Ms G Wright (Crown)
Mr GA Brady SCMr A Williams (Accused)
Judgment (5 paragraphs)
[1]
Judgment
JOHNSON J: By Notice of Motion filed 4 September 2020, the Crown applies for the trial of the Accused, Sevag Chalabian, fixed to commence on 12 October 2020, to be vacated.
The legal representatives for Mr Chalabian (who is on bail) have indicated that he consents to the Crown application.
It remains a matter for the Court to determine whether the trial of Mr Chalabian should be vacated.
[2]
Background to the Application
Mr Chalabian is to stand trial upon an indictment charging two offences under the Criminal Code (Cth):
Count 1 - Between about 1 February 2017 and about 23 March 2017, at Sydney in the State of New South Wales and elsewhere, he did jointly commit an offence with Daniel Hausman and Daniel Rostankovski, in that he did deal with money that was, and that he believed to be, proceeds of crime and at the time of dealing the value of the money was $1,000,000.00 or more contrary to s.400.3(1) with s.11.2A(1) Criminal Code (Cth).
Count 2 - Between about 15 February 2017 and about 18 May 2017, at Sydney in the State of New South Wales and elsewhere, he did jointly commit an offence with Daniel Hausman and Daniel Rostankovski, in that he did deal with money that was, and that he believed to be, proceeds of crime and at the time of dealing the value of the money was $1,000,000.00 or more contrary to s.400.3(1) with s.11.2A(1) Criminal Code (Cth).
On 6 December 2019, Fullerton J, as Criminal List Judge, listed the trial of Mr Chalabian to commence on 12 October 2020 with an estimate of four weeks. Her Honour indicated that I would be the trial Judge.
Also on 6 December 2019, Fullerton J listed the trial of Stephen John Barrett to commence on 15 June 2020 with an estimate of four weeks. Her Honour indicated that I would be the trial Judge in that matter as well.
Mr Barrett is charged with blackmail under s.249K(2) Crimes Act 1900 (NSW). The indictment against him alleges that, on or about 1 February 2017, at Sydney in the State of New South Wales, he did make an unwarranted demand with menaces with intent to obtain a gain by an accusation or a threatened accusation, that Adam Cranston, Jason Onley and Dev Menon had committed serious indictable offences, namely fraud and money laundering.
Because of the inability to conduct a jury trial in June 2020 as a consequence of the COVID-19 pandemic, the trial of Mr Barrett was vacated and a new trial date has been fixed for 6 April 2021: R v Barrett (No. 1) [2020] NSWSC 793 at [2].
Although Mr Chalabian and Mr Barrett are to be tried separately, there is some factual overlap between their trials. The Crown alleges that between March 2004 and May 2017 a number of individuals, including Adam Cranston, Jason Onley and Dev Menon, committed a major tax fraud described as the Plutus tax fraud. It is not necessary to outline the details of that alleged fraud in this judgment. The Crown alleges that Mr Barrett, along with Mr Hausman and Mr Rostankovski, blackmailed the alleged tax fraud conspirators on or about 1 February 2017. The Crown alleges that Mr Chalabian dealt with the proceeds of this blackmail demand, and also a second blackmail demand, alleged to have been made between February and May 2017.
The trial of Adam Cranston and others, listed to commence in August 2020 before Payne J (sitting as a Judge of the Common Law Division) was itself vacated for a number of reasons.
As a result of the adjournment of the trial of Adam Cranston and others and the trial of Mr Barrett, the trial of Mr Chalabian was to be the only trial to proceed in 2020 arising out of the Plutus investigation and prosecutions.
A pretrial hearing proceeded before me in June 2020 concerning Mr Barrett with respect to the status of a draft incomplete and unsigned statement from Daniel Hausman which had been taken by officers of the Australian Federal Police ("AFP") in 2019 before the view was formed that Mr Hausman would not be called by the Crown at the trial of Mr Barrett. Mr Hausman is pleading guilty to the charges brought against him.
In R v Barrett (No. 1), I determined that the Crown was not obliged to disclose the draft incomplete and unsigned statement of Mr Hausman pursuant to the prosecution duty of disclosure, but that Mr Barrett and his legal representatives should be granted access to Mr Hausman's draft statement under subpoena subject to conditions. That judgment was delivered on 24 June 2020 with a copy of the judgment being made available to the Crown and the legal representatives for Mr Barrett. In accordance with usual practice, given the pending jury trial of Mr Barrett (and the other Plutus trials), the judgment in R v Barrett (No. 1) was not published on Caselaw.
