Ms G Wright SC (Crown)
Mr GA Brady SCMr A Williams (Accused)
Judgment (2 paragraphs)
[1]
Judgment
JOHNSON J: The Accused, Sevag Chalabian, is standing trial before a jury on a charge of what could be shortly described as money laundering under s.400.3(1) Criminal Code (Cth).
Daniel Hausman is presently being cross-examined. Mr Hausman is an important witness in the Crown case. An overview of the Crown case, including the alleged involvement of Mr Hausman with the Accused, may be found in R v Chalabian (No 3) [2022] NSWSC 77 at [6]-[19].
An important issue in the trial concerns the state of mind of the Accused as to the source of the funds which passed through his trust account in a period between February and May 2017. The charge under s.400.3(1) brought against the Accused requires the Crown to prove that the Accused believed the moneys were the proceeds of crime.
The Crown has foreshadowed, in opening to the jury (T230-231), that reference would be made, as well, to statutory alternative verdicts (under s.400.14 Criminal Code (Cth)) involving lesser tiers of offences based upon recklessness (s.400.3(2)), negligence (s.400.3(3)) and reasonable suspicion (s.400.9).
Those various concepts emphasise the significance in the trial of what it was that the Accused believed or was aware of, or may have suspected, with respect to the source of the funds, which (it is common ground) passed through his trust account in the early part of 2017.
The Crown has tendered four volumes of material as Exhibit A in the trial. Volume 1 of Exhibit A contains a detailed chronology extending to 160 pages and 1,528 items. These items include numerous text messages, WhatsApp messages and telephone conversations involving the Accused, Mr Hausman, Daniel Rostankovski and a variety of other persons. Volumes 2, 3 and 4 of Exhibit A contain in excess of 2,000 pages of transcripts of telephone intercepts, conversations recorded by surveillance device, emails and a large number of commercial and other documents which are said to be relevant, in one way or another, to this trial.
In the course of cross-examination, Mr Brady SC, for the Accused, has asked Mr Hausman, from time to time, about certain things which had been said (or not said) in particular conversations which Mr Hausman had with the Accused at alleged meetings. Of course, what was said between Mr Hausman and the Accused in electronic form is contained in Exhibit A in the transcripts of WhatsApp messages, emails, telephone conversations and other documented communications between the two men.
The Crown case is based on a combination of direct evidence and circumstantial evidence involving inferences as to the state of mind of the Accused at relevant times, with those inferences to be drawn from a combination of events, including communications by WhatsApp messages and other means.
All of this is a preamble to the objection made by the Crown to a particular question asked in cross-examination of Mr Hausman. Mr Brady SC asked a question which drew an objection, but was rephrased, concerning the topic of blackmail. Mr Brady SC then asked this question (T976.14):
"Q. The reason you said 'my gut is it's getting beyond Sev' is because you never told him that the funds had come from a blackmail of Plutus, had you?
A. No, I never had."
The next question asked was (T976.18):
"Q. You'd never told him that Plutus got their money from a fraud, had you?"
The Crown objected to that question upon the basis of its suggested ambiguity. I formed the view, at that stage, that the appropriate course was to ask the jury to retire because of the likelihood that submissions on this topic would go into some detail on matters of particular significance to the trial. The jury retired and submissions have proceeded in the absence of the jury.
The Crown has made clear that the objection is one made, in effect, under s.135 Evidence Act 1995 with it being said that the Court should reject certain questions upon the basis that the question is unfairly prejudicial to the Crown or may be misleading or confusing.
As submissions proceeded, there was some discussion as to what may be a form of question which would not draw objection from the Crown (T978-981). The position may be summarised as follows.
The concern of the Crown is that asking Mr Hausman a short and direct question of that type may be unfair to the Crown and misleading, because it would not involve a response having regard to the totality of the material and inferences which may be drawn, so the Crown says, from the various communications between the two men.
