R v Mohamed, Chaarani and Moukhaiber (Ruling 9)
[2019] VSC 520
•30 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 |
DATES OF HEARING: | 29 and 30 April 2019 |
DATE OF RULING: | 30 April 2019 |
DATE OF REASONS | 6 August 2019 |
CASE MAY BE CITED AS: | R v Mohamed, Chaarani & Moukhaiber (Ruling 9) |
MEDIUM NEUTRAL CITATION: | [2019] VSC 520 |
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CRIMINAL LAW – Terrorist offences under Criminal Code (Cth) – Whether arson and attempted arson should be left to the jury as alternatives – Matter raised by counsel for Chaarani only after conclusion of Crown case – Joined in then by other accused – Whether alternatives ‘included offences’ – Whether permissible to have State offence as alternative to Commonwealth offence – Whether alternatives should be left even if legally permissible to do so – Alternatives not left – Criminal Procedure Act 2009 ss 239, 240.
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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 three accused were charged with terrorism offences flowing from an alleged attempt to burn down a mosque and then the successful accomplishment of that task.
The Crown case closed on 29 April 2019. During the course of discussions which then took place pursuant to the Jury Directions Act 2015, I was asked by Mr Tehan QC for the accused Chaarani to leave the offences of attempted arson and arson respectively as alternatives for consideration by the jury on the two charges faced by Chaarani.[1] Ms Gerry QC for Moukhaiber then requested that I leave the alternative of arson in respect of the one charge faced by her client.[2] Following that, having earlier indicated there were no alternatives to leave, Mr Kelly SC for Mohamed requested that I leave the alternatives in respect of his client also.[3]
[1]Trial 1544.
[2]Trial 1571.
[3]Trial 1592.
On 30 April 2019, I ruled against the defence applications, declining to leave the requested alternatives. I indicated I would publish my reasons for the decision at a later time. These are those reasons.
The background
I was the judge allocated to hear this trial since late-2018. There were a number of Directions Hearings heard in the latter part of 2018. Pre-trial proceedings commenced on 30 January 2019 and occupied eight weeks. On 1 April 2019, a jury was empanelled and the trial commenced.
As long ago as 30 January 2019, the first day of pre-trial hearing in this matter, I raised with the prosecutor the question of whether or not arson would be a statutory alternative to the terrorism charges on the indictment.[4] The prosecutor informed me that it was not an alternative. Furthermore, it was made plain that a decision had been made not to include arson on the indictment. None of defence counsel made any submission to the effect that arson should be included on the indictment, or should be viewed as being a statutory alternative to the charged offences.
[4]Pre-trial 13.
On the occasion of his defence response before the jury on 3 April 2019, Mr Tehan indicated on behalf of Chaarani that the only issue on behalf of the accused was whether or not his actions were terrorist acts. He went on to admit on behalf of the accused that he did attend the mosque on the two occasions in question, that he was involved in setting fire to the mosque on both occasions, that he was the person who spray-painted the words on the two locations at the mosque on 11 December 2016, and that he intended in setting the fires to advance a political, religious or ideological cause, and to intimidate a section of the community. What was in issue was whether or not his acts were advocacy, protest, or dissent.[5] During the course of the response, Mr Tehan admitted that the conduct of the accused involved the commission of serious crimes, namely, arson.
[5]One of the elements of engaging in a terrorist act required to be proved by the prosecution is that the action of the accused was not ‘advocacy, protest, dissent or industrial action’, as per s 100.1(3)(a) of the Criminal Code (Cth) (‘the Code’).
Following the defence response, at no time until after the Crown case had closed on 29 April 2019 did Mr Tehan suggest or submit that arson should be left as an alternative to Charges 1 and 2. Until the submissions of Mr Tehan at that time, neither the prosecution nor the Court had any inkling that it would be argued that the alternative should be left.