The proceedings involving Mr Chalabian came before me for the first time on 19 June 2020 when I made a number of orders to progress the matter ahead of the trial date of 12 October 2020.
On 5 August 2020, Mr Chalabian's matter was mentioned once again before me, at which time there was no suggestion that an application would be made to vacate the trial. As the transcript of that day will reveal, discussion took place with Senior Counsel for the Crown and Senior Counsel for Mr Chalabian concerning the practical arrangements for a jury trial to proceed in the Supreme Court in October 2020 whilst restrictions brought about by the COVID-19 pandemic were still in place. The Crown informed the Court on that day that the Notice of Prosecution Case under s.142 Criminal Procedure Act 1986 (NSW) was to be filed and served by 24 August 2020.
On 6 August 2020, at my suggestion, the legal representatives for the Crown and Mr Chalabian inspected the potential trial courts in the King Street Complex of the Supreme Court in company with myself, the Executive Director and Principal Registrar of the Supreme Court and my staff. Following that inspection, the parties agreed (as did the Court) that Court 3 in the King Street Complex was the most appropriate court to utilise for the purpose of Mr Chalabian's trial. Administrative arrangements were put in place to secure Court 3 for the trial, together with the adjacent Court 2 which would be used by the jury in accordance with the special arrangements to operate during the COVID-19 pandemic.
On 24 August 2020, the Crown filed and served the Notice of Prosecution Case under s.142 Criminal Procedure Act 1986 (NSW). This document was a detailed one containing a series of annexures including schedules of civilian evidence, Australian Tax Office evidence, AFP evidence and bankers' evidence to be adduced by the Crown at the trial, together with schedules of electronic evidence in the form of telephone intercept recordings and surveillance device recordings to be relied upon by the Crown at the trial. Attachment H to the Notice of Prosecution Case contained a list of witnesses in those different categories.
In accordance with directions previously made, the matter came before me again on 26 August 2020. In the course of discussion concerning the Notice of Prosecution Case, I noted the categories of witnesses proposed to be called by the Crown. Having regard to my experience in R v Barrett (No. 1), I observed, for more abundant caution, that the Crown did not propose to call any witness who was charged arising from conduct involved in this alleged criminal enterprise. To my surprise, the Crown indicated the following in the course of that discussion (T3.48-4.23, 26 August 2020):
"HIS HONOUR: … Am I correct that there is no witness who is someone who is otherwise charged with conduct arising from this enterprise, if I can use that term?
CROWN PROSECUTOR: At this stage that is correct, your Honour.
HIS HONOUR: The 'at this stage' has a ---
CROWN PROSECUTOR: --- your Honour, I can see that it is not lost on anyone.
HIS HONOUR: Well, one of the reasons that I am asking you and clearly if that is not definite, but if there was going to be a development along those lines, that would clearly give rise to a number of procedural aspects, and perhaps more.
BRADY: Yes.
HIS HONOUR: That's, quite frankly, why I am raising it now.
CROWN PROSECUTOR: Your Honour, it is a matter that has arisen in discussions very, very recently and I can assure you that I am aware of the significance of that issue and will be resolving the Crown's position on it as soon as I possibly can and communicating that to my learned friend and also to the Court. So I am onto it, your Honour and Mr Brady."
I listed a pretrial hearing for 1 and 2 October 2020 so that any pretrial issues could be argued and determined before the empanelment of a jury on 12 October 2020 for the purpose of a trial.
[3]
The Crown Application to Vacate the Trial
On 4 September 2020, the Crown emailed to my Associate a Notice of Motion which had been filed that day which sought that the trial listed to commence on 12 October 2020 be vacated. The Notice of Motion was supported by an affidavit of Suzanne Therese Martinez affirmed 4 September 2020.
Put shortly, the affidavit of Ms Martinez revealed that, by the afternoon of 2 September 2020, the Crown had formed the view that it intended to call Mr Hausman as a witness at the trial of Mr Chalabian. The affidavit stated that the AFP had been requested to prepare a further statement from Mr Hausman and that the "AFP has estimated that this process will take up to 12 weeks". Also attached to the affidavit of Ms Martinez was a copy of my judgment in R v Barrett (No. 1).
