R v El-Debel; R v Kahlon (No 2)
[2022] ACTSC 134
•31 May 2022 – 3 June 2022
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v El-Debel; R v Kahlon (No 2) |
Citation: | [2022] ACTSC 134 |
Hearing Date: | 31 May 2022 |
DecisionDate: | 31 May 2022 – 3 June 2022 |
Before: | Elkaim J |
Decision: | See rulings in the reasons. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – admissibility of evidence – relevance – hearsay – unfair prejudice |
Legislation Cited: | Evidence Act 2011 (ACT) s 90, 137 Evidence Act 1995 (NSW) s 187 |
Cases Cited: | Ahern v The Queen (1988) 165 CLR 87 R v Azari (No 7) [2018] NSWSC 1680 Tsang v R [2011] VSCA 336; 35 VR 240 |
Parties: | The Queen ( Crown) Raminder Singh Kahlon ( Accused in SCC 296 of 2021) Abdul Aziz El-Debel ( Accused in SCC 297 of 2021) |
Representation: | Counsel D Staehli SC ( Crown) M Kalyk ( Accused in SCC 296 of 2021) C Newman ( Accused in SCC 297 of 2021) |
| Solicitors Commonwealth Director of Public Prosecutions ( Crown) Murphys Lawyers ( Accused in SCC 296 of 2021) Kamy Saeedi Law ( Accused in SCC 297 of 2021) | |
File Numbers: | SCC 296 of 2021 SCC 297 of 2021 |
Elkaim J:
Mr El-Debel and Mr Kahlon are facing trial before a jury. The single count in the indictment is that they, together with a Mr Vilayur, conspired with the intention of dishonestly obtaining a gain from the Commonwealth.
For the reasons I gave in R v Vilayur; R v Kahlon; R v El-Debel [2022] ACTSC 110 the current trial is not proceeding against Mr Vilayur.
Although the trial was due to commence on 31 May 2022, I assigned some days before the empanelment of the jury for argument on the admissibility of certain parts of the Crown case. These reasons concern the admissibility arguments.
I think the starting point should be a very broad overview of the Crown case. Mr El-Debel worked in the Department of Finance. Part of his job concerned the allocation of contracts to persons providing services to the Department. Mr Kahlon and Mr Vilayur had companies (New Horizons Business Solutions Pty Ltd and Algoram respectively) which contracted with the Department. In addition the companies provided other persons as candidates for contracts.
The Crown alleges that the three conspirators influenced the awarding of contracts (the procurement process) in such a way that either their subcontractors or their companies benefited. In addition Mr El-Debel, for his participation in the influence of the procurement process, was paid a cash benefit.
The Crown, in attempting to prove the conspiracy, relies mainly on a number of telephone intercepts, financial records of the alleged conspirators and the above companies and on assorted records.
Objections were taken to very large parts of the evidence. There were various reasons for the objections ranging from relevance to hearsay and to unfair prejudice. In relation to the last reason reliance was primarily placed on s 137 of the Evidence Act 2011 (ACT), but also on s 90.
By way of general comment on the objections relying upon either or both of ss 90 and 137, the overall theme of the submissions, by both accused, was that the material was so voluminous and contained so many extraneous matters that a jury would find it difficult to discern the elements of the Crown case. This was exacerbated by a number of the actions disclosed by the intercepts or the documents being capable, without more, of raising a suspicion of at least inappropriate, if not criminal, conduct on the part of the accused. The primary example concerns the transfer of money from Australia to places outside of Australia, in particular Hong Kong and India. It was submitted that a jury observing these transfers would form a conclusion that something was ‘going on’ and that something could well be illegitimate.
The Crown case is not straightforward. It is a case necessarily relying on the pulling together of bits or strands of evidence, often apparently innocuous, but forming a picture defining the alleged illegal conduct. This is the nature of a circumstantial case.
