Okwechime v The Queen

Case [2023] ACTCA 25


SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL

Case Title:

Okwechime v The Queen

Citation:

[2023] ACTCA 25

Hearing Date:

1 March 2023

DecisionDate:

9 June 2023

Before:

McCallum CJ, Mossop and Charlesworth JJ

Decision:

1.     The application in proceeding filed 25 January 2023 is dismissed.

2.     The appeal is dismissed.

Catchwords:

APPEAL – CRIMINAL LAW – Appeal against conviction – whether verdict of guilty was unreasonable or cannot be supported having regard to evidence – various matters said to support plausibility of appellant’s account – where matters raised by appellant together fail to make the verdict unreasonable – appeal ground dismissed

APPEAL – CRIMINAL LAW – Leave sought pursuant to r 5531 – miscarriage of justice – whether absence of direction regarding appellant’s criminal status caused a miscarriage of justice – where appellant’s counsel at trial raised the appellant’s criminal status with the complainant in cross-examination – where appellant bound by the conduct of his counsel – leave to raise appeal ground refused

APPEAL – CRIMINAL LAW – Appeal against sentence – whether sentencing judge erred in assessment of duration of choking offence – alleged that sentencing judge erred in finding that choking lasted for 15 seconds where such fact not established beyond reasonable doubt – where appellant’s counsel’s submissions at sentence accepted that choking lasted for 15 seconds – appeal ground dismissed

APPEAL – CRIMINAL LAW – Appeal against sentence – whether sentencing judge erred by imposing a sentence unjustly disproportionate to the objective gravity of the offence – no specific error identified – no allegation of manifest excessiveness – appeal ground dismissed

Legislation Cited:

Evidence (Miscellaneous Provisions) Act 1991 (ACT), ss 74, 80C, 111

Court Procedures Rules2006 (ACT), r 5531
Crimes Act 1900 (ACT), ss 27(1), 28(2)(a)

Supreme Court Act 1933 (ACT), pt 8

Cases Cited:

Baumer v The Queen (1988) 166 CLR 51

Browne v Dunn (1893) 6 R 67
Cajina v The Queen [2009] ACTCA 2; 3 ACTLR 79
Cheung v The Queen (2001) HCA 67; 209 CLR 1
Hoare v The Queen (1989) 167 CLR 348
Hofer v The Queen [2021] HCA 36; 95 ALJR 937
House v The King (1936) 55 CLR 499
Olbrich v The Queen [1999] HCA 54; 199 CLR 270
M v The Queen (1994) 181 CLR 487
Pell v The Queen [2020] HCA 12; 268 CLR 123
R v Birks (1990) 19 NSWLR 677
R v Fischer [2007] QCA 105
R v Groom [1998] VSCA 146; [1999] 2 VR 159
R v McNaughton [2006] NSWCCA 242; 66 NSWLR 566
The Queen v Paivinen (1985) 158 CLR 489
R v Spiteri-Ahern; R v Barber; R v Sraika (No 7) [2017] NSWSC 1329
TKWJ v The Queen [2002] HCA 46; 212 CLR 124
R v Rogerson; R v McNamara (No 8) [2015] NSWSC 1036
Symss v The Queen [2003] NSWCCA 77
Veen v The Queen (1979) 143 CLR 458

Veen v The Queen(No 2) (1988) 164 CLR…

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AGLC
Okwechime v The Queen [2023] ACTCA 25
Case
[2023] ACTCA 25
Decision Date

CaseChat Overview and Summary

The Supreme Court of the Australian Capital Territory, constituted by McCallum CJ, Mossop and Charlesworth JJ, heard an appeal by Chidi Chike Okwechime against his convictions and sentences. The appellant had been found guilty by a jury of sexual intercourse without consent (Counts 2 and 4) and intentionally and unlawfully choking, suffocating, or strangling the complainant (Count 5). He appealed these convictions on the grounds that the verdicts were unreasonable or unsupported by the evidence. Additionally, he sought leave to appeal on the basis of a miscarriage of justice due to the absence of a direction regarding his criminal status, and appealed his sentences for Counts 4 and 5, arguing they were disproportionate and that the sentencing judge erred in assessing the duration of the choking offence.

The Court was required to determine whether the jury's verdicts of guilty on Counts 2, 4, and 5 were unreasonable or could not be supported by the evidence. It also had to consider whether a miscarriage of justice occurred due to the trial judge's failure to provide a direction concerning the appellant's criminal status, particularly after such material was raised in cross-examination. Furthermore, the Court was tasked with assessing whether the sentencing judge made errors in determining the duration of the choking offence and in imposing a sentence for Count 4 that was allegedly disproportionate to the objective gravity of the offence.

The Court dismissed the appeal against conviction, finding that the matters raised by the appellant collectively failed to render the jury's verdicts unreasonable. Regarding the alleged miscarriage of justice, leave to raise this ground was refused because the appellant's counsel had introduced the appellant's criminal status during cross-examination, and the appellant was bound by his counsel's conduct. The appeals against sentence were also dismissed. The Court found no specific error in the sentencing judge's assessment of the choking offence's duration, noting that the appellant's counsel had accepted a 15-second duration during sentencing submissions. Similarly, no specific error was identified in the sentencing for Count 4, and there was no allegation of manifest excessiveness, leading to the dismissal of that ground of appeal.

Orders

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

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Ratio Decidendi

Legal Principle Established

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