The law
The provision relied on by Mr Tehan in support of his submission that arson should be left as an alternative is s 239 of the Criminal Procedure Act 2009 (‘the Act’), which relevantly provides:
(1) On a trial on indictment for an offence other than treason or murder, if the jury finds the accused not guilty of the offence charged but the allegations in the indictment amount to or include, whether expressly or impliedly, an allegation of another offence that is within the jurisdiction of the court, the jury may find the accused guilty of that other offence.
This provision replaced a similar section previously contained in the Crimes Act 1958.[6]
[6]Section 421(2).
Section 240 of the Act provides:
Despite section 421(1) of the Crimes Act 1958 and section 239, if the trial judge considers that it is in the interests of justice to do so, the judge may order that the guilt of the accused in respect of all or any of the other offences of which the accused may be found guilty is not to be determined at the trial.
At common law, before the enactment of the previous Crimes Act provision, the position as to the availability of an alternative was as set out in R v Salisbury (‘Salisbury’),[7] where the Full Court of the Supreme Court of Victoria stated:
The common law position with respect to alternative verdicts was stated by the Court of Appeal in R v Lillis [1972] 2 QB 236, at p 240; [1972] 2 All ER 1209; in these words: ‘On an indictment charging felony the accused could be convicted of a less aggravated felony of which the ingredients were included in the felony charged and, similarly, as regards misdemeanours; but except under statute a conviction for a misdemeanour was not allowed on a charge of felony’.
…
That is to say, where an accused is indicted for a felony the jury may find him guilty of any lesser felony that is necessarily included in the offence with which he is charged and where an accused is indicted for a misdemeanour the jury may find him guilty of any lesser misdemeanour that is necessarily included in the offence with which he is charged.
Whether the lesser offence is necessarily included in the offence charged is a matter which has to be determined upon a consideration of the terms in which the offence is laid. It is not a matter which depends upon the evidence led at the trial, except to the extent that an accused cannot be found guilty of a lesser charge unless the evidence led supports a conviction on that charge.
To determine whether a person charged with the misdemeanour of unlawfully and maliciously inflicting grievous bodily harm contrary to s 19A of the Crimes Act 1958 can be found guilty of the lesser misdemeanour of assault occasioning actual bodily harm or common assault contrary to s 37 of that Act thus requires a consideration of whether, upon the proper construction of s 19A, an assault is necessarily included in the offence of ‘unlawfully and maliciously inflicting grievous bodily harm.[8]
[7][1976] VR 452 (‘Salisbury’).
[8]Ibid 454.
In Salisbury, the Court went on to hold that the lesser misdemeanours of assault occasioning actual bodily harm and common assault were not included in the charged misdemeanour of maliciously inflicting grievous bodily harm and that the trial judge was correct not to leave the charges as alternatives for the jury.
In Reid v The Queen (‘Reid’),[9] the Court of Appeal considered the question of whether the trial judge had been correct to leave an offence of recklessly causing injury as an alternative to the charged offence of intentionally causing injury. In deciding the question in the negative, the Court followed the decision of the Full Court in Salisbury. In the course of the judgment, the Court stated:
As was explained in R v Salisbury, the question of whether a lesser offence is necessarily included in the definition of a charged offence must be determined upon a consideration of the terms in which the charged offence has been laid. It follows that, in order to be an included offence, the offence must be capable of being established by proof of the same or less than the facts required to establish the charged offence. In the result, an offence is not an included offence unless one can say of it that the elements of every instance of the charged offence necessarily include all the elements of the included offence.[10]
[9][2010] VSCA 234 (‘Reid’).
[10]Ibid [15] (Nettle, Harper and Hansen JJA).
In the course of their judgment in Reid, the Court considered the House of Lords decision of R v Wilson (‘Wilson’)[11]. In that case, their Lordships held that an offence can be an included offence even though it need not be proved to establish the offence charged. It was sufficient if allegations in the indictment were capable of including an allegation of the lesser offence. The Court of Appeal declined to follow this decision.
