R v Chalabian (No. 9) - [2022] NSWSC 305

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Chalabian (No. 9) [2022] NSWSC 305
Hearing dates: 21 March 2022
Date of orders: 21 March 2022
Decision date: 21 March 2022
Jurisdiction: Common Law - Criminal
Before: Johnson J
Decision:
See [27].

Catchwords:
CRIME – jury trial – charge of money laundering under s.400.3(1) Criminal Code (Cth) – Accused a solicitor charged with dealing with proceeds of crime – substantial sums pass through solicitor’s trust account - state of mind of Accused concerning source of funds passing through trust account – Crown objection to certain questions in cross-examination of Crown witness concerning what the witness said to the Accused about source of funds – whether questions ambiguous, unfair, misleading or confusing - certain questions allowed and others disallowed

Legislation Cited:
Evidence Act 1995
Criminal Code (Cth)

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: The Accused, Sevag Chalabian, is standing trial before a jury on a charge of what could be shortly described as money laundering under s.400.3(1) Criminal Code (Cth).
Daniel Hausman is presently being cross-examined. Mr Hausman is an important witness in the Crown case. An overview of the Crown case, including the alleged involvement of Mr Hausman with the Accused, may be found in R v Chalabian (No 3) [2022] NSWSC 77 at [6]-[19].
An important issue in the trial concerns the state of mind of the Accused as to the source of the funds which passed through his trust account in a period between February and May 2017. The charge under s.400.3(1) brought against the Accused requires the Crown to prove that the Accused believed the moneys were the proceeds of crime.
The Crown has foreshadowed, in opening to the jury (T230-231), that reference would be made, as well, to statutory alternative verdicts (under s.400.14 Criminal Code (Cth)) involving lesser tiers of offences based upon recklessness (s.400.3(2)), negligence (s.400.3(3)) and reasonable suspicion (s.400.9).
Those various concepts emphasise the significance in the trial of what it was that the Accused believed or was aware of, or may have suspected, with respect to the source of the funds, which (it is common ground) passed through his trust account in the early part of 2017.
The Crown has tendered four volumes of material as Exhibit A in the trial. Volume 1 of Exhibit A contains a detailed chronology extending to 160 pages and 1,528 items. These items include numerous text messages, WhatsApp messages and telephone conversations involving the Accused, Mr Hausman, Daniel Rostankovski and a variety of other persons. Volumes 2, 3 and 4 of Exhibit A contain in excess of 2,000 pages of transcripts of telephone intercepts, conversations recorded by…

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. 9)

Details

AGLC: R v Chalabian (No. 9) [2022] NSWSC 305
Case: [2022] NSWSC 305
Decision Date: 21 March 2022

CaseChat Overview and Summary

In the case of R v Chalabian (No. 9), the accused, a solicitor, was charged with money laundering contrary to section 400.3(1) of the Criminal Code (Cth). The case involved substantial sums of money passing through the solicitor's trust account. The central issue was the state of mind of the accused regarding the source of these funds. During the trial, the Crown objected to certain questions posed in the cross-examination of a Crown witness, arguing that the questions were ambiguous, unfair, misleading, or confusing. The court was required to determine whether these questions were permissible in the circumstances.

The court considered the nature of the questions and their potential impact on the fairness of the trial. It examined whether the questions were ambiguous, which might lead to misunderstandings, or whether they were misleading or confusing, which could prejudice the jury against the accused. The court balanced the need for the accused to effectively cross-examine the witness against the necessity to maintain the integrity of the trial process. Ultimately, the court allowed some of the questions to be asked, while disallowing others that it found to be problematic.

In its reasoning, the court emphasised the importance of ensuring that the trial was conducted in a manner that was fair to both parties. The court acknowledged that the accused had a right to challenge the credibility and evidence of the Crown witness, but this right was not absolute and had to be exercised in a way that did not compromise the fairness of the trial. The court struck a balance between these competing interests by permitting certain questions that were clear and pertinent to the issues at hand, while disallowing those that it deemed could potentially mislead the jury.

The court's decision resulted in the exclusion of certain questions that were found to be ambiguous, unfair, misleading, or confusing. The trial proceeded with the remaining questions, allowing the accused to conduct a meaningful cross-examination of the Crown witness. This decision ensured that the trial remained fair and just, upholding the principles of procedural fairness and the integrity of the judicial process.

Orders