R v Chalabian (No 2)

[2022] NSWSC 63

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

R v Chalabian (No. 2) [2022] NSWSC 63

Hearing dates:

1 February 2022

Date of orders:

1 February 2022

Decision date:

01 February 2022

Jurisdiction:

Common Law - Criminal

Before:

Johnson J

Decision:

Order made under Court Suppression and Non-publication Orders Act 2010 in accordance with the Notice of Motion dated 12 January 2022.

Catchwords:

CRIME – related jury trials to take place in close proximity – trial for money laundering to be followed by tax fraud trial – application for temporary non-publication order concerning first trial to protect administration of justice with respect to second trial – accused in first trial not an accused in second trial – common features and persons in both trials – substantial media interest in both trials – test of necessity – importance of open justice principle – temporary non-publication order made

Legislation Cited:

Court Suppression and Non-publication Orders Act 2010

Criminal Code (Cth)

Cases Cited:

Munshizada v R [2021] NSWCCA 307

Nationwide News Pty Ltd v Qaumi (2016) 93 NSWLR 384; [2016] NSWCCA 97

Texts Cited:

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Category:

Procedural rulings

Parties:

Regina (Crown)
Sevag Chalabian (Accused)

Representation:

Counsel:
Ms T McDonald SC; Ms G Wright (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:

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Judgment

1. JOHNSON J: By Notice of Motion dated 12 January 2022, the Crown seeks orders under the Court Suppression and Non-publication Orders Act 2010 (“CSNO Act”) with respect to the forthcoming trial of the Accused, Sevag Chalabian, scheduled to commence in this Court on 21 February 2022.

2. The effect of the application is to seek a temporary blanket non-publication order with respect to the entirety of the evidence and proceedings against Mr Chalabian because of a pending related trial concerning a number of persons, listed to commence before Payne J (sitting as a Judge in the Common Law Division) on 4 April 2022 (“the second trial”).

3. The charge upon which Mr Chalabian is to stand trial is one of money laundering under s.400.3(1) Criminal Code (Cth).

4. In support of the Notice of Motion, the Crown relies upon the affidavit of Anthony John Powell dated 12 January 2022.

5. The Crown's application is not opposed by Mr Chalabian. Media interests have been put on notice of the Crown's application by various steps which have been taken since the filing of the Notice of Motion on 12 January 2022. The Notice of Motion, and a redacted version of the affidavit of Mr Powell, were made available to the Court's Media Officer to assist any media interests to understand the nature of the application, in the event that media interests wish to appear and be heard today on the application.

6. There has been no appearance on behalf of media interests to be heard on the application. I am satisfied that media interests are sufficiently on notice of the application through the steps which have been taken.

7. Mr Chalabian is not one of the accused persons in the second trial to commence before Payne J in April 2022. The accused persons in that trial are Adam Cranston, Lauren Cranston, Dev Menon, Jason Onley and Patrick Willmott. They are charged with conspiracy to commit an act intending to dishonestly cause a loss to the Commonwealth contrary to s.135.4(3) Criminal Code (Cth) and conspiring to deal with money or property valued at $1 million or more, believing it to be the proceeds of crime, contrary to s.11.5(1) and s.400.3(1) Criminal Code (Cth).

8. It is not necessary to set out, in detail, the subject matter of the two trials. It is sufficient to observe that the Crown allegation in the trial of Mr Chalabian is that a sum in excess of $20 million was placed into a trust account operated by his solicitor's firm, in circumstances which were said to involve money laundering of the proceeds of crime, being the proceeds of crime committed by the persons whom I have identified as the accused persons in the second trial, as well as Daniel Hausman and Daniel Rostankovski, who are persons whose names will arise in both trials.

9. There is a substantial factual overlap between the two trials. There is at least one witness who will be called by the Crown in both the trial of Mr Chalabian and the second trial. The affidavit of Mr Powell identifies in some detail the overlapping areas between the two trials.

10. Importantly, however, there are areas where evidence (which refers to the accused persons in the second trial) is to be adduced by the Crown in the trial of Mr Chalabian, but which will not be adduced in the second trial to commence in April 2022. In this way, there is a risk that publication by the media of evidence in Mr Chalabian’s trial may cause significant prejudice to the administration of justice in the second trial.

11. Both the trial of Mr Chalabian and the second trial have been delayed as a result of the COVID-19 pandemic. In the last two years, for a number of reasons, including the COVID-19 pandemic, it was not possible to bring to trial the second trial listed in this Court. The second trial is scheduled to run for five to six months.

