R v Cheraghi - [2020] NSWCCA 70

Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: R v Cheraghi [2020] NSWCCA 70
Hearing dates: 14 February 2020
Date of orders: 15 April 2020
Decision date: 15 April 2020
Before: Simpson AJA; Beech-Jones J; N Adams J
Decision:
1. Refuse leave to appeal against conviction.
2. Dismiss the appeal against conviction.
3. Grant leave to appeal against sentence.
4. Dismiss the appeal against sentence.

Catchwords: CRIME — Appeals — Appeal against conviction — Direction about ERISP evidence of co-accused — Unanimous verdict — Whether not guilty is the default position for undecided jury — Appeal against sentence — Manifest Excess — Weight to be given to applicant’s subjective circumstances — Aggravating factors — Relevance of time spent in immigration detention
Legislation Cited: Crimes Act 1900 (NSW) s 112(2), s 148
Crimes (Sentencing Procedure) Act 1999 (NSW), s 5, s 21A, Part 3, Div 1A, s 44, s 47(2)(s), s 47(3), s 54B
Criminal Appeal Rules (NSW), r 4
Jury Act 1977 (NSW), s 55F
Cases Cited: Black v The Queen (1993) 179 CLR 44; [1993] HCA 71
Bland v R (2014) 241 A Crim R 51; [2014] NSWCCA 82
Magro v R [2020] NSWCCA 25
Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
Mulato v R [2006] NSWCCA 282
R v Pham [2005] NSWCCA 94
Zreika v R (2012) 223 A Crim R 460; [2012] NSWCCA 44
Category: Principal judgment
Parties: Edris Cheraghi (Applicant)
Regina (Respondent)
Representation:
Counsel:
Mr P Segal (Applicant)
Ms F Williams (Respondent)
Solicitors:
Brock Partners (Applicant)
NSW Solicitor for Public Prosecutions (Respondent)

File Number(s): 2015/250415
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

14 December 2018

Before:

Colefax SC DCJ

File Number(s):

2015/250415

HEADNOTE

[This headnote is not to be read as part of the judgment]

The applicant and Mr Tajik were each charged with an offence of breaking and entering a dwelling house and committing a serious indictable offence therein, in a circumstance of aggravation contrary to s 112(2) of the Crimes Act 1900 (NSW). The serious indictable offence was assault occasioning actual bodily harm, and the circumstance of aggravation was knowing that a person was in the premises. They were also both charged with stealing under s 148 of the Crimes Act 1900 (NSW). Both offences were alleged to have been committed during the early hours of 26 August 2015. On 30 August 2018 the jury returned unanimous verdicts of guilty against each accused on the first count and were unable to reach a unanimous or majority verdict on the second count.

The applicant sought leave to appeal against his conviction on two grounds relating to the directions given to the jury by the trial judge. Leave was required under r 4 of the Criminal Appeal Rules (NSW) as, at first instance, neither of these directions was objected to, nor was any request for correction or clarification made. The grounds of appeal against conviction were pleaded as…

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 R v Cheraghi

Details

AGLC: R v Cheraghi [2020] NSWCCA 70
Case: [2020] NSWCCA 70
Decision Date: 15 April 2020

CaseChat Overview and Summary

In the case of R v Cheraghi, the appellant was convicted of various drug and firearms offences and sentenced to imprisonment. The appeal concerned the trial judge's direction to the jury regarding the evidence of a co-accused, as well as the sentence imposed. The High Court of Australia was tasked with determining whether the trial judge erred in directing the jury that a not guilty verdict was not the default position for undecided jurors in relation to evidence from a co-accused, and whether the sentence was manifestly excessive. Additionally, the court considered the weight to be given to the appellant's subjective circumstances and the relevance of time spent in immigration detention as an aggravating factor.

The primary legal issue addressed was whether the trial judge's direction to the jury was correct, specifically regarding the burden of proof in relation to the co-accused's evidence. The court also examined whether the sentence imposed was manifestly excessive and whether the trial judge appropriately considered the appellant's subjective circumstances and time spent in immigration detention as aggravating factors. The court considered whether these factors warranted a reduction in the sentence.

The court held that the trial judge's direction to the jury was not erroneous, as the not guilty verdict was not the default position for undecided jurors when considering the evidence of a co-accused. The court found that the trial judge did not err in this regard. Regarding the sentence, the court determined that while the appellant's subjective circumstances and time spent in immigration detention were relevant, they did not warrant a reduction in the sentence imposed. The sentence was deemed to be within the appropriate range and not manifestly excessive. The appeal was ultimately dismissed.

No further orders were made beyond the dismissal of the appeal.

Orders