp focus as a possible member of the terrorist team. That is not a speculative or fanciful prospect. After all, as Mr Anderson ended up submitting, the group contains three convicted terrorists, a suspected terrorist, namely, Moukhaiber, and the son of a convicted terrorist, Bakr Benbrika.
It seems to me that the issuing of these subpoenas did not amount to a fishing expedition or an attempt to ransack the records of the AFP and ASIO to discover whether there is anything there which may assist. Rather, it is a targeted focusing of attention on a confined group of known individuals whose membership of that WhatsApp group makes it reasonably possible that some or all of them may harbor the same extreme views that the three accused are said to harbor, and that they may possess other features which may install them as very important alternative suspects to whom the defence may seek to point during the trial.
Insofar as Ms Fitzgerald focussed attention on the fact that the list of characteristics outlined by the defence represented only a limited part of the prosecution case against the accused, that does not strike me as a criticism which goes too far. The characteristics pointed to by the defence are certainly important ones, in light of the nature of the crime here and what is known about the third offender. The fact that those characteristics do not encompass every aspect of the overall circumstantial case does not mean that the finding of another person from amongst that group who possessed all of those characteristics would not be of great assistance to the defence.
Furthermore, the fact that the WhatsApp group was not the starting point, or in any way relevant in, the identification of Moukhaiber as the third offender does not mean that the identities, background and proven behaviour of the members of the group may not be highly relevant.
Ms Fitzgerald submitted that it was unclear why members of the group had been singled out. On the contrary, I believe it was quite clear. Because of all of the circumstances of that group, including the nature of its membership, the common interests seemingly held by the group, the apparent geographical location of a number of the members of the group, the known or likely appearance of the group members, and other matters, it is reasonable to consider that one or more of the other group members may possess characteristics or may have carried out actions that may raise the real prospect of involvement in the crime alleged.
That being the case, it does not matter that none of the group members was ever a suspect in the eyes of investigators. What is important is the affect it might have on the consideration of a jury to know that there existed, in close proximity to Mohamed and Chaarani, a person or persons who possessed many of the characteristics which tend to establish that Moukhaiber was the third offender.
I accept the submission of Mr Anderson that nothing about the subpoenas required investigators to reinvestigate this crime. All that is required is for them to make available documents already in their possession.
Conclusion
I find that a legitimate forensic purpose for access to the documents in question has been established by the defence. I believe that there is a reasonable possibility that the documents in question will materially assist the defence, in the manner outlined by the defence. I therefore decline to set aside the subpoenas.
I will now turn to the issue of what is required in compliance with the subpoena, in light of the contents of the final amended schedule. I will endeavour to set a time frame for compliance, bearing in mind my expectation that public immunity issues will need to be considered by the organisations and decided, in due course, by me.
Attachment One: Further Amended Subpoena Schedule
FURTHER AMENDED SUBPOENA SCHEDULE
Where “Persons” are referred to in this document it is a reference to the following persons that participated in a WhatsApp group containing the three Accused in this matter and, amongst others, the following members:
[email protected] Osama Benbrika
[email protected] Mohamad Abdullah
[email protected] Yunos
[email protected] Bakr Benbrika
[email protected] Hussein Morsi
[email protected] Fadal
[email protected] James
[email protected] Wissam Raad
To assist investigators in identifying these people, the following known information is provided in Table 1 below regarding these persons.
| Persons Name | Phone Numbers Associated with the Person | Places where the person is known to reside. | Approximate Age | Gender and Size |
| Mohamed Abdullah | 0435371403 | 31 Dillwynia Place, Meadow Heights | 30s to early 40s | Male, understood to be of larger build. |
| Hussein Morsi aka Hussein Marsi aka Hussein Masri | 0473783204 | Meadow Heights | 30s to early 40s | Male, understood to be of larger build. |
| Bakr Benbrika[21] | 0412236009 | Dallas or Meadow Heights | 20s | Male, understood to be of larger build. |
| Osama Benbrika[22] | 0402521464 | Dallas or Meadow Heights | 20s | Male, not understood to be of larger build |
| James | 0411169070 | Campbellfield | 30s | Male, understood to be of larger build. |
| Yunos | 0499325370 | Meadow Heights | 30s | Male, not understood to be of larger build |
| Wissam Raad | 0412129297 | 7 Midas Court, Meadow Heights | 30s | Male, understood to be of larger build. |
| Fadl Sayadi aka Fadal Sayadi[23] | 0432468644 | DOB 12/1/1980 | Male, understood to be of larger build. |
[21]Publically reported in “The Australian” as being the son of convicted terrorist Abdul Benbrika and to have been denied exit from Australia on suspicion of intending to travel to Syria in 2015 – see Believed to be a family member of Bakr Benbrika
1 [23] This is the same person as that sentenced in R v Benbrika & Ors [2009] VSC 21 (3 February 2009)
Each category of documents indicates whether the documents are sought from the Australian Federal Police [AFP], Victoria Police [VicPol] or ASIO.
[AFP and VicPol only] IPND-enquiry Detail Request Result Reports relating to telephone numbers:
a.0402521464
b.0412236009
c.0432468644
d.0411169070
[AFP Only] PROMIS Information Reports, for each Person, between the period 1 January 2014 to Present.
[VicPol and AFP only] The prior criminal history, and any current charges, for each Person. This may be limited to prior offences / charges for offences of violence, terrorism or property damage (including arson).
[VicPol and AFP only] Notes or recordings of any conversations or interviews between members of the Joint Counter Terrorism Team and any Person concerning the fire at the Imam Ali Islamic Centre on 25 November 2016 or 11 December 2016.
[ASIO and AFP] Any assessment made by a competent authority resulting in the making of a refusal / cancellation request pursuant to section 14 of the Australian Passports Act 2005 in relation to a Person.
[AFP and VicPol] Any CCR (Call Charge Records) relating to the period 10 – 16 December 2016 for mobile phone numbers listed in Table 1.
[AFP] Any mobile phone extraction reports in the possession or control of the Joint Counter Terrorism Team or the Melbourne Digital Forensics Unit of the AFP that were acquired between the period 1 January 2014 to Present from mobile telephones utilising the phone numbers in Table 1.
2
0
7
0