R v Mohamed, Chaarani and Moukhaiber (Ruling 8)
[2019] VSC 525
•18 April 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 |
DATE OF HEARING: | 16 April 2019 |
DATE OF RULING: | 18 April 2019 |
CASE MAY BE CITED AS: | R v Mohamed, Chaarani & Moukhaiber (Ruling 8) |
MEDIUM NEUTRAL CITATION: | [2019] VSC 525 |
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CRIMINAL LAW – Evidence – Counsel for accused Chaarani made admissions on behalf of accused in defence response – Whether capable of being used in cases against other accused – Admissible against Chaarani only.
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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
In the early hours of the morning on 25 November 2016, two men attended at the Imam Ali Islamic Centre in Fawkner and lit two fires on the floor of the male prayer room before fleeing the scene. The fires did not take hold. A little over two weeks later, on 11 December 2016, three men attended at the mosque and, seemingly with the use of tyres and petrol, set fire to the premises. The men fled the scene, but not before one of them wrote, in two locations in the premises, words which unmistakeably linked the crime to Islamic State, a terrorist organisation. This time, the fire took hold and the premises were seriously damaged, to such an extent that demolition was required.
The first two accused are before the Court facing charges in relation to both events. 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.
The facts of the case are set out to some extent in earlier rulings in this case, in particular, the first ruling.
On the occasion of his presentation of the defence response on behalf of the accused Chaarani, Mr Tehan QC purported to make certain admissions on behalf of the accused.
Mr Robinson QC for the prosecution seeks to rely on those admissions in the cases against each of the other accused.
The defence response
The oral defence response followed the filing of a written defence response dated 11 September 2018. The written response provided no warning of what was to occur in front of the jury in the trial. Amongst other things, the written response contained a paragraph which stated:
The Accused denies committing or attempting to commit a terrorist act either by himself, or by being complicit with others to do so.[1]
[1]Defence Response [11].
In his defence response before the jury, Mr Tehan said the following:
‘So now let us examine the indictment more closely. First, through us, Mr Chaarani admits that he attempted to burn down the mosque on 25 November 2016and did substantially succeed in doing so on 11 December 2016. That’s the first thing.
The second thing is, as to both charges, he admits, through us, his counsel, that he did so with the intention of advancing a political, religious or ideological cause, namely the advancement of Sunni Islam.
Mr Chaarani admits, through us, that he sprayed paint on the mosque on 11 December with the Arabic words as translated ‘State of Islam’ and ‘remaining’. Those words, members of the jury, are testament, real testament to the political, religious and ideological cause that he held.
Third, again as to both charges, Mr Chaarani admits, through us, that those acts as to the first act of attempting to burn to the mosque, as to the second act of doing so were done with the intention of intimidating a section of the public and, in particular Shiite Muslims.
The issue between the Crown and Mr Chaarani is the last element common to both charges. And you’ll see that, really, set out towards the end of the charge, both Charge 1 and Charge 2. That is was the action done as advocacy, protest, dissent or industrial action. Our focus is upon the words ‘adovocacy, protest and dissent’. So obviously, you ask what does it mean, ‘advocacy, protest, dissent’?’. [2]
[2]Trial 212-13.
Prosecution submissions
Mr Robinson submitted in his written submissions and his brief oral submissions in this Court that the statements made by defence counsel in his response may be used against the accused Chaarani as if they were admissions of fact made under s 184 of the Evidence Act 2008.
I readily accept that contention, all the more so because Mr Tehan has acknowledged that this is so.
The prosecutor goes on, however, to assert that the admissions made on behalf of Chaarani by Mr Tehan can also be used in the cases against each of the other accused.
Mr Robinson was able to cite no authority in support of his submission. The only case mentioned, namely, R v Maes [1975] VR 541, pointed, if anything, in the opposite direction.
In advancing that contention, Mr Robinson asserted in paragraph 27 of his outline:
There is no prohibition in the Crown being able to use the admissions made by Chaarani’s counsel against his co-accused Mohamed and Moukhaiber. The formal admissions of the elements stands to the same effect as if evidence given by Chaarani.
I cannot accept that proposition. What Mr Tehan said was not evidence, and nor can it be seen as having the same effect as sworn evidence given in the trial. If anything, it can be likened more to an admission of fact made by the accused Chaarani in the trial under s 184. Were he to have made such an admission, it is clearly the law that the admission would be able to be used by the jury in the case against him and him alone.
Next, Mr Robinson asserted in the first part of paragraph 28:
Two further matters are relevant to the issue. First, if it is accepted (as it must be) that what Chaarani’s counsel said in his opening address are formal admissions against Chaarani, that would be no different than if Chaarani chose to give evidence (as he may still do) and admit the very same things that his counsel admitted on his behalf. If Chaarani did (or does) give such evidence, those admissions would be admissible against his co-accused, in a joint trial in whichy the two offences before the jury are put on the basis of joint commission.
There is no question that were Chaarani to give sworn evidence, anything he said would be able to be used for or against not only himself but the other accused as well. However, as I have made plain, the admissions made on his behalf by Mr Tehan do not have the status of sworn evidence.
In respect of Mr Robinson’s submission that the admissions made in the defence response by Chaarani cannot be likened to admissions made in an interview, they are much closer to that than they are to being sworn evidence.
Mr Robinson advanced the submission that were the jury to conclude that Chaarani was involved in the attacks upon the mosque, they would be entitled to use that conclusion when considering the case against the other accused. It was submitted that the jury could not be required to reconsider their findings against Chaarani, omitting the admissions, before considering the case against the co-accused. Without having definitively reached a conclusion on the matter of the use the jury would be entitled to make in the case of the other two accused of a decision reached that Chaarani was involved in the attacks upon the mosque, the fact is, that does not advance the prosecution contention that the jury would be entitled to take into account, in considering the case against the other accused, the admissions made by Chaarani through his counsel during the defence response. That is a different issue.
As to Mr Robinson’s assertion that complex directions would be required to the jury were they not to be permitted to use the admissions by Chaarani against the other accused, I do not accept that submission either. I acknowledge that there may be a degree of artificiality to the process, but directions can readily enough make it clear to the jury that in deciding the cases against the other two accused, the jury is not entitled to take into account the admissions made by Chaarani. Those would be exactly the sort of directions which would be required had this been a case in which one of the accused had made admissions in an interview with the police which implicated the other accused. That is a common enough situation.
As to such matters as the phone contact between Chaarani and Mohamed leading up to the time of the first offence, and between Chaarani and both accused up to and around the time of the second offence, there would be no reason why the jury would not be permitted to rely on that evidence in the case against the other accused where appropriate. The accused are charged with the joint commission of the charges on the indictment. It is clear that connection between them at relevant times, by phone or otherwise, will be admissible in the case against all accused.
In any event, the fact that potentially complex directions might be required cannot stand in the way of the jury being properly told which evidence is and which evidence is not, admissible against the respective accused.
As for the fact that counsel for the other two accused did not apply for the discharge of the jury following the defence response on behalf of Moukhaiber, that was a matter for them to consider, and the lack of an application for a discharge does not provide any support for the contention that it would be permissible for the admissions made by Chaarani through Mr Tehan to be used in evidence against the other accused.
Conclusion
In my view, the statements made by Mr Tehan during the defence response would be able to be used by the jury in considering the case against the accused Chaarani only. The jury will need to be directed that those statements can in no way be used in the case against the other two accused.
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