Chesham v The Queen - [2016] NSWCCA 206

Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Chesham v R [2016] NSWCCA 206
Hearing dates: 9 August 2016
Decision date: 28 September 2016
Before: Ward JA at [1];
Price J at [78];
Fagan J at [79]
Decision:
1.   To the extent necessary, leave be granted for the appeal against conviction.
2.   Appeal against conviction be dismissed.
3.   Leave to appeal against sentence refused.

Catchwords:
CRIMINAL LAW – conviction appeal – assault occasioning actual bodily harm and robbery using corporal violence – complaint as to admission of tendency evidence causing judge alone trial – complaint of prejudice arising from listing of other unrelated charges against appellant on same day as trial for present offences – whether complainant giving evidence via audio-visual link caused miscarriage of justice – whether verdicts unreasonable or insupportable having regard to evidence – conviction appeal dismissed
CRIMINAL LAW – sentence appeal – complaint as to failure of parole officer to release applicant to parole – leave to appeal against sentence refused
Legislation Cited: Crimes Act 1900 (NSW), ss 59(f), 95(1)
Criminal Appeal Act 1912 (NSW), s 5
Evidence (Audio and Audio Visual Links) Act 1998 (NSW), s 5B
Cases Cited: Aoun v R [2011] NSWCCA 284
R v Lockyer (1996) 89 A Crim R 457
R v O'Donoghue (1988) 34 A Crim R 397
R v Zhang (2005) 158 A Crim R 504; [2005] NSWCCA 437
Category: Principal judgment
Parties: Jamellie Chesham (Applicant)
Regina (Respondent)
Representation:
Counsel:
Ms Chesham (Applicant in person)
Ms M Cinque SC (Respondent)
Solicitors:
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2014/00005524
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

19 December 2014

Before:

Hoy SC DCJ

File Number(s):

2014/00005502

Judgment

WARD JA: The applicant, Ms Chesham, was found guilty following a trial before a judge of the District Court sitting alone of one count of assault occasioning actual bodily harm contrary to s 59(f) of the Crimes Act 1900 (NSW) and one count of robbery using corporal violence contrary to s 95(1) of the Crimes Act. Both offences were committed on 7 January 2014 against the same complainant, Ms Nam. Ms Chesham had pleaded not guilty to the charges.
Ms Chesham was sentenced on 27 March 2015. The sentence imposed on count 1 was a fixed term of imprisonment of three months to commence on 9 March 2014 and expire on 8 June 2014; and on count 2 was a term of imprisonment comprising a non-parole period of one year and three months to commence on 9 April 2014 and expire on 8 July 2015 with a balance of term of one year and three months to commence on 9 July 2015 and expire on 8 October 2016. Ms Chesham has been released on parole and her parole period will shortly expire.
Ms Chesham filed a notice of intention to appeal on 13 April 2015. By notice filed 12 October 2015,…

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 Chesham v The Queen

Details

AGLC: Chesham v The Queen [2016] NSWCCA 206
Case: [2016] NSWCCA 206
Decision Date: 28 September 2016

CaseChat Overview and Summary

The appellant, Chesham, was convicted of assault occasioning actual bodily harm and robbery using corporal violence. He appealed against both his conviction and sentence. The appeal against the conviction raised several issues, including the admissibility of tendency evidence, the listing of unrelated charges on the same day as the trial, and the use of an audio-visual link for the complainant's testimony. The appeal against sentence complained of the failure of the parole officer to release the applicant to parole. The court considered the issues raised in the appeal against conviction and found that the trial judge had not erred in admitting the tendency evidence, nor had the listing of unrelated charges prejudiced the appellant. The use of an audio-visual link for the complainant's testimony did not cause a miscarriage of justice. The court also found that the verdicts were not unreasonable or insupportable having regard to the evidence. The conviction appeal was dismissed.

The court also considered the appeal against sentence and found that the parole officer's failure to release the appellant to parole did not amount to a significant error that warranted the setting aside of the sentence. The appeal against sentence was dismissed. The court emphasised that the appellant's convictions for assault occasioning actual bodily harm and robbery using corporal violence were serious offences that warranted a significant sentence. The court concluded that the sentence imposed was appropriate and proportionate to the appellant's crimes.

Orders