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

1. 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.

2. 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.

3. Ms Chesham filed a notice of intention to appeal on 13 April 2015. By notice filed 12 October 2015, Ms Chesham seeks to appeal against both her conviction and the sentence imposed on her. She requires leave to appeal against sentence and, insofar as the appeal against conviction is based on a challenge to rulings on evidence or findings of fact, requires leave against conviction pursuant to s 5 of the Criminal Appeal Act1912 (NSW).

Background

4. The conduct giving rise to the charges relates to an altercation that occurred sometime between around 11pm and 11.30pm on 7 January 2014 on a train heading towards Central Station. The altercation occurred somewhere between Strathfield and Redfern stations.

5. Ms Nam’s evidence, broadly, was that a woman (Ms Chesham) approached her when there were only the two of them in the carriage; asked her if she had a problem; started patting her body with her hands; tried to take her identification card (which was in the pocket of Ms Nam’s hooded jacket); tried to take her telephone; and then bit her above the wrist, pulled her hair and hit her in the head. Ms Nam’s identification card was attached to a retractable cord, which broke (lacerating Ms Nam’s finger) when Ms Chesham tried to take it.

6. At least part of the incident was witnessed by a train driver who was returning from work on the train (Ms Hopkinson). She gave evidence that she heard a commotion in the vestibule behind her and that when she walked towards the sound of the voices she saw a blonde-haired woman wearing a long black coat forcefully pulling the hair of a young Asian girl with long dark hair, the latter looking distressed and calling for help. After contacting a guard through an emergency help point at the front of the carriage, Ms Hopkinson returned and helped Ms Nam move to another carriage. She observed an oval shaped bite mark on Ms Nam’s lower forearm. Ms Nam told her that she had been bitten and punched by the blonde woman.

7. When the train pulled into Redfern station at 11.33pm, CCTV footage showed a woman with blonde hair wearing a black coat standing at the doorway of a train carriage, with her back to the camera, gesticulating. The woman was later seen speaking with a train guard and then with the police.

8. Ms Chesham’s account of the incident when the police arrived was that Ms Nam had assaulted her and tried to choke her. She showed the police a black retractable lanyard. After her arrest, she told police that Ms Nam had tried to choke her with the black cord.

9. Ms Chesham participated in an electronically recorded interview (ERISP) at Redfern Police Station. In the course of that interview, she told the police that she thought something had gone missing from her bag and that she had asked Ms Nam if she had taken something from it and had asked to look to see if the girl had taken anything. She said that she had pressed the buzzer in the carriage and that she had felt intimidated. She said that before the incident with Ms Nam there were some men in the carriage and that a Middle Eastern or African man was intimidating her. She said that she thought he was going to pull a knife out of his bag and attack her; and she had asked the man what was in his bag because he was intimidating her.

10. Asked whether she had punched Ms Nam, Ms Chesham said to the police “No, not intentionally. If I did I, no not that I recollect at all”. Asked whether she had bitten Ms Nam, she said “I don’t believe I would have no”. Asked whether she had touched Ms Nam’s jumper, she said she could have but did not know. Asked whether she had grabbed Ms Nam’s hair, she said “Not intentionally, no”. Asked whether she had patted down Ms Nam’s jumper, she said that she had asked the girl if she had taken something from her bag; that the girl had started panicking and did not want her to see what she had; that the girl had her hand in her pocket hiding it and that when she pulled it out she pulled the string on it and that was when the cord went around her, Ms Chesham’s, neck. Ms Chesham denied trying to steal Ms Nam’s identification card or mobile telephone.

11. A forensic examination was made of the left sleeve cuff of Ms Nam’s jacket. DNA analysis of the inside and outside of the sleeve cuff revealed that there was a mixture of DNA appearing to originate from four individuals. Samples of DNA were taken by police from both Ms Nam and Ms Chesham. The forensic evidence was that Ms Chesham could not be excluded as a major contributor, and Ms Nam could not be excluded as a minor contributor, to that mixture. It was overwhelmingly more likely (one hundred billion times more likely) that the mixed DNA profile originated from Ms Chesham and three unknown unrelated individuals, than that it originated from four unknown unrelated individuals.

12. At the trial the Crown relied on tendency evidence: the first, being a statement of facts in other District Court proceedings in which Ms Chesham had been charged in relation to a July 2010 incident (recorded on CCTV) in which she approached another woman at Fairfield Railway Station, yelled at the woman, dug her nails into the woman’s hands, and grabbed a gold necklace from that woman’s neck; the second, being a police facts sheet relating to an earlier incident at Fairfield in May 2005 when Ms Chesham was accused of taking another woman’s mobile telephone; the phone was shortly afterwards found in bushes near a pay phone where Ms Chesham was standing and there ensued an altercation between Ms Chesham and some people who had sought to assist the woman who claimed her phone had been taken, in the course of which it was said that Ms Chesham had bitten one person on the arm and had punched another on the side of his groin.