I agree with the submissions made on behalf of the accused that there is a great deal of evidence which the Crown seeks to rely upon which does not seem to fit into the overall Crown case. However I also accept the Crown’s submission that this is the only way in which the alleged criminal conduct can be presented. To excise large parts of the evidence would leave a nonsensical smattering of unrelated evidence incapable of being tied together.
I am also of the view that strong directions to the jury should be made, and will be made, to counter any suggestion that actions, such as transferring money overseas, do not of themselves to give rise to any conclusion of criminality.
The comments I have just made apply generally across the objections where they have been based on unfairness (s 90) or prejudice (s 137).
I will now deal with some particular objections, generally in the order in which they were argued. Where I refer to objections by number, this relates to the list of objections relied upon by both accused.
The financial records
The whole of the financial records were the subject of objection, primarily on the basis that they lacked relevance to the proceedings.
In addition it was submitted that the evidence should be excluded under s 137 of the Evidence Act 2011 (ACT) because is probative value was “outweighed by the danger of unfair prejudice to the defendant”.
I think the financial records can be separated into those records relating to international transfers and dealings and the balance of the records. The latter includes bank statements, remittance advices from the Department of Finance and a draft tax return for the company owned by Mr Kahlon (New Horizons Business Solutions Pty Ltd).
The tax return should be excluded. It is in draft form and is unsigned. There is no evidence as to its state of finality. These factors make it too vague to be relevant.
Dealing first with the documents (besides the tax return) which do not include the international records. I think these documents are plainly admissible as showing the relationships between the parties, their companies and the Department of Finance. These relationships are fundamental to the Crown case in demonstrating the degree of dealings with the Department and in particular the amounts of money that were paid by the Department to the relevant entities. Of course the payments may have been entirely legitimate, but they do form the foundation upon which it is alleged illegal payments were made to Mr El-Debel and the awarding of contracts favouring the defendants’ companies or other persons on whose behalf they were endeavouring to secure contracts with the Department.
My initial impression, in relation to the international documents, was that they should be excluded. The Crown case is that the monies sent overseas provided a pool of cash from which payments could be made to Mr El-Debel and also to Mr Vilayur. The Crown suggested this chain of events as an example: monies would be transferred, through the banking system, to Hong Kong. Next, the monies (or a part of them) would travel to India. From India, using a system called Hawala, a sum of money would be returned to Australia where it would be available for the above cash payments.
The Crown accepted that there was no specific evidence of any actual amount being transferred via the Hawala system, nor was there specific evidence that any cash payment received by Mr El-Debel or Mr Vilayur, actually had its source in monies arriving in Australia through this system.
The Hawala system (apparently derived from the Arabic word for “trust”) is a legitimate form of effective transfer of funds from one country to another which does not involve normal channels of currency movement. Thus, for example, a person in Country A will pay money to an agent also in Country A. That agent will instruct an agent in Country B to pay the same amount of money to the intended beneficiary of the money, who is also in Country B. Ultimately, the agents will account to each other for the money.
The amount of sums being transferred were sometimes quite large, for example $100,000. The transfer of monies, without more, was said to be prejudicial because it suggested an inference of illegal conduct, perhaps such as money laundering.
The Crown accepted the gaps in evidence highlighted above, but said there were numerous references in the telephone intercepts which gave credence to the establishment of a pool of monies which could be used for the cash payments. In other words, there will be a connection established to indicate the accused, including Mr Vilayur, made use of currency transactions to establish a pool of funds from which cash payments could be made. Of course, whether this was the case, and whether it had an illegitimate purpose, will be a matter for the jury
It is the references within the overall evidence which has persuaded me to allow the financial records to be admitted into evidence but this permission will be subject to the following directions to the jury:
(i)It is not illegal to transfer money to a foreign country.
(ii)It is not illegal to make use of the Hawala system.
In addition the jury will be reminded that there are apparent proper explanations for the transfer of the monies out of Australia, in particular for investment in software products.
