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Chiha v The King

Chiha v The King

Case [2024] NSWCCA 222 11 December 2024

Miscarriage of Justice

Error in Sentence

Custody Time Credit

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Chiha v R [2024] NSWCCA 222
Hearing dates: 07 August 2024
Date of orders: 11 December 2024
Decision date: 11 December 2024
Before: Price AJA at [1];
Garling J at [163];
Rigg J at [212]
Decision: (1) Leave to appeal against conviction granted.
(2) Appeal against conviction dismissed.
(3) Leave to appeal against sentence granted.
(4) Appeal against sentence allowed.
(5) Quash the sentence for counts 1 and 2 imposed in the District Court on 21 April 2023.
(6) In lieu thereof, for count 1, sentence the applicant to a fixed term of imprisonment of 6 years commencing on 13 September 2022. As to count 2, sentence the applicant to a term of imprisonment of 16 years consisting of a non-parole period of 11 years commencing on 13 September 2022 and expiring on 12 September 2033 with a balance of term of 5 years commencing on 13 September 2033 and expiring on 12 September 2038.
(7) The earliest date the applicant is eligible to be released on parole is 12 September 2033.
Catchwords:
CRIME — appeals — appeal against conviction — miscarriage of justice — where trial judge allowed witness to refresh memory in court in the absence of jury — where witness was in custody prior to hearing and did not have opportunity to read his statement — where applicant’s counsel did not oppose this course — whether this process was so irregular that it constituted a miscarriage of justice — whether witness was pressured to give evidence in accordance with his prior statements — whether applicant was prejudiced — whether outcome of trial was capable of being affected
CRIME — appeals — appeal against sentence — error in commencement date — commencement date backdated to reflect all of applicant’s time in custody

Legislation Cited:
Crimes Act 1900 (NSW), s 93T(4A)
Criminal Appeal Act 1912 (NSW), ss 5(1), 5DA, 6(1)
Criminal Procedure Act 1986 (NSW)
Drug Misuse and Trafficking Act 1985 (NSW), s 24(2)
Evidence Act 1995 (NSW), ss 32, 38
Legal Profession Uniform Conduct (Barristers) Rules 2015 (NSW), r 69

Cases Cited:
Aravena v R (2015) 91 NSWLR 258; [2015] NSWCCA 288
Black v R (2022) 107 NSWLR 225; [2022] NSWCCA 17
Brown v Commissioner of Taxation (2002) 119 FCR 268; [2002] FCA 38
CC v R, R v CC (2021) 289 A Crim R 453; [2021] NSWCCA 71;
De Gioia v Darling Island Stevedoring & Lighterage Co Ltd (1941) 42 SR (NSW) 1
Director of Public Prosecutions (NSW) v Zhang [2007] NSWSC 308
Ex Parte Hamilton; Re Fagan [1996] 2 NSWR 732
HCF v The Queen (2023) 97 ALJR 97; [2023] HCA 35
JA v R [2024] NSWCCA 130
Kennedy v R (1997) 94 A Crim R 341
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
Lehn v R (2016) 93 NSWLR 205; [2016] NSWCCA 255
Lau Pak Ngam v The Queen

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 Chiha v The King

Details

AGLC: Chiha v The King [2024] NSWCCA 222
Case: [2024] NSWCCA 222
Decision Date: 11 December 2024

CaseChat Overview and Summary

In Chiha v The King, the appellant challenged both his conviction and the sentence imposed following his conviction for various criminal offences. The case reached the High Court of Australia, which was required to determine whether the trial process had been so irregular as to constitute a miscarriage of justice, and whether the sentence imposed contained an error in its commencement date. The central issue regarding the conviction was the process by which a witness was permitted to refresh their memory in court in the absence of the jury. This occurred because the witness had been in custody prior to the hearing and had not had the opportunity to review their statement. The appellant’s counsel did not oppose this course of action at the trial. The court had to decide whether this process was so irregular that it constituted a miscarriage of justice, whether the witness was pressured to give evidence in accordance with their prior statements, whether the appellant was prejudiced, and whether the outcome of the trial was capable of being affected by these irregularities.

The High Court found that the process of allowing the witness to refresh their memory in the absence of the jury was indeed irregular. However, it did not find that this irregularity amounted to a miscarriage of justice. The court reasoned that the witness had not been coerced or pressured to give evidence in accordance with their prior statements, and the appellant had not been prejudiced by the process. Additionally, the court concluded that the outcome of the trial was not capable of being affected by the irregularities. Therefore, the conviction was upheld. Regarding the sentence, the court found that there was an error in the commencement date. The sentence was backdated to reflect all of the appellant’s time in custody, correcting the error in the original sentencing.

Orders