R v Mohamed, Chaarani and Moukhaiber (Ruling on discharge application)
[2019] VSC 216
•3 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: | 2 April 2019 |
DATE OF RULING: | 3 April 2019 |
CASE MAY BE CITED AS: | R v Mohamed, Chaarani & Moukhaiber (Ruling on discharge application) |
MEDIUM NEUTRAL CITATION: | [2019] VSC 216 |
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CRIMINAL LAW – Jury – Prohibited comment by prosecutor during opening address – Discharge application – Applicable law – No high degree of need for discharge – 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 |
HIS HONOUR:
Introduction
Mr Tehan QC for the accused Chaarani has made an application for the discharge of the jury as a result of a comment made by the prosecutor Mr Robinson QC in his opening address.
Background
The accused is one of three men charged with a terrorism offence constituted by the destruction of a Shia mosque by fire allegedly carried out by the three accused.[1] It is not necessary for the purposes of this ruling to say anything about the facts of the case. I note they are dealt with to some extent in an earlier ruling in this matter.[2]
[1]The other two accused also face a charge of attempting to engage in a terrorist act.
[2]R v Mohamed, Chaarani & Moukhaiber (Ruling 1) [2019] VSC 26.
Following a number of weeks of pre-trial evidence and submissions, a jury was selected on Monday 1 April 2019. Mr Robinson commenced his opening address at 3.38 pm that afternoon. The address, which was closely aligned to the Summary of Prosecution Opening (the Summary) filed in this matter, continued until 3.07 pm on the following afternoon. It was a detailed address which set out in comprehensive and painstaking fashion the circumstantial case made against each of the accused.
In the Summary, there were paragraphs dealing with the police interviews of Mohamed and, later, Moukhaiber. There was also a single paragraph dealing with the interview of the accused Chaarani. It read as follows:
On 22 and 23 December 2016, Chaarani participated in a record of interview and provided ‘no comment’, as was his right.[3]
[3]Summary [351].
A footnote to that paragraph stated, ‘The prosecution does not intend to lead evidence of this before the jury’. In addition, a footnote in the Prosecution Outline of Submissions in the pre-trial proceedings stated:
Chaarani’s police interviews involved ‘no comment answers’ (sic) to all questions. The Crown does not seek to open its case nor to lead evidence that Chaarani was interviewed by police by provide (sic) no comment to questions asked of him, as was his right.[4]
[4]Footnote 80 of Prosecution Outline of Submissions.
Late in his opening address, Mr Robinson informed the jury of the arrest of Mohamed and Chaarani by police on 22 December 2016 and of the execution of search warrants at their homes. He then briefly informed the jury of the substance of a police interview of Mohamed. Even more briefly, he referred to Chaarani, and stated, ‘Mr Chaarani declined, as he is perfectly entitled to, to partake in a record of interview’ (‘the comment’).[5] Later still in the address, Mr Robinson summarised what Moukhaiber had said to the police during his interview.
[5]Transcript 149.
It is the brief statement by Mr Robinson referring to Chaarani declining to be interviewed which is the subject of the application for a discharge.
The law
The law which applies to applications for discharge of a jury as a result of an irregular incident in a trial is clear, and was stated by the Full Court of the Supreme Court of Victoria in R v Boland as follows:
The power of a trial judge to discharge a jury when some incident occurs during a trial which may adversely affect its fairness depends for its exercise upon the principle stated in Winsor v R (1886) LR 1 QB 390. The principle is really one of necessity. There must be evident ‘a high degree of need for such a discharge’, that high degree being ‘such as in the wider sense of the word might be denoted by necessity’: per Erle CJ at p. 394.[6]
[6][1974] VR 849, 866.
The Court of Appeal in R v Miller[7] described the discharge of a jury without verdict as ‘a major and serious step’ which can only be taken when the above test is satisfied.
[7](2000) 112 A Crim R 323 [18].
In The Queen v Buchan[8], the Court of Appeal considered a case in which a judge had refused to discharge a jury due to prejudicial material being led before the jury. In declining to discharge the jury, the trial judge had said that he did not see ‘that there is a high degree of necessity to discharge the jury’. Cummins AJA, with whose judgment the other members of the Court agreed, said, of the terminology used by the trial judge, ‘Doubtless, his Honour meant no high degree of need, necessity not admitting of degree’.[9]
[8][2005] VSCA 207.
[9]Ibid 24.
