R v Chalabian [2020] NSWSC 1341 | Case summary

Decision on Application to Vacate the Trial

I come now to explain, after that lengthy chronological narrative, my decision on the application to vacate the trial.
At the outset, it is appropriate to observe that, so far as the Court is concerned, it was ready to proceed with the trial of Mr Chalabian on 12 October 2020, with the Court having made special arrangements to secure a courtroom at the request of counsel for the parties for the trial to proceed.
It is a notorious fact that the impact, in this State and elsewhere, of the COVID-19 pandemic upon the criminal justice system has been substantial, including the system of jury trials in the Supreme and District Courts. As the vacation of Mr Barrett's trial illustrates, it was simply not possible for a jury trial to proceed in the Supreme Court in June 2020 given restrictions at that time upon community life brought about by the COVID-19 pandemic.
The trial of Mr Chalabian was to proceed in October and November 2020 effectively as a special fixture.
The Court has a significant responsibility to facilitate the holding of criminal jury trials in a timely fashion. There is a strong public interest that, once fixed for hearing upon the basis that the parties were ready to proceed, a criminal trial should ordinarily proceed with expedition: R v Alexandroaia (1995) 81 A Crim R 286 at 291; Slotboom v R [2013] NSWCCA 18 at [36]. Delay is to be avoided having regard to the particular vices flowing from the passage of time.
In June 2020, the Court was informed, in the context of the pretrial hearing leading to R v Barrett (No. 1), that Mr Hausman was not to be called as a Crown witness. That position had been adopted following an extended period in 2019 when AFP officers spoke to Mr Hausman for the purpose of obtaining from him a draft induced statement. What occurred in 2019 was summarised in R v Barrett (No. 1) at [29]-[34]: "29 On 24 July 2019, AFP officers commenced to take a draft induced statement from Mr Hausman with respect to the criminal matters which were the subject of Operation Elbrus concerning the alleged Plutus tax frauds and associated persons and activities, including the Accused. This process continued until 16 September 2019 when the AFP formed the view that Mr Hausman was not being truthful and the process of taking a statement was terminated. At that time, a draft and incomplete statement had been taken which was never settled, signed or adopted by Mr Hausman. 30 On occasions when the Accused's matter was mentioned before Fullerton J in the Arraignments List in 2019, reference was made to the fact that AFP officers were obtaining a statement from Mr Hausman. This process contributed to a delay in fixing a trial date for the Accused, with that not occurring until later in 2019. 31 A fair reading of what was said to Fullerton J at a number of these mentions was that co-operation evidence was being obtained and it was anticipated that it would be relied upon at the trials of the Accused and Mr Chalabian. What was said in Court on 12 July 2019, 2 August 2019, 8 August 2019 and 6 September 2019 was that a process was underway in which a statement was being obtained from Mr Hausman with the Court being told on 6 September 2019 that 'the cooperation evidence is expected to complete towards the end of September' (T2.23, 6 September 2019). 32 On 4 October 2019, the Crown informed the Court that 'cooperation evidence' was no longer to be relied upon. The following exchange took place that day between Fullerton J and the Crown representative (T1.47-2.1): '[Her Honour]: I am told for the first time today that what was to be cooperation evidence, which we have been waiting [literally] for months to be produced, is now no longer to be relied upon at all is that the situation? [Crown]: That is, your Honour, yes.' 33 The Crown arraignment summary prepared for the purpose of the listing on 4 October 2019 noted that the 'anticipated cooperation evidence is no longer being obtained'. An affidavit of Federal Agent Stefan Anthony Williams sworn 3 October 2019 was furnished concerning the prosecution of the Accused and eight other persons, including Mr Chalabian and Mr Rostankovski. The affidavit concerned prosecution disclosure and was filed in compliance with paragraph 9 of Supreme Court Practice Note SC CL2. 34 On 6 December 2019, Fullerton J fixed the trial of the Accused to commence on 15 June 2020. As noted earlier, that trial date was vacated due to the COVID-19 pandemic."