13. That tendency evidence was admitted following a ruling made on the second day of the trial (the trial judge having considered written and oral submissions made at the trial by the trial advocate and by counsel then appearing on behalf of Ms Chesham) (see judgment of 11 December 2014).

Conviction appeal – grounds of appeal

14. Perhaps not surprisingly, as Ms Chesham was not legally represented in the appeal proceedings, the document filed by her by way of grounds of appeal is formulated as a written submission without clearly identifying the grounds on which the appeal was brought. Ms Chesham’s oral submissions, which commenced with a reading of her written “grounds of appeal”, similarly did not precisely identify the grounds of appeal. The Crown did, however, draw from the documents filed by Ms Chesham that the following matters were sought to be raised by her.

15. First, a complaint that the admission of the tendency evidence pertaining to the alleged use of corporal violence prevented Ms Chesham from having a jury and gave rise to a miscarriage of justice. This is drawn from Ms Chesham’s grounds of appeal commencing with the following statement:

Due to tendency evidence pertaining to the alledged [sic] usage of corporal violence prevented me from having a jury and fair trial.

16. In the course of oral submissions Ms Chesham explained this statement by saying that there was no offence of “corporal violence”:

Okay due to the tendency evidence pertaining to the alleged usage of corporal violence, I will stop you there your Honour, I will stop myself so I can explain. Corporal violence doesn’t exist I’ve been to every library, every Family law Court, there is however in the Family Court corporal punishment which is usage of the cane, the death penalty it’s only used in churches, the army and schools, that’s corporal punishment. … (at T 1.45-50)

…

… Now I wasn’t giving [sic: given] a fair hearing … he kept raising corporal violence. A Prosecutor threw it in somewhere, it doesn’t exist. You check the family law and pass it to me there’s family law says corporal violence but we’re in a criminal law.

Corporal violence doesn’t exist in criminal law; the only charge that exists is corporal punishment, which is usage of the cane. It’s used in churches, army and the schools. So how does that apply for it? (T 2.30-38)

17. Second, there is a complaint that the trial judge was prejudiced by the fact that a charge against the applicant of assaulting a law enforcement officer was listed for mention on the same day as her trial for the present matter. This appears to be drawn from following statements in the grounds of appeal document:

There was a prejudicial effect due to Judge Chris Hoy SC towards my proceedings due to an alledged [sic] assault law enforcement officer whilst in custody. This was listed for mention on 8.12.14 the day the trial was to commence. This is a malicious prosecution I had eventually been acquitted on this assault whilst in custody and the case was later quashed on all grounds. However the prejudicial effect was evident ...

18. Third, there is a complaint that Ms Chesham did not have a fair trial because she had difficulties with her barrister. The grounds of appeal state:

…and the failure to a fair and just trial was also due to my legal representative Barrister … whom I had difficulties with whilst the trial proceeded there were oddities the Barrister got sick the other lawyer … got sick and I didn’t have a fair hearing.

19. Fourth, Ms Chesham complains that her trial was affected by the fact that she wears a hijab and is Muslim:

I’m at liberty on Supreme Court bail due to not being released on the parole date as the parole officer was prejudiced toward me. They refused to speak to me whilst wearing a hijab. I’m muslim and feel that has also effected [sic] my proceedings!

20. Fifth, that Ms Nam should not have been allowed to testify via audio-visual link from Korea:

The alledged [sic] victim testified on screen from Seoul in Korea why wasn’t the victim brought to court?

21. Sixth, that the verdicts were unreasonable or unsupported by the evidence. This is drawn from the complaints made in the grounds of appeal document as to:

There was no DNA. Four different stains of DNA came back and the judge didn’t test or use a format of the length and strain (sweat from my hands). Theres [sic] no specialist report no doctors’ report a lack of firm factual evidence which a competent lawyer and Barrister would have found in my favour and therefore one could never be satisfied beyond reasonable doubt that I had in fact been guilty or be persueded [sic] beyond reasonable doubt I was at all guilty therefore one must assume and do their job as a duty for all and allow an all grounds appeal to proceed. It was self defence.

…

One must have firm factual evidence not a presumption to state a heresay submission and rulings of a law that is unjust. Generally one would suggest by law that these rulings would be evidence and proof of guilt not heresay that points of law would state im [sic] in fact innocent and am ready to proceed.

22. Ms Chesham did not suggest that the characterisation by the Crown of the grounds of appeal emerging from the document she had filed was incorrect, other than she gave an explanation of the first matter that seems to go beyond the way the Crown framed it; and she raised a further complaint as to the impact of the Lindt café siege (which took place on 15/16 December 2014) on the proceedings. It is therefore convenient to address the conviction appeal by reference to those matters, in the absence of more specific grounds of appeal.

