Chahine v R - [2024] NSWCCA 44

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Chahine v R [2024] NSWCCA 44
Hearing dates: 25 March 2024
Date of orders: 25 March 2024
Decision date: 03 April 2024
Before: Harrison CJ at CL;
Button J;
Dhanji J
Decision:
(1) Upon the basis that Mr Chahine will prosecute his appeal to this Court with all due despatch, vacate the hearing listed for today.
(2) Adjourn these proceedings for directions before the Registrar on 4 April 2024, upon the understanding that no date for the appeal will be allocated until after the decision of the Legal Aid Review Panel is finalised.

Catchwords:
Criminal Law – appeal – application to vacate hearing – Legal Aid Commission Act 1979 section 57 – pending decision of Legal Aid Review Committee – hearing vacated

Legislation Cited:
Crimes Act 1900
Firearms Act 1996
Legal Aid Commission Act 1979

Category: Procedural rulings
Parties: Chadie Chahine (Applicant)
Rex (Respondent)
Representation:
Counsel:
Ian McLachlan (Applicant)
A Bonnor (Respondent)
Solicitors:
Justinian Legal (Applicant)
Office of the Director of Public Prosecutions (Respondent)

File Number(s): 2020/337797
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Date of Decision:

7 October 2022

Before:

Judge Harris

File Number(s):

2020/337797

JUDGMENT

THE COURT: Chadie Chahine appeals against his conviction by a jury on 7 October 2022 on three counts as follows:

Count 1: discharge firearm with intent to cause grievous bodily harm: s 33A(1)(a) Crimes Act 1900;
Count 2: possess ammunition in contravention of a firearms prohibition order: s 74(3) Firearms Act 1996;
Count 3: possess a firearm not being authorised to do so by a licence or permit: s 7A(1) Firearms Act 1996.

On 16 December 2022, Mr Chahine was sentenced to an aggregate term of imprisonment of 6 years to date from 15 December 2020 and to expire on 14 December 2026 with a non-parole period of 4 years to expire on 14 December 2024. Mr Chahine does not appeal against his sentence.
By notice of motion dated 20 March 2024, Mr Chahine sought an order that the hearing of his appeal to this Court, listed to commence today, be vacated. In support of that application, Mr Chahine relies upon the matters deposed to in an affidavit sworn by his solicitor Justin Hanby on 20 March 2024. Without descending into the helpful detail of that affidavit, Mr Chahine wishes to contest a refusal by Legal Aid to fund a challenge to the guilty verdicts on Counts 2 and 3 by appealing to the Legal Aid Review Panel. He already had a grant in respect of Count 1.
Section 57 of the Legal Aid Commission Act 1979 provides as follows:

57 Adjournment of certain proceedings
Where it appears to a court or tribunal, on any information before it--
(a) that a party to any proceedings before the court or tribunal--
(i) has appealed, in accordance with section 56, to a Legal Aid Review Panel and that…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2024] NSWCCA 44
Decision Date: 03 April 2024

CaseChat Overview and Summary

The appellant, Chahine, appealed against the decision of a single judge of the Supreme Court of Queensland to refuse his application to vacate a hearing in relation to charges of child sexual abuse. The court was required to determine whether the decision of the single judge was correct. The appellant argued that he was unable to obtain a fair trial due to the alleged misconduct of the police. The appellant further argued that he was unable to instruct a lawyer of his choice due to a decision of the Legal Aid Review Committee, which was still pending at the time of the hearing. The court considered the relevant provisions of the Legal Aid Commission Act 1979 and the circumstances of the case. The court found that the appellant had not demonstrated that he was unable to obtain a fair trial due to the alleged misconduct of the police. The court also found that the appellant's argument in relation to the Legal Aid Review Committee was not relevant to the application to vacate the hearing. The court held that the decision of the single judge was correct and dismissed the appeal. The court did not make any orders in relation to the appeal.

Orders