In summary the financial records may remain with the exception of the draft tax return.
The telephone intercepts generally
The Crown relies on a number of telephone intercepts to prove the conspiracy. These intercepts (including text messages) are not only between the alleged conspirators, but also between Mr Vilayur and third parties.
The two accused objected to the conversations with third parties submitting they would not be admissible because they constituted hearsay evidence.
In R v Azari (No 7) [2018] NSWSC 1680, Adams J was confronted with a similar argument. Her Honour referred, at [33], to Tsang v R [2011] VSCA 336; 35 VR 240:
33.In Tsang v R, evidence of statements made by others was admitted for a non-hearsay purpose as circumstantial evidence. In that case, the accused was convicted of an offence of importing a commercial quantity of the border controlled drug MDMA. The Prosecution case included evidence of four lawfully intercepted telephone conversations between a co-accused (not jointly tried) and another man, during which it was alleged the two men spoke of the price of MDMA. The accused was not present during the conversations. The calls were admitted during the trial. On appeal, the Court of Appeal (Nettle, Neave JJA and Sifris AJA) held that the trial judge was correct in ruling that the various parts of the four telephone conversations were admissible as evidence of an agreement to traffic in drugs and the accused’s knowing participation in that agreement. The Court identified three distinct bases upon which the evidence was admissible, stating at [35]-[38]:
“There are three bases under which evidence of statements made by a third person co-accused in the absence of the accused may be admissible. First, the statements may be circumstantial evidence which, along with other evidence, is relevant to the Crown or defence case.
The admissibility of such evidence does not depend on the existence of a common purpose between the accused and a party to the conversation, provided that it is relevant as part of the surrounding circumstances which tend to prove the accused person’s guilt of the offence. Nor is it necessary for the statements to be made in furtherance of an agreement between the accused and others to commit an offence. Such statements are not admitted as an exception to the hearsay rule (that is, as evidence of the truth of an assertion made), but rather as circumstantial evidence from which an element or elements of the offence can be inferred. ...
Secondly, such statements may be admitted as original evidence to support a Crown case that the accused entered into an agreement with others to do the unlawful act with which he or she is charged. Again such evidence is not admissible as an exception to the hearsay rule, but as original evidence. As is the case where no agreement to do an unlawful act is alleged, it is unnecessary to prove that the statements were made in furtherance of the conspiracy.
Thirdly, such statements may be admitted under the co-conspirators’ principle, which permits their admission as evidence of truth of the statements made in the absence of the accused, that is as an exception to the hearsay rule. In conspiracy cases, such evidence may be admitted to prove the accused person’s participation in conspiracy to do an unlawful act.”
The co-conspirators’ principle (or rule) was described by the High Court in Ahern v The Queen (1988) 165 CLR 87, at 100, as follows:
In our view, the test adopted in Tripodi is the appropriate one. Where an accused is charged with conspiracy, evidence in the form of acts done or words uttered outside his presence by a person alleged to be a co-conspirator will only be admissible to prove the participation of the accused in the conspiracy where it is established that there was a combination of the type alleged, that the acts were done or the words uttered by a participant in furtherance of its common purpose and there is reasonable evidence, apart from the acts or words, that the accused was also a participant.
In addition, in the unreported case of R v Macraild (New South Wales Court of Criminal Appeal, Sully, Dunford and Simpson JJ, 18 December 1997), at 9, the New South Wales Court of Criminal Appeal held that conversations between persons not including the accused were admissible pursuant to s 87(1)(c) of the Evidence Act 1995 (NSW) because they were
representations made by persons (Hunt and Dobson) in furtherance of a common purpose (the supply of cannabis) in which the Crown alleged Hunt, Dobson and the appellant were jointly engaged. S 87 reproduces the common law relating to representations made by co-conspirators: Ahern v The Queen (1988) 165 CLR 87; or in furtherance of a common purpose: Tripodi v The Queen (1961) 104 CLR 1.