[11][1984] AC 242.
In Pollard v The Queen,[12] the Court of Appeal followed the decision of Reid. Neave JA, in whose judgment Buchanan and Mandie JJA agreed, stated:
Reid is a recent decision of this Court. Somewhat reluctantly, I consider that I am bound to hold that the offence of sexual penetration of a child under 16 is not an alternative verdict to a count of rape. The offence of sexual penetration of a child under 16 is not ‘capable of being established by proof of the same or less than the facts required to establish the charged offence’, because it requires the proof of an additional element, that is that the complainant was below the specified age. The fact that the complainant’s age was not disputed and that both rape and sexual penetration of a child under 16 required proof that sexual[ly] (sic) penetration had occurred did not overcome this problem.[13]
[12][2011] VSCA 95.
[13]Ibid [34].
In Ness v The Queen,[14] the Court of Appeal confirmed that :
An accused person may be convicted of a lesser alternative offence other than the offence charged, but only if the elements of the charged offence necessarily include all the elements of the alternative offence.[15]
[14][2013] VSCA 84.
[15]Ibid [11].
The Court, following Reid, found that the crime of recklessly causing injury was not a lesser alternative which could properly be left in respect of a charged offence of intentionally causing injury.
Defence submissions
Mr Tehan, in his written and oral submissions before me, submitted that s 239 of the Act represented no impediment to the alternative charges being left, and that the alternatives should be left to ensure a fair trial. If they were not left, the jury would be left with an ‘all-or-nothing’ decision to make, placing them between a rock and a hard place, as the accused’s admitted conduct showed him to have committed serious offences. He submitted the jury would ‘be placed on the horns of a dilemma if there is no alternative verdict available’.[16] Their choice would be between two unconscionable alternatives, namely:
i.Endangering society and their community by releasing at large a dangerous arsonist with extremist views; or
ii.Convicting in order to protect their community, such a verdict being based on evidence which has a limited purpose in the proceeding.[17]
[16]Trial 1557.
[17]Chaarani outline 18(g).
Mr Tehan submitted that s 239 should not be read ‘in a technical sense’,[18] and would encompass offences of arson and attempted arson being left as alternatives to the charged terrorist offences. As he put it, s 239 was:
in relatively general terms to embrace all manner of circumstances which may give rise to the necessity in the interest of justice to leave an alternative offence. And as we’ve submitted, the relevant words are ‘allegations on the indictment’, which include an allegation of another offence, either expressly or impliedly.[19]
[18]Trial 1615.
[19]Trial 1631-2.
He further submitted:
So what’s important, I suppose, your Honour, the allegations which are on the indictment and the allegations of another offence and I don’t want to keep repeating myself, your Honour, but we say that each of the allegations contained within 197[20] is an allegation of a terrorist act which we admit on the indictment before the court and we say that to not leave the alternative is unfair in the way in which that has been explained by the High Court in James v R …[21]
[20]A reference to s 197 of the Crimes Act 1958.
[21]Trial 1632.
Mr Tehan submitted that I should look at the plain language of s 197 of the Crimes Act 1958, and look to the indictment, not the evidence. The allegations contained on the indictment, that is, the terms in which the indictment was drafted, were at the heart of the matter.
In respect of what had been held in Salisbury, Mr Tehan submitted that the situation in this case would come within what was held to be the law in that decision. In this case, he submitted, the offences of arson and attempted arson would be necessarily included in the terrorist offences charged.
In the alternative, Mr Tehan asserted that Salisbury had not been approved universally. He took the Court to the decision of Wilson. On being met with the proposition that Salisbury had been approved by subsequent Victorian authority, Mr Tehan submitted that the leading authority for the elucidation of the principles on this matter was R v Nous (‘Nous’),[22] to which he took the Court in detail. He submitted that some passages in paragraphs 36 and 37 of the judgment in that case :
epitomise that one of the reasons why an alternative should be left is so the jury are not left with this all or nothing situation in a case where the whole conduct of the defence case has been that the accused in question is guilty of some other lesser offence.[23]
[22](2010) 26 VR 96 (‘Nous’).
