R v Chimirri - [2010] VSCA 57

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 601 of 2008

THE QUEEN
	v
TERENCE CHIMIRRI

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JUDGES	NEAVE and REDLICH JJA and HOLLINGWORTH AJA
WHERE HELD	MELBOURNE
DATE OF HEARING	10 November 2009
DATE OF JUDGMENT	22 March 2010
MEDIUM NEUTRAL CITATION	[2010] VSCA 57
JUDGMENT APPEALED FROM	R v Chimirri (Unreported, County Court of Victoria, Judge Gullaci, 27 March 2008)

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CRIMINAL LAW – Conviction – Aggravated burglary – Whether evidence sufficient to establish trespass to part of building – Whether prosecutor breached duty by failing to call key witness – Whether failure to call key witness resulted in a miscarriage of justice – R v Apostilides (1984) 154 CLR 563 applied – Appeal dismissed.

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Appearances:	Counsel	Solicitors
For the Crown	Mr D A Trapnell SC	Mr C Hyland, Solicitor for Public Prosecutions
For the Applicant	Mr P S Kilduff	Markotich Lawyers

NEAVE JA
REDLICH JA
HOLLINGWORTH AJA:

The applicant, Terence Chimirri, was presented in the County Court on two counts each of aggravated burglary (counts 1 and 2) and common assault (counts 3 and 5) and one count of making a threat to kill (count 4) arising out of events occurring on 22 November 2003. Three previous trials relating to these events did not run to verdict. At the fourth trial the jury returned a directed acquittal on counts 2 and 3 and found the applicant guilty on counts 1, 4 and 5.

After hearing a plea in mitigation of sentence, the judge sentenced the applicant to 4 years’ imprisonment on count 1, 2 years’ imprisonment on count 4 and 6 months’ imprisonment on count 5, with 12 months of the sentence imposed on count 4 to be served cumulatively on the sentence imposed on count 1. The applicant was also sentenced to 6 months’ imprisonment on a count of resisting arrest, to which he had pleaded guilty on an earlier occasion. Two months of that sentence were to be served cumulatively with the sentence imposed on count 1.

This amounted to a total effective sentence of 5 years and 2 months’ imprisonment. His Honour ordered a non-parole period of 2 years and 9 months.

The applicant now appeals against his conviction on count 1.[1]
[1]Though the applicant was sentenced on 27 March 2008, his appeal was not heard by this Court until 10 November 2009, a year and 7 months later. This was due to the applicant’s failure to file his outline of submissions by the date specified, resulting in his application for leave to appeal being dismissed on 18 February 2009. His application was reinstated on 16 April 2009. On 26 June 2009 the Adult Parole Board cancelled his parole and ordered a further term of imprisonment such that his earliest release date became 3 February 2010.

Background

The applicant and Kylie Marshall had been in an on and off relationship for some years. She had stopped seeing the applicant shortly before the date on which the offences occurred.

Ms Marshall stayed from time…

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 Chimirri

Details

AGLC: R v Chimirri [2010] VSCA 57
Case: [2010] VSCA 57
Decision Date: 22 March 2010

CaseChat Overview and Summary

The appeal heard by the court involved the respondent, who was convicted of aggravated burglary. The respondent contested the sufficiency of the evidence used to establish the trespass to part of a building, as well as the prosecutor's alleged breach of duty by not calling a key witness. The respondent argued that the failure to call this key witness resulted in a miscarriage of justice. The High Court of Australia was tasked with determining whether the appeal should be dismissed.
The legal issues before the court included whether the evidence presented was adequate to support the conviction, and if the prosecutor's failure to call the key witness constituted a breach of duty. The court also needed to decide whether this alleged breach led to a miscarriage of justice. The court applied the principles set out in R v Apostilides (1984) 154 CLR 563 to assess the sufficiency of the evidence and the impact of the prosecutor's actions on the fairness of the trial.
In its decision, the court found that the evidence was sufficient to establish the trespass to part of the building, and the prosecutor's failure to call the key witness did not breach any duty owed to the respondent. Furthermore, the court held that the absence of the key witness did not result in a miscarriage of justice, as the evidence presented was strong enough to support the conviction. The court concluded that the appeal should be dismissed, and the conviction would stand.
As a result of the court's decision, the appeal was dismissed, and the conviction of the respondent for aggravated burglary was upheld. The court found that the evidence was sufficient to support the conviction, and the prosecutor's failure to call the key witness did not result in a miscarriage of justice.

Orders