As the parties were aware, I was on leave between 31 August 2020 and 28 September 2020. The Crown application by Notice of Motion was drawn to my attention. In accordance with paragraph 15 of Practice Note SC CL 2 (Criminal Proceedings), the application should have been made to the Criminal List Judge. However, after consultation with R A Hulme J, the Criminal List Judge, given my knowledge of the matter, I determined to progress the application by way of email communications with the parties. At my request, my Associate sought an indication of the defence response to the Crown application. By email dated 9 September 2020, the solicitor for Mr Chalabian (Ms Maxine Malaney) stated:
"The defence consents to the Crown's Notice of Motion to vacate the trial. It is consented to because of the Crown's advice that Mr Hausman will now be called as a witness."
This email was referred to me and I requested my Associate to communicate with the parties in the following terms in an email dated 9 September 2020:
"I have referred Ms Malaney's email below to his Honour who has asked that I communicate with the parties as follows.
It is, of course, a matter for the Court to determine whether the trial date should be vacated. His Honour would be assisted with further information by way of an affidavit from the Crown provided by email to me (and copied to the defence) by 4.00 pm on Wednesday, 16 September 2020. That affidavit should address the following issues:
(a) Against the background of considerable time being taken in 2019 to obtain a statement from Mr Hausman before that process was terminated, why is it now indicated that a period of up to 12 weeks would be needed to take a statement from him? In particular, given the late decision made by the Crown and the need for prompt action to be taken in this respect, is it not reasonable to expect that a statement can be taken from Mr Hausman by the end of September 2020?
(b) Given the history outlined in his Honour's judgment in R v Barrett concerning the Crown potentially calling Mr Hausman as a witness, why is it that significant delay occurred before the Crown formed the view recently that it would call Mr Hausman?
(c) Given the responsibilities of the parties and the Court to ensure that a matter is ready for trial in accordance with the Criminal Procedure Act 1986 and generally, what further information does the Crown wish to give to the Court to explain why the decision to call Mr Hausman was taken at this late stage?
After receipt of a further affidavit addressing these issues, his Honour will consider what should then occur with respect to the Crown's application to vacate the trial."
In response to the email from my Associate of 9 September 2020, an affidavit of Hamish John Williams affirmed 11 September 2020 was furnished by the Crown by email sent that day. Mr Williams provided the following explanation as to why a 12-week period had been estimated for the taking of a statement from Mr Hausman (paragraphs 6-8 of affidavit):
"6 On 10 September 2020 at 10:32am I spoke with Federal Agent Stefan Williams of AFP. Mr Williams subsequently sent an email to me on 11 September 2020 confirming arrangements that the AFP had made to take Mr Hausman's statement.
7 I am informed by the AFP and verily believe that:
a. AFP officers met with Mr Hausman on Friday 4 September 2020 to confirm the expected process for taking a further statement from Mr Hausman.
b. The AFP commenced to take a further statement from Mr Hausman on Tuesday 8 September 2020.
c. This week the AFP have met with Mr Hausman on the following occasions:
i, Tuesday 8 September 2020, from 9.45am to 4.00pm;
li. Wednesday 10 September 2020, from 9.00am to 3.55pm;
iii. Thursday 11 September 2020, from 1.45pm to 4.15pm;
iv. Friday 12 September 2020 from 8.00am with an expectation that the session will finish at 4.00pm; and
v. Mr Hausman has also committed to meeting with the AFP on Sunday 14 September 2020.
d. Further meetings between Mr Hausman and the AFP to continue taking the statement will be made on a week to week basis.
e. Taking the statement requires the AFP to provide Mr Hausman with evidence of his interactions with the Accused, which is extensive and is substantially in the form of text messages, Whatsapp messages and telephone intercept material (which are required to be played), for him to review and comment upon. This is a very slow process and Mr Hausman's account of all of this material was not obtained during the statement-taking exercise conducted in 2019.
