Chiha v R [2024] NSWCCA 222

Chiha v R [2024] NSWCCA 222

The procedure adopted by the trial judge, though irregular, did not have the capacity for practical injustice or affect the result of the trial. The applicant was not prejudiced and the jury was not deprived of the proper opportunity to assess witness credibility. The error regarding sentence commencement was conceded and remedied by backdating the commencement date.

Parties
Applicant: Charles Michael Chiha; Respondent: Rex
Jurisdiction
Australia
Judgment Date
11 December 2024
Procedural Posture
Criminal Appeal / Judgment on Conviction and Sentence Appeal
Outcome
Leave to appeal against conviction granted. Appeal against conviction dismissed. Leave to appeal against sentence granted. Appeal against sentence allowed. Original sentences quashed in lieu of substituted sentences and orders as below.
Legal Topics
Appeal Against Conviction, Appeal Against Sentence, Miscarriage of Justice, Procedural Irregularity, Witness Memory Refreshing, Sentencing Error
Criminal Law Appeal Against Conviction Appeal Against Sentence Miscarriage of Justice Procedural Irregularity Witness Memory Refreshing Sentencing Error

Case Brief

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Parties

Charles Michael Chiha

Applicant

Rex

Respondent

Procedural Posture

Criminal Appeal / Judgment on Conviction and Sentence Appeal

Legal Issues

  1. 1 Whether the process adopted by the trial judge for refreshing witness A's memory constituted a miscarriage of justice
  2. 2 Whether the trial judge put improper pressure on witness A to give evidence in accordance with his prior statement
  3. 3 Whether the trial judge erred in failing to adjust the sentence commencement date to cover pre-sentence custody

Ratio Decidendi

The procedure adopted by the trial judge, though irregular, did not have the capacity for practical injustice or affect the result of the trial. The applicant was not prejudiced and the jury was not deprived of the proper opportunity to assess witness credibility. The error regarding sentence commencement was conceded and remedied by backdating the commencement date.

Court Disposition

Leave to appeal against conviction granted. Appeal against conviction dismissed. Leave to appeal against sentence granted. Appeal against sentence allowed. Original sentences quashed in lieu of substituted sentences and orders as below.

Orders

  • Quash the sentence for counts 1 and 2 imposed in the District Court on 21 April 2023.
  • For count 1, sentence the applicant to a fixed term of imprisonment of 6 years commencing on 13 September 2022.