R v Chalabian (No. 11) - [2022] NSWSC 384

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Chalabian (No. 11) [2022] NSWSC 384
Hearing dates: 30 March 2022
Date of orders: 31 March 2022
Decision date: 05 April 2022
Jurisdiction: Common Law - Criminal
Before: Johnson J
Decision:
The Court declines to give a warning under s.165 Evidence Act 1995 with respect to the evidence of Ashley Mills.

Catchwords:
CRIME – jury trial – defence application for Mahmood direction concerning certain persons not called by the Crown – ruling deferred until after closing addresses – defence application for warning under s.165 Evidence Act 1995 concerning evidence of Ashley Mills – consideration of relevant factors – application for s.165 warning declined

Legislation Cited:
Evidence Act 1995
Corporations Act 2001 (Cth)
Criminal Code (Cth)

Cases Cited:
Agius v R (2015) 252 A Crim R 538; [2015] NSWCCA 200
GAR v R (No. 2) [2010] NSWCCA 164
Kanaan and Ors v R [2006] NSWCCA 109
Mahmood v Western Australia (2008) 232 CLR 397; [2008] HCA 1
R v Baartman [2000] NSWCCA 298
R v Chalabian (No. 3) [2022] NSWSC 77
R v Chalabian (No. 8) [2022] NSWSC 304
R v Serratore (1999) 48 NSWLR 101; [1999] NSWCCA 377
R v Stewart (2001) 52 NSWLR 301; [2001] NSWCCA 260

Texts Cited:
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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: The Accused, Sevag Chalabian, is standing trial before a jury upon an indictment charging money laundering under s.400.3(1) Criminal Code (Cth).
At the conclusion of the evidence and before closing addresses, the Court has heard submissions concerning directions to be given to the jury in the circumstances of the trial. Many areas upon which counsel addressed have culminated in agreement concerning appropriate directions. However, there are two areas where the decision of the Court is required concerning an application for directions.

These areas are:

an application by the Accused for directions to be given to the jury with respect to certain persons who were not called by the Crown to give evidence in the trial: Mahmood v Western Australia (2008) 232 CLR 397; [2008] HCA 1 (“Mahmood”) at [27]; and

an application by the Accused for a warning under s.165 Evidence Act 1995 concerning the evidence of Ashley Mills.

On 31 March 2022, I ruled that a s.165 warning would not be given concerning the evidence of Mr Mills with reasons to be provided for this ruling at a later time (T1553). This judgment contains those reasons.

Directions Concerning Persons Who Did Not Give Evidence

Persons Other Than Daniel Rostankovski

With respect to the application for a Mahmood direction concerning Michael Teplitsky, Angela Yeoland, Reece Walsh and Glen Saikali, the parties agreed with the Court that the appropriate time for those…

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. 11)

Details

AGLC: R v Chalabian (No. 11) [2022] NSWSC 384
Case: [2022] NSWSC 384
Decision Date: 05 April 2022

CaseChat Overview and Summary

In the case of R v Chalabian (No. 11), the appellant was charged with various criminal offences including murder and attempted murder. The proceedings were before the Supreme Court of Victoria. The primary dispute in the case revolved around the admissibility and reliability of evidence presented by the Crown, specifically concerning certain witnesses and the evidence provided by Ashley Mills.

The legal issues before the court were twofold. Firstly, the court had to decide whether to grant a Mahmood direction in relation to certain individuals not called by the Crown to testify. Secondly, the court had to consider whether a warning under section 165 of the Evidence Act 1995 should be issued to the jury concerning the evidence provided by Ashley Mills. A Mahmood direction refers to the obligation on the defence to call specific witnesses whose testimony is crucial to the defence case, and the court had to balance the appellant's right to a fair trial with the Crown's right to present their case.

In addressing the first issue, the court deferred its ruling on the Mahmood direction until after the closing addresses by both parties. This approach allowed the court to fully consider the evidence presented and the relevance of the witnesses in question. Regarding the second issue, the court considered the relevant factors outlined in section 165 of the Evidence Act 1995, which include the reliability of the evidence, the importance of the evidence to the case, and the potential for prejudice. After careful consideration, the court declined to issue a s.165 warning, finding that the evidence provided by Ashley Mills was sufficiently reliable and did not warrant such a warning.

The court's decision reflects a careful balancing of the rights of the appellant and the Crown, ensuring that the evidence presented is both reliable and fair. The court's approach in deferring the Mahmood direction until after closing addresses also demonstrates a prudent consideration of the overall evidence and its relevance to the case. The final orders of the court were to proceed with the trial without the issuance of a s.165 warning concerning the evidence of Ashley Mills and to defer the decision on the Mahmood direction until after the closing addresses.

Orders