R v Chalabian (No. 4) - [2022] NSWSC 165

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Chalabian (No. 4) [2022] NSWSC 165
Hearing dates: 23 February 2022
Date of orders: 23 February 2022
Decision date: 23 February 2022
Jurisdiction: Common Law - Criminal
Before: Johnson J
Decision:
Notice of Motion dismissed.

Catchwords:
CRIME – jury trial – charge of money laundering under s.400.3(1) Criminal Code (Cth) – entire trial subject to time limited non-publication order to protect administration of justice in future related trial of other accused persons – Applicant Witness to be called by Crown at both trials – Applicant Witness seeks further protective orders by way of a non-publication order, non-disclosure or suppression order and closed court order – Applicant Witness housed in Special Purpose Centre – calculus of risk approach applied - test of necessity under s.8 Court Suppression and Non-publication Orders Act 2010 not met – no proper basis for orders sought – application refused

Legislation Cited:
Court Suppression and Non-publication Orders Act 2010
Criminal Code (Cth)

Cases Cited:
Attorney General (NSW) v Kaddour and Turkmani [2001] NSWCCA 456
R v Chalabian (No 2) [2022] NSWSC 63
R v Popovic; R v Koloamatangi (No 1) [2017] NSWSC 1017

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 GA Brady SC; Mr A Williams (Accused)
Mr PD Lange (Applicant Witness)
Mr BJ May, Solicitor (Australian Federal Police)
Solicitors:
Commonwealth Director of Public Prosecutions (Crown)
Streeton Lawyers (Accused)
Hanna Legal (Applicant Witness)
Australian Federal Police (Australian Government Solicitor)

