R v Chalabian (No. 1) - [2020] NSWSC 1341

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Chalabian (No. 1) [2020] NSWSC 1341
Hearing dates: 1 October 2020
Date of orders: 1 October 2020
Decision date: 01 October 2020
Jurisdiction: Common Law - Criminal
Before: Johnson J
Decision:
1. The trial of the Accused, Sevag Chalabian, listed for 12 October 2020 is vacated.
2. The proceedings are to be placed in the Arraignments List on 6 November 2020.
3. The Accused’s bail is continued.

Catchwords:
CRIMINAL LAW - Accused to stand trial for two counts of dealing with the proceeds of crime under s.400.3(1) Criminal Code (Cth) - Crown inform Court in 2019 that a co-accused (who is pleading guilty) will not be called as a Crown witness - Crown decision announced after substantial draft statement obtained by police from co-accused before process discontinued - trial of Accused fixed to commence on 12 October 2020 - arrangements made for jury trial to proceed in special conditions resulting from COVID-19 pandemic - Crown application to vacate trial made on 4 September 2020 - Crown had decided to call co-accused at trial of Accused - change of Crown position since 2019 - Accused consents to Crown application - whether trial should be vacated - public interest in trial proceeding on date fixed for trial - heightened public interest because of special arrangements made for trial - very late application based on reversal of Crown position - detrimental impact of late application upon administration of justice - reluctant decision made to vacate trial given joint position of parties

Legislation Cited:
Crimes Act 1900 (NSW)
Criminal Code (Cth)
Criminal Procedure Act 1986 (NSW)

Cases Cited:
R v Alexandroaia (1995) 81 A Crim R 286
R v Barrett (No. 1) [2020] NSWSC 793
Slotboom v R [2013] NSWCCA 18

Texts Cited:
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Category: Procedural rulings
Parties: Regina (Crown)
Sevag Chalabian (Accused)
Representation:
Counsel:
Ms S Dowling SC; Ms G Wright (Crown)
Mr GA Brady SC; Mr A Williams (Accused)
Solicitors:
Commonwealth Director of Public Prosecutions (Crown)
Streeton Lawyers (Accused)

File Number(s): 2018/216206
Publication restriction: ---

Judgment

JOHNSON J: By Notice of Motion filed 4 September 2020, the Crown applies for the trial of the Accused, Sevag Chalabian, fixed to commence on 12 October 2020, to be vacated.
The legal representatives for Mr Chalabian (who is on bail) have indicated that he consents to the Crown application.
It remains a matter for the Court to determine whether the trial of Mr Chalabian should be vacated.

Background to the Application

Mr Chalabian is to stand trial upon an indictment charging two offences under the Criminal Code (Cth):

Count 1 - Between about 1 February 2017 and about 23 March 2017, at Sydney in the State of New South Wales and elsewhere, he did jointly commit an offence with Daniel Hausman and Daniel Rostankovski, in that he did deal with money that was, and that he believed to be, proceeds of crime and at the time of dealing the value of…

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.

Continue reading R v Chalabian (No. 1)

Details

AGLC: Decision restricted [2020] NSWSC 1341
Case: [2020] NSWSC 1341
Decision Date: 01 October 2020

CaseChat Overview and Summary

The case before the court involves the respondent, Chalabian, who is to stand trial for two counts of dealing with the proceeds of crime under section 400.3(1) of the Criminal Code (Cth). The Crown had previously informed the court in 2019 that a co-accused, who is now pleading guilty, would not be called as a Crown witness. This decision came after the police had obtained a substantial draft statement from the co-accused prior to the discontinuation of the proceedings against them. The trial of Chalabian was fixed to commence on 12 October 2020, with arrangements made for the jury trial to proceed under special conditions due to the COVID-19 pandemic. However, the Crown made an application on 4 September 2020 to vacate the trial, revealing that they intended to call the co-accused as a witness at the trial of Chalabian, a change in position from 2019. Chalabian consented to the Crown's application to vacate the trial.

The primary legal issue before the court was whether the trial should proceed as scheduled or be vacated due to the Crown's late change of position. The court considered the public interest in the trial proceeding on the fixed date, especially given the special arrangements necessitated by the pandemic. The court also weighed the very late application to vacate the trial, which was based on a reversal of the Crown's earlier position, and the detrimental impact this had on the administration of justice. The court recognised the difficulty of the decision but ultimately concluded that the trial should be vacated to accommodate the Crown's change in strategy. The decision was reluctant, made in light of the joint position of the parties involved.

The court ordered that the trial be vacated. The reasoning behind this decision included the very late timing of the Crown's application, the detrimental impact on the administration of justice, and the need to accommodate the Crown's change in position. The court noted that the public interest in the trial proceeding on the fixed date was heightened due to the special conditions in place because of the COVID-19 pandemic. The court balanced these considerations and concluded that vacating the trial was the appropriate course of action. The orders included the vacating of the trial and the setting of a new date for the trial, subject to the availability of the co-accused as a witness.

Orders