Tendency evidence/use of corporal violence

23. Insofar as Ms Chesham’s complaint is that the admission of the tendency evidence prevented her from having a jury trial (and in some way that caused a miscarriage of justice), this is not tenable having regard to the fact that the application for a judge-alone trial was made by her (through her Counsel) and was made prior to any consideration by the trial judge of the application by the Crown for leave to rely on the tendency evidence (see T 1-2, 4, 7). Not only is there nothing to suggest that the question of tendency evidence led in any way to the trial being conducted by judge alone, the decision of Ms Chesham to seek a trial without a jury was a forensic decision by which she is bound. Ms Chesham appears to accept that it was her application to have a judge-alone trial, her only answer to that being that:

The only reason why I forewent the jury was because of the corporal violence because it would have been a prejudicial and a malicious prosecution because he’s saying with corporal violence I can bring up … (T 3.10)

… they told me forego the jury on the grounds of corporal violence because we can bring up your whole criminal history, now that’s a malicious prosecution with a prejudicial effect because if I’ve done time for my past … (T 3.24-26)

Only because I was bustled. Because Anthony Parsons [Ms Chesham’s barrister at trial and sentence] told me if you go before a jury they’re going to bring your whole criminal history up and he said either way it’s going to be a malicious prosecution and a prejudicial effect. (T 5.4-7)

24. It appears from the above that Ms Chesham made a decision, having had advice from legal counsel, to seek a judge-alone trial. No miscarriage of justice has been established from the fact that the trial judge acceded to that application.

25. If the complaint is as to the fact that the trial judge allowed the tendency evidence to be admitted, Ms Chesham does not point to any error on the part of the trial judge in so doing; nor is any apparent from the reasons the trial judge gave when deciding to admit the evidence (see judgment of 11 December 2014).

26. His Honour concluded that the material had probative value, in that it could very well rationally affect the assessment of the probability of the fact or facts in issue (i.e., whether the two offences had occurred) and that it had significant probative value (as that term was explained in R v Lockyer (1996) 89 A Crim R 457 by Hunt CJ at CL), applying the test referred to by Simpson J (as her Honour then was) in R v Zhang (2005) 158 A Crim R 504; [2005] NSWCCA 437. His Honour accepted that the evidence was prejudicial to Ms Chesham in that it relayed a series of previous similar types of offences in similar circumstances (involving unsolicited approaches to individuals, generally at night, being females on their own; occurring in the vicinity of railway stations; and involving threats and/or assaults and consistently an invasion and taking of property) but concluded that the significant probative value attaching to the tendency evidence outweighed its prejudicial effect.

27. In any event, having admitted the tendency evidence, his Honour ultimately declined to take it into account in respect of his determination as to Ms Chesham’s guilt on the respective offences. His Honour said (at pp 38-39 of the judgment of 19 December 2014):

I have taken into account the tendency direction and I accept that evidence as being indicative of the Accused having a tendency in a particular way. That, however, is just one part of the evidence before me and having regard to the differences between the tendency evidence scenarios and the present circumstances, it is my view that in this case it carries no weight whatsoever in my consideration. There are sufficient differences between the present case, even on the Crown case, to those previous matters. It remains the responsibility of the Crown to prove the guilt of the Accused, indeed every element of each charge, beyond a reasonable doubt before I can convict. I have considered the evidence in its entirety and in so doing I disregard the tendency evidence in my conclusion. (my emphasis)

28. Accordingly, it cannot be said that there was any miscarriage of justice resulting from the admission of the tendency evidence.

29. Finally, on this first matter, insofar as Ms Chesham was adamant that there was no such thing as “corporal violence” known to the criminal law (see also her submissions at T 7.44-46; T 8.1-2), it is relevant to note that the second count on the indictment (which referred to the use of corporal violence) was a breach of s 95(1) of the Crimes Act. Section 95 provides as follows:

(1)   Whosoever robs, or assaults with intent to rob, any person, or steals any chattel, money, or valuable security, from the person of another, in circumstances of aggravation, shall be liable to imprisonment for twenty years.

(2)   In this section, “circumstances of aggravation” means circumstances that (immediately before, or at the time of, or immediately after the robbery, assault or larceny) involve any one or more of the following:

(a)   the alleged offender uses corporal violence on any person,

(b)   the alleged offender intentionally or recklessly inflicts actual bodily harm on any person,

(c)   the alleged offender deprives any person of his or her liberty.

30. There is no substance to Ms Chesham’s complaint as to the reference by the trial judge to “corporal violence”.

Listing of charge of assault of a law enforcement officer on same day as trial

31. The Crown in its submissions on the present matter provides some background to this complaint, namely that the other matter to which Ms Chesham refers was an “all-grounds appeal” from a conviction relating to assault of a law enforcement officer (for which Ms Chesham was serving a custodial sentence at the time of the hearing of the assault charges the subject of the present appeal). The Crown says that the all-grounds appeal matter was first raised on 8 December 2014, when both it and the trial were listed before another judge (Flannery DCJ) in the General List, and that the Court was on that occasion advised that Ms Chesham’s trial counsel and solicitor were not instructed in relation to the matter but that her counsel would appear for her amicus curiae (to assist the Court to deal with the matter on an interim basis). The Crown says that the all-grounds appeal was then adjourned to 9 December 2014 with the trial matter; and that on 9 December 2014 Flannery DCJ stood both matters over to 10 December 2014.

