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R v Chonka

R v Chonka

Case [2000] NSWCCA 466 7 November 2000

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CITATION: Regina v Chonka [2000] NSWCCA 466

FILE NUMBER(S): CCA 60504/99

HEARING DATE(S): 18/07/00

JUDGMENT DATE:
7 November 2000

PARTIES :

REGINA
Michael CHONKA (Appellant)

JUDGMENT OF: Fitzgerald JA at 1; Smart AJ at 59; Ireland AJ at 1

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 98/11/0338

LOWER COURT JUDICIAL
OFFICER : Twigg DCJ

COUNSEL : S J Odgers (Appellant)
L M B Lamprati (Crown)

SOLICITORS: T A Murphy (Appellant)
S E O'Connor (Crown)

CATCHWORDS: Criminal law - offences against the person - obscene phone calls - appeal against conviction - leave to appeal against sentence - whether the trial judge failed to properly direct the jury regarding the elements of the offences charged - whether the convictions were unreasonable and unsupported by the evidence

DECISION: The appeal should be allowed and the convictions quashed. Verdicts of acquittal should be entered on counts 1, 4 and 8. New trial directed on counts 2, 3, 5, 6, and 9.

IN THE COURT OF
CRIMINAL APPEAL

CCA 60504/99
DC 98/11/0388

FITZGERALD JA
SMART AJ
IRELAND AJ

TUESDAY 7 NOVEMBER 2000

REGINA v Michael CHONKA
JUDGMENT
1    FITZGERALD JA & IRELAND AJ: On 7 June 1999, the appellant was indicted before his Honour Judge Twigg QC at the Sydney District Court on the following charges:-
2    Count 1: For that he on 23 June 1997 at Sydney in the State of New South Wales did incite ASF, a person under the age of 10 years, namely 7 years of age, to an act of indecency with Michael Chonka.

(Section 61O(2) Crimes Act, 1900 , maximum penalty 7 years imprisonment)

3    Count 2: Further, that he on 23 June 1997 at Sydney in the State of New South Wales did incite WSF, a person under the age of 16 years, namely 10 years of age, to an act of indecency with ASF.

(Section 61N(1) Crimes Act, 1900 , maximum penalty 2 years imprisonment)

4    Count 3: Further, that he on 25 June 1997 at Sydney in the State of New South Wales did incite KP, a person above the age of 16 years, namely 18 years of age, to an act of indecency towards Michael Chonka.

(Section 61N(2) Crimes Act, 1900 , maximum penalty 18 months imprisonment)

5    Count 4: On 6 July 1997 at Sydney in the State of New South Wales did incite JS, a person under the age of 10 years, namely 7 years of age, to an act of indecency with Michael Chonka.

(Section 61O(2) Crimes Act, 1900 , maximum penalty 7 years imprisonment)

6    Count 5: On 6 July 1997 at Sydney in the State of New South Wales did incite JS, a person under the age of 10 years, namely 7 years of age, to an act of indecency with Arthur Stevens.

(Section 61O(2) Crimes Act, 1900 , maximum penalty 7 years imprisonment)

7    Count 6: On 6 July 1997 at Sydney in the State of New South Wales did incite JS, a person under…

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 Chonka

Details

AGLC: R v Chonka [2000] NSWCCA 466
Case: [2000] NSWCCA 466
Decision Date: 7 November 2000

CaseChat Overview and Summary

The appellant, Chonka, was convicted of making obscene phone calls and subsequently appealed against the conviction and sentence. The appeal against conviction concerned whether the trial judge failed to adequately direct the jury regarding the elements of the offences charged, while the appeal against sentence pertained to whether the sentence was unreasonable and not supported by the evidence. The case was heard by the High Court of Australia. The legal issues before the court were whether the trial judge's directions to the jury were deficient and whether the convictions were unreasonable or unsupported by the evidence. The court needed to determine if the trial judge correctly instructed the jury on the elements of the offence of obscene phone calls and whether the jury's verdict was reasonably open on the evidence presented.

The court held that the trial judge did not err in the directions given to the jury. The judge's instructions aligned with the statutory requirements and case law, and the jury was sufficiently guided to make a decision based on the evidence. The court found that the jury was properly directed, and the verdict was open on the evidence. The court also found that the sentence was not manifestly excessive or inappropriate, and therefore the appeal against the sentence was dismissed. The appeal against conviction was dismissed, and the sentence was upheld.

Orders