The sentencing proceedings in the District Court concerning Mr Hausman were adjourned from August 2020 to December 2020. As I have noted, the Court has been informed today by the Crown that the proceedings have been further adjourned until March 2021.
I note that the Crown has briefed different counsel to prosecute Mr Chalabian from those who appear for the Crown in Mr Barrett's case and the case of the other persons (including Mr Adam Cranston) whose trial will proceed in due course before Payne J.
It is not clear on the evidence why it took until early September 2020 for counsel briefed by the Crown, for the purpose of Mr Chalabian's trial, to be requested to advise as to whether Mr Hausman should be called as a Crown witness, with Mr Hausman to be interviewed by Crown counsel for that purpose.
It appears that what had occurred in the context of R v Barrett (No. 1) was not communicated to counsel briefed to prosecute Mr Chalabian. It might be thought that there was ample opportunity, if there was to be reconsideration of the question of whether Mr Hausman should be called as a witness at the trial of Mr Chalabian, for that issue to be addressed in the period after 24 June 2020 when I delivered judgment in R v Barrett (No. 1). As I have said, it is not clear why nothing was done in the months of July and August 2020 in that respect, which, if done, may have raised the possibility of the trial date for Mr Chalabian being retained.
I accept what has been said by Senior Counsel for the Crown, that she and her junior in the Chalabian case were not informed of the matter, nor asked to undertake this function until a time in late August 2020.
However, this is not a case where Mr Hausman indicated for the first time in 2020 a willingness to assist the Crown, so that the process of taking a statement commenced only from that time. There had been an extended period in 2019, when AFP officers spoke to Mr Hausman and took a draft but incomplete statement from him, before determining that the process should be discontinued.
In my view, there is still no satisfactory explanation as to why, with appropriate expedition, AFP officers (advised by representatives of the Commonwealth Director of Public Prosecutions) could not have undertaken this process prior to August 2020, having regard to the commencement of the taking of the statement from Mr Hausman in 2019. I accept that this process would take some time. However, in circumstances where there was a trial fixed, there was an element of urgency and a need for expedition. This was an obligation that extended on the prosecution side through the Commonwealth Director of Public Prosecution to AFP officers undertaking the investigation. I note that it is now said that the statement of Mr Hausman will be completed by late October 2020, a process certainly less than the period of up to 12 weeks indicated to the Court on 4 September 2020.
Both the Crown and the defence are subject to statutory duties to take steps to reduce delays in proceedings on indictment in accordance with s.134 Criminal Procedure Act 1986 (NSW). An important provision in this respect concerns mandatory pretrial disclosure by the prosecutor and the accused person in accordance with ss.141-144 Criminal Procedure Act 1986 (NSW). Section 142(1)(c) requires the prosecution notice to contain "A copy of a statement of each witness whose evidence the prosecutor proposes to adduce at the trial". In rejecting a defence submission in R v Barrett (No. 1) that the Crown was under an obligation under s.142 to disclose Mr Hausman's draft and incomplete statement to the defence, I said at [89]-[92]: "89 I have already found that the Crown had not made a decision that Mr Hausman, an alleged accomplice of the Accused, was to be called by the Crown at the trial of the Accused. A process was underway where that issue was under consideration. The process was brought to an end because of a view formed by AFP officers concerning the credibility of Mr Hausman. Accordingly, no statement of Mr Hausman was obtained and included in any brief of evidence or served upon the Accused. 90 I do not consider that the Accused is assisted by s.142 Criminal Procedure Act 1986 (NSW). Mr Hausman is not a witness whom the Crown proposes to call, nor is it a situation where a statement was taken from him and served with a decision being made that he was to be called by the Crown, but with that decision being reversed. There is no statement from Mr Hausman for the purpose of s.142(1)(c). Nor do I consider that the draft statement falls within s.142(1)(i) or (j). I do not consider that an incomplete draft statement falls within these provisions. 91 In my view, s.142(1)(k) does not assist the Accused. That provision is directed to information 'relevant to the reliability or credibility of a prosecution witness'. Mr Hausman is not a prosecution witness. 92 Nor is the Accused assisted by anything said in R v Kneebone. In that case, the Crown had served a signed statement from a witness who was present at the trial and was said to be a relevant and material eyewitness, but the Crown determined not to call the witness. In the circumstances of that case, it was held that the prosecutor's failure to call a relevant and material eyewitness on the basis of asserted unreliability, without adopting an appropriate course to enable proper consideration of any question of unreliability, such as conferring with the witness to enable proper ascertainment of the willingness and capability of the witness to give relevant and truthful evidence, constituted a miscarriage of justice: R v Kneebone at [49]-[53], [57]-[61], [101]-[107]. That scenario is far removed from the present case. Nothing said in R v Kneebone assists the Accused on the present application."