31. What appears from the transcript of the proceedings on 10 December 2014, when the respective matters were listed before Hoy DCJ, is that before Ms Chesham was brought into Court, after Ms Chesham’s barrister had foreshadowed an application for a judge-alone trial in the present matter, there was discussion as to an estimate for the length of the trial. Ms Chesham’s barrister indicated that there was an issue as to the admissibility of tendency evidence (in relation to which he was in the process of responding to the Crown’s submissions). The trial advocate foreshadowed an application for the main witness in the prosecution case to give her evidence by audio visual link.

32. In context of that discussion, Ms Chesham’s barrister informed the trial judge that she was “presently serving a sentence until the end of January”, without any indication as to the nature of the offence or the length of the sentence. After some further discussion as to procedural matters, the trial judge noted that there were two counts on the indictment, “assault occasion [actual bodily harm] and robbery”. His Honour enquired as to any need for an interpreter for the witness in Korea and there was then the following exchange:

HIS HONOUR: Righto. And this lady, the accused, is in custody for other matters?

PARSONS: Yes, she's serving a sentence until the end of January. Sorry, I don't know the exact date, your Honour, but—

TRIAL ADVOCATE: 20 January.

PARSONS: 20 January.

HIS HONOUR: Okay. I've got a file here, some other file. What's this? Assault a law enforcement—

TRIAL ADVOCATE: That's a matter that the Parramatta District Court sent here. That's actually the matter that she's serving the sentence for and it's an all grounds appeal. It's not to be heard here. It's not to be listed here for some reason it's following this matter. I don't know why. It's simply for mention so your Honour should disregard that.

HIS HONOUR: I will.

TRIAL ADVOCATE: It's a matter listed at the Penrith District Court.

34. What next followed was that the trial judge formally adjourned that matter to the Penrith District Court and then Ms Chesham was brought into Court.

35. The Crown submits, and I accept, that it is clear from the transcript that the trial judge paid no attention to the other matter. There is nothing to suggest that the reference to a conviction for assaulting a law enforcement officer (in respect of which his Honour was told there was a pending appeal) in any way prejudiced the trial judge. There can be no basis, on the material before this Court, for any suggestion that the above exchange between the trial judge and counsel for Ms Chesham (or the fact that his Honour was on notice that Ms Chesham was currently serving a sentence related to assault on a law enforcement officer) gave rise to a reasonable apprehension of bias (let alone any actual bias).

Difficulties with Ms Chesham’s barrister

36. The Crown submits, and I accept from my review of the transcript, that there is nothing in the transcript of the trial proceedings to suggest that the applicant was having any “difficulties” with her legal representatives or, that if she was, this impacted on their conduct of the trial in any way. Nor did Ms Chesham in her oral submissions point to anything of that kind.

37. Insofar as Ms Chesham asserts that while the trial proceeded both her barrister and solicitor “got sick”, the Crown points out that Ms Chesham’s barrister is recorded on the transcript as having appeared in Court on each day of the trial up to 17 December 2014. At the conclusion of proceedings on that day, the trial judge indicated that he would adjourn the matter for decision to Friday 19 December 2014 (the last day of the court term) and would try to give judgment on that day (T 78-79). On 19 December 2014, when the matter was called, Ms Chesham’s solicitor informed the trial judge that Mr Parsons was unable to attend as he had an infectious virus. The solicitor offered Mr Parsons’ undertaking to file a medical certificate and explained that he, the solicitor, had been the instructing solicitor throughout the trial and was ready to proceed. His Honour expressly raised with Ms Chesham whether she was “fine with that” and “that’s been explained” and Ms Chesham agreed. She certainly indicated that she had no difficulty with the solicitor appearing in place of her barrister when his Honour delivered his judgment.

38. After judgment was delivered, Ms Chesham’s solicitor asked that the matter be stood over to a later date; there was discussion as to whether or when a bail application might be made; there was no application for bail and it was formally refused; and the matter was stood over for sentence to 27 March 2015, with directions made as to the serving of submissions and all subjective material (including psychological and psychiatric reports) by 13 March 2015.

39. On 27 March 2015, when the matter was listed for the sentence hearing, Ms Chesham’s barrister advised his Honour that he had been unable to complete written submissions on sentence (due to a very serious personal matter relating to his wife's recent very serious ill-health, referring to news received about ten days before) but that he had been able that morning to prepare oral submissions, which he considered he could reliably present (and indicated that those submissions accorded substantially with the Crown’s written submissions) (T 3, 27/3/2014). The sentence hearing then proceeded. Ms Chesham queried at one stage where her solicitor was (T 4.41) and the response by Mr Parsons was that he was there “in the precincts”.

