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Okwechime v The Queen

Okwechime v The Queen

Case [2023] ACTCA 25 9 June 2023

Statutory Construction

Criminal Law

Evidence

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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…

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 Okwechime v The Queen

Details

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