Chiha v R [2024] NSWCCA 222

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Chiha v R [2024] NSWCCA 222 Hearing dates: 07 August 2024 Date of orders: 11 December 2024 Decision date: 11 December 2024 Before: Price AJA at [1]; Garling J at [163]; Rigg J at [212] Decision: (1) Leave to appeal against conviction granted. (2) Appeal against conviction dismissed. (3) Leave to appeal against sentence granted. (4) Appeal against sentence allowed. (5) Quash the sentence for counts 1 and 2 imposed in the District Court on 21 April 2023. (6) In lieu thereof, for count 1, sentence the applicant to a fixed term of imprisonment of 6 years commencing on 13 September 2022. As to count 2, sentence the applicant to a term of imprisonment of 16 years consisting of a non-parole period of 11 years commencing on 13 September 2022 and expiring on 12 September 2033 with a balance of term of 5 years commencing on 13 September 2033 and expiring on 12 September 2038. (7) The earliest date the applicant is eligible to be released on parole is 12 September 2033. Catchwords: CRIME — appeals — appeal against conviction — miscarriage of justice — where trial judge allowed witness to refresh memory in court in the absence of jury — where witness was in custody prior to hearing and did not have opportunity to read his statement — where applicant's counsel did not oppose this course — whether this process was so irregular that it constituted a miscarriage of justice — whether witness was pressured to give evidence in accordance with his prior statements — whether applicant was prejudiced — whether outcome of trial was capable of being affected CRIME — appeals — appeal against sentence — error in commencement date — commencement date backdated to reflect all of applicant's time in custody Legislation Cited: Crimes Act 1900 (NSW), s 93T(4A) Criminal Appeal Act 1912 (NSW), ss 5(1), 5DA, 6(1) Criminal Procedure Act 1986 (NSW) Drug Misuse and Trafficking Act 1985 (NSW), s 24(2) Evidence Act 1995 (NSW), ss 32, 38 Legal Profession Uniform Conduct (Barristers) Rules 2015 (NSW), r 69 Cases Cited: Aravena v R (2015) 91 NSWLR 258; [2015] NSWCCA 288 Black v R (2022) 107 NSWLR 225; [2022] NSWCCA 17 Brown v Commissioner of Taxation (2002) 119 FCR 268; [2002] FCA 38 CC v R, R v CC (2021) 289 A Crim R 453; [2021] NSWCCA 71; De Gioia v Darling Island Stevedoring & Lighterage Co Ltd (1941) 42 SR (NSW) 1 Director of Public Prosecutions (NSW) v Zhang [2007] NSWSC 308 Ex Parte Hamilton; Re Fagan [1996] 2 NSWR 732 HCF v The Queen (2023) 97 ALJR 97; [2023] HCA 35 JA v R [2024] NSWCCA 130 Kennedy v R (1997) 94 A Crim R 341 Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 Lehn v R (2016) 93 NSWLR 205; [2016] NSWCCA 255 Lau Pak Ngam v The Queen [1966] Crim LR 443 MacPherson v The Queen (1981) 147 CLR 512; [1981] HCA 46 R v Basha (1989) 39 A Crim R 337 R v Lars (1994) 73 A Crim R 91 R v Pachonick (1973) 2 NSWLR 86 R v Sandford (1994) 33 NSWLR 172 R v Tripodina (1988) 35 A Crim R 183 Ratten v The Queen (1974) 131 CLR 510; [1974] HCA 35 Regina v Richardson [1971] 2 All ER 773; [1971] 2 QB 484 Whitehorn v The Queen (1983) 152 CLR 657; [1983] HCA 42 Texts Cited: J D Heydon, Cross on Evidence (14th ed, 2023, LexisNexis Australia) Westlaw AW, The Laws of Australia (online) 16 Evidence Category: Principal judgment Parties: Charles Michael Chiha (Applicant) Rex (Respondent) Representation: Counsel: B Walker SC / T F Woods (Applicant) M Millward (Respondent)