R v Vilayur; R v Kahlon; R v El-Debel

[2022] ACTSC 110

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

R v Vilayur; R v Kahlon; R v El-Debel

Citation:

[2022] ACTSC 110

Hearing Date:

20 May 2022

DecisionDate:

20 May 2022

Before:

Elkaim J

Decision:

See [15]–[18]

Catchwords:

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Stay of proceedings – application by accused person for temporary stay of criminal proceedings – delay in trial due to Crown – where one accused not ready to proceed to trial – where other co-accused are ready to proceed to trial

Parties:

The Queen ( Crown)

Gopalakrishnan Suryanarayanan Vilayur ( Accused in SCC 295 of 2021)

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 Keaney ( Accused in SCC 295 of 2021)

M Kalyk ( Accused in SCC 296 of 2021)

C Newman ( Accused in SCC 297 of 2021)

Solicitors

Commonwealth Director of Public Prosecutions ( Crown)

Legal Aid ACT ( Accused in SCC 295 of 2021)

Murphys Lawyers ( Accused in SCC 296 of 2021)

Kamy Saeedi Law ( Accused in SCC 297 of 2021)

File Numbers:

SCC 295 of 2021

SCC 296 of 2021

SCC 297 of 2021

Elkaim J:

1. The three accused are due to stand trial on 31 May 2022 before a judge and jury. The trial is estimated to last for six weeks. Each accused faces a single charge of conspiring to defraud the Commonwealth.

1. The three accused have been waiting for their trial for a long time. The delays have not been their fault. Without attributing specific blame to any person the reasons for the delay have been on the side of the Crown.

1. The Court has been at pains to ensure the matter would proceed as soon as possible, to the extent that at a directions hearing before the then Chief Justice, on 26 October 2021, her Honour recommended that there be no further adjournments of the matter.

1. Notwithstanding the setting of timetables, both by her Honour and by me, the Crown was not able to reach a stage where it could say the case was ready to proceed until very recently.

1. Notwithstanding the Crown’s readiness, one of the accused, Mr Vilayur, is not able to meet the Crown case. In particular, he wishes to consider the retaining of an expert to meet the accusations of financial misdeeds made by the Crown.

1. There is no suggestion that his lack of readiness is other than genuine.

1. The other two accused have stated that they are ready to proceed, although there is a distinct air about this readiness which appears to stem from a taking forensic advantage of the trial proceeding in the absence of the third accused. I have been informed that there are said to be admissions in the record of interview of Mr Vilayur which, although subject to directions to a jury, might be seen to prejudice the defence of the other two accused.

1. An application to separate the trials has not been made but has certainly been foreshadowed.

1. The Crown acknowledges that delays have fallen largely at its feet but says that the trial for all of the accused should be adjourned so that they can be tried together. The Crown however acknowledges that although a separate trial application would be resisted, there is at least a basis for the application.

1. On the information before me I could not say whether an application for separation of the trial of Mr Vilayur would succeed. I can however say that the other two accused have been waiting a very long time for their case to proceed and they are entitled for it to proceed.

1. They say they are ready, perhaps subject to some pre-trial matters, but nevertheless they wish to go ahead on 31 May 2022.

1. I think the stage has been reached where any further adjournment should be refused other than in respect of Mr Vilayur, who wishes for there to be an adjournment.

1. If the whole of the matter were adjourned it would have difficulty proceeding again this year. Such further delay, at least in respect of the two accused who are now ready to proceed, would be unjust.

1. Again repeating that I do not know what would be the result of an application for separation of the trials, it would be indeed regrettable if I were to adjourn all of the matters and then at a later stage allow them to be separated.

1. Accordingly the matters of Mr Kahlon and Mr El-Debel will proceed as planned on 31 May.

1. As a matter of practicality I think it would be appropriate to use the first four days assigned to the trial for any pre-trial arguments, leaving the empanelment of a jury to 6 Junes 2022.

1. Mr Kahlon and Mr El-Debel have also made an application for a conditional costs order. The Crown has said it is not ready to meet this application. I do not intend to deal with it today.

1. As far as Mr Vilayur is concerned, his trial is adjourned, to be mentioned on 14 July 2022, before the Registrar.

I certify that the preceding eighteen [18] numbered paragraphs are a true copy of the Reasons for  Judgment of his Honour Justice Elkaim.

Associate:

Date: