R v Karaali (No 3)

[2022] NSWSC 1800

Supreme Court

New South Wales

Medium Neutral Citation:	R v Karaali (No 3) [2022] NSWSC 1800
Hearing dates:	3; 4; 5; 8; 9 August 2022
Date of orders:	9 August 2022
Decision date:	09 August 2022
Jurisdiction:	Common Law
Before:	Campbell J
Decision:	Orders at [12]
Catchwords:	CRIMINAL PROCEDURE — trial — murder — service of late evidence — time required for responsive evidence — discharge of jury — hearing adjourned — costs certificate issued
Legislation Cited:	Suitors’ Fund Act 1951 (NSW), s 6A
Category:	Procedural rulings
Parties:	Abdul Karaali (Accused) Regina (Crown)
Representation:	Counsel: P Hogan (Crown) IH Wallach (Accused) Solicitors: Director of Public Prosecutions (NSW) (Crown) TNL Law (Accused)
File Number(s):	2020/61211

oral Judgment – revised 10 august 2022

1. This trial was fixed to commence on 25 July 2022 but, because of COVID issues, the matter was put back until 3 August 2022. Issues had in the meantime arisen in relation to the readiness of the trial to proceed but it was agreed between counsel, and I accepted, that the better course of action was to empanel the jury from the panel that had been summoned to attend on 3 August, to send the selected jurors home and to resolve those legal issues before commencing the trial proper.

2. As it transpired, the resolution of the matters in dispute involved some complexity and took the form of what might have been effectively a Basha inquiry during which extensive evidence was taken from two experts and not insubstantial legal argument was addressed to me.

3. I made my rulings yesterday and I was asked to adjourn the case again until today to enable the parties to obtain instructions in relation to them. Essentially, for the reasons I gave yesterday, the substantive dispute related to whether the Crown was entitled to rely upon late served expert evidence. I need not go into the details of that because I dealt with it fully yesterday when giving my reasons for my ruling. In the end I ruled that, subject to the rejection of one part of his evidence, the Crown was entitled to rely upon the evidence of Sergeant Catto-Pitkin, a police digital forensic expert, and the whole of the evidence of Mr Chang, an electronic engineer employed by OPTUS.

4. In the course of my reasons yesterday, I adverted to the prospect that the admission of the evidence, which I decided was of importance to the Crown case, may put the accused at a disadvantage. I referred to the evidence received in affidavit form from the accused's solicitor, Ms Ngoc Le, as to the efforts that had been made already in an attempt to meet and answer the expert evidence that had been served late by the Crown. I accepted that she had taken reasonable steps to meet the evidence and had been unable to do so in the time available. Indeed, I accepted that the process might take at least some weeks.

5. When the matter resumed this morning, Mr Wallach of counsel, who appears for the accused, made an application for the discharge of the jury and for an adjournment of the trial to enable the accused to deal with the matter of the Crown's expert evidence. I repeat, the application was not unexpected in the light of the submissions that had been put to me during the voir dire and the observations I made in my judgment. From my own point of view, I felt that Mr Wallach was pushing at an open door.

6. Mr Hogan, Crown Prosecutor, who appears to prosecute the case, was able to inform me that he had received instructions from a Deputy Director of Public Prosecutions that, in the circumstances of the late service of the Crown expert evidence and my indication, indeed ruling, that it would be admitted into evidence, the Crown did not oppose the application for a discharge and adjournment and, may I say, that was a most proper position for the Crown to adopt in the circumstances.

7. For these reasons, I have discharged the jury and thanked them for their service so far and their preparedness to continue serving.

8. It now remains to adjourn the trial and I will discuss with counsel appropriate dates.

(See transcript of evidence)

9. I return to the application made by Mr Wallach of counsel for a certificate under s 6A(1)(c) of the Suitors Fund Act 1951 (NSW). Again the application for the grant of a certificate is not opposed by the Crown provided I am satisfied that the statutory conditions for the issue of a certificate are satisfied.

10. The language of the statute is very wordy, but I am satisfied that the conditions have been met. These are criminal proceedings. They have been discontinued by discharge of the jury and a new trial has been ordered and will be fixed by me in my formulation of my orders. The reason for the discontinuance of this trial is in no way attributable to disagreement on the part of the jury. Nor is it due to any act neglect or default of the accused, his counsel or attorney in these proceedings. The reason for the discontinuance of the trial is, as I have already explained, the late service of important expert evidence by the Crown which I am satisfied the accused was not in the position to meet, and if possible contradict, in the current listing.

11. There was an issue raised about whether additional costs had to be incurred before the certificate could be issued. I am satisfied that that is not the case and that the procedure required by the provision is two-staged. First, the presiding judge, that is to say, here, me, must be satisfied as to the statutory conditions and for that reason, grant a certificate. Secondly, when the accused incurs additional costs by reason of a new trial a claim may then be made on the Director General of the Department who may authorise payment from the Fund to the accused. It is unnecessary for me to go into further details.

12. My orders then are:

1. Confirm the discharge of the jury;

2. Adjourn the trial to commence on the 6 February 2023;

3. Direct that the prosecution serve on the accused and his legal representatives any additional evidence including the additional disclosure, the subject of my orders of 8 August 2023 by 5pm on Wednesday, 17 August 2022;

4. List the matter for mention before me on 18 August 2022 unless I receive prior notification from both parties that the mention is unnecessary. Mr Karaali is excused from appearing on that day;

5. Remand Mr Karaali in custody until the new trial commencing on the 6 February 2023;

6. Grant Mr Karaali a certificate under the provisions of section 6A(1)(c) Suitors Fund Act 1951 (NSW) which certificate is to be drafted by his legal representatives and submitted to me in chambers for signature and return; and

7. Grant liberty to the parties to apply by listing the matter for mention before me on short notice to my associate and to the other side.

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Decision last updated: 16 March 2023