I indicated to the parties that it seemed to me that the question would be permissible if it was understood that it was a concrete proposition being put to Mr Hausman that he had never told the Accused that Plutus got their money from a fraud, with words to that effect being used.
I consider that a question of that type is permissible. It is a variation on the previous question where the word "blackmail", or where the words "blackmail of Plutus", had been used and an answer was given. On that basis, the question that has been asked, as long as it is made clear that the question is putting a particular formula of words to the witness, would not be unfair to the Crown or misleading or confusing.
Mr Brady SC indicated that he had further questions, as part of this line of cross-examination, which would be to the effect that Mr Hausman never told the Accused that Plutus got money from tax fraud and that Mr Hausman never told the Accused that the money coming into his trust account was money from the blackmail of Plutus over a tax fraud.
It seems to me that those questions are sufficiently concrete to be admissible and not contravene s.135 Evidence Act 1995. The questions would be asked, and ought be answered, on the basis that that formula of words was not used by Mr Hausman to the Accused.
If the question was to be understood as inviting Mr Hausman to somehow consider the several thousand communications between the two men over several months for the purpose of expressing a conclusion that words along those lines had never been used, then, in my view, the questions would be objectionable and would be rejected.
However, in the same way as the question which involved the phrase "blackmail of Plutus" was asked and answered (see [9] above), the proposed questions, in my view, can be asked and answered, but on the basis that it is a particular phrase or words which are being asked of Mr Hausman. I would allow the questions which are being asked, but it would require it being made clear to Mr Hausman, and indeed to the jury, that the question relates to whether a phrase along those lines was ever used by Mr Hausman to the Accused. I would allow those questions subject to that qualification.
Mr Brady SC indicated that he had in mind concluding the line of cross-examination with a question that went along these lines: That Mr Hausman "never told the Accused anything like that?". That question was refined somewhat by Mr Brady SC during the course of submissions, so that he would put to Mr Hausman that Mr Hausman "never told the Accused anything like that during face-to-face dealings with the Accused" (T981).
In my view, there is a particular vice in that omnibus form of question. It immediately involves Mr Hausman having to consider various face-to-face meetings which have taken place, surrounded by various forms of electronic communications, and to attempt to answer that question. The question does not involve a concrete phrase or proposition. It involves Mr Hausman being asked to search his memory as to whether anything like a particular phrase was used.
In my view, that formula of words is unfair to the Crown given the way the Crown seeks to put its case. In that respect, by way of example, Items 42 and 251 in Volume 1 of Exhibit A involve WhatsApp messages from Mr Hausman to the Accused on 1 February 2017 and 16 February 2017 which have content and components in them which would leave the Crown, in my view, in a position of unfairness if the "anything like that" question was allowed.
It will be a matter for the jury in the end, by reference to the totality of the evidence, both direct and circumstantial, to consider what findings should be made about the state of mind of the Accused at relevant times. That is a process which would not be resolved by attaching to one or two answers of Mr Hausman, but by having regard to the totality of the evidence. In my view, the "anything like that" question would contravene s.135 Evidence Act 1995 and work an unfairness to the Crown, as well as being misleading or confusing.
I observe, in any event, that Mr Brady SC has been cross-examining Mr Hausman about such face-to-face meetings as are said to have occurred involving the Accused, with there being questions about what was said (or not said) at those meetings. In my view, cross-examination of Mr Hausman about what was said face-to-face, by Mr Hausman, or anyone else in the presence of Mr Hausman, to the Accused, ought be done in the context of questioning about the particular meeting.
To an extent, that has already been done. It may be that it has already been done fully. But it would be unfair, in my view, to allow it to be done by reference to the omnibus-type question involving the phrase "anything like that". That question will not be allowed.
Accordingly, I do allow the questions I have identified in this judgment, which involve concrete propositions. I disallow the omnibus-type question involving the concept of "anything like that".
[2]
Amendments
21 March 2023 - Publication restriction lifted - judgment published.
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Decision last updated: 21 March 2023