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: ---

Judgment

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.
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”).
The charge upon which Mr Chalabian is to stand trial is one of money laundering under s.400.3(1) Criminal Code (Cth).
In support of the Notice of Motion, the Crown relies upon the affidavit of Anthony John Powell dated 12 January 2022.
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.
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…

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.

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Details

Case: [2022] NSWSC 63
Decision Date: 01 February 2022

CaseChat Overview and Summary

In the case of R v Chalabian (No 2), the respondent sought a temporary non-publication order concerning the first trial, which was a trial for money laundering, to protect the administration of justice with respect to a second trial for tax fraud. The second trial was to follow shortly after the first and would involve a different accused. Both trials, however, shared common features and persons, and there was substantial media interest in both. The application was made before the Supreme Court of New South Wales.

The legal issues before the court included whether the temporary non-publication order was necessary to ensure the administration of justice in the second trial and how to balance the open justice principle against the potential prejudice caused by media coverage. The court considered the extent of common features and persons in both trials, the nature of the offences, and the potential for prejudice in the second trial due to media coverage of the first. The court also had to determine whether the open justice principle could be sufficiently protected in the second trial without the need for a non-publication order.

The court held that the test of necessity required the respondent to demonstrate that there was a real risk of substantial prejudice to the second trial that could not be mitigated by other means. Given the common features and persons in both trials, and the significant media interest, the court found that there was a real risk of substantial prejudice. It was determined that the open justice principle could be adequately protected through the use of other measures, such as jury sequestration, direction to the jury, and careful jury selection. The court made a temporary non-publication order to protect the administration of justice in the second trial.

The court made a temporary non-publication order concerning the first trial to protect the administration of justice in the second trial. This order was to remain in place until the conclusion of the second trial.

Orders