Supreme Court
New South Wales
- Amendment notes
Medium Neutral Citation: R v Chalabian (No. 13) [2022] NSWSC 470 Hearing dates: 5 April 2022 Date of orders: 6 April 2022 Decision date: 21 April 2022 Jurisdiction: Common Law - Criminal Before: Johnson J Decision: 1. The application to give a Mahmood direction concerning the fact that Reece Walsh was not called by the Crown as a witness at the trial is declined.
2. Subject to any further application by the parties, the directions given to the jury concerning alternative verdicts, including a “no compromise” direction, are to stand.
Catchwords: CRIME – jury trial – trial for money laundering under s.400.3(1) Criminal Code (Cth) – defence application for Mahmood direction as a result of Crown not calling person to give evidence – consideration of relevant factors – Mahmood direction declined – directions given to jury concerning statutory alternative verdicts and “no compromise” direction – charged offence required “belief” that money or property was proceeds of crime – alternative offences involving “recklessness” or “negligence” – possible relevance of s.5.4(4) Criminal Code (Cth) containing extended definition of “recklessness” – consideration of appropriate directions to jury concerning alternative verdicts
Legislation Cited: Crimes Act 1900 (NSW)
Criminal Code (Cth)
Criminal Code (WA)
Cases Cited: Abdallah v R [2016] NSWCCA 275
Ansari v The Queen (2010) 241 CLR 299; [2010] HCA 18
Blackwell v R (2011) 81 NSWLR 119; [2011] NSWCCA 93
Bouch v R (2017) 80 MVR 85; [2017] VSCA 86
Country Care Group Pty Ltd v Director of Public Prosecutions (Cth) [2020] FCAFC 30; (2020) 387 ALR 225
Gilson v The Queen (1991) 172 CLR 353; [1991] HCA 24
Humphreys v R [2020] NSWCCA 144
King v The Queen (2012) 245 CLR 588; [2012] HCA 24
LLW v R (2012) 35 VR 372; [2012] VSCA 54
Mahmood v Western Australia (2008) 232 CLR 397; [2008] HCA 1
Mourkakos v R [2018] VSCA 26
Pratten v R [2014] NSWCCA 117
R v Ansari (2007) 70 NSWLR 89; [2007] NSWCCA 204
R v Barrett (No. 3) [2021] NSWSC 543
R v Chalabian (No. 11) [2022] NSWSC 384
R v Chalabian (No. 12) [2022] NSWSC 432
R v Currie [2002] NSWCCA 126
R v Pureau (1990) 19 NSWLR 372
R v Saengsai-Or (2004) 61 NSWLR 135; [2004] NSWCCA 108
Simms v R (2004) 148 A Crim R 433; [2004] WASCA 237
Texts Cited: Criminal Trial Courts Bench Book, Judicial Commission of New South Wales
Category: Procedural rulings Parties: Regina (Crown)
Sevag Chalabian (Accused)Representation: Counsel:
Solicitors:
Ms T McDonald SC; Ms G Wright SC (Crown)
Mr GA Brady SC Mr A Williams (Accused)
Commonwealth Director of Public Prosecutions (Crown)
Streeton Lawyers (Accused)
File Number(s): 2018/216206 Publication restriction: ---
Judgment
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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).
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- AGLC
- R v Chalabian (No. 13) [2022] NSWSC 470
- Case
- [2022] NSWSC 470
- Decision Date
CaseChat Overview and Summary
The court meticulously examined the factors pertinent to the Mahmood direction, including the significance of the absent witness to the defence's case, the likelihood of obtaining the witness's testimony, and the potential prejudice to the defendant if the direction was not given. The court determined that the Crown's case did not warrant a Mahmood direction, as the absence of the witness did not critically undermine the prosecution's case. Instead, the court provided detailed directions to the jury regarding statutory alternative verdicts, emphasising the requirement of "belief" in the charged offence and the concepts of "recklessness" and "negligence" in the alternative offences. The court also considered the relevance of section 5.4(4) of the Criminal Code (Cth), which provides an extended definition of "recklessness".
Ultimately, the court ruled against issuing a Mahmood direction but ensured the jury was properly informed about the statutory alternative verdicts and the necessity of a "no compromise" direction. This careful consideration aimed to safeguard the fairness of the trial and ensure the jury understood the legal standards applicable to the case. The final orders included detailed directions to the jury concerning the statutory alternative verdicts and the "no compromise" direction, while declining to grant the Mahmood direction.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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