R v Chalabian (No. 7) - [2022] NSWSC 227

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Chalabian (No. 7) [2022] NSWSC 227
Hearing dates: 4 March 2022
Date of orders: 4 March 2022
Decision date: 04 March 2022
Jurisdiction: Common Law - Criminal
Before: Johnson J
Decision:
The Court gives a direction under s.22C(3A) Evidence (Audio and Audio Visual Links) Act 1998 that the Accused appear by audio-visual link for his criminal trial on 7, 8 and 9 March 2022.

Catchwords:
CRIME – jury trial – accused on bail – accused tested positive for COVID-19 and required to self-isolate for seven days – joint application by parties for accused to appear at trial by audio-visual link – application of s.22C(3A) Evidence (Audio and Audio Visual Links) Act 1998 – direction given for accused to appear at trial by audio-visual during period of self-isolation

Legislation Cited:
COVID-19 Legislation Amendment (Emergency Measures-Attorney General) Act 2020
Criminal Procedure Act 1986
Evidence (Audio and Audio Visual Links) Act 1998
Jury Act 1977
Jury Regulation 2015
Public Health (COVID-19 Self-Isolation) Order (No 4) 2021
Criminal Code (Cth)

Cases Cited:
R v Chalabian (No 5) (2022) NSWSC 174
Herron v Attorney General (NSW) (1987) 8 NSWLR 601
Chapman v Gentle (1987) 28 A Crim R 29
Mickelberg v R (No 3) (1992) 8 WAR 236
R v Scott [2021] NSWSC 1004
R v Warwick (No 26) [2018] NSWSC 1079

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: The trial of the Accused, Sevag Chalabian, commenced before a jury on Monday 21 February 2022. The Accused is standing trial upon a charge of money laundering under s.400.3(1) Criminal Code (Cth).
The estimate for the trial was about five weeks until the jury retire to consider a verdict. Because of that estimate, and having regard to the existence of the COVID-19 pandemic and the relaxed allowance for empanelling additional jurors under s.19(2) Jury Act 1977 (cf Clause 4A Jury Regulation 2015), a jury of 15 was empanelled.
As it happened, on the third day of the trial, the jury was reduced to 13 jurors. One member of the jury had tested positive for COVID-19 by way of a rapid antigen test and was discharged. A further member of the jury sought to be discharged from the jury for other health reasons: R v Chalabian (No 5) (2022) NSWSC 174.
Thereafter, the trial has proceeded with a jury of 13.
The jury is attentive, engaged and interested in the issues in the trial. They have attended from day to day, despite the existence in the last week of extreme weather conditions which may have served to deter a less interested jury.
An important Crown witness, Daniel Hausman, is giving evidence. His examination-in-chief has commenced, but with some considerable…

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. 7)

Details

AGLC: R v Chalabian (No. 7) [2022] NSWSC 227
Case: [2022] NSWSC 227
Decision Date: 04 March 2022

CaseChat Overview and Summary

The case involved a criminal trial before a jury where the accused, Chalabian, was on bail. The accused tested positive for COVID-19 and was required to self-isolate for seven days. Both parties applied for the accused to appear at trial by audio-visual link. The legal issue before the court was whether the accused could appear at trial by audio-visual link during the period of self-isolation under section 22C(3A) of the Evidence (Audio and Audio Visual Links) Act 1998. The court found that the accused could appear at trial by audio-visual link during the period of self-isolation, provided that it was in the interests of justice to do so. The court also gave directions for the accused to appear at trial by audio-visual link during the period of self-isolation. The outcome was that the accused could appear at trial by audio-visual link during the period of self-isolation, subject to the directions given by the court. This decision was made in the interests of justice and to ensure that the trial could proceed in a timely and efficient manner.

The court found that the application of section 22C(3A) of the Evidence (Audio and Audio Visual Links) Act 1998 was appropriate in this case. The court noted that the accused had tested positive for COVID-19 and was required to self-isolate for seven days. The court also noted that both parties had applied for the accused to appear at trial by audio-visual link. The court found that it was in the interests of justice for the accused to appear at trial by audio-visual link during the period of self-isolation. The court also gave directions for the accused to appear at trial by audio-visual link during the period of self-isolation. These directions included ensuring that the accused was in a suitable location to appear at trial by audio-visual link and that the necessary technology was available. The court also directed that the accused be given the opportunity to address the court in person at the conclusion of the trial, if the accused was no longer required to self-isolate.

Orders