40. Ms Chesham in oral submissions said that her barrister kept making mistakes but the only example she gave was that she said he kept saying “Kingswood” whereas she said that she had been at Kingsgrove before the incident with Ms Nam occurred (see T 3.32-36). It is difficult to see how that could have given rise to unfairness. Nothing turned on whether Ms Chesham had been in Kingsgrove or Kingswood prior to the events in question and it is impossible to conclude from that example that her barrister did not otherwise competently present her case.

41. There is nothing in the fact that her barrister became ill after the case had closed and the trial judge had adjourned to consider his decision to suggest that Ms Chesham did not have a fair trial. Nor does the fact that her barrister was unable (for personal reasons) to complete written submissions on sentence suggest that he was unable competently to prepare and present oral submissions on sentence. Insofar as Ms Chesham in oral submissions complained that her barrister did not converse with her and that she had told her solicitor she did not want him to represent her, not only is there no evidence to that effect, but it appears to relate to the conduct of the sentencing hearing, not the trial itself.

42. There is nothing in the submissions made in relation to this issue to indicate that the trial miscarried due to any difficulties with Ms Chesham’s legal representation.

Ms Chesham’s religion

43. There is nothing on the material before this Court to suggest that Ms Chesham did not receive a fair trial because she wears a hijab or because she is Muslim. The complaint made in her grounds of appeal document appears to relate this to what occurred after she was sentenced and convicted given her assertion that she was not released on the parole date because the parole officer was prejudiced and refused to talk to her while she was wearing a hijab.

44. From my review of the transcript I accept the Crown’s submission that during both the trial and the sentence proceedings the trial judge “was astute to ensuring that the applicant understood everything that was occurring and afforded her the utmost courtesy”.

45. What later did or did not occur in relation to parole has nothing to do with whether the conviction should be upheld; nor is it relevant to whether there was an error in the sentencing process. (The Crown points out that Ms Chesham brought an application for bail in the Supreme Court and was granted bail by Hamill J on 8 September 2015.)

Evidence of the complainant via audio-visual link from Korea

46. There is no basis to the complaint that Ms Nam was not physically in the court room when giving her evidence. The Crown points out that, when an application that Ms Nam’s evidence be taken by audio-visual link was foreshadowed on 9 December 2014 before Flannery DCJ (on the basis that Ms Nam was residing in Korea and in the midst of University exams), Ms Chesham’s barrister did not indicate any difficulty with that course. Nor did he object to the application when this was raised again on 10 December 2014. To the contrary, he confirmed to the trial judge that he was content with that course (T 8.47, 10/12/14). He repeated that there was no objection to the making of such an order when asked on 15 December 2014 (T 2.30).

47. As the Crown points out, even had objection been raised, it would have been open to the trial judge to allow Ms Nam to give evidence by audio-visual link (referring to s 5B of the Evidence (Audio and Audio Visual Links) Act 1998 (NSW) unless, among other things, his Honour were satisfied that the direction would be unfair to any party to the proceeding (see s 5B(2)(c)).

48. Ms Chesham’s counsel certainly did not suggest that there was any such unfairness. Nor does it appear from the transcript that there were any technical difficulties other than the video “freezing” at an early point in the examination in chief, at which point the trial advocate immediately stopped the witness and the system was “re-booted”.

49. The Crown points to the way the trial judge dealt in his reasons for judgment with the manner in which Ms Nam had given her evidence (pp 13-14 of the judgment of 19 December 2014):

… Ms Nam the Complainant gave evidence via audio visual link from Korea on 15 December 2014.

I must direct myself as to that evidence being given via that method. Her giving evidence via AVL from Korea was done as a matter of convenience for the Court and the witness as she was overseas and thus unable to attend at court. I permitted that to occur. I am not to draw any inference adverse to the Accused or give that evidence of the Complainant any greater or lesser weight because it is given in this manner. I must assess the evidence in the same way that I would assess the evidence of any other witness in this trial.

Furthermore, when she gave evidence she was accompanied by a support person. Whilst I did not see her, I am informed that she was there. This is also a permissible course. As with the previous direction, I am not to draw any inference against the Accused or give the evidence of the Complainant any greater or lesser weight simply because of the presence of that support person. I am to assess her evidence in the same way that I would assess the evidence of any other witness in the trial.

50. In the absence of any identification by Ms Chesham of anything that made it unfair to her that Ms Nam’s evidence be given in the fashion it was, and given that there is no reason to suppose that the trial judge drew any adverse inference to Ms Chesham from this or gave the evidence of Ms Nam greater weight than he would otherwise have done had she given evidence in person in the court room, there is no basis to this complaint by Ms Chesham.

Unreasonable verdicts ground

51. The substantive challenge by Ms Chesham appears to be that the verdicts were unreasonable and unsupported by the evidence. She maintains that she acted in self-defence and, in her oral submissions, she gave at some length her version of events.