[23]Trial 1617.
Mr Tehan then took the Court to paragraph 48 in Nous, in which the factors bearing on whether a lesser alternative should be left were summarised. He submitted that each of those matters should be determined in favour of the accused here.
Mr Tehan also relied on what was said by the High Court in James v The Queen (‘James’)[24] in support of his submissions.
[24](2014) 253 CLR 475 (‘James’)
It was submitted that it was highly relevant that the accused sought to have the alternatives left. The accused had, so it was asserted by Mr Tehan, made a forensic choice to open his case to the jury on the basis that he was guilty of causing serious damage to the mosque by fire. As a matter of fairness to his defence case, the alternatives should be left.
Mr Tehan took issue with the prosecution contention that it would not be legally permissible for a State offence to be considered as an alternative to a Commonwealth charged offence. There was no such principle, he submitted. The passage in Fattal v The Queen[25] relied on by the prosecution in support of its submissions was ‘clearly dicta’. As he put it:
It was by no means part of the ratio of the decision on Ground 8, no authority was cited for it and no exposition of the difficulty or power and principle or idea was given by the court…[26]
[25][2013] VSCA 276 (‘Fattal’).
[26]Trial 1687.
Mr Tehan accepted that if the law would permit the alternatives to be left, it would be a matter for me to exercise my discretion in deciding whether or not it would be appropriate to do so. On this score, Mr Tehan disputed that there was any aspect of the conduct of the accused in respect of the issue in question which would speak against the leaving of the alternatives. In particular, counsel submitted that he should not have been expected to raise the issue at any earlier time than he did. As he put it, the appropriate time in the trial to raise alternative offences, in accordance with the Jury Directions Act 2015, was at the end of the prosecution case.
In support of the exercise of discretion in favour of leaving the alternatives, Mr Tehan submitted that there would be no prejudice flowing to the Crown by a decision to leave the alternatives. The Crown case would have been no different. The most important thing, however, was fairness. He submitted that the accused’s case from start to finish had been that he was guilty of arson. The fair thing to do would be to leave arson and attempted arson as alternatives to the charged offences.
Ms Gerry for the accused Moukhaiber invited me to look at s 197 of the Crimes Act 1958 and s 100.1 of the Code together in order to see whether or not ‘s 197 of the Crimes Act can be expressly or impliedly included in the allegation of terrorism in s 100.1 of the Commonwealth Code’.[27]
[27]Trial 1647.
Ms Gerry then proceeded to break down the elements of the respective crimes in support of her contention that the crime of arson would be expressly or impliedly included in the terrorist crime charged. Her submission was that it would be.
In respect of the prosecution contention that a State offence could not be considered as an alternative to a Commonwealth offence under s 239 of the Act, Ms Gerry submitted that this was wrong, and that it would be ‘remarkable’ not to be able to include arson as an alternative offence for engaging in a terrorist act.
As for the issue of the exercise of discretion whether or not to leave the alternative charge, Ms Gerry submitted that the issue had been raised at the appropriate time by the defence, that is, after the close of the prosecution case.
Pointing strongly in favour of an exercise of the discretion to leave the alternative, Ms Gerry submitted that the fair trial of the accused would be imperilled were I not to do so. There would be a real danger that the jury would not want to acquit the accused in light of what they knew about him, and may wrongly convict him of the terrorist offence.
Ms Gerry also made the submission that the Court should, in effect, consider the need to protect the people of Victoria from an inappropriate decision of the prosecution not to lay a charge of arson in the alternative.
Ms Gerry submitted that no prejudice would flow to the prosecution were the alternative left.
