R v Chalabian (No. 6)

JOHNSON J: Yesterday afternoon, the Crown called Daniel Simon Hausman as a witness in the Crown case. The evidence-in-chief of Mr Hausman proceeded shortly yesterday and his evidence is to continue this morning.

The evidence of Mr Hausman is important to the Crown case. The summary of the Crown case against the Accused, as contained in an earlier judgment in these proceedings, points to, amongst other things, communications between Mr Hausman and the Accused and Mr Hausman and others as part of the process whereby Mr Hausman, as he has admitted, engaged in blackmail and money laundering offences: R v Chalabian (No. 3) [2022] NSWSC 77 at [10]-[19].

There have already been admitted, by consent, four folders of material (Exhibit A) which have been with the jury since the Crown opened its case last week. Included in Exhibit A are a series of transcripts of telephone intercept conversations, many of which include Mr Hausman speaking to one person or another, at times including the Accused.

In addition, included in Exhibit A are various communications by way of WhatsApp, text message or email. That material has been with the jury for several days and they have been taken to it through the evidence of previous witnesses, Simon Anquetil and the case officer, Federal Agent Knighton.

Before the resumption of examination-in-chief of Mr Hausman this morning, Senior Counsel for the Accused has raised an objection as to the manner in which the Crown is to ask questions of Mr Hausman. It is submitted, on behalf of the Accused, that the approach which the Crown seeks to take will involve the use of leading questions, which the Court should not permit, by reference to s.37 Evidence Act 1995.

The procedure which the Crown proposed to undertake is to play a particular recording of a conversation between Mr Hausman, and whoever else was a participant to the conversation, and then ask Mr Hausman questions about what had been said. As I have noted, all of that material is already before the jury and they have heard some recordings played to this point, with more to follow.

The recordings of conversations involving Mr Hausman are to be played when he is giving evidence-in-chief.

The objection taken on behalf of the Accused is that this procedure would constitute the use of leading questions. The Crown would be playing to Mr Hausman a recording of a conversation, with him following the conversation by reference to the transcript in Exhibit A at the same time as the jury and others in Court, before asking him questions about the content of the conversation. It is submitted that this process should not be permitted.

It is submitted for the Accused that what ought occur is that Mr Hausman should be asked whether he has a recollection of a conversation with a particular person at a particular time on a particular day? If the answer is “yes”, he should be asked to give his best recollection of it. If the answer is “no” (he has no recollection), then it was submitted that the Court could, through use of various sections in the Evidence Act 1995, proceed to allow Mr Hausman's memory to be refreshed until the point came where the recording was played and the questions were asked.

The Crown submits that the procedure which is proposed does not involve the use of leading questions. The Crown submits that the proposed procedure does not fall within the definition of “leading question” in the Dictionary to the Evidence Act 1995, so as not to be prohibited by s.37 of that Act.

The term "leading question" is defined in the Dictionary to the Evidence Act 1995 as follows:

Section 37 Evidence Act 1995 provides as follows:

The starting point with this objection is that the recording and the transcript of the recording of all these conversations are already in evidence. There is no dispute in the trial so far that the conversations in question took place. The transcripts are available to the jury as aids. The jury already have evidence of what was said on these occasions.

It seems to me that the mechanism which is proposed does not fall within the definition of “leading question” in the Evidence Act 1995. The playing of the recording does not, in my view, directly or indirectly suggest a particular answer to the question, or assume the existence of a fact, the existence of which is in dispute in the proceeding, and as to the existence of which the witness has not given evidence before the question is asked.

The fact that these conversations took place, and that there is direct and primary evidence of what was said, is already in evidence.

If it was thought that this mechanism involved, in a technical sense, the use of a leading question, because it would involve the Crown telling Mr Hausman that a conversation apparently took place at a particular time on a particular day, by playing it to him, then it would be necessary to consider what would flow from that.

On that approach, it seems to me that s.37(1)(d) would be activated. That part of s.37 states:

The simple fact is that the existence of these conversations is not in dispute. They are already in evidence before the jury, by way of recordings and transcripts of what was said. That is the short answer to the objection, even if the definition of “leading question” was otherwise engaged.

The point is not reached where the Court would need to consider giving leave under s.37(1)(a) to ask leading questions if these were, in fact, leading questions.

I determine the objection by ruling that, firstly, the proposed mechanism does not involve the use of leading questions, but even if it did, it does not infringe s.37(1)(d) Evidence Act 1995 so that there is no prohibition on the use of questions of the type which the Crown proposes to ask.

I put to one side then what could be regarded as the fairly sterile process whereby the Crown may ask Mr Hausman, for example, did he on a particular date and at a particular time have a conversation with a particular person on the telephone. It seems to me that the almost inevitable answer to that would be that he had no recollection. It would also seem to me that such a response would hardly reflect on his credit or reliability, given the voluminous body of material in this trial.

That comment, however, does not constitute an explanation for my ruling, because my ruling is that the process which the Crown proposes to use is not in breach of s.37 Evidence Act 1995. I overrule the objection.