SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

R v El-Debel; R v Kahlon (No 6)

Citation:

[2022] ACTSC 156

Hearing Date:

28 June 2022

Decision Date:

29 June 2022

Before:

Elkaim J

Decision:

Application in respect of both accused is refused.

Catchwords:

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – no case to answer application by defence – where there is a good deal of evidence at least sufficient to go to the jury

Cases Cited:

Doney v The Queen [1990] HCA 51; 171 CLR 207

Parties:

The Queen ( Crown)

Raminder Singh Kahlon ( Accused in SCC 296 of 2021)

Abdul Aziz El-Debel ( Accused in SCC 297 of 2021)

Representation:

Counsel

D Staehli SC, A Haban-Beer and S J Young ( Crown)

M Kalyk ( Accused in SCC 296 of 2021)

C Newman ( Accused in SCC 297 of 2021)

 

Solicitors

Commonwealth Director of Public Prosecutions ( Crown)

Murphys Lawyers ( Accused in SCC 296 of 2021)

Kamy Saeedi Law ( Accused in SCC 297 of 2021)

File Numbers:

SCC 296 of 2021

SCC 297 of 2021

 

Elkaim J:

1. At the conclusion of the Crown case counsel for Mr Kahlon made an application for the charge to be dismissed because there was no case to answer. Counsel for Mr El-Debel joined in the application, but relied on the submissions made on behalf of Mr Kahlon.

2. The test is set out in Doney v The Queen [1990] HCA 51; 171 CLR 207 at [17]:

It follows that, if there is evidence (even if tenuous or inherently weak or vague) which can be taken into account by the jury in its deliberations and that evidence is capable of supporting a verdict of guilty, the matter must be left to the jury for its decision. Or, to put the matter in more usual terms, a verdict of not guilty may be directed only if there is a defect in the evidence such that, taken at its highest, it will not sustain a verdict of guilty.

3. Mr Kahlon primarily submitted, in effect, that there was simply no evidence upon which the jury could conclude that he could have intended to obtain the gain alleged by the Crown.

4. Mr Kalyk, on behalf of Mr Kahon, submitted:

What the charge requires, your Honour, is that there be agreed that the parties take steps to obtain again, to obtain that gain. And that must require that the parties seek to obtain again to which they believe they would not otherwise have been entitled to.

5. A little later, he continued:

…the statutory phrase is “dishonestly obtain again”. They need to actually obtained a gain by reason of the dishonest conduct. That’s got to be the subject of the conspiracy.

6. Then by way of further explanation he said:

On the way the evidence has been led it’s the same thing, because your Honour has seen the transcripts replete with evidence, and I’m not going to go to it, where the parties consistently said that they believed they were getting the best candidates. So in this case I say it’s one and the same thing.

7. I disagree. In my view there is a good deal of evidence, at least sufficient to go to a jury, to establish the agreement between the alleged conspirators and the obtaining of a gain through the receipt of margins or commissions by New Horizons or Algoram.

8. The telephone conversations permit an inference to be drawn that the procurement panels would be manipulated in order to allow for the selection of candidates put forward by the above two companies. Once this manipulation was accepted it is then an easy step to a conclusion that the margins obtained were obtained dishonestly.

9. Notwithstanding the attributes of the individual candidates, the fact that they were put forward by one of the two companies, in circumstances where Mr Vilayur or Mr El-Debel influenced the selection panels in such a way that it was more likely that the above candidates would be selected, then leading to a margin in the hands of either of the two above companies, is enough in my view to establish the alleged conspiracy.

10. Accordingly, I refused the application in respect of both accused.

I certify that the preceding ten [10] numbered paragraphs are a true copy of the Reasons for  Judgment of his Honour Justice Elkaim.

Associate:

Date:

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