Mr Kelly, for Mohamed, having initially informed the Court that there was no alternative offence he sought to have left for the consideration of the jury, changed his approach having heard counsel for the other two accused request that arson be left in the alternative. His submission in the end was, ‘If it’s going to be put for one, your Honour, I say it needs to be put for all’.[28] He made brief submissions in respect of that contention. Those submissions did not focus on the question of whether s 239 of the Act would permit the alternatives to be left. Rather, they focused on the issue of fairness to the accused, and the risk that the jury might return an incorrect verdict due to the unpalatable prospect of a complete acquittal.
[28]Trial 1592.
Prosecution submissions
Mr Robinson, for the Crown, took issue with the lawfulness, and the appropriateness of arson and attempted arson being left as alternatives. He did so under three headings.
First, he submitted that there was no power under s 239 of the Act to leave a State offence as an alternative to a Federal offence. For the purposes of the argument, Mr Robinson accepted that ss 239 and 240 of the Act are ‘picked up and apply to federal criminal proceedings in Victoria by virtue of ss 68 and 79 of the Judiciary Act 1903 (Cth)’.[29]
[29]Crown Outline of Submissions [8].
Mr Robinson submitted, however, that when s 239 applied in this Court under s 68 of the Judiciary Act, it applied ‘as if it were a Federal law for the exercise of Federal power. So the reference to jurisdiction there, to the extent it means offences or might pick up offences, means Federal offences’.
In support of this submission, Mr Robinson referred to the decision of the Court of Appeal in Fattal. This case concerned offenders convicted of doing acts in preparation for or planning a terrorist act under the Code. On appeal one of the applicants argued that a substantial miscarriage of justice resulted from the failure of the trial judge to leave to the jury for their consideration a possible alternative verdict of providing documents or information to facilitate a terrorist act contrary to s 4B of the Terrorism (Community Protection) Act 2003 (Vic). In detailing the difficulties faced at four levels by the submission made on behalf of the applicant, the Court (Buchanan AP, Nettle and Tate JJA), stated, inter alia:
[122] In the third place, there is no authority for the idea, and still less in principle to commend it, that the obligation of a trial judge to leave a lesser included alternative offence to a jury operates as between Commonwealth offences and State offences or vice versa.
[123] In the fourth place, there is (sic) significant body of sentencing authority which implicitly supports the conclusion that there can be no such obligation as between Commonwealth and State offences.
[124] Counsel for El Sayed did not advance any oral argument against those difficulties, saying only that he made the point as a matter of form in order to be able to advance it at a higher level when and if the need to do so may arise. It suffices, therefore, to say that we reject it.
Mr Robinson submitted that the above passages from Fattal have not been reversed or even considered by another Court. There is no reason to doubt the correctness of the Court’s observations in those passages. No authority had been advanced on behalf of the defence in support of the proposition that State offences could be considered as alternatives to Federal offences under s 239 of the Act.
Secondly, Mr Robinson submitted that if his argument about the unavailability of a State offence as an alternative for a Federal offence under s 239 was not accepted, the authorities on s 239 more generally would not permit arson or attempted arson to be considered as alternative verdicts to terrorist offences under that provision. For a charge to be left as an alternative to a charged offence, the lesser or alternative offence must include the elements of the charged, or primary, offence. That was not the case here. As Mr Robinson put it, ‘when the elements of the offence of arson are examined, there’s a significant discontinuity between those elements and the elements of a terrorist act’.[30]
[30]Trial 1674.
He made submissions on the respective elements in support of his contention. He further submitted that in reality, the defence submissions on the point depended on a consideration of the particulars of the evidence relied on in this case, rather than the elements of the respective offences. This was an approach which the authorities make clear is not to be taken.
Thirdly, on the issue of discretion, were I to be against the Crown on the first two points, I should, in the exercise of my discretion under s 240 of the Act, decline to leave the alternatives for a combination of reasons.