52. The Crown notes that in Aoun v R [2011] NSWCCA 284, Johnson J (with whom Basten JA and Adams J agreed) quoted (at [34]) the following passage from the judgment of Hunt J (Carruthers and Wood JJ agreeing) in R v O'Donoghue (1988) 34 A Crim R 397 (at 401):

It is important to emphasise that, unlike appeals to the Court of Appeal in civil cases, an appeal to this Court is not by way of rehearing. An appeal which is not by way of rehearing is no more than the right to have a superior court interpose to redress the error of the court below: A-G v Sillem (1864) 10 HLC 704 at 724; 11 ER 1200 at 1209; Victorian Stevedoring & General Contracting Co Pty Ltd v Dignan (1931) 46 CLR 73 at 109. Error may be demonstrated if there is no evidence to support a particular finding, or if the evidence is all one way, or if the judge has misdirected himself. But this Court has no power to substitute its own findings for those of the trial judge. The members of this Court may individually disagree with the findings which were made, but the court cannot for that reason interfere with those findings. It is only where the very narrow basis upon which this court can intervene in relation to a trial judge's findings of fact has been established that the conviction can be set aside, and then only if the error has led to a miscarriage of justice: see Merritt and Roso (1985) 19 A Crim R 360 at 372-373; Kyriakou (1987) 29 A Crim R 50 at 60-61.

53. Ms Chesham, in her written grounds of appeal and in her oral submissions, raised various matters. As noted above, she asserted (wrongly having regard to s 95(2) of the Crimes Act) that “corporal violence” was not known to the criminal law. She asserted that she should not have been charged with aggravated robbery when the lanyard was a $2 lanyard and when she did not keep it, rather she gave it to the police (see T 2.14-15; 3.15-20). That submission, however, fails to recognise that the use of corporal violence supplies the circumstances of aggravation for the purposes of count 2 and that the relevant intent for the charge of robbery is at the time that she took the lanyard.

54. Ms Chesham also takes issue with the DNA evidence. I have extracted above the portion of the grounds of appeal document that refers to this and seems to raise a complaint that the trial judge did not “test or use a format of the length and strain (sweat from my hands)” and that there was no specialist report and no doctors’ report. In oral submissions, Ms Chesham refers to the sweat from her hands being that “I grabbed two Indians on the train”, one of whom she said had a knife and the other she said was threatening to kill her if she did not sign some adoption papers. She confirmed that her complaint as to there being no doctor’s report related to the DNA evidence (T 10.45).

55. The Crown points to the certificate of analysis dated 2 June 2014 which was admitted as Exhibit M1. In that certificate, a forensic scientist, Mhorag Elizabeth Campbell, who gave the required expert witness acknowledgment and agreement to be bound by the Expert Witness Code of Conduct, certified that the DNA recovered from the exterior left sleeve cuff (of Ms Nam’s hooded jacket) was as I have earlier recounted (see [11]).

56. The Crown submits that Ms Chesham did not deny that she might have grabbed Ms Nam’s wrists (and indeed I interpose to note that in oral submissions on the appeal Ms Chesham appears to have admitted that she did so – T 10.7; T 11.25) and says that this was a way in which Ms Chesham’s DNA might have come to be on Ms Nam’s left wrist area. Be that as it may, the Crown submits that the main question was whether the existence of Ms Chesham’s DNA in that position assisted in proving that she had bitten Ms Nam on the lower arm; and the trial judge did not consider that it did.

57. The Crown points to the way that the trial judge dealt with this in his 19 December 2014 reasons:

I have described the expert evidence earlier as tendered. I accept this evidence beyond reasonable doubt as to the presence of the Accused's DNA on the left forearm section of the Complainant's hoodie – the very location of the alleged bite occasioned that night. The evidence of the Accused's DNA in that location is not disputed. The methodology, whilst not directly put, of it arriving there is. There has not been any evidence adduced, either in-chief or by cross-examination as to the various possibilities as to how it may have been found there. There is no evidence from the analyst or an expert in DNA and/or a conclusion to be drawn from it to tell me whether it has arrived via blood, other bodily fluids, skin fragments or something else. I am not able to speculate as to its transmission. Having regard to the allegation that she bit the Complainant one may be drawn to concluding the DNA is from the Accused's saliva. There is, however, no evidence that that is a possibility and/or reasons behind it from a scientific or expert perspective. It is not a matter about which I can take judicial notice. To make this leap otherwise would be to speculate. Whilst I have strong suspicion that the DNA from the Accused was present in that location as a result of the Accused's saliva and thus from biting her, I cannot so find without further evidence. The DNA evidence, therefore, is of limited benefit­. (my emphasis)

58. Ms Chesham relies on this for the submission that the evidence was useless:

So it’s useless, in other words. Okay, it’s not firm factual evidence, if that’s the case. I can’t find without further evidence, I only grabbed her hands because she was hiding something. I regret that immensely, don’t take me wrong, I regret grabbing her hands, okay, that’s something I regret, you know. (T 11.25)

59. The trial judge did not rely on the DNA evidence to make the finding that he ultimately did as to Ms Chesham’s guilt, so the fact that there was no DNA evidence to support such a finding does not assist Ms Chesham to establish that the verdict was unreasonable or unsupported by the evidence.

