R v Chalabian (No. 8)

[2022] NSWSC 304

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:	R v Chalabian (No. 8) [2022] NSWSC 304
Hearing dates:	21 March 2022
Date of orders:	21 March 2022
Decision date:	21 March 2022
Jurisdiction:	Common Law - Criminal
Before:	Johnson J
Decision:	An order is made pursuant to s.5B Evidence (Audio and Audio Visual Links) Act 1998, that each of Anthony Palumberi, Alexander Nappa, Ashley Robert John Mills and Neovy Nappa give evidence by audio-visual link from a place within New South Wales other than the courtroom.
Catchwords:	CRIME – jury trial – application by Crown for witnesses to give evidence by audio-visual link – witnesses not vaccinated for COVID-19 or decline to reveal vaccination status – witnesses do not consent to rapid antigen testing – order made for witnesses to give evidence by audio-visual link
Legislation Cited:	Evidence (Audio and Audio Visual Links) Act 1998
Cases Cited:	R v Chalabian (No. 3) [2022] NSWSC 77
Texts Cited:	Supreme Court of NSW Protocol for Criminal Proceedings (January 2022)
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

1. JOHNSON J: The Crown has made application, by Notices of Motion, that four persons who are to be called by the Crown as witnesses in the trial of the Accused, Sevag Chalabian, give evidence by audio-visual link. The witnesses in question are Anthony Palumberi, Alexander Nappa, Ashley Robert John Mills and Neovy Nappa.

2. Affidavits of Hamish John Williams, each sworn 21 March 2022, are relied upon in support of the applications.

3. The Accused does not oppose the application that each of these persons give evidence by audio-visual link.

4. Mr Mills, Mr Palumberi and Mr Nappa are giving evidence in circumstances where each was said to have been a “straw director” associated with the Plutus fraud, with their evidence to touch upon events up to and including 2017: R v Chalabian (No. 3) [2022] NSWSC 77 at [12], [19].

5. Neovy Nappa is the mother of Alexander Nappa. She was not a “straw director”, but the Crown is calling Ms Nappa as a result of various interactions between her and the Accused in or around April and May 2017, in the context of her son, Alexander, being a “straw director”.

6. Section 5B Evidence (Audio and Audio Visual Links) Act 1998 provides for persons to give evidence by audio-visual link. Section 5B(2) states that the Court must not make such a direction in certain circumstances. Section 5B(2) states:

“(2)    The court must not make such a direction if—

(a)    the necessary facilities are unavailable or cannot reasonably be made available, or

(b)    the court is satisfied that the evidence or submission can more conveniently be given or made in the courtroom or other place at which the court is sitting, or

(c)    the court is satisfied that the direction would be unfair to any party to the proceeding, or

(d)    the court is satisfied that the person in respect of whom the direction is sought will not give evidence or make the submission.”

7. Having considered the affidavits of Mr Williams, I am satisfied that the necessary facilities are available for each of these persons to give evidence by audio-visual link in the trial. In the case of Neovy Nappa, because of family circumstances affecting her, it is proposed that she give evidence from her home and arrangements will be made in that respect. The other persons will give evidence by audio-visual link from the office of the Commonwealth Director of Public Prosecutions. Accordingly, s.5B(2)(a) is satisfied in this case.

8. As to s.5B(2)(b), I am not satisfied that the evidence can more conveniently be given in the courtroom. It is the case that each of these persons is either not vaccinated for the purpose of COVID-19 or declines to state their vaccination status. Further, the persons have indicated an unwillingness to undertake rapid antigen testing, which would be a prerequisite for attendance for witnesses entering Court, even if they were vaccinated: paragraphs 1.3, 2.3, 4.5 Supreme Court of NSW Protocol for Criminal Proceedings (January 2022) (“Supreme Court Protocol”). Therefore, insofar as the concept of convenience extends as well to public health considerations including vaccination status and preparedness to undertake rapid antigen testing, it is entirely clear that the evidence cannot be more conveniently given by these persons in the courtroom.

9. With respect to s.5B(2)(c), it has not been submitted that it would be unfair to either the Crown or the Accused, for any of these persons to give evidence by audio-visual link. I proceed on the basis that appropriate steps will be taken to ensure that the documents in relation to which each witness is likely to be examined or cross-examined will be available at the location from which each of them will give evidence, so that there will be no problem in that respect.

10. As to s.5B(2)(d), the persons in question are apparently prepared to give evidence, but have not fulfilled the requirements of the Supreme Court Protocol to give evidence physically in the courtroom.

11. I am satisfied that each component of s.5B(2) operates in favour of the use of audio-visual link with respect to each of these persons.

12. As I have mentioned, the Accused has not opposed the application by the Crown. If there had been opposition to the application, it would have been necessary for the Court to consider s.5B(3), whereby the Court would have to determine whether it was in the interests of the administration of justice for the Court to order the use of audio-visual link facilities for each witness.

13. If I had come to consider that aspect, the outcome would have been clear. In the context of the COVID-19 pandemic, and given the significance of these witnesses in the trial of the Accused, the interests of the administration of justice are served by securing their evidence in the trial. The absence of their evidence would, in fact, be contrary to the interests of the administration of justice. If that point had been reached, I would have been well satisfied that it was in the interests of the administration of justice for each of these persons to give evidence by audio-visual link.

14. Accordingly, I make orders pursuant to s.5B Evidence (Audio and Audio Visual Links) Act 1998, that each of Anthony Palumberi, Alexander Nappa, Ashley Robert John Mills and Neovy Nappa give evidence by audio-visual link from a place within New South Wales other than the courtroom.

**********

Amendments

21 March 2023 - Publication restriction lifted - judgment published.

Decision last updated: 21 March 2023