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

1. 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.

2. 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.

3. 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.

4. 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 the appeal has not been determined, or

(ii) intends to appeal, in accordance with section 56, to a Legal Aid Review Panel and that such an appeal is competent,

(b) that the appeal or intention to appeal is bona fide and not frivolous or vexatious or otherwise intended to improperly hinder or improperly delay the conduct of the proceedings, and

(c) that there are no special circumstances that prevent it from doing so,

the court or tribunal shall adjourn the proceedings to such date on such terms and conditions as it thinks fit.

5. The Crown opposes the application upon the basis that Mr Chahine has not demonstrated that his appeal is bona fide or not frivolous or vexatious or otherwise intended improperly to hinder or delay the proceedings. That contention proceeds upon the basis that on one view the evidence suggests that Mr Chahine’s foreshadowed desire to appeal against his convictions for Counts 2 and 3 is without merit. The Crown implicitly draws strength in that submission from the very fact that legal aid for those counts has been refused.

6. In our opinion, there is an arguable logical connection between the basis upon which Mr Chahine proposes to challenge his conviction on Count 1 and the possible bases upon which he may wish to challenge his convictions on the other two counts. The bona fides of the present application can be tested against the fact that, as explained to Mr Chahine by his legal advisers, there is no guarantee that his appeal will be heard before the expiration of his non-parole period. The utility of this appeal is therefore a factor which on balance Mr Chahine has consciously chosen to risk.

7. Mr Chahine has a right to seek a review of the refusal to grant him legal aid for the two additional counts that he intends to pursue. In those circumstances, s 57 mandates that his appeal be adjourned.

Orders

8. The Court makes the following orders:

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.

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Decision last updated: 03 April 2024