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Court of Criminal Appeal 28 September 2016

Chesham v R

[2016] NSWCCA 206

Assault & violenceTheft & property
CRIMINAL LAW CONVICTION APPEAL SENTENCE APPEAL

Citation: Chesham v R [2016] NSWCCA 206
Court: NSW Court of Criminal Appeal
Date: 28 September 2016
Judges: Ward JA (at [1]); Price J (at [78]); Fagan J (at [79])

Background

The appellant was convicted after a judge-alone trial in the District Court of assault occasioning actual bodily harm and robbery using corporal violence, both committed on 7 January 2014 against a single complainant on a train travelling towards Central Station. The complainant's evidence was that the appellant approached her, patted down her clothing, attempted to take her identification card and phone, and then bit her arm, pulled her hair, and struck her head. The cord attached to the identification card broke during the struggle, lacerating the complainant's finger.

A train driver who witnessed part of the incident gave evidence of seeing the appellant forcefully pulling the complainant's hair. CCTV footage captured a woman matching the appellant's description at Redfern station shortly after the incident. DNA analysis of the complainant's jacket sleeve placed the appellant as an overwhelmingly likely major contributor to a mixed DNA profile found there.

The Crown also relied on tendency evidence drawn from two earlier incidents: a 2010 incident at Fairfield Railway Station in which the appellant had grabbed a necklace from another woman's neck, and a 2005 incident at Fairfield in which the appellant was accused of taking a woman's mobile phone and biting one person during the ensuing altercation.

  • Whether the admission of tendency evidence relating to prior incidents of corporal violence caused a miscarriage of justice, including by depriving the appellant of a jury trial
  • Whether the listing of unrelated charges against the appellant on the same day as the present trial gave rise to prejudice amounting to a miscarriage of justice
  • Whether the complainant giving evidence via audio-visual link caused a miscarriage of justice
  • Whether the verdicts were unreasonable or insupportable having regard to the evidence
  • Whether leave to appeal against sentence should be granted, and whether the sentence disclosed error

Decision

The Court of Criminal Appeal dismissed all grounds of the conviction appeal. The appellant, who was unrepresented, framed her complaint about the tendency evidence primarily around an argument that "corporal violence" did not exist as a legal concept. The court did not accept this as a viable ground. The tendency evidence had been admitted after a considered ruling by the trial judge following written and oral submissions, and no error in that ruling was identified.

The complaint about the listing of unrelated charges on the same day was not made out as a ground establishing miscarriage of justice. Similarly, the use of audio-visual link for the complainant's evidence did not give rise to any miscarriage of justice on the facts of the case.

The court found that the verdicts were not unreasonable or insupportable. The evidence against the appellant included the complainant's account, the eyewitness evidence of the train driver, CCTV footage, the DNA analysis strongly linking the appellant to the complainant's jacket, and the appellant's own ERISP responses, which contained a number of qualified or equivocal denials. Ward JA, with whom Price J and Fagan J agreed, concluded that there was no basis to disturb the convictions.

On sentence, no error was discernible in the exercise of the trial judge's sentencing discretion. The court refused leave to appeal against sentence, noting that even if leave had been granted the appeal would have been dismissed in any event.

Orders Made

• Leave to appeal against sentence refused
• Appeal dismissed

Key Takeaways

  • The Court of Criminal Appeal confirmed that tendency evidence admitted following a considered ruling at trial, with the benefit of written and oral submissions, will not readily be disturbed on appeal in the absence of demonstrated error.
  • A conviction will not be unreasonable or insupportable where it rests on a combination of eyewitness testimony, CCTV footage, DNA evidence, and equivocal denials recorded in a police interview.
  • The use of audio-visual link for a complainant's evidence does not of itself give rise to a miscarriage of justice; the appellant must establish actual prejudice flowing from that mode of evidence.
  • Listing unrelated charges on the same day as a trial does not automatically establish the kind of prejudice needed to make out a miscarriage of justice ground.
  • Leave to appeal against sentence is refused where the sentencing discretion has been exercised without error; the Court of Criminal Appeal noted it would have dismissed the appeal even if leave had been granted.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 59(f), 95(1)
- Criminal Appeal Act 1912 (NSW), s 5
- Evidence (Audio and Audio Visual Links) Act 1998 (NSW), s 5B

Cases:
- Aoun v R [2011] NSWCCA 284
- R v Lockyer (1996) 89 A Crim R 457
- R v O'Donoghue (1988) 34 A Crim R 397
- R v Zhang (2005) 158 A Crim R 504; [2005] NSWCCA 437