12. The subject matter of both trials is likely to attract media interest. The Plutus tax fraud, as it has come to be known, has attracted considerable media interest in the past. In the absence of a non-publication order, there would be inevitable publicity of the trial of Mr Chalabian, with that publicity taking place very shortly before the commencement of the second trial. I should note that all the charges in these two trials are under Commonwealth law so that each trial must proceed with a jury and there is no capacity for a Judge-alone trial.    

13. The effect of the application of the Crown is to prohibit the publication of anything said in the trial of Mr Chalabian until verdicts have been returned in the second trial or until 5.00 pm on 9 December 2022, or until further order of the Court.

14. The orders sought by the Crown would not have the effect of preventing media representatives following the trial of Mr Chalabian. Because of the ongoing COVID-19 pandemic, the media will be able to follow the trial of Mr Chalabian using the virtual links which have operated in trials in recent months. What would be prohibited, however, is any reporting of the trial until the expiration of the orders sought by the Crown, if those orders are made.

15. Non-publication orders of this type have been made in other proceedings, usually in the context of what are described as back-to-back trials. Examples of these include the murder trials against Farhad Qaumi and a number of other persons which took place before Hamill J in 2016 where there were a series of trials. A further example where orders of this type have been made is a series of murder trials against Siar Munshizada and others, with those trials proceeding before Fagan J in 2020 and 2021.

16. The relevant principles to be applied may be found in the decisions of the Court of Criminal Appeal in Nationwide News Pty Ltd v Qaumi (2016) 93 NSWLR 384; [2016] NSWCCA 97 and in Munshizada v R [2021] NSWCCA 307. The Court must consider whether the order is necessary to achieve one of the objectives identified in s.8(1)(a)-(e) CSNO Act. The word "necessary" is a strong word and indicates a legislative intention that orders should only be made in exceptional circumstances. It will not suffice that the order is convenient, reasonable or sensible, or serves some general notion of public interest. Section 6 CSNO Act requires a Court, in determining whether to make an order, to take into account the public interest in open justice as a primary objective of the administration of justice. Open justice is of fundamental importance in the administration of justice in the Australian legal system. However, there are other fundamental principles underlying the proper administration of justice in Australia, including the right to a fair trial. In some circumstances, those principles come into conflict. What I have just said emerges from the summary of principles in Nationwide News Pty Ltd v Qaumi at [29]-[36].

17. In that decision, the Court of Criminal Appeal said (at [62]-[77]) that, in an exceptional case, an order prohibiting publication of the evidence and submissions in a criminal trial until the conclusion of a second related trial may be necessary to prevent prejudice to the proper administration of justice or because the public interest significantly outweighs the public interest in open justice. In that case, the Court said that delaying the second trial may not be sufficient to prevent prejudice to the administration of justice. It is essential that persons charged with criminal offences have those charges determined as early as possible in the criminal justice system. People should not be denied their liberty, it has been said, for lengthy periods pending trial. All the accused persons in the present trial and in the second trial are on bail. There is no question of extended loss of liberty. There is, however, the very real concern about the history of these matters and any potential delay if publication of what was said in the trial of Mr Chalabian caused a delay in the commencement of the second trial.

18. There is a strong public interest in both trials proceeding as presently scheduled without delay, and without the real risk of interference with the administration of justice, which may occur if the evidence of the trial of Mr Chalabian was publicised before the commencement date for the second trial.

19. I am well satisfied that it is necessary to make the orders as sought by the Crown. The foundation for the order is that contained in s.8(1)(a) and (e) CSNO Act. The order is necessary to prevent prejudice to the proper administration of justice in the trial of Mr Cranston and others scheduled to commence in April 2022. In addition, it is otherwise necessary in the public interest for the non-publication order sought to be made. That public interest significantly outweighs the public interest in open justice. I am not satisfied that any lesser or narrower order will serve to protect the proper administration of justice in the circumstances of this case.

20. I emphasise that this is a temporary order. There will be a capacity to publicise the trial of Mr Chalabian, and the evidence given in it, at a later time and when the risk to the administration of justice in the second trial has passed.

21. It is appropriate that the order which is sought should operate throughout the Commonwealth of Australia and that there be a temporal specification in the order as to the circumstances in which it will operate.

22. Accordingly, for these reasons I make Order 1 as sought in the Notice of Motion dated 12 January 2022.    For the benefit of those listening I will read out the terms of the order.

[Order read].

23. The order has now been made. That order will be transmitted in due course to the Court's Media Officer so that it can be made known to media interests.

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Amendments

21 March 2023 - Publication restriction lifted - judgment published.

Decision last updated: 21 March 2023