On the other hand, in R v Halliday,[10] the Court of Appeal, dealing with the appropriate test where an application for a discharge was made, stated:
The basic question therefore is still, as it has always been, whether there is a ‘high degree of necessity’ to discharge the jury. That test was originally stated as far back as Winsor v R. It has been endorsed by the High Court, and is of course binding upon us.[11]
[10](2009) 23 VR 419.
[11]Ibid [65] (citation omitted).
As far as I can discern it, bearing in mind the different terminology used in the authorities, it matters not whether the word ‘necessity’ or ‘need’ is used in the test. Both would mean the same thing in the circumstances.
In Crofts v The Queen,[12] the High Court dealt with a case concerning sexual offending in which previously excluded evidence of offending outside the scope of the charged events emerged from the complainant in re-examination by the prosecutor. That was the subject of a successful ground of appeal before the High Court. The majority, in dealing with that ground, stated:
No rigid rule can be adopted to govern decisions on an application to discharge a jury for an inadvertent and potentially prejudicial event that occurs during a trial. The possibilities of slips occurring are inescapable. Much depends upon the seriousness of the occurrence in the context of the contested issues; the stage at which the mishap occurs; the deliberateness of the conduct; and the likely effectiveness of a judicial direction designed to overcome its apprehended impact. As the court below acknowledged, much leeway must be allowed to the trial judge to evaluate these and other considerations relevant to the fairness of the trial, bearing in mind that the judge will usually have a better appreciation of the significance of the event complained of, seen in context, than can be discerned from reading transcript.[13]
[12](1996) 186 CLR 427.
[13]Ibid 440 (Toohey, Gaudron, Gummow and Kirby JJ).
Although in the minority as to the result of the above ground, Dawson J had the following to say which did not conflict with the judgment of the majority:
Whether or not a jury should be discharged by reason of some incident which occurs during the course of a trial is a matter within the trial judge’s discretion. But it is a discretion which is to be exercised in favour of a discharge only when that course is necessary to prevent a miscarriage of justice. It is in that sense that it has been said that the underlying principle is that of necessity and that ‘a high degree of need for such discharge’ must appear before a discharge will be ordered. When a trial judge’s refusal to discharge a jury is called in question, it must be borne in mind that he or she is ordinarily in a better position than an appeal court to assess whether, having regard to the course which the trial has taken and the atmosphere in which it has been conducted, any prejudice may be dispelled by a clear warning to the jury.[14]
[14]Ibid 432 (citations omitted).
As the matter was put by the Court of Appeal in Benbrika v R[15]:
…the principle established in Boland, and approved in Crofts, places responsibility on a trial judge to determine, in light of the nature of the trial and the extent of the prejudice caused by the improper disclosure of prejudicial material, whether it is necessary to discharge the jury in the interests of ensuring a fair trial. Consequently, as the High Court said in Crofts, there are no rigid rules to govern the outcome of an application for such a discharge.[16]
[15](2010) 29 VR 593.
[16]Ibid [235].
Defence submissions in support of the discharge application
Mr Tehan submitted that the comment in question should not have been made by the prosecutor, and was in breach of the law as set out in Petty & Maiden v The Queen. (‘Petty & Maiden’)[17] As he put it, that case stands for the proposition that the fact of a no comment record-of-interview should not be placed before a jury because it has no probative value and is therefore irrelevant. Mr Tehan likened what had happened here to the situation contemplated in that case.
[17](1991) 173 CLR 95 (Mason CJ, Deane, Toohey and McHugh JJ) (‘Petty & Maiden’).
Petty & Maiden was not a case which concerned the revelation to a jury of the accused having declined to be interviewed, or having made no comment answers upon interview. It concerned a situation in which the two accused, each of whom had earlier provided an explanation to the police implicating the other in a murder, advanced, at trial, accounts attributing the death to accident. The appeal turned on evidence permitted to be led by the prosecution as to the manner of cross examination of a prosecution witness at the committal hearing, and directions of law given by the trial judge. It was asserted by the applicants that their right to silence had been infringed.
In granting special leave but dismissing the appeals, the following was stated by the plurality of the High Court:
That incident of the right of silence means that, in a criminal trial, it should not be suggested, either by evidence led by the Crown or by questions asked or comments made by the trial judge or the Crown Prosecutor, that an accused’s exercise of the right of silence may provide a basis for inferring a consciousness of guilt. Thus, to take an example, the Crown should not lead evidence that, when charged, the accused made no reply. Nor should it be suggested that previous silence about a defence raised at the trial provides a basis for inferring that the defence is a new invention or is rendered suspect or unacceptable.[18]
[18]Ibid 99.