60. Insofar as Ms Chesham makes complaint as to the trial judge’s rejection of her evidence, his Honour dealt with that issue from p 44 of his 19 December 2014 reasons, having earlier set out his reasons for accepting the evidence of Ms Hopkinson and Ms Nam as to what had occurred on the train. His Honour noted that in the ERISP Ms Chesham did not raise an issue as to her ill health nor as to the earlier provision of “medication” that may have affected her. His Honour said that from his viewing of the DVD of the ERISP there was “no apparent ill health, irrationality or possible medical complications of the earlier tablet that she said she had taken”, though noting the answers she had given as to the males in the train carriage, one of whom she said had a knife. The reference to “medication” is to the evidence Ms Chesham gave, which she reiterated more than once in oral submissions on the appeal, that she had been given a tablet by “a bloke at Kingsgrove” that he said was Panadol but that she said “had brown on it like horse tranquiliser” and that she was later told must have been “horse strength”, which she said made her blood pressure drop so that she was weak and not in the right frame of mind or body to punch or be violent towards another human being (see T 3.40-50; T 5.46; T 7.5)

61. The Crown submits that the trial judge correctly set out the legal principles relating to self-defence. Ms Chesham does not point to any error in that regard.

62. His Honour concluded that:

… dealing with the preliminary argument as to “self-defence” I am satisfied that the Crown has rebutted the defence because in the circumstances, despite whatever the subjective belief the Accused had at the time, her resort to violence was not necessary to defend herself nor was it a reasonable response, even to the incident as she perceived it to be, that is the possible taking of her keycard. Whilst not having to be satisfied beyond a reasonable doubt of both, I am. With that in mind the defence of "self-defence" fails.

63. In other words, his Honour’s conclusion that the Crown had negatived self-defence beyond reasonable doubt was based on the fact that, even accepting that Ms Chesham had the subjective belief that she said she did (i.e., that Ms Nam had or may have taken something from her), what Ms Chesham did was not necessary to defend herself and was not a reasonable response in the circumstances as they were perceived by Ms Chesham to be at the time. That conclusion was well open to the trial judge on the evidence.

63. The verdicts of guilty were not unreasonable.

Lindt café siege

65. In the course of oral submissions, Ms Chesham on a number of occasions raised the occurrence in Sydney of the Lindt café siege as a matter impacting on the fairness of her hearing or the trial judge’s consideration of the matter.

66. It should be noted that the evidence concluded on 15 December 2014, the day the siege commenced. At T 2.24, Ms Chesham said:

… the victim testified from screen from Seoul, Korea okay. Now as soon as that shut down there were bomb threats through the Downing Centre that Man Monis the siege, the bomb threats at Channel Seven.

Now that was traumatising for myself but the judge too, I feel it impacted on his facilities to make a proper judgment because there was days apart after that where I don’t feel like I was given a fair hearing.

67. Then, at T 8.28:

The alleged victim should not have been allowed to testify via audio visual link from Korea. She should have been in the courtroom. Now, also on the day she testified there were bomb threats, the Martin Place siege happened. There’s Channel Seven news bomb threats. We were escorted from there to Surry Hills. I believe it impacted – I was traumatised because I was scared, it’s bomb threats. Then I believe the judge’s impairment was a little bit out of whack because of that sort of situation.

68. Then again at T 9.39, in what was a somewhat garbled submission:

In regards to the bomb threats, the victim testified that the Lindt café siege – finalised written submissions on sentencing owing to his wife’s very recent serious illness but he was fully prepared to make oral submissions. He didn’t converse with me. I never conversed with Anthony Parsons. I told Bilal I didn’t want him to represent me and I had a problem years ago in 2002 at Parramatta where I sacked him, the judge got me her appointed lawyer, Michael Crowley, and the matter went accordingly and that was a fair hearing but his Anthony Parsons I wasn’t happy with and oral submissions, what are they? Why didn’t he sit down and do his job accordingly?

69. There is simply nothing to suggest that the occurrence of the siege at the Lindt café on 15 December 2014, as traumatic and upsetting as it was for many people, affected the trial judge’s ability to assess the evidence and fulfill his judicial duty. This is pure speculation on Ms Chesham’s part. Certainly the careful consideration of the matter demonstrated by his Honour’s reasons attests to the contrary. There is no suggestion that the siege disrupted the video evidence of Ms Nam (rather, it is said that the news of the siege happened after that evidence had been taken). Ms Chesham’s trauma at the events is not to the point. There is no basis on which it could be concluded that the unfortunate and tragic events occurring at the Lindt café caused any unfairness or miscarriage of justice in Ms Chesham’s case.

Conclusion

70. The matters raised by Ms Chesham are without merit. Nevertheless, the matter having been argued, I consider that the appropriate course is to grant leave to appeal, as necessary, for that much of the conviction appeal which requires such leave, and to dismiss the conviction appeal.

