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R v Chung & Rechichi

R v Chung & Rechichi

Case [2010] VSCA 39 11 March 2010

Jurisdiction

Reasonable Apprehension of Bias

Discharge of Jurors

Integrity of Jury Verdict

Costs

Criminal Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

THE QUEEN	No 648 of 2008
	v
CHI WAI CHUNG
THE QUEEN v ANTONIO MICHAEL RECHICHI	No 655 of 2008

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JUDGES:	REDLICH and HARPER JJA and KING AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	25 November 2009
DATE OF JUDGMENT:	11 March 2010
MEDIUM NEUTRAL CITATION:	[2010] VSCA 39
JUDGMENT APPEALED FROM:	R v Chi Wai Chung and R v Antonio Michael Rechichi, Unreported 2 May 2008, County Court of Victoria (Judge Howard)

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CRIMINAL LAW – Jury – Contact between juror and member of accused’s family – Jury had commenced deliberations – Contact found to be innocent in purpose – Reasonable apprehension of bias – Whether direction to juror or jury could cure apprehension of bias – Webb v R (1994) 181 CLR 41, R v Goodall (2007) 15 VR 673 applied – Integrity of jury verdict – Discharge of two jurors – Nature of discretionary decision to discharge jurors – Whether decision miscarried – s 43 Juries Act 2000 – Direction to remainder of jury – Limited explanation as to why jurors had been discharged – Whether unfair prejudice to accused – Direction inappropriate – New trial ordered.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr J D McArdle QC	Mr C Hyland, Solicitor for Public Prosecutions
For the Applicant Chung For the Applicant Rechichi	Mr C B Boyce Mr M J Croucher	Amad and Amad Collards

REDLICH JA:

Following a trial in the County Court sitting at Melbourne in 2008, the applicants, Chi Wai Chung and Antonio Michael Rechichi were each convicted on one count of conspiracy to defraud the Commonwealth Bank of Australia (CBA), one count of obtaining property by deception and one count of obtaining financial advantage by deception. In addition Chung was convicted on one count of knowingly dealing with the proceeds of crime. Chung was sentenced to a term of 5 years and 9 months imprisonment with a non-parole period of 4 years and 3 months. Rechichi was sentenced to a term of 5 years and 3 months imprisonment with a non-parole period of 3 years and 9 months.

The applicants seek leave to appeal against their convictions on grounds which relate to the discharge of two jurors during the jury deliberations at the conclusion of the trial. In substance complaint is made that the trial judge ought not to have discharged the jurors and that having done so, the trial judge gave the remaining jurors a direction which was so prejudicial that it gave rise to a miscarriage of justice.[1] Each applicant also seeks leave to appeal against the sentences imposed.
[1]A separate ground by Chung relating to what was said to be an erroneous ‘Ahern direction’ was abandoned with leave during the hearing of the appeal.

The Crown Case

In the context of the grounds argued on the appeal, it is unnecessary to do more than provide a bare outline of the circumstances of the offending.

Each of the offences were…

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 Chung & Rechichi

Details

AGLC: R v Chi Wai Chung [2010] VSCA 39
Case: [2010] VSCA 39
Decision Date: 11 March 2010

CaseChat Overview and Summary

In the case of R v Chung & Rechichi, the appellants were convicted of drug trafficking offences and sought to appeal their convictions on various grounds, including the discharge of two jurors during the trial. The trial judge had discharged the jurors after it was discovered that one of the jurors had contacted a member of the accused’s family. The contact was found to be innocent in purpose, but the court had to determine whether this contact raised a reasonable apprehension of bias and whether the trial judge’s decision to discharge the jurors was appropriate. The appeal further considered whether the discharge of the jurors and the subsequent direction to the remaining jury members was fair and whether it caused any prejudice to the accused.

The primary legal issues before the court were whether the discharge of two jurors was justified and whether the direction given to the remaining jurors was appropriate. The court examined whether the discharge of the jurors could have been cured by a direction to the juror or the jury, as established in Webb v R and R v Goodall. The court also considered whether the limited explanation given to the jury about the discharge of the jurors caused unfair prejudice to the appellants. Furthermore, the court had to assess whether the decision to discharge the jurors was a discretionary decision that could be reviewed for miscarriage.

The court held that the discharge of the two jurors was appropriate as it was necessary to maintain the integrity of the jury verdict. The court found that the innocent nature of the contact did not preclude the reasonable apprehension of bias and that a direction to the juror or the jury could not have cured this apprehension. The court also determined that the direction given to the remaining jurors was inappropriate because it did not provide a full explanation for the discharge and potentially caused unfair prejudice to the appellants. Consequently, the court found that the trial judge’s decision to discharge the jurors did not miscarry, but the direction given to the jury was flawed. The court ordered a new trial due to the unfair prejudice caused by the inadequate direction.

The court ordered a new trial for the appellants due to the prejudicial effect of the inadequate direction given to the remaining jurors. The court found that while the discharge of the jurors was justified, the limited explanation provided to the jury was unfair and prejudiced the appellants. This decision underscores the importance of ensuring that the jury is properly directed and that any prejudice caused by the discharge of jurors is mitigated to maintain the fairness of the trial process.

Orders