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Court of Criminal Appeal 11 December 2024

Chiha v R

[2024] NSWCCA 222

DrugsPublic order & justice offences

Citation: Chiha v R [2024] NSWCCA 222
Court: Court of Criminal Appeal, New South Wales
Date: 11 December 2024
Judges: Price AJA, Garling J (dissenting on conviction), Rigg J

Background

The applicant was the managing director of a perfume and fragrance company. The Crown alleged he used that position to import sassafras oil, a precursor chemical, and divert it for use in manufacturing a large commercial quantity of MDA (a prohibited drug) at a rural property near Bathurst. He was not alleged to have had any hands-on role in the manufacture or to have visited the farm himself.

Following a jury trial in the District Court at Sydney in September 2022, the applicant was convicted on two counts: participating in a criminal group under s 93T(4A) of the Crimes Act 1900 (NSW) and manufacturing a large commercial quantity of MDA under s 24(2) of the Drug Misuse and Trafficking Act 1985 (NSW). He was sentenced to a total effective term of 16 years' imprisonment with an 11-year non-parole period.

The applicant sought leave to appeal against both his conviction and his sentence. The conviction appeal centred on an unusual procedure that occurred during the trial involving a key Crown witness. The sentence appeal concerned a failure to account for 13 days of pre-sentence custody.

  • Whether the trial judge's procedure of allowing a Crown witness to refresh his memory inside the courtroom, in the presence of the judge and counsel but in the absence of the jury, constituted a miscarriage of justice.
  • Whether the trial judge, in facilitating that memory-refreshing process, effectively pressured the witness to give evidence consistent with his prior induced statement.
  • Whether any irregularity in that process had the practical capacity to affect the outcome of the trial.
  • Whether the sentence commencement date correctly accounted for all time the applicant spent in pre-sentence custody.

Decision

Conviction appeal (majority: Price AJA and Rigg J)

The trial judge permitted a Crown witness, who had been in custody and had not had the opportunity to read his statement beforehand, to refresh his memory from that statement inside the courtroom, with the jury absent. The applicant's counsel did not oppose this course at the time. The majority acknowledged the procedure was irregular: refreshing a witness's memory from a prior statement ordinarily occurs outside the courtroom, not in a formal setting presided over by the judge.

Despite that irregularity, the majority held that it did not produce a miscarriage of justice. The judge's role in the process, which involved repeating, without comment or elaboration, the parts of the statement the Crown Prosecutor directed the witness to read, did not amount to pressure on the witness to adopt that statement as his evidence. The majority also found that the process gave the applicant's counsel a forensic advantage, and that much of the material to which the witness's attention had been drawn in the jury's absence was never adduced in evidence before the jury.

Critically, the majority concluded the procedure was not capable of affecting the result of the trial. The irregularity carried neither practical injustice nor the potential to alter the jury's verdict.

Garling J (dissenting)

Garling J dissented, concluding that conducting memory refreshing in the formal setting of the courtroom was a procedure not contemplated by any ordinary trial process. In his Honour's view, the failure to observe fundamental requirements of the criminal trial process constituted a miscarriage of justice, regardless of whether counsel had objected at the time.

Sentence appeal

The Crown conceded that the sentencing judge had failed to credit the applicant with 13 days spent in custody on remand between 22 March 2018 and 3 April 2018. Both parties agreed the error could be corrected simply by backdating the commencement date of the sentences by 13 days to 13 September 2022, without any need to re-exercise the sentencing discretion afresh.

Orders Made

  • Leave to appeal against conviction granted; appeal against conviction dismissed.
  • Leave to appeal against sentence granted; appeal against sentence allowed.
  • Sentences for counts 1 and 2 imposed in the District Court on 21 April 2023 quashed.
  • In lieu thereof:
  • Count 1: fixed term of 6 years' imprisonment commencing 13 September 2022.
  • Count 2: 16 years' imprisonment comprising a non-parole period of 11 years commencing 13 September 2022 and expiring 12 September 2033, with a balance of term of 5 years commencing 13 September 2033 and expiring 12 September 2038.
  • Earliest eligible parole date: 12 September 2033.

Key Takeaways

  • An irregular procedure during a criminal trial will not automatically constitute a miscarriage of justice. The Court of Criminal Appeal confirmed that the relevant question is whether the irregularity had the practical capacity to affect the outcome of the trial and produce actual prejudice to the accused.
  • Where a witness refreshes memory from a prior statement inside the courtroom (rather than outside it, as is conventional), the procedure is irregular. However, the majority found that irregularity was not fatal where it produced no material difference in the evidence ultimately given before the jury and conferred a forensic advantage on the defence.
  • A trial judge repeating, without addition or comment, portions of a witness's prior statement during a memory-refreshing exercise does not, without more, amount to pressure on the witness to adopt that statement as their evidence.
  • Garling J's dissent illustrates that the question of when procedural irregularity crosses the threshold into miscarriage of justice remains a matter on which judicial opinion can genuinely divide, even where trial counsel did not object at the time.
  • Sentencing errors involving an incorrect commencement date that fails to credit all pre-sentence custody can be corrected by adjusting the commencement date, without the appellate court needing to re-exercise the full sentencing discretion afresh.

Legislation and Cases Referenced

Legislation
- 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
- Black v R (2022) 107 NSWLR 225; [2022] NSWCCA 17
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- Lehn v R (2016) 93 NSWLR 205; [2016] NSWCCA 255
- HCF v The Queen (2023) 97 ALJR 97; [2023] HCA 35
- JA v R [2024] NSWCCA 130
- Aravena v R (2015) 91 NSWLR 258; [2015] NSWCCA 288
- R v Tripodina (1988) 35 A Crim R 183
- R v Basha (1989) 39 A Crim R 337
- MacPherson v The Queen (1981) 147 CLR 512; [1981] HCA 46
- Ratten v The Queen (1974) 131 CLR 510; [1974] HCA 35
- CC v R, R v CC (2021) 289 A Crim R 453; [2021] NSWCCA 71