Chisari v Regina (No 2) - [2006] NSWCCA 325

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: Chisari v Regina (No 2) [2006] NSWCCA 325

FILE NUMBER(S):
2006/1163

HEARING DATE(S): 21 August 2006

DECISION DATE: 12/10/2006

PARTIES:
Steven Fernando Chisari v Regina

JUDGMENT OF: Grove J Kirby J Hislop J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 04/11/007

LOWER COURT JUDICIAL OFFICER: Puckeridge DCJ

COUNSEL:
W. Dawe QC (Crown)
In person (Applicant)

SOLICITORS:
S. Kavanagh (DPP)

CATCHWORDS:
CRIMINAL LAW AND PROCEDURE
CONVICTION
MALICIOUSLY INFLICTING GRIEVOUS BODILY HARM BY DRIVING VEHICLE AT POLICE OFFICER
TRIAL PROCESS
DISCHARGE OF ILL JUROR
RULINGS BY TRIAL JUDGE
NO MATTER OF PARTICULAR PRINCIPLE

LEGISLATION CITED:
Criminal Appeal Act 1912
Evidence Act 1995
Jury Act 1977

DECISION:
Conviction appeal dismissed

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

2006/1163
GROVE J
KIRBY J
HISLOP J
12 October 2006

STEVEN FERNANDO CHISARI v REGINA (No 2)

Judgment

GROVE J: Following trial before Puckeridge DCJ and a jury, the appellant was convicted of maliciously inflicting grievous bodily harm with intent so to do. His Honour imposed a sentence of imprisonment consisting of a non parole period of fourteen months and a balance term of eighteen months. A Crown appeal asserting the manifest inadequacy of that sentence was determined in this Court, differently constituted, and a substituted sentence consisting of a non parole period of two years six months and a balance term also of two years six months was imposed. The earliest date of eligibility for release to parole of the appellant is 18 September 2007: R v Chisari [2006] NSWCCA 19.
The appellant was represented by counsel in that appeal. After delivery of judgment he lodged this appeal against conviction and has appeared in person to pursue it. In the circumstances, any extension of time for lodgement of the appeal should be granted.
The offence charged arose out of events on 1 September 2003 in Parramatta Road, Haberfield. A summary of the facts was made in the previous judgment in the Crown appeal and it can conveniently be used again to give background for present purposes.
“During the afternoon of that day the proprietor of a service station complained to police that a motor vehicle was parked across the service station entrance, blocking access. The motor vehicle was registered in the name of the respondent’s brother. At some earlier stage an infringement notice had been attached to the windscreen of the vehicle.
In response to the proprietor’s complaint, Constable Scott Harder attended the service station. He placed a second infringement notice on the vehicle. He then made arrangements for a tow-truck to attend and remove the vehicle. He was present when the tow-truck operator arrived, and began the process of hooking the vehicle to the tow-truck so that it could be removed.
At that point the respondent and his brother arrived. The brother became agitated and abusive. The respondent unhooked the vehicle from the tow-truck, and started it. He locked the door from inside. His brother continued to behave abusively and threateningly and…

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 Chisari v Regina (No 2)

Details

AGLC: Chisari v Regina (No 2) [2006] NSWCCA 325
Case: [2006] NSWCCA 325
Decision Date: 12 October 2006

CaseChat Overview and Summary

In the case of Chisari v Regina (No 2), the appellant, Chisari, contested his conviction for inflicting grievous bodily harm to a police officer, Constable Harder, by maliciously driving a vehicle at him. The case was heard in the court of appeal. The primary legal issues revolved around the interpretation and application of the Evidence Act 1995, the sufficiency of evidence regarding the appellant's actions, and the trial judge's handling of a juror's potential bias.

The court examined whether the trial judge correctly applied the law in relation to evidence presented, particularly concerning tyre marks and the condition of the vehicle before and after the incident. The appellant argued that certain evidence did not support the jury's finding of his guilt. However, the court found that the jury's role was to assess the credibility and weight of the evidence, including tyre marks and the vehicle's condition, and that such conclusions were within their purview. The court also noted that the appellant did not apply for the discharge of the jury, thus no ruling on the matter was made by the trial judge.

The court concluded that the trial judge's decisions were consistent with legal principles and that the evidence was sufficient for the jury to find the appellant guilty as charged. The appeal was dismissed, and the conviction was upheld.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

In accordance with the usual directions by the Registrar for the supply of written submissions, the appellant has made available an outline of some of his contentions concerning what he has referred to as points, 5, 6, and 10 in the grounds of appeal, a general submission relating to point 1 and some submissions concerning s 33 of the Evidence Act 1995 and submissions on the topic of lies. He addressed the Court orally in support of his contentions. It is convenient to refer to the points mentioned by the appellant as grounds and I will deal with some express complaints before returning to deal with grounds 1 and 2. The appellant identified the “sensitive information” referred to in ground 3 as relating to tyre marks which he disputed as having been demonstrated to have been caused by the vehicle with which Constable Harder was struck. The appellant directed attention to the evidence of Mr Merlino, a witness who was at the service station in connection with some business with the owner. He happened to be an investigator and took photographs including depictions of the obstruction of the entrance by the vehicle. The appellant reiterated his version of the movement of the vehicle when he was driving it, but any conclusions to be drawn from the evidence were matters for the jury and this includes any finding concerning things such as tyre marks. Tyre marks appear in the photograph (Exhibit J) which was in fact taken by Constable Cullen and it is not entirely clear why the appellant referred to Mr Merlino’s evidence in this context. However, there was no application by counsel for discharge of the jury in relation to these matters, or at all, and consequently there was no refusal to discharge by his Honour. Grounds 4 and 10 are allied to each other. The evidence included photographs of the vehicle (YUT 6616) as I have said some taken by Mr Merlino on 1 September 2003 and others taken later by Constable Cullen, a crime scene investigator. The appellant points to a photograph by Mr Merlino which was taken prior to the incident which shows no damage to the offside front guard of his vehicle and he contrasts this appearance with scratches, dents and missing paint in that area which can be seen in the later photographs taken after the incident by Constable Cullen. The appellant contends that this corroborates his evidence that he did not “drive at” Constable Harder because it can be deduced that the constable was not in front, but at the side, of the oncoming vehicle. It was not disputed that, having perceived imminent danger Constable Harder leapt and landed on the bonnet of the vehicle, this is congruent with in the appellant’s own submission that “he admits jumping onto (the) car.” This evidence was there for the jury to assess. It might be observed that, it being open to the jury to conclude that the constable leapt to avoid imminent danger created by the appellant, whether the car was likely to impact him directly or tangentially, the appellant would not escape liability. A significant analogy on the potential of liability can be drawn from the circumstances where a person may have jumped from a window because of a well founded apprehension of violence: Royall v The Queen 1990 172 CLR 378.

Decision

Reasons for decision

GROVE J

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: GROVE J

Full text does not contain this section.