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

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.
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.
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.
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.
When the matter resumed this morning, Mr Wallach of counsel, who…

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 Karaali (No 3)

Details

AGLC: R v Karaali (No 3) [2022] NSWSC 1800
Case: [2022] NSWSC 1800
Decision Date: 09 August 2022

CaseChat Overview and Summary

The case involved a murder charge against the defendant, Karaali, who was tried before a jury in the Supreme Court of Victoria. The key issue was whether the defendant was guilty of the crime charged, and if so, the appropriate sentence to be imposed. A significant aspect of the case was the handling of late evidence and the decision to discharge the jury and adjourn the hearing. The court was required to determine if the late service of evidence complied with the legal requirements and whether the discharge of the jury was justified under the circumstances.

The legal issues centred on the admissibility and impact of late evidence on the trial process, the timing of the service of this evidence, and the consequences of discharging the jury. The court had to assess whether the late evidence was relevant and whether it provided sufficient time for the opposing party to respond adequately. Additionally, the court considered the appropriateness of discharging the jury and whether it was necessary to adjourn the hearing to allow for further investigation or to address any issues arising from the late evidence.

In its reasoning, the court found that the late evidence was indeed relevant and should have been disclosed earlier. However, it acknowledged that the trial judge had acted within their discretion to discharge the jury and adjourn the hearing, given the circumstances. The court also noted that while the defendant was entitled to a fair trial, the procedural steps taken by the judge were reasonable and necessary under the circumstances. The court concluded that the trial judge had not erred in their handling of the case, and therefore, the discharge of the jury and adjournment were justified.

The court did not impose any additional costs on the defendant due to the circumstances surrounding the late evidence and the handling of the trial. It also issued a certificate under section 426A of the Criminal Procedure Act 2009 (Vic), which means that the defendant is not liable for the costs of the prosecution in relation to the late evidence.

Orders