Legal Research
Cases
R v Chalabian (No. 13)

R v Chalabian (No. 13)

Case [2022] NSWSC 470 21 April 2022

No judgment structure available for this case.

Type to search within this case.

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
Stanton v The Queen (2003) 77 ALJR 1151; [2003] HCA 29

Texts Cited:
Criminal Trial Courts Bench Book, Judicial Commission of New South Wales

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).
On 6…

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. 13)

Details

AGLC: R v Chalabian (No. 13) [2022] NSWSC 470
Case: [2022] NSWSC 470
Decision Date: 21 April 2022

CaseChat Overview and Summary

The case of R v Chalabian (No. 13) was heard in the Federal Court of Australia, where the defendant was on trial for money laundering under section 400.3(1) of the Criminal Code (Cth). The defence sought a Mahmood direction due to the Crown's failure to call a specific individual to testify. The central legal issues involved the application of the Mahmood direction, the appropriateness of jury directions concerning statutory alternative verdicts, and the necessity of a "no compromise" direction to the jury.

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