One of the relevant matters on that score was the point in the trial at which the request for an alternative to be left was raised. There was nothing in the Jury Directions Act 2015 which would have precluded this issue being raised much earlier in the trial. To wait until the last moment to do so, as the defence had done, told against leaving the alternatives.
In addition, it was submitted that much of what was said by the defence in support of its argument was ‘really no more than an elaborate argument directed at the risk that it’s put that the jury will not comply with directions’.[31] There was no reason to consider that the jury would not comply with directions.
[31]Trial 1680.
Furthermore, contrary to the submissions of the defence, Mr Robinson submitted that considerable prejudice would flow to the prosecution if the alternatives were left. First, the Crown had run its whole case on the basis that the offending was terrorist offending. For additional charges of arson and attempted arson to be added at that late stage of the trial would unquestionably impair the way the jury might consider the Crown case. Secondly, the addition of the alternative offences would require the consideration by the jury of the law of complicity as applying to State offences as well as the law of joint commission applicable to Federal crimes. This would unduly complicate the trial.
Mr Robinson drew the Court’s attention to passages of the plurality of the High Court in James, which he submitted would speak against the inappropriateness of leaving the alternatives in this case.[32]
[32]James (n 23) [37]-[38].
Analysis
Dealing with the second prosecution point first, a consideration of the elements of the crime of arson, as set out, for example, in the Victorian Criminal Charge Book,[33] relative to the elements of the crime of engaging in a terrorist act, upon which I charged the jury in this case without eventual demur on behalf of any accused, shows that the elements of the respective charges bear little if any relation to each other. Mr Robinson’s submission that there was a ‘significant discontinuity’ between the elements of the respective offences was, I believe, well made.
[33]7.5.19.1
Under the law which applies in this State, arson could not be left as an alternative under s 239 unless it is a crime which is ‘necessarily included’[34] in the offence of engaging in a terrorist act. The Court of Appeal in Reid stated that:
…an offence is not an included offence unless one can say of it that the elements of every instance of the charged offence necessarily include all the elements of the included offence.[35]
[34]Salisbury (n 7), 454.
[35]Reid [15].
It is perfectly plain, looked at in this way, that there is no way that arson could be considered to be an included offence in respect of the crime of engaging in a terrorist act. To name just two fundamental differences, not every terrorist act involves the causing of damage, less still, the doing so by the use of fire, and in a terrorist act involving damage to property, there is no requirement that the property ‘belong to another’ as required in the case of arson.
The reality is that these are entirely different offences, consisting of entirely different elements. Mr Robinson colourfully described Federal offences on the one hand and State offences on the other as ‘children of different legislatures’. That is an apt description, and it can readily be seen that the focus and structure of the crimes of engaging in a terrorist act and arson are entirely different.
The authorities relied upon in particular by Mr Tehan in support of his contention that the alternative offences could be left to the jury under s 239 were not, in fact, supportive of that contention in my view. Both Nous and James were concerned with the question whether a lesser alternative offence which was lawfully able to be left, should indeed be left. That is not the point at hand. What is important for present purposes is whether or not the alternatives could lawfully be left. I have decided they could not be.
In my view, arson cannot be said to be an ‘included offence’ to a charge of engaging in a terrorist act. Therefore, it could not be left as an alternative for the consideration of the jury under s 239.
In light of the clear conclusion I have reached on this aspect of the submissions, which would dispose of the matter, I have not seen the need to reach a conclusion on the first point raised by the prosecution, namely, that the law would not permit a State offence to be left as an alternative to a Federal offence under s 239.