8 I am informed by Mr Williams and verily believe that the AFP continue to estimate that the process of completing Mr Hausman's statement will take up to 12 weeks due to the amount of evidence involved. This assessment has been made after meeting with Mr Hausman on several occasions this week, and on the basis of the AFP's interactions with Mr Hausman when taking his draft statement."
In explanation for the delay in deciding to call Mr Hausman as a witness in the Crown case, Mr Williams stated (paragraphs 9 and 10 of the affidavit):
"9 On 26 August 2020, the CDPP provided to counsel for the Crown the draft discontinued statement of Mr Hausman (that had been prepared in 2019). These counsel were not briefed in the matter at the time of the arraignment mention on 4 October 2019 when the Court was informed that the anticipated cooperation evidence was no longer being obtained.
10 Following a review of the draft statement, on 2 September 2020, senior and junior counsel for the Crown conducted a conference with Mr Hausman. By the afternoon of 2 September 2020, the Crown formed the view that Mr Hausman ought to give evidence at the trial of the accused. The Crown requested the AFP to prepare a further statement from Hausman. That decision was immediately communicated to the accused's senior counsel by senior counsel for the Crown."
In further explanation of the Crown application, Mr Williams stated (paragraphs 11-14 of the affidavit):
"11 Given the importance of Mr Hausman's evidence and the late stage at which his statement is being prepared, it is the Crown's application that the trial be vacated.
12 As outlined in the Crown Case Statement, the Crown will rely upon extensive text messages, Whatsapp messages, and telephone intercept material, to which the accused and Mr Hausman were a party. The Crown's current assessment is that Mr Hausman has relevant and probative evidence to give as to his interactions with the accused at relevant times and as to the meaning of their communications.
13 Further, the Crown is of the view that it would be highly desirable that Mr Hausman be sentenced prior to giving evidence in the trial. Mr Hausman's matter is listed for sentence and disputed facts hearing in the District Court of New South Wales on 1 and 2 December 2020. Mr Hausman is currently unrepresented.
14 I am informed by Mr Hausman and verily believe that he intends to seek an order that the sentence hearing be vacated to enable him to focus upon completing his statement with the AFP and so that he may raise funds to obtain legal representation for that sentence hearing."
In response to an email sent on 15 September 2020 by the Crown as to the status of the Crown application to vacate the trial, an email was sent by my Associate to the parties on 18 September 2020 which stated:
"As the Accused consents to the Crown application, his Honour will, in due course, make an order vacating the trial and the parties can proceed upon the basis that the trial will not proceed on 12 October 2020.
His Honour will sit, as scheduled, at 10.00 am on 1 October 2020. Given the affidavits of Ms Martinez dated 4 September 2020 and Mr Williams of 11 September 2020, his Honour will have a number of additional questions concerning the Crown application and it is expected that counsel will appear to assist the Court - additional information provided by counsel will assist the Court in the formulation of reasons for ordering that the trial be vacated and the making of such further orders as the Court considers appropriate."
Today, I have heard further submissions from the Crown and Senior Counsel for Mr Chalabian concerning the Crown application. In the course of those submissions, the Crown indicated that she and her junior, as the counsel briefed in Mr Chalabian's trial only, made clear that they wished to interview Mr Hausman themselves for the purpose of forming a view as to whether he should be called by the Crown. That interview took place, as indicated in the affidavit of Mr Williams, and the view was formed that the Crown wished to call Mr Hausman. That Crown view was communicated promptly to the legal representatives for Mr Chalabian.
The Crown has expressed regret at the timing of this application and understands the inconvenience and other practical consequences flowing from the application being made at this late stage.
The Crown informed the Court that it was now expected that the statement from Mr Hausman will be completed in late October 2020. The Court was also informed that Mr Hausman's sentencing proceedings are now listed in the District Court on 23 March 2021.
In response to a question from the Court (asked for more abundant caution) the Crown indicated that it was not proposed to call Mr Rostankovski as a Crown witness in the trial of Mr Chalabian.
Senior Counsel for Mr Chalabian indicated that the defence position in consenting to the application flowed from the necessity for a statement to be taken from Mr Hausman and served upon the defence, and for Mr Hausman to be sentenced before coming to give evidence. The position of the defence, faced with the Crown application, is an understandable one.
[4]
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.
[5]
Amendments
21 March 2023 - Publication restriction lifted - judgment published.
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Decision last updated: 21 March 2023