As outlined earlier in this judgment, the Crown took a considerable time before furnishing a settled prosecution notice under s.142 on 24 August 2020. The s.142 notice had been prepared, filed and served for the purpose of a trial scheduled to commence less than two months later on 12 October 2020. That notice did not indicate in any fashion that consideration was being given to calling Mr Hausman as a Crown witness at the trial of Mr Chalabian.
An incidental observation made by me on 26 August 2020 led to the surprising revelation by the Crown that consideration was being given to the calling of a co-accused of Mr Chalabian as a Crown witness (see [18] above). That indication crystallised into the application made by the Crown in the Notice of Motion filed 4 September 2020.
I have given serious consideration to refusing the Crown application to vacate the trial of Mr Chalabian. The trial has been fixed for some months and special arrangements have been made for the trial to proceed in the challenging conditions posed by the COVID-19 pandemic. Other trials were not listed in this period in the expectation that the trial of Mr Chalabian was to proceed. Until 26 August 2020, the common position of the parties as expressed consistently to the Court, was that the trial would proceed on that day.
It is relevant, but not decisive, that Mr Chalabian consents to the Crown application to vacate the trial. I am not in a position to make any assessment as to whether the evidence of Mr Hausman may, in some way, assist Mr Chalabian. I am left in the position that this is an unopposed application to vacate the trial.
It would be a grave step for the Court to force the trial on in circumstances in which both the Crown and Mr Chalabian seek that the trial be vacated and that Mr Hausman give evidence at the trial. It is apparent from the Crown Case Statement that relevant events involving Mr Chalabian are closely intertwined with actions and words of Mr Hausman.
There is a powerful argument, based on the Court's statutory obligations to avoid delay, that the resources of the Court should be utilised, and the parties who are otherwise ready to proceed to trial without Mr Hausman being called, should go forward with the trial proceeding. However, given the common position of the Crown and Mr Chalabian on the present application, I do not think that forcing the trial on would accord with the interests of justice. Accordingly, I have determined to accede to the Crown application.
It is appropriate to observe that this outcome is a frustrating one for the Court and the community in circumstances where other persons who are waiting for their trials to proceed in the Supreme Court, many of whom are in custody, have lost the opportunity to have their trial proceed in this period because of the very late and surprising application by the Crown to alter its position concerning Mr Hausman after months in which a contrary position had been indicated to the Court in related proceedings.
I will not fix a new trial date for this matter. It is appropriate that the matter be placed in the Arraignments List on 6 November 2020 so that the Criminal List Judge can determine a new trial date in accordance with other priorities in the Criminal List including, as I have observed, persons who are in custody awaiting their trials.
I make the following orders: 1. the trial of the Accused, Sevag Chalabian, listed for 12 October 2020 is vacated; 2. the proceedings are to be placed in the Arraignments List on 6 November 2020; 3. the Accused's bail is continued.

R v Chalabian

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