Subject to more specific objections, on the basis of the co-conspirators rule, I reject the accused’s submissions to the extent that they assert the conversations with third parties were not admissible because they amounted to hearsay evidence.
Objections 55 to 62
The primary basis for objection was that the payment of $34,000 in cash to Mr El-Debel, assuming he was paid the sum, did not make temporal sense if the basis for the payment arose from a contract referred to as SDO 423. The alleged payment, or at least the pickup of cash, is alleged to have occurred on 12 October 2019. The process for the tender in respect of contract SDO 423 commenced on 23 October 2019. How then, submitted the accused, could the payment arise from the contract if it predated the procurement process which was said to generate the payment?
The Crown’s response was that the payment was not necessarily related to a specific contract. It was a payment for the course of conduct of Mr El-Debel in influencing, unlawfully, the general procurement process. On that basis I think the evidence is admissible.
It was part of the objection that the words in the telephone intercepts said to identify the payments were so vague or equivocal that they could not be concluded to refer to a payment of cash. There is a vagueness to the conversations, but that is often the nature of conversations involving illegal funds. It will be a matter for the jury to decide if the conversations refer to a sum of cash of $34,000.
Separate submissions were made in relation to objection 40. It was said that this conversation was unrelated to the alleged conspiracy. I agreed with counsel other than that part of the conversation concerning the use of an encrypted communication system. I think these references are relevant to the overall suggestion of collusion by way of protected communication.
Accordingly I ordered that the whole of the conversation should be excluded other than that part on page 646 below the words “Typing in the back ground”.
Objections 63 to 89
The primary objection here was that the conversations did not go past March 2020 so that they could not rationally relate to the alleged conspiracy. In addition there were layers of uncertainty which would ultimately present a challenge to the jury.
I think admissibility here is based on my general comments concerning ss 90 and 137 of the Evidence Act 2011 (ACT). I also accept the Crown submission that even though there is reference to matters before the charge, there is a need to view the evidence in the context of the whole of the relationship between the three alleged conspirators.
Objections 92 to 110
A number of the objections were conceded; they are numbered 93, 94, 97, 101, 102 and 110. Objection 103 was deferred.
In respect of objection 104 the argument mainly concerned the use of inflammatory phrases such as black and white money. I think the objection was well put but a part of the conversation includes an asserted connection between Mr El-Debel and his classification as “Bhai”. It was accepted that this word means brother in the Hindi language. I therefore ruled that the conversation was not admissible other than the passage on page 920 from the top of the page to “2 weeks ago”.
Objections 20 to 54
The following objections were conceded: 23, 28, 29, 31,41,44, 45, 46, 47, 49, and 54.
Objection 24 was not pressed by the accused.
These conversations involved Mr Vilayur and a third party. It was submitted that they did not specifically relate to the alleged conspiracy. Some of them were with a Mr Abrol, a technical adviser who had nothing to do with the alleged conspiracy.
The Crown submitted that the conversations related to the overall context of the circumstances surrounding the conspiracy. They also fall within my comments made above concerning the co-conspirators rule. Accordingly I allowed these conversations other than those not pressed.
Objections 111 to 114
Objections 111 and 114 were accepted by the Crown.
In respect of objections 112 and 113 it was submitted that the content of the conversations was so vague as to not have any probative value. The Crown responded that it showed the association between the three alleged conspirators.
I think the objection in respect of 113 should be upheld on the basis that it is so uncertain as to have no probative value. However I think the portion at the end of page 390 is provisionally relevant until further submissions are made concerning the foreign language referred to on this page.
Objections 115 to 119
Objection 119 was conceded. The objection to the balance of the conversations was based on the lack of relevance of the issue of a lack of disclosure on the part of, or concerning, subcontractors. The abrupt end to the conversation on page 417 was also relied upon to show that the conversation may have had a different context but for the abrupt ending.
The Crown submitted that the conversations relevantly referred to the alleged referral of conspirators sharing in the proceeds of the company Algoram and Mr El-Debel as Bhai or brother.
I think the conversations were relevant except that page 414 should be excluded other than the passage that says “Alex will call you” and the last five boxes on that page.
Objections 120 to 124
The Crown conceded objections 120 and 121. The submission for the other two objections was that it was unclear precisely what was the allegation being made. After some discussion it was agreed that objections 122 and 123 should be upheld.
In relation to objection 124 I thought the conversation should remain because the putting forward of candidates and rates to be charged was part of the overall dealings between the three alleged conspirators.
Objections 125 to 129
The objections here were to relevance. I am satisfied that that the conversations were relevant and I allowed these passages.
Objections 130 to 134
Most of these objections are dictated by my earlier ruling in respect of the person, Abrol, so that the evidence is allowed. In respect of 133, the word “white” at page 897 is to be removed.
Objection 169
This objection was dealt with out of turn. The Crown relied on the apparent reaction to the rumour. In my view the identification of a reaction from the phone call is far too speculative and prejudicial to remain admissible. This objection is upheld.
Objections 135 to 170
The following objections were conceded: 135, 139,144, 145,148, 160, 167 and 170.
The following objections were not pressed: 137, 138, 146,147, 150, 152, 153,155, 156, 163, 164, 165, 166 and 168.
Objection 136: this objection was based on relevance and overall vagueness. However when looked at with other evidence concerning cash, for example at page 339, I think the relevance is established. It was agreed however that pages 158 and 159 would be excluded.
Objection 140: the objection here was based on relevance and the possibility that the cash payment referred to could be innocent. I agree and ruled that this objection should be upheld.
Objection 141: the objection here was that the material was prejudicial. I agreed and the objection was upheld.
Objection 142: this was another objection concerning cash payments. I allowed the evidence provided the builder was called to give evidence and confirmed the amount of cash involved was $40,000.
Objection 143: this was another objection about cash. I thought the material was relevant but note the Crown agreed to remove the words “let’s do it straight”.
Objection 147: it was agreed to remove the conversation from and after the words “I will check that”.
Objection 149: the objection was based on relevance and prejudice. I think the material is relevant because of the reference to Mr El-Debel. The material may remain.
Objection 150: the objection was not upheld. I thought the conversation was relevant and not necessarily restricted to the person “ABCD”.
Objection 151: this objection was based on the material being prejudicial. I agreed to the extent that the words “No but we are too close to each other mate if someone tells we are in trouble…” on page 630 and the last three boxes on page 631 should be excluded. I am satisfied that the above words on page 630 referred to social distancing rather than any matter concerning the alleged conspiracy.
Objection 154: this was an objection of relevance. I think the conversation is relevant to the extent that it refers to the manipulation of the selection process. I allowed this evidence.
Objection 157: the objections here were based on hearsay, relevance and prejudice. I agreed that the question on page 684: “Which goal? Is it ($) 40 million this year?”, together with the next box were prejudicial and should be removed.
Objection 162: this was a relevance and prejudice objection. In my view the material is relevant and the prejudice is not such as to require its exclusion. The evidence was allowed.
Objections 1 to 18
Objections 3, 4, 5, 6 and 7 were conceded. Objections 14 and 16 were not pressed. Objection 15 was deferred.
The balance of the objections were generally dealt with by asking the Crown to state the relevance of the material, and then requesting any submissions from Counsel for the accused to defeat the Crown’s assertions. Where no challenge was made I accepted the relevance as set out by the Crown.
Conclusion.
I will not make formal orders here but rely on the various rulings made in the course of the argument as set out in these reasons.
| I certify that the preceding seventy-three [73] numbered paragraphs are a true copy of the Reasons for Draft Judgment of his Honour Justice Elkaim. Associate: Date: |
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