R v Mohamed, Chaarani and Moukhaiber (Ruling 9) - [2019] VSC 520

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2019] VSC 520
Decision Date: 30 April 2019

CaseChat Overview and Summary

The case before the court involved three defendants: Mohamed, Chaarani, and Moukhaiber, who were charged with various terrorist offences under the Criminal Code. The nature of the dispute centred around the appropriateness of leaving certain offences, specifically arson and attempted arson, to the jury as alternatives. This issue arose after the conclusion of the Crown's case when counsel for Chaarani first raised the matter, which was then joined by the other accused. The court was required to decide whether these alternatives constituted 'included offences' and whether it was permissible to have a State offence as an alternative to a Commonwealth offence. Additionally, the court had to consider whether it was appropriate to leave these alternatives to the jury, even if doing so was legally permissible.

The court's reasoning was grounded in the statutory provisions of the Criminal Procedure Act 2009, particularly sections 239 and 240. These sections outline the criteria and discretions available to the court in determining whether to leave certain offences to the jury. The court found that the alternatives proposed did not meet the criteria of 'included offences'. Furthermore, it was determined that it was not permissible to have a State offence as an alternative to a Commonwealth offence. The court also exercised its discretion under the statute, deciding that it was not appropriate to leave these alternatives to the jury, despite the legal possibility.

The court concluded that the proposed alternatives should not be left to the jury. This decision was based on the interpretation of the statutory framework and the specific circumstances of the case. The court's ruling was consistent with the requirements of the Criminal Procedure Act 2009 and the principles of legal certainty and fairness. The final orders reflected the court's decision not to leave the proposed alternatives to the jury, thereby setting a clear precedent for similar cases in the future.

Orders