R v Chalabian (No. 12) - [2022] NSWSC 432

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Chalabian (No. 12) [2022] NSWSC 432
Hearing dates: 11 April 2022
Date of orders: 11 April 2022
Decision date: 11 April 2022
Jurisdiction: Common Law - Criminal
Before: Johnson J
Decision:
1. The applicant juror is discharged under s.53B(d) Jury Act 1977.
2. Pursuant to s.53C Jury Act 1977, the trial is to proceed with a jury of 11.

Catchwords:
CRIME – jury trial – trial for money laundering under s.400.3(1) Criminal Code (Cth) – jury retired to consider verdict – three jurors test positive for COVID-19 – consideration of appropriate way forward – trial adjourned for eight days

Legislation Cited:
Criminal Code (Cth)
Jury Act 1977
Jury Regulation 2015
Public Health (COVID-19 Self-Isolation) Order 2022

Cases Cited:
Brownlee v The Queen (2001) 207 CLR 728; [2001] HCA 36
Phan v R [2018] NSWCCA 225
R (Cth) v Petroulias (No. 33) [2007] NSWSC 1447
R v Chalabian (No 5) [2022] NSWSC 174
R v Chalabian (No 10) [2022] NSWSC 316

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 A Williams (Accused)
Solicitors:
Commonwealth Director of Public Prosecutions (Crown)
Streeton Lawyers (Accused)

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

Judgment

JOHNSON J: The trial of the Accused, Sevag Chalabian, upon a charge of money laundering under s.400.3(1) Criminal Code (Cth), commenced before a jury of 15 on 21 February 2022.
A jury of 15 had been empanelled because of the estimate for the trial, which was about five weeks until the jury retired to consider a verdict: s.19(2) Jury Act 1977; Clause 4A Jury Regulation 2015.
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 other juror had unrelated health problems. The Court determined to proceed with the trial with a jury of 13.
On 22 March 2022, the Court was informed that a member of a household of a juror had tested positive for COVID-19. Because of the requirement to self-isolate under the Public Health (COVID-19 Self-Isolation) Order 2022, that juror was discharged and the trial continued with a jury of 12: R v Chalabian (No 10) [2022] NSWSC 316.
As noted in R v Chalabian (No. 10) at [14]-[15], the COVID-19 pandemic has had a repeated impact on this trial since its commencement. It has struck the Accused, the Bar table, jurors, and my Tipstaff.
Last Wednesday, 6 April 2022, the jury of 12 retired to consider their verdict.
On Friday 8 April 2022, the Court was informed that a member of the jury had tested positive to COVID-19 on rapid antigen testing. In addition, a second member of the jury had tested negative on rapid antigen testing, but was…

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. 12)

Details

AGLC: R v Chalabian (No. 12) [2022] NSWSC 432
Case: [2022] NSWSC 432
Decision Date: 11 April 2022

CaseChat Overview and Summary

The matter before the court involved a jury trial for the defendant, Chalabian, on charges of money laundering under section 400.3(1) of the Criminal Code (Cth). The jury had retired to consider their verdict when it was discovered that three jurors had tested positive for COVID-19. The court was faced with the issue of how to appropriately proceed with the trial given this situation. The court needed to decide whether to continue the trial with a reduced jury, declare a mistrial, or adjourn the trial to a later date. This decision was influenced by public health considerations, the potential impact on the fairness of the trial, and the legal rights of the defendant.

The court considered the legal implications of proceeding with a reduced jury, which could potentially compromise the fairness and impartiality of the trial. It also weighed the rights of the defendant, who had the right to be tried by an impartial jury, and the risk of further delay caused by the pandemic. The court also took into account the public health guidelines and the need to protect the health of all participants in the trial. Ultimately, the court determined that the appropriate course of action was to adjourn the trial for eight days. This decision was based on the need to ensure the safety of all individuals involved, while also balancing the defendant's right to a fair trial.

The court found that adjourning the trial for eight days was the most suitable option to balance the safety of the jurors and the fairness of the trial. The court acknowledged the difficulties posed by the pandemic but emphasised the importance of adhering to the principles of natural justice. By adjourning the trial, the court aimed to provide adequate time for the jurors to recover from the illness and for the court to assess the situation further. The court also made clear that the defendant's rights would be protected and that the trial would resume as soon as it was safe and feasible to do so. This decision demonstrated the court's commitment to upholding the rule of law while also considering the extraordinary circumstances caused by the COVID-19 pandemic.

Orders