There is little authority on the matter, but such authority as there is in Fattal indicates that the prosecution submission was highly likely correct. One of the passages relied on by the prosecution from Fattal, namely, that in paragraph 122, was described by Mr Tehan as ‘clearly dicta’ and ‘by no means the ratio of the decision’. I do not consider that the passage comfortably bears those descriptions. The Court of Appeal, in dismissing the relevant ground of appeal, spoke of four difficulties faced by the applicant, one of which was that set out in paragraph 122. No oral argument was advanced in respect of any of the difficulties on behalf of the applicant, and the ground was therefore rejected. This was no off-the-cuff statement by the Court on some tangential matter. It was a statement of principle from the Court. Were I to feel the need to decide the point, I would consider that what the Court said in Fattal would be strongly supportive of the prosecution submissions in this regard, and I would accept the prosecution submissions.
As I have already said, however, in the circumstances, I see no need to decide this aspect of the arguments before me.
As a matter of completeness, I turn now to the issue of how I would have exercised my discretion, were I to have been of the view that the charges of arson and attempted arson could lawfully be left as alternatives under s 239.
There are a number of aspects of the circumstances of this case which would have pointed against the appropriateness of the alternatives being left for the consideration of the jury.
As I mentioned earlier, the issue of whether or not arson could be an alternative to engaging in a terrorist act was raised by me on the very first day of the pre-trial proceedings in this case on 30 January 2019. The way things were left on that day, without any contribution from Mr Tehan, although some brief mention by Ms Gerry, was that the prosecutor indicated that arson was not an alternative which was open by operation of law, and that a decision had been made by the prosecution not to plead it as an alternative on the indictment.
Although, as I was informed by Mr Tehan, an offer by Chaarani to plead guilty to arson was made on his behalf prior to empanelment of the jury and rejected by the Crown, the important thing is that at no time from 30 January 2019 did Mr Tehan or counsel for any of the other accused ever raise with the Court the necessity or desirability as a matter of fairness of arson being available as an alternative on the indictment. Had the matter been raised, and had I considered that there was any merit to the suggestion, I myself could have taken the matter up with Mr Robinson.
More than two months later, on the occasion of the defence response on the first day of the trial on 3 April 2019, the accused Chaarani, through his counsel, advanced a defence which had not been advanced before. This defence involved the accused admitting most of the elements of the crimes of engaging in a terrorist act and attempting to engage in a terrorist act, admitting the commission of the serious offence of arson, but denying terrorist offending on a limited and, I might say, highly optimistic basis.
Mr Tehan submitted that the ‘forensic choice’ his client had made to open the case in that fashion was something which should lead me to the view that as a matter of fairness to his case, the alternative should be left. As I pointed out to Mr Tehan, however, the forensic choice of Mr Chaarani was a bit more than simply to admit his guilt of arson. It was to do so in the knowledge that there were no arson charges on the indictment, and that such discussions as there had been in Court leading up to that time would give no comfort to him that any such alternatives would ever be left to the jury.
Even after the considerable upheaval caused in the trial by the last-minute change of defence by Chaarani, at no time until the close of the prosecution case did Mr Tehan or any other member of counsel seek to ventilate the question of the desirability of arson being left as an alternative. Both Mr Tehan and Ms Gerry sought to justify this by reliance on s 11 of the Jury Directions Act 2015. They submitted that the discussions pursuant to the Jury Directions Act after the close of the evidence were the appropriate time for the issue of the alternatives to be raised.
I do not accept that submission. In the case of Chaarani, from the time when it was decided that his defence would be as it was, Mr Tehan could have raised with me, at any time, the question of whether that alternative should be left, or whether the Crown should contemplate including it on the indictment. Rather than do that, he waited until the prosecution case had concluded, and the prosecutor was ready to climb to his feet and deliver his closing address. He sat by throughout the whole trial as the prosecution presented its case without any mention of at all of alternative offences, in blissful ignorance of the fact that the defence would seek, at the very last minute, to have alternatives left for the consideration of the jury.
I should say that I, too, was in complete ignorance of the fact that the defence would seek to have alternatives left. I did not give any preliminary directions to the jury on the matter. I did not give any thought to the preparation of directions of law on the alternatives. I presided over the trial, from its commencement until such time as defence counsel made his application to have the alternatives left to the jury, on the understanding that the accused Chaarani was seeking a complete acquittal.
