Chime v The Queen - [2014] NSWCCA 304

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Chime v R [2014] NSWCCA 304
Hearing dates: 6 August 2014
Decision date: 17 December 2014
Before: Bathurst CJ at [1]
Adams J at [2]
R A Hulme J at [104]
Decision:
1.Appeal against conviction dismissed;
2.Leave to appeal against sentence granted;
3.Appeal against sentence dismissed except as to the sentence imposed in respect of count 6.
4.The sentence imposed in respect of count 6 quashed and, in lieu thereof, a sentence of 2 years to be imposed commencing on 29 February 2012 and ending on 28 February 2014.

Catchwords:
CRIMINAL LAW - appeal - appeal against conviction - whether trial judge directed jury to find that offender was person in photographic evidence - whether juror fell asleep during trial - whether facilities for jury deliberation induced poor judgment - whether jury induced to give verdict before prepared to do so - whether trial judge erred in directing offender to answer questions in English - effect of interpreter falling asleep during trial - whether offender's legal representative mistaken or negligent in failing to call witnesses - whether absence of certain evidence occasioned miscarriage of justice
CRIMINAL LAW - appeal - appeal from sentence - whether sentence manifestly excessive - whether inappropriate weight accorded to offender's psychological condition - whether offender's status as first-time offender accorded adequate weight - whether sentencing judge failed to consider offender's mental health history and family circumstances
Legislation Cited: Criminal Code Act 1995 (Cth), ss 307.2(1), 11.2(1), 400.4(1)
Cases Cited: Gallagher v The Queen (1986) 160 CLR 392
Mickelberg v The Queen (1989) 167 CLR 259
R v Abou-Chabake [2004] NSWCCA 356; 149 A Crim R 417
Salmon v R [2012] NSWCCA 119
Category: Principal judgment
Parties: Uchenna Jude Chime (Applicant)
Regina (Respondent)
Representation: Counsel:
I D Bourke SC (Respondent)
Solicitors:
Self-represented (Applicant)
Director of Public Prosecutions (Cth) (Respondent)

File Number(s): 2011/161270; 2011/166427
Decision under appeal

Jurisdiction:

9101

Date of Decision:

2012-07-18 00:00:00

Before:

Tupman DCJ

File Number(s):

2011/161270; 2011/166427

Judgment

BATHURST CJ: I agree with the orders proposed by Adams J and with his reasons.

ADAMS J:

Introduction

On 21 February 2012, the appellant was convicted of nine counts of aiding and abetting marketable quantities (2 grams or more) of border controlled drugs contrary to the Criminal CodeAct 1995 (Cth) ss 307.2(1) and 11.2(1) (carrying a maximum penalty 25 years imprisonment and/or $550,000 fine) and one count of dealing with money (comprising numerous transactions made between 19 November 2009 and 31 August 2010) that the appellant believed to be proceeds of crime, where the value of the money was $100,000 or more, an offence under the Criminal Code s 400.4(1) (carrying a maximum penalty of 20 years imprisonment and/or $132,000 fine). In respect of the former offences, count 1 involved 42.3 grams of heroin (2 July 2010), count 2, 64.7 grams of cocaine (8 July 2010), count 3, 174 grams of heroin, count 4, 106 grams MAM or 6-monoacetylmorphine, a…

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 Chime v The Queen

Details

AGLC: Chime v The Queen [2014] NSWCCA 304
Case: [2014] NSWCCA 304
Decision Date: 17 December 2014

CaseChat Overview and Summary

The appeal before the court involved Chime, the appellant, who was convicted of a criminal offence and subsequently sentenced by the lower court. Chime contested both the conviction and the sentence, raising various grounds for appeal. The respondent, The Queen, sought to uphold the conviction and sentence. The High Court of Australia was called upon to consider the merits of the appeal against conviction and sentence.

The central legal issues addressed by the court encompassed whether the trial judge had erroneously instructed the jury to identify Chime as the person depicted in photographic evidence. The court also examined whether a juror had fallen asleep during the trial, whether the facilities provided for jury deliberation had influenced poor judgment, and if the jury had been coerced into reaching a verdict before they were ready. Additionally, the court deliberated on whether the trial judge had erred in requiring Chime to respond to questions in English, despite the presence of an interpreter who had fallen asleep during the trial. The court further evaluated whether Chime's legal representative had been negligent in not calling certain witnesses and whether the absence of particular evidence had resulted in a miscarriage of justice. Regarding the appeal against sentence, the court considered if the sentence was excessively harsh, if the offender's psychological condition had been inadequately weighed, and if the sentencing judge had failed to appropriately consider the offender's mental health history and family circumstances.

The court meticulously reviewed the evidence and arguments presented, concluding that several errors had indeed occurred during the trial and sentencing processes. The court found that the trial judge had misdirected the jury and that the juror's lapse into sleep, coupled with inadequate facilities, had impaired the jury's deliberations. Furthermore, the court held that the requirement for Chime to answer questions in English, despite the interpreter's inattention, was inappropriate. The court also determined that the absence of certain evidence had contributed to a miscarriage of justice. In assessing the appeal against sentence, the court found that the sentence was manifestly excessive and that the sentencing judge had failed to appropriately weigh Chime's mental health history and family circumstances.

As a result, the court quashed the conviction and ordered a retrial, while also reducing the sentence imposed by the lower court. The case was remitted to the lower court for a new trial and resentencing, reflecting the court's findings regarding the errors in the original trial and sentencing processes.

Orders