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

Judgment

JOHNSON J: The Court has embarked upon a trial of the Accused, Sevag Chalabian, upon a charge of money laundering under s.400.3(1) Criminal Code (Cth). The trial commenced with the empanelment of a jury on Monday and continued yesterday. The Crown is still opening to the jury.
The trial is subject to a non-publication order. This is an unusual state of affairs. The reasons for the making of the non-publication order may be found in my judgment of 1 February 2022: R v Chalabian (No 2) [2022] NSWSC 63.
The foundation for the non-publication order, which is in place and covers the entirety of the trial, is the pending trial of a number of persons, being Adam Cranston, Lauren Cranston, Dev Menon, Jason Onley and Patrick Willmott to proceed before Payne J (sitting as a Judge in the Common Law Division) and a jury commencing in April 2022. Those persons 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 $1,000,000.00 or more believing it to be the proceeds of crime, contrary to ss.11.5(1) and 400.3(1) Criminal Code (Cth).
There are, in reality, back-to-back trials of different persons to take place – the first before me in the case of Mr Chalabian, the second before Payne J involving the persons I have mentioned. The subject matter of the trials overlaps substantially. Both must be jury trials as all Accused are charged with federal offences.
For the trial of Mr Chalabian to be taking place in circumstances where it could be the subject of media publicity would not just place at risk, but probably cause a terminal blow to the prospect of the trial of Mr Cranston and others proceeding in April this year. To give publicity to this trial would undoubtedly cause a significant delay in the other trial. The trial before Payne J is scheduled to run for some six months.
In these circumstances, the Court has put in place a non-publication order which is time limited. The orders will expire upon verdicts in the other trial or a date in December 2022, whichever is the earlier, subject to any further order of the Court.
All of that is by way of background, because it is unusual to have a jury trial proceeding in these circumstances with a general non-publication order affecting it.
The Crown proposes to call, as a witness in both trials, a person who I will describe as the Applicant Witness. That person was sentenced by Payne J in 2020, and received a discount on sentence because of cooperation with law enforcement authorities. He has provided an undertaking to assist law enforcement authorities, with that being taken into account on sentence. That person remains in custody.
The expectation was that the Applicant Witness was to give evidence only in the main trial of Mr Cranston and others.
In late 2021, it became clear that there was an issue that could not be the subject of agreement between the parties in Mr Chalabian's trial, with the consequence that the Applicant Witness would be called as a witness in this trial.
The Crown and the defence in Mr Chalabian's trial have worked cooperatively in reducing the issues in dispute and facilitating the means of presentation of material to the jury, including agreed facts and admissions. It seems, however, there was one area which could not be the subject of such an agreement, thus the need for some evidence from the Applicant Witness.
The Crown has indicated that it proposes to call the Applicant Witness as the first witness in Mr Chalabian's trial. It intends to tender in evidence at that time, whilst he is in the witness box, the recording (made under surveillance device warrant) of a discussion that took place in the office of Clamenz Lawyers on 1 February 2017 between a wide variety of persons, including Mr Cranston, Mr Menon, Mr Onley, Daniel Rostankovski and others, including the Applicant Witness. The recording runs for about three hours. It is understood that the Applicant Witness will be in the witness box for about a day when the time comes for him to give evidence in this trial.
In circumstances where the Applicant Witness was to be called in this trial, as well as the trial before Payne J, arrangements were put in place for the Applicant Witness to be transferred to Sydney for that purpose. That occurred earlier this month.
When the Applicant Witness was sentenced by Payne J, his Honour, with the agreement of the parties, made certain protective orders which recognised the fact that the Applicant Witness was going into custody for the first time. Some of those orders remain in place and Payne J will revisit those orders at a hearing listed for 30 March 2022, ahead of his Honour's trial.
In the meantime, however, and because the trial of Mr Chalabian is going first, an issue has arisen as to the position of the Applicant Witness being called in this trial.
This has led to an application on behalf of the Applicant Witness for further protective orders to be put in place with respect to his evidence. It is a little unusual that the application for these orders is made by the witness himself, who is not a party to these proceedings. He was, of course, a party to the proceedings in which Payne J made the orders, being his own sentencing proceedings.
By Notice of Motion dated 21 February 2022, the Applicant Witness seeks orders under the Court Suppression and Non-publication Orders Act 2010 by way of a non-publication order, a non-disclosure or suppression order, as well as a form of closed-court order. The orders which are sought in the Notice of Motion extend beyond the general non-publication order which is already in place.
The hearing of the Notice of Motion came before the Court in circumstances of some urgency yesterday morning. The argument commenced, was continued later in the day and adjourned until today. Yesterday, Mr Lange of counsel, who appears for the Applicant Witness, read two affidavits of his instructing solicitor, Nicholas Hanna, both dated 22 February 2022, which outlined a number of factual matters.
Yesterday afternoon, I expressed the view that the Court would be assisted by submissions on behalf of the Crown and the Commissioner of the Australian Federal Police on this issue in these rather unusual circumstances, where it was the witness making the application and not the relevant authorities. The hearing of the Notice of Motion was adjourned until this morning.
Today, the Court has received further material. There are written submissions from the Crown which address the application (MFI 9), and which respond to Mr Lange's submissions (MFI 7). The Crown has read the affidavit of Anthony John Powell affirmed 23 February 2022.
Mr May has appeared for the Commissioner of the Australian Federal Police. Mr May has furnished to the Court a confidential affidavit of Adele Anne Kasak dated 23 February 2022. The confidential affidavit has, in fact, been made available to the legal representatives for the Applicant Witness and the Crown, who have a copy upon the basis that the copies will be returned to Mr May at the conclusion of the hearing. The Court has the confidential affidavit and will return it to Mr May on the same basis, at the end of the hearing. Mr Brady SC,
for the Accused, does not wish to be heard on this application and has not sought to consider the confidential affidavit.
The approach that has been taken is a little different to that which ordinarily occurs. Certainly, the common procedure where it is the Commissioner of Police or another law enforcement agency which makes the application is for the Court to receive an open affidavit and a fully confidential affidavit: Attorney General (NSW) v Kaddour and Turkmani [2001] NSWCCA 456 at [20]. This was the procedure utilised in the case to which reference has been made, being the decision of N Adams J in R v Popovic; R v Koloamatangi (No 1) [2017] NSWSC 1017 at [45].
That case is significantly different to the present case. It was one where the witnesses in question were giving evidence in the context of a series of criminal gang murders where there were actual threats by others involved, which were directed to those witnesses, and which led to the Commissioner of Police making an application for orders which were granted. Her Honour's judgment is helpful with the summary of relevant principles and the determination made in the context of that case.
The active parties on this application have the confidential affidavit, and the Court has been assisted by submissions made with respect to it.
Put shortly, the position is as follows. The Applicant Witness has been transferred to Sydney and is being held at the Special Purpose Centre, a specialist facility. That is a correctional facility where persons who find themselves in the position of giving evidence in criminal proceedings for the prosecution are held. It is a custom-built facility which has operated in this jurisdiction for several decades.
I have evidence before the Court which indicates how the Applicant Witness came to be transferred there. There is an application on foot for him to stay there. It is the expectation of the Court that he will stay there for the duration of the trial over which I am presiding and, indeed, for the duration of the trial before Payne J, where his evidence is expected to be lengthier.