In my view, the fact that this matter did not come to light until the late stage at which it did, in light of the earlier ventilation of the matter in Court by me and the prosecutor, was quite unsatisfactory, and would tell very strongly against the alternatives being left. If it was desired on behalf of Chaarani or any accused that alternatives be left to the jury, that is a matter which could, and should have been ventilated at the earliest possible time. Certainly, in the case of Chaarani, from the time he announced, through Mr Tehan, his defence to the jury, he knew that as things stood, in the end, the jury would have the choice between a conviction on the terrorist offences on the one hand, and a complete acquittal on the other. For that position to change, I would need to permit it. Mr Chaarani, through his counsel, took no step to try to ensure that I might do so until it was way too late.
In respect of the question of whether any prejudice would have flowed to the prosecution by the last-minute leaving of the alternative offences, I believe some prejudice would have been unavoidable. The Crown had conducted this trial from its commencement as one concerning alleged terrorist acts. The prosecution had made a conscious decision not to plead the State offences in the alternative on the indictment. It had not said a word to the jury about those charges. For the alternatives to be foisted upon the Crown at the last minute, just before it was expecting to be addressing the jury at the end of a four week trial, would have been unfair. There would have been the real prospect that the prosecution’s standing, and case, would have suffered in the eyes of the jury.
In addition to the above, the leaving of these alternatives would have necessitated additional directions of law to the jury which would have had the effect of substantially complicating the trial. The required directions on the terrorist crimes themselves were complicated enough. For additional directions to be required to be given about entirely different offences with completely different elements, and requiring different directions about complicity and the law of attempt, would have been most undesirable, and calculated to make the jury’s life more difficult.
The main justification relied on by Mr Tehan in support of the alternatives being left was to avoid the prospect of the jury being put in the invidious position of being confronted with material showing that the accused Chaarani was a potentially dangerous person who had admittedly committed a serious criminal offence, being unenthusiastic about acquitting him, and wrongly convicting him of the terrorist crimes. Ms Gerry made equivalent submissions, and so did Mr Kelly.
To my mind, these submissions credited the jury with no integrity, and no intelligence. I believe that the jurors would be well capable of carrying out their duty consistent with the oaths they had sworn or affirmations they had made to give true verdicts according to the evidence. Particularly in light of the obvious seriousness, to their minds, of the crimes alleged, there is no reason whatsoever to suppose that any of them would have been willing to join in a verdict of guilty in respect of any accused unless satisfied beyond reasonable doubt that the accused in question was guilty.
Finally, on the question of whether any unfairness would be done to any of the accused if the alternative offences were not left, the answer is clearly no. Each stood trial on clearly defined offences. The defence of each accused was clear enough. In the case of Mohamed and Moukhaiber, their defence was that they were not involved in any way in the offending. Identity was in issue. That was a very clear and uncomplicated question for the jury to decide. In the case of Chaarani, he admitted presence, involvement, and the necessary state of mind for terrorist acts. All that was at issue, somewhat implausibly as I have intimated, was whether or not the prosecution could prove that his conduct in lighting the fires was ‘advocacy, protest or dissent’. Again, this was a simple enough issue.
In respect of all accused, there is nothing at all to suggest that there was a necessity for there to be alternatives available for the jury to fairly and properly consider the case against each of them on the charged offences. Had the evidence fallen short in the case of any accused, the jury would undoubtedly have acquitted.
My conclusion is that, even had I decided that it would be permissible as a matter of law to leave the offences of arson and attempted arson as alternatives under s 239 of the Act, I would have considered it to be in the interests of justice that such alternatives not be left for the consideration of the jury under s 240.
Conclusion
For the reasons set out above, I decided that it would be inappropriate for alternative offences to be left for the consideration of the jury.