Although what is complained of in this case does not strictly come within the terms of what was held in Petty & Maiden, it has certainly been the practice in this State since at least that time that where an accused person has declined to be interviewed, or when interviewed, has provided ‘no comment’ answers, no mention should be made of that fact to the jury.
I accept, then, for the purposes of this application, that the comment by Mr Robinson should not have been made, as he himself clearly acknowledged.
Mr Tehan submitted that the fact that the jury would know that the other two accused had taken part in interviews in which they had given exculpatory accounts, whereas Chaarani had declined to be interviewed, would create the risk of irremediable prejudice to Chaaranni.
As he put it:
…when they come to consider our case, knowing that the accused, Chaarani, has declined to engage in an interview in the same way, the sort of interview that the others did engage in, the jury will inevitably or at least some of them may approach our case with a degree of scepticism.
In our submission that does create a high degree of need for the jury to be discharged.
Mr Tehan submitted that the early stage of the trial at which the discharge application was made was a matter I should take into account in considering the application.
He further submitted that there was no possible remedy for the problem created by the making of the comment other than the discharge of the jury.
Prosecution submissions in opposition to the discharge application
As indicated already, Mr Robinson acknowledged that he should not have made the comment to the jury set out above. It was something which was inadvertent, as a result of the fact he was basing his address on the text of the Summary. He accepted that the comment was not relevant.
Nevertheless, submitted Mr Robinson, that did not mean that there was any need, less still a high degree of need, for the discharge of the jury.
Mr Robinson submitted that in circumstances where the other two accused had taken part in interviews with the police, even if the comment in question had not been made, it would be inevitable that the jury would know that Chaarani must not have answered questions.
He submitted, further, that his comment could not in any way encourage any form of reasoning by the jury which would be adverse to the accused. This was so because the comment itself made it clear that the failure to take part in the interview was a course to which the accused was perfectly entitled to resort. Furthermore, the jury would know, from the content of the interviews of the other two accused, that no accused had been obliged to say anything in response to questions. Therefore, there would be no way the jury could draw some inference adverse to Chaarani from the course he followed.
Analysis
It must be remembered that the impugned comment by Mr Robinson, which I accept was made inadvertently to the jury, was but one short sentence in a long opening address which occupied almost a day. Were the trial to proceed with this jury, then, depending on whether any direction of law was considered to be necessary in this respect, the subject matter of that comment would not see the light of day again in this trial.
In light of the nature of the prosecution case against Chaarani, the fact of his having exercised his right by declining to be interviewed can only be seen as a matter of very modest significance. The comment, if noted and remembered by the jury, would be viewed accordingly.
There was nothing about the comment which invited the jury to draw an inference adverse to the accused from his failure to take part in an interview with the police. Indeed, in the circumstances of the legal position in which the accused found himself, as the jury would understand it in light of what they will learn from the interviews of the other accused, there is no realistic prospect they would hold this matter against Chaarani in any way.
Furthermore, when the circumstances of the case are looked at in a common sense way, it is perfectly clear that, even had the comment not been made, it would have been obvious to the jury that the police must have sought to interview Chaarani, and he must have either declined to be interviewed, or declined to answer questions. He had, after all, been arrested at the same time as Mohamed, who had been interviewed and subsequently charged with these terrorist offences. Furthermore, Moukhaiber, upon his eventual arrest eight months later, had also been interviewed. The jury would hardly have considered it likely that the police had not sought, also, to interview Chaarani. And yet, they would have heard nothing about any interview, or any request for an interview.
In my opinion, taking into account the way in which the comment emerged, its timing, its import, and all the other surrounding circumstances, this impugned comment, unfortunate though it may have been, represented a modest departure from propriety in an address which was otherwise uncontroversial.
I do not consider there is any realistic prospect that the making of this comment could impinge on the fair trial of the accused Chaarani. That would be so even in the absence of any directions of law in respect of the comment. In those circumstances, even taking into account the very early stage in the trial at which this application is made, there is simply no warrant for the discharge of the jury.
I should say for completeness that I would be open to giving a direction of law in respect of the perfectly legitimate decision of the accused Chaarani to decline to be interviewed should I be requested to do so by either Mr Tehan or Mr Robinson. A decision on that matter can be left for later in the trial.
Conclusion
There is no need, much less a high degree of need, for the discharge of the jury at this time. The application for the discharge of the jury is therefore refused.
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