R v Chalabian (No. 6) - [2022] NSWSC 209

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Chalabian (No. 6) [2022] NSWSC 209
Hearing dates: 2 March 2022
Date of orders: 2 March 2022
Decision date: 02 March 2022
Jurisdiction: Common Law - Criminal
Before: Johnson J
Decision:
Defence objection overruled.

Catchwords:
CRIME – jury trial – defence objection to proposed examination-in-chief of Crown witness – Crown seeks to play recordings already in evidence and then ask questions concerning content of recordings – whether leading questions in breach of s.37 Evidence Act 1995 – held not leading questions – even if approach utilised leading questions, questions permissible under s.37(1)(d) as they relate to a matter not in dispute – objection overruled

Legislation Cited:
Evidence Act 1995

Cases Cited:
R v Chalabian (No. 3) [2022] NSWSC 77

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)
Solicitors:
Commonwealth Director of Public Prosecutions (Crown)
Streeton Lawyers (Accused)

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

Judgment

JOHNSON J: Yesterday afternoon, the Crown called Daniel Simon Hausman as a witness in the Crown case. The evidence-in-chief of Mr Hausman proceeded shortly yesterday and his evidence is to continue this morning.
The evidence of Mr Hausman is important to the Crown case. The summary of the Crown case against the Accused, as contained in an earlier judgment in these proceedings, points to, amongst other things, communications between Mr Hausman and the Accused and Mr Hausman and others as part of the process whereby Mr Hausman, as he has admitted, engaged in blackmail and money laundering offences: R v Chalabian (No. 3) [2022] NSWSC 77 at [10]-[19].
There have already been admitted, by consent, four folders of material (Exhibit A) which have been with the jury since the Crown opened its case last week. Included in Exhibit A are a series of transcripts of telephone intercept conversations, many of which include Mr Hausman speaking to one person or another, at times including the Accused.
In addition, included in Exhibit A are various communications by way of WhatsApp, text message or email. That material has been with the jury for several days and they have been taken to it through the evidence of previous witnesses, Simon Anquetil and the case officer, Federal Agent Knighton.
Before the resumption of examination-in-chief of Mr Hausman this morning, Senior Counsel for the Accused has raised an objection as to the manner in which the Crown is to ask questions of Mr Hausman. It is submitted, on behalf of the Accused, that the approach which the Crown seeks to take will involve the use of leading questions, which the Court should not permit, by reference to s.37 Evidence Act 1995.
The procedure which the Crown proposed to undertake is to play a particular recording of a conversation between Mr Hausman, and whoever else was a participant to the conversation, and then ask Mr Hausman…

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. 6)

Details

AGLC: R v Chalabian (No. 6) [2022] NSWSC 209
Case: [2022] NSWSC 209
Decision Date: 02 March 2022

CaseChat Overview and Summary

In the case of R v Chalabian (No. 6), the respondent was on trial for a number of serious criminal charges. The trial was conducted in the Supreme Court of Victoria. A significant issue arose during the examination-in-chief of a Crown witness. The respondent objected to the proposed examination, arguing that the Crown's intended approach was to lead the witness by playing recordings that were already in evidence and then asking questions about the content of those recordings, which the respondent contended were leading questions in breach of section 37 of the Evidence Act 1995.

The court had to determine whether the proposed questions were leading in nature, which would breach section 37, and if so, whether they were permissible under any exceptions in section 37(1). The court examined the nature of the questions and whether they related to a matter that was not in dispute. It held that even if the approach involved leading questions, the questions were permissible under section 37(1)(d) as they related to a matter not in dispute. Consequently, the objection was overruled.

Ultimately, the court's decision affirmed that the proposed examination-in-chief of the witness was permissible under the Evidence Act. The court ruled that the questions were not leading and were permissible as they related to matters that were not in dispute. The trial proceeded with the Crown's intended line of questioning.

Orders