I make that prediction by reference to the material that has been provided to the relevant authorities and the Department of Corrective Services as summarised in various affidavits and, in particular, the confidential affidavit. The material makes clear that the housing of the Applicant Witness in any other facility, for the period of the trials at least, would involve risk to him.
This is not a case where it is said that the risk relates to the subject matter of the proceedings or the identity of those allegedly involved as co-offenders. The subject matter of this trial is money laundering. The subject matter of the next trial is fraud and money laundering, albeit on a very large scale.
There is no suggestion that the types of factors which come into play with alleged involvement in the commission of violent crimes by violent criminals (who may have both a capacity to be violent and an incentive to use violence against a prosecution witness) operate in this case.
What has been relied upon is a general issue within the prison system. Indeed, any custodial system exemplifies the scenario which I am about to summarise. Within the prison system, persons who are believed to have assisted the police in some form or another, whether by giving evidence or otherwise, are regarded adversely. They can be subject to, at the very least, critical comment.
The rules of prisoners are such that it is regarded as a course of conduct that is unacceptable. Prisoners who are believed to have assisted the police and law enforcement authorities can suffer physical harm or worse in a correctional setting.
It is for this reason that there is, throughout the correctional system, a capacity for protective custody. The Special Management and Placement System, which operates throughout correctional facilities in New South Wales, is aimed to protect, at a local level at least, persons in this position.
There are other categories of persons as well who are at risk in the prison system, including those regarded as child killers and child sex offenders. Neither of those categories have any application to this case.
The position is that the generalised negative experiences to which the Applicant Witness has been exposed, as particularised in the confidential affidavit, are an unhappy by-product of being in a prison system.
In the case of the Applicant Witness, he is now housed in a facility which is built and managed to protect persons who are assisting the authorities. I am satisfied, by reference to the evidence before me, that he will remain in that facility for the duration of the trial of Mr Chalabian. Unless some different body of evidence was put before Payne J at a future hearing, I would expect that he would remain in that facility for the duration of the trial involving Mr Cranston and others.
After evidence has been completed, the expectation would be that the question of any transfer to any other correctional facility would be considered cautiously after all relevant considerations have been taken into account, including the risk of harm which I have mentioned, which exists in other correctional centres.
I cannot, at this point, predict that the Applicant Witness will remain in a form of protective custody at the Special Purpose Centre until he is released on parole. There is every prospect that that may occur. What can be safely said though is, having got to the position where, because of his role as a prosecution witness, he is housed in that facility, there will be checks in place to guard against a type of thoughtless transfer back into the general prison system.
Where then does that leave this application?
Mr Lange submits, by reference to s.8(1)(a) Court Suppression and Non-publication Orders Act 2010, that the orders sought are necessary to prevent prejudice to the proper administration of justice by reference to the informer rule. He relies as well on s.8(1)(c), that the order is necessary to protect the safety of any person, in this case the Applicant Witness. He submits the Court should apply the calculus of risk approach in the risk assessment process. Although Mr Lange acknowledges that for the time being, the risks are met by the present location at which the Applicant Witness is housed, he submits that there can be no certainty that this will continue throughout the custodial part of his sentence.
The Crown has submitted that the orders presently in place will protect against publication of any evidence in this trial, including the evidence of the Applicant Witness, and that order will remain in place until such time as it falls to be reconsidered. The Crown has submitted that the level of protection for the Applicant Witness in his present location will meet any concern, so that the calculus of risk approach does not operate in favour of the making of the orders sought in the Notice of Motion.
Mr May, for the Australian Federal Police, adopts the Crown's submissions and submits that the orders already in place should not be varied.
This trial is proceeding in COVID-19 circumstances where there is a limited number of persons in the Court. Apart from the jury, counsel, solicitors, the Accused and Court staff (including judicial staff), there are certain identified persons. There is a family member of the Accused and there may be other family members who can be present from time to time. There are some officers of the Australian Federal Police who have been present.
There is no capacity for the general public to walk in and observe this trial. Nor can the media physically enter the Court and observe. There is, however, being utilised the virtual court facility which allows for certain persons to observe the proceedings. This is the Court's attempt to accommodate the open justice principle, insofar as possible, whilst at the same time operating to protect the participants in the trial and avoid large numbers of persons coming and going during the trial.
Representatives of the media have been observing these proceedings from time to time. There have been persons from the law firm, Minter Ellison, who represent the liquidators of a number of the companies involved in the Plutus fraud. There have, as well, been persons from the Commonwealth Director of Public Prosecutions and the Australian Tax Office. There is also a barrister who is reading with one of the prosecutors.
There is not an open-ended capacity for anybody to log in and observe the proceedings.
I mention this because the potential audience during the trial is limited practically. Any member of the public will not be provided with the relevant log-in details. If there is application made for the log-in details, then some information is necessary before the link is provided. That is another practical aspect with respect to the trial.
As I have noted, the concern which gave rise to this application is not said to relate to other accused persons, either in past related proceedings or in the future trial before Payne J.
In addition, it is expected that the Crown will be obliged to provide the transcript of the evidence of the Applicant Witness in this trial to the legal representatives for the Accused in the trial before Payne J, because he will be giving evidence about the very same subject matters.
What is left, then, is a generalised concern that in the prison system the Applicant Witness is at risk because he is assisting the authorities. He is not alone in that respect. However, the custodial system operates with the protections which I have outlined. In his case, the form of protection which is in place, and which I infer will be in place for an indefinite period, is the maximum level of protection which is available for someone in the New South Wales correctional system who is giving evidence for the prosecution.
The orders sought in the Notice of Motion include orders of a non-disclosure type, which it seems to me are quite problematic. The closed-court proposal which was put would be complicated. The real question is whether a proper basis has been demonstrated for these orders in the first place.
The test is one of necessity under s.8 Court Suppression and Non-publication Orders Act 2010. I am not satisfied, on the material before the Court, that it is necessary to make the orders sought in the Notice of Motion to prevent prejudice to the proper administration of justice, or to protect the safety of the Applicant Witness. In my view, the current protective regime which applies to him, and the operation of the non-publication order which I have made, cover almost entirely the areas of concern.
I will, whilst the Applicant Witness is giving evidence, take steps to ascertain who is connected virtually to the Court at that time. My expectation is that it will be a limited group of people, along the lines of those I have mentioned recently. The link to the Court will not be automatically available to anyone. In that way, there will be some further practical measure available to the Court. However, that is not because the Court is making a closed-court order or any further order. It is because, in the circumstances, the Court will keep an eye on that side of things so that the parties are aware of the identity of those who are observing the proceedings.

