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…

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 165
Decision Date: 23 February 2022

CaseChat Overview and Summary

The case of R v Chalabian (No. 4) involves a defendant, Chalabian, who was charged with money laundering under section 400.3(1) of the Criminal Code (Cth). The entire trial was subject to a time-limited non-publication order to protect the administration of justice in a future related trial involving other accused persons. The applicant, a witness, sought further protective orders, including a non-publication order, a non-disclosure or suppression order, and a closed court order. The witness was housed in a Special Purpose Centre. The Supreme Court of Victoria was tasked with determining the application for these additional orders.

The central legal issue before the court was whether the test of necessity under section 8 of the Court Suppression and Non-publication Orders Act 2010 was satisfied to warrant the granting of the additional protective orders. This required consideration of the risk to the witness's safety and well-being if the orders were not made, balanced against the potential prejudice to the accused's right to a fair trial. The court needed to determine if the application met the threshold of necessity, which is a stringent requirement.

In its reasoning, the court found that the calculus of risk approach did not support the need for the additional orders. The witness's housing in a Special Purpose Centre was considered a significant factor mitigating the risk to the witness. The court concluded that the test of necessity under section 8 of the Act was not met as there was no proper basis for the orders sought. Therefore, the application for further protective orders was refused. The court's decision was based on the specific circumstances of the case, including the measures already in place to protect the witness and the lack of compelling evidence that the additional orders were necessary.

The final orders of the court were to refuse the application for further protective orders, including the non-publication order, non-disclosure or suppression order, and closed court order. The existing non-publication order remained in place, and the trial proceeded with the measures already in effect. The court's decision underscored the importance of carefully assessing the necessity for additional protective measures in criminal trials, ensuring that such measures are proportionate to the identified risks.

Orders