R v Chalabian (No. 10) - [2022] NSWSC 316

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Chalabian (No. 10) [2022] NSWSC 316
Hearing dates: 22 March 2022
Date of orders: 22 March 2022
Decision date: 22 March 2022
Jurisdiction: Common Law - Criminal
Before: Johnson J
Decision:
1. Juror G is discharged under s.53B(d) Jury Act 1977.
2. The trial of the Accused is to continue with a jury of 12.

Catchwords:
CRIME – jury trial – trial commenced with 15 jurors – 13 jurors remaining – member of household of juror tested positive for COVID-19 – household member a “diagnosed person” under Public Health (COVID-19 Self-Isolation) Order 2022 – juror required to self-isolate for seven days - jurors not “critical workers” under Critical Worker Exemption – juror discharged under s.53B(d) Jury Act 1977 – order under s.53C that trial continue with jury of 12

Legislation Cited:
Criminal Code (Cth)
Jury Act 1977
Jury Amendment (Additional Jurors) Regulation 2022

Cases Cited:
R v Chalabian (No 5) [2022] NSWSC 174
R v Chalabian (No 7) [2022] NSWSC 227

Texts Cited:
Public Health (COVID-19 Self-Isolation) Order 2022
Critical Worker Exemption from the Public Health (COVID-19 Self-Isolation) Order 2022 (No 1)

Category: Procedural rulings
Parties: Regina (Crown)
Sevag Chalabian (Accused)
Representation:
Counsel:
Ms T McDonald SC; Ms G Wright SC (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: On 21 February 2022, a jury was empanelled for a trial of the Accused, Sevag Chalabian, upon a charge of money laundering under s.400.3(1) Criminal Code (Cth). As the estimate for the trial was about five weeks until the jury retired to consider a verdict, a jury of 15 was empanelled.
On the third day of the trial, two members of the jury were discharged for reasons explained in R v Chalabian (No 5) [2022] NSWSC 174. One of the jurors discharged on that day had tested positive for COVID-19 on rapid antigen testing. The Court determined to proceed with the trial with a jury of 13.
This morning, the Sheriff informed the Court that a household member of a juror had tested positive for COVID-19. That juror has not attended Court. The information available to the Court is that the juror has not tested positive him or herself and has no symptoms. The juror, however, is a member of a household of someone who has tested positive with that person being a “diagnosed person”.
Under the Public Health (COVID-19 Self-Isolation) Order 2022 (“the Self-Isolation Order”) (MFI29) issued by the Minister for Health on 2 March 2022, the absent juror is required to isolate for seven days in these circumstances. So much is made clear by a reading of Clauses 7, 8 and 9 of the Self-Isolation Order.
Allowance has been made for a “critical worker” exemption from that obligation.
On 15 March 2022, the Minister for Health issued the “Critical Worker Exemption from…

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. 10)

Details

AGLC: R v Chalabian (No. 10) [2022] NSWSC 316
Case: [2022] NSWSC 316
Decision Date: 22 March 2022

CaseChat Overview and Summary

The case of R v Chalabian (No. 10) before the Supreme Court involved a significant issue regarding the continuation of a jury trial amidst the challenges posed by the COVID-19 pandemic. The accused, Chalabian, faced criminal charges, and the trial had commenced with a full complement of 15 jurors. However, the trial encountered difficulties when one of the jurors had to self-isolate for seven days after a member of their household tested positive for COVID-19. This household member was classified as a "diagnosed person" under the Public Health (COVID-19 Self-Isolation) Order 2022. The juror, not being a "critical worker" under the Critical Worker Exemption, was required to isolate, reducing the jury to 13 members. The court had to decide whether the trial could proceed with fewer than 12 jurors.

The central legal issue before the court was whether the trial could legally continue under the circumstances. Specifically, the court needed to determine if the provisions of the Jury Act 1977 allowed for the continuation of the trial with a reduced jury size and if there was any authority to discharge the juror and permit the trial to proceed with the remaining 12 jurors. The court examined the relevant sections of the Jury Act 1977, particularly sections 53B(d) and 53C, to address these concerns.

The court concluded that the provisions of section 53B(d) of the Jury Act 1977 allowed for the discharge of the juror due to their need to self-isolate. Furthermore, section 53C of the Act authorised the court to order that the trial continue with a jury of 12. The court recognised the importance of ensuring that the trial could proceed in a manner that balanced the rights of the accused with the necessity of adhering to public health directives. Consequently, the court issued an order under section 53C, permitting the trial to continue with the remaining 12 jurors. The trial proceeded as ordered, ensuring that justice could be administered despite the exigencies of the pandemic.

Orders