Sentence appeal

71. Although not apparent from the grounds of appeal document filed by Ms Chesham, the complaint as to sentence relates to the failure of the parole office to release her to parole on 8 July 2015. Ms Chesham contends that because she spent time in custody when she should have been released there should in effect be a recalculation of the time remaining of her parole period (in essence that she should no longer be on parole).

72. At T 5.21, she put the submission in this way:

APPELLANT:   Okay number one for the start is parole. I get released two months after they stop me getting out. They rent my room by the IAT and they smashed my room up and they stepped dirt and mud over my underwear and then they leave a DOCS paperwork with a pen on top of it saying we’ll get off your back if you sign adoption papers. Now they won’t let my mother, my family any of my family see my youngest daughter. Okay. I’ve never done anything wrong to not have contact. Then it’s signed, the paperwork, then they send a welfare - the parole woman, if you give us money we’ll let you out, so they hold me two months over. It’s automatic release you can’t do that it’s illegal. If I’m due to be released I’m due to be released. It’s the lowest scale.

WARD JA: So your complaint is in relation to time at which you were released to parole?

APPELLANT: I just spent two months extra before the Supreme Court judge said no, this is garbage you let her out now, self-bail. Tania Johns and the family of Scott Johns, Peter Johns, Michael Johns, the whole Johns family from Liverpool they’ve been a Pol Air CCG which I was told from Kings Cross detectives. They shouldn’t be above my head and running to Long Bay to force me to sign adoption papers. That’s abuse of power. And CCG swapping uniforms..(not transcribable)..swapping. This is not normal…

73. Ms Chesham went on later at T 6.6 to say:

APPELLANT: Yeah the parole. I got out and I was on parole but I went into the office and they go you’re such a good organiser, you are able to live by yourself, you are able to live as a normal person in the community. So we have no jurisdiction head office has wiped your parole. We want to know what happens after the Supreme Court matter. But it’s unsupervised. But there is nothing we can do to help you. So that needs to be thrown out. There’s two that expired but if it’s thrown out and there’s CCG on my roof illegally then because I’ve noticed and I’ve been told by..(not transcribable)..and ICAC and Crime Commission they throw that out there’s no point two months left. Have I broken the law? No. I’ve worked cleaning out houses extra $70 bucks in my pocket yeah I got a broken back but a little slight vacuum cleaning for $70 and washed down a house for a real estate that’s within range because I don’t have to declare after 1,000 hours, but I just want to get housing, stable housing.

74. The complaints that Ms Chesham makes in relation to the parole authorities not having released her on parole on 8 July 2015 do not relate to the sentencing process. There is nothing to support a conclusion that there was any error in the manner in which the trial judge approached the exercise of sentencing Ms Chesham.

75. The Crown points to what his Honour said in his remarks on sentence:

In evidence today I have heard from the offender. She expresses straight out remorse and contrition. She says she is sorry for the offences. She does not dispute the verdicts that I came to. She is remorseful. She says her actions that night were tempered or influenced by her being affected in an adverse way by some sort of drug or drugs that had been put in her drink earlier that afternoon/evening, as I recall, when she went to visit a fellow up at Kingswood in a hotel regarding some negotiations and/or discussions as to her children. She was also at the time affected adversely by the ravages of a drug addiction and she says that she certainly was not her normal self. She apologises for her actions, both in this incident and, to her credit, generally.

…

Whilst there is not a strong amount of evidence before me, the offender tells me from the witness box, that she does have some as she said mental problems. They have not been taken any further, but I expect, drawing on her lifelong addiction to drugs there has been some adverse affectation to her thinking processes and thus her mental condition. She does however know the difference between right and wrong. I take those matters into account. It seems to me that this really, as I have emphasised, is her turning point. This is her last chance. She said to me she does not want to end up a statistic. That would be a tragedy. She is otherwise an intelligent, sometimes eloquent, thoughtful woman. But the choice is hers. The choice is hers whether she can turn her life around, whether she can engage in her rehabilitation and whether she can live up to the promises that she tells me in the witness box today. The path may be difficult, but often good things are.

76. In the course of her oral submissions Ms Chesham also made complaint that there was no psychiatric report – just an old psychiatric report from years ago that she said was done over the telephone. It appears that this was a complaint as to the manner in which the charges were dealt with (related to ground 1). At the time that judgment was delivered, Ms Chesham’s position was that she did not want to have a Justice Health report undertaken for the purpose of sentencing (T 2, 19/12/14) due apparently to issues relating to custody of her children. In the sentencing hearing Ms Chesham gave evidence as to her subjective circumstances but it appears (presumably due to her instructions) that no health or psychiatric assessment was tendered.

77. There being no error discernible in the exercise of the trial judge’s sentencing discretion, leave to appeal against sentence should be refused. Were leave to be granted the appeal would have to be dismissed in any event.

78. PRICE J: I agree with Ward JA.

79. FAGAN J: I agree with Ward JA.

**********

Decision last updated: 28 September 2016