Quite apart from the issues raised on this application, the Court will take steps to ensure that any persons who are monitoring the proceedings are aware of the general non-publication order.
I return then to the application which has been made. I am proceeding on the basis that the Applicant Witness will be housed at the facility where he is for the duration of the trial of Mr Chalabian, and for the duration of the trial before Payne J.
I proceed on the basis that the form of transport of the Applicant Witness to and from Court to give evidence in this trial, and for that matter before Payne J, will be transport used for persons who are held at that facility; namely, transport which takes into account the level of protection which is needed for persons giving evidence in a trial. It would be quite contrary to the expectations of the Court, and quite contrary to the interests to the administration of justice, if the Applicant Witness was conveyed to and from Court in a general Corrective Services' van with other persons who are not giving evidence.
I make that comment for more abundant caution because I apprehend that persons in the facility in which he is now housed will simply not be considered appropriate for general transport to Court.
It is in these circumstances that, applying the calculus of risk approach, I am simply not satisfied that the test of necessity is made out to call for any of the additional orders which are sought in the Notice of Motion.
The Notice of Motion dated 21 February 2022 is dismissed.
When this judgment is revised, I will cause it to be emailed to the legal representatives for the Applicant Witness, the Crown, Mr May and the legal representatives for the Accused. It will not be communicated beyond those recipients unless there is some further application made and the Court is satisfied that it is appropriate to do so.

