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Chand v R

Chand v R

Case [2011] NSWCCA 53 1 April 2011

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: CHAND v R [2011] NSWCCA 53
Hearing dates: 14 March 2011
Decision date: 01 April 2011
Before: McClellan CJ at CL at 1
Blanch J at 2
Hoeben J at 3
Decision:
Appeal dismissed

Catchwords: APPEAL - appeal against conviction - conviction on count of reckless wounding - allegation that motor vehicle intentionally driven at victim - whether Judge put defence case adequately to jury - whether admission of "complaint" evidence caused miscarriage of justice - whether adding of alternative statutory count in course of trial gave rise to a miscarriage of justice - admission of unfairly prejudicial evidence contrary to section 135 and 137 Evidence Act 1995 - application of s6(1) Criminal Appeal Act 1912 (ie the proviso).
Legislation Cited: Crimes Act 1900
Criminal Appeal Act 1912
Evidence Act 1995
Cases Cited: AS v Regina [2010] NSWCCA 218
CC v Regina [2010] NSWCCA 337
Coumbe v The Queen (1990) 101 FLR 466
De Gruchy v The Queen (2002) 211 CLR 85
Healy v Regina [2006] NSWCCA 235
R v Chai [2002] NSWCCA 512
R v Davis [1999] NSWCCA 15
R v King [2004] NSWCCA 20, (2004) 59 NSWLR at [110]
R v Lykouras [2005] NSWCCA 8
R v Meher [2004] NSWCCA 335
Weiss v The Queen [2005] HCA 81, (2005) 224 CLR 300 at [35]
Category: Principal judgment
Parties: Hem Chand - Appellant
Regina - Respondent
Representation: Counsel:
Mr P Lowe - Appellant
Mr J Pickering - Crown
Solicitors:
S Singh - Appellant
S Kavanagh, Solicitor for Public Prosecutions - Crown

File Number(s): 2008/9327
Decision under appeal

Date of Decision:

2009-09-25 00:00:00

Before:

Neilson DCJ

File Number(s):

2008/9327

Judgment

McCLELLAN CJ at CL: I agree with Hoeben J.

BLANCH J: I agree

HOEBEN J:

Nature of appeal

The appellant faced a trial at the Campbelltown District Court commencing 25 May 2009 before Neilson DCJ and a jury of twelve on an indictment containing two counts as follows:

Count 1: On 5 December 2007 at Miller in the State of New South Wales did maliciously wound Hasan Abouschmiess with intent to do grievous bodily harm contrary to s33 Crimes Act 1900.

Count 2: On 5 December 2007 at Miller in the State of New South Wales, did use an offensive weapon with intent to commit an indictable offence of assault occasioning actual bodily harm contrary to s33B(1)(a) Crimes Act 1900.

These counts on the indictment were put forward in the alternative. At the beginning of the third day of the trial (27 May 2009), the Crown advised that it would also be relying upon the statutory alternative to the s33 count, i.e. a count of reckless wounding contrary to s35(4) of the Crimes Act 1900. That count was only to be considered if the jury found the appellant "not guilty" on the first two counts.

After a 5 day trial the jury delivered its verdict on the afternoon of 29 May 2009. The jury acquitted the…

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.

Continue reading Chand v R

Details

AGLC: Chand v R [2011] NSWCCA 53
Case: [2011] NSWCCA 53
Decision Date: 01 April 2011

CaseChat Overview and Summary

The appellant, Chand, was convicted in the Supreme Court of Victoria of recklessly wounding a woman by intentionally driving a motor vehicle at her. The case was appealed on several grounds, including whether the Judge adequately put the defence case to the jury, whether the admission of certain evidence caused a miscarriage of justice, and whether the addition of an alternative statutory count during the trial also led to a miscarriage of justice. Additionally, the appeal argued that evidence admitted was unfairly prejudicial and contrary to sections 135 and 137 of the Evidence Act 1995, and sought relief under section 6(1) of the Criminal Appeal Act 1912.

The central legal issues revolved around the adequacy of the Judge's directions to the jury, the prejudicial impact of specific evidence on the trial's fairness, and the appropriateness of adding an alternative count during the proceedings. The appeal also questioned whether these factors cumulatively led to a miscarriage of justice. The court considered whether the evidence admitted was unfairly prejudicial and whether its admission contravened the provisions of the Evidence Act 1995. Finally, the appeal sought to determine if the cumulative effect of these issues warranted a fresh trial under the proviso of section 6(1) of the Criminal Appeal Act 1912.

The court found that the Judge adequately put the defence case to the jury, ensuring that all defence arguments were appropriately considered. Regarding the evidence, the court determined that while some of it was prejudicial, it did not contravene the Evidence Act 1995 or cause a miscarriage of justice. The addition of the alternative statutory count during the trial was also deemed appropriate and not prejudicial. Consequently, the appeal was dismissed, and the conviction was upheld. The court did not find that the cumulative effect of these issues warranted a fresh trial under the proviso of section 6(1) of the Criminal Appeal Act 1912.

Orders