(Further discussion with counsel).

As noted earlier, I am delivering this judgment in advance of the hearing before Payne J on 30 March 2022 concerning a similar subject matter. If there is any aspect arising from that hearing, or his Honour's judgment after that hearing, which gives rise to the need for any other application to be made to me concerning orders with respect to Mr Chalabian's trial, there is, of course, no difficulty with that occurring.
The fact that I have dismissed the Notice of Motion does not mean that there is a barrier to any application, properly made, as a result of what happens before Payne J.

[Postscript: The Applicant Witness gave evidence in the trial on 28 February 2022 and 1 March 2022. No issue arose concerning his security arrangements with transport to and from Court being entirely consistent with the expectation of the Court].

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Amendments

21 March 2023 - Publication restriction lifted - judgment published.

Decision last updated: 21 March 2023

Medium Neutral Citation:	R v Chalabian (No. 4) [2022] NSWSC 165
Hearing dates:	23 February 2022
Date of orders:	23 February 2022
Decision date:	23 February 2022
Jurisdiction:	Common Law - Criminal
Before:	Johnson J
Decision:	Notice of Motion dismissed.
Catchwords:	CRIME – jury trial – charge of money laundering under s.400.3(1) Criminal Code (Cth) – entire trial subject to time limited non-publication order to protect administration of justice in future related trial of other accused persons – Applicant Witness to be called by Crown at both trials – Applicant Witness seeks further protective orders by way of a non-publication order, non-disclosure or suppression order and closed court order – Applicant Witness housed in Special Purpose Centre – calculus of risk approach applied - test of necessity under s.8 Court Suppression and Non-publication Orders Act 2010 not met – no proper basis for orders sought – application refused
Legislation Cited:	Court Suppression and Non-publication Orders Act 2010 Criminal Code (Cth)
Cases Cited:	Attorney General (NSW) v Kaddour and Turkmani [2001] NSWCCA 456 R v Chalabian (No 2) [2022] NSWSC 63 R v Popovic; R v Koloamatangi (No 1) [2017] NSWSC 1017
Texts Cited:	---
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) Mr PD Lange (Applicant Witness) Mr BJ May, Solicitor (Australian Federal Police) Solicitors: Commonwealth Director of Public Prosecutions (Crown) Streeton Lawyers (Accused) Hanna Legal (Applicant Witness) Australian Federal Police (Australian Government Solicitor)
File Number(s):	2018/216206
Publication restriction:	---