Chisari v Regina [2006] NSWCCA 325 | Case summary

STEVEN FERNANDO CHISARI v REGINA (No 2) Judgment 1 GROVE J: Following trial before Puckeridge DCJ and a jury, the appellant was convicted of maliciously inflicting grievous bodily harm with intent so to do. His Honour imposed a sentence of imprisonment consisting of a non parole period of fourteen months and a balance term of eighteen months. A Crown appeal asserting the manifest inadequacy of that sentence was determined in this Court, differently constituted, and a substituted sentence consisting of a non parole period of two years six months and a balance term also of two years six months was imposed. The earliest date of eligibility for release to parole of the appellant is 18 September 2007: R v Chisari [2006] NSWCCA 19. 2 The appellant was represented by counsel in that appeal. After delivery of judgment he lodged this appeal against conviction and has appeared in person to pursue it. In the circumstances, any extension of time for lodgement of the appeal should be granted. 3 The offence charged arose out of events on 1 September 2003 in Parramatta Road, Haberfield. A summary of the facts was made in the previous judgment in the Crown appeal and it can conveniently be used again to give background for present purposes. "During the afternoon of that day the proprietor of a service station complained to police that a motor vehicle was parked across the service station entrance, blocking access. The motor vehicle was registered in the name of the respondent's brother. At some earlier stage an infringement notice had been attached to the windscreen of the vehicle. In response to the proprietor's complaint, Constable Scott Harder attended the service station. He placed a second infringement notice on the vehicle. He then made arrangements for a tow-truck to attend and remove the vehicle. He was present when the tow-truck operator arrived, and began the process of hooking the vehicle to the tow-truck so that it could be removed. At that point the respondent and his brother arrived. The brother became agitated and abusive. The respondent unhooked the vehicle from the tow-truck, and started it. He locked the door from inside. His brother continued to behave abusively and threateningly and shouldered Constable Harder away from the vehicle. Constable Harder pointed a can of capsicum spray at him. The respondent reversed the vehicle and then drove forward, in the direction of where Constable Harder was standing. Constable Harder had no escape route. He jumped onto the bonnet of the vehicle, attempting to hold on to the windscreen. The respondent accelerated the vehicle. Constable Harder rolled off the bonnet and fell to the ground. The respondent drove off. He drove the vehicle on the footpath, and on to Parramatta Road. Its headlights were not on and he drove at high speed, swerving in and out of traffic. Two days later, on 3 September, in company with legal advisers, the respondent presented himself at a police station and handed to an officer a statement he had made In the statement he claimed that Constable Harder, with his gun drawn, ran to the car, jumped on the bonnet, and smashed the windscreen, and that that was how he was injured. The respondent denied that the injury had been his fault or that he had any intention of harming Constable Harder. That was also, essentially, the response the respondent made in the trial, at which he gave evidence. The verdict demonstrates that the jury did not accept his version of events." 4 The principal injury suffered by Constable Harder was a displaced fracture of the right distal radius. Surgery, including internal plate fixture, was required and it was the medical prognosis that the wrist would never return entirely to normal. 5 The appellant has lodged a document setting out his grounds of appeal in these terms: "1. Whether verdict was manifestly wrong, unsafe and unreasonable and a substantial miscarriage of justice has actually occurred. 2. Where latent or patent errors have been made in criminal law, mixed law, and common law, or misdirection. 3. Application by counsel to discharge jury was refused where sensitive information was revealed. 4. Where forensic evidence by crime scene investigator proved where impact occurred upon vehicle. 5. Conflicting witness statements. 6. Officer Harder credibility. 7. That a accused is entitled to a jury of 12. 8. Evidence entered where cross examination was unable to be done. 9. Mechanical defect. 10. Photographic evidence." 6 In accordance with the usual directions by the Registrar for the supply of written submissions, the appellant has made available an outline of some of his contentions concerning what he has referred to as points, 5, 6, and 10 in the grounds of appeal, a general submission relating to point 1 and some submissions concerning s 33 of the Evidence Act 1995 and submissions on the topic of lies. He addressed the Court orally in support of his contentions. 7 It is convenient to refer to the points mentioned by the appellant as grounds and I will deal with some express complaints before returning to deal with grounds 1 and 2. 8 The appellant identified the "sensitive information" referred to in ground 3 as relating to tyre marks which he disputed as having been demonstrated to have been caused by the vehicle with which Constable Harder was struck. The appellant directed attention to the evidence of Mr Merlino, a witness who was at the service station in connection with some business with the owner. He happened to be an investigator and took photographs including depictions of the obstruction of the entrance by the vehicle. The appellant reiterated his version of the movement of the vehicle when he was driving it, but any conclusions to be drawn from the evidence were matters for the jury and this includes any finding concerning things such as tyre marks. Tyre marks appear in the photograph (Exhibit J) which was in fact taken by Constable Cullen and it is not entirely clear why the appellant referred to Mr Merlino's evidence in this context. However, there was no application by counsel for discharge of the jury in relation to these matters, or at all, and consequently there was no refusal to discharge by his Honour. 9 Grounds 4 and 10 are allied to each other. The evidence included photographs of the vehicle (YUT 6616) as I have said some taken by Mr Merlino on 1 September 2003 and others taken later by Constable Cullen, a crime scene investigator. The appellant points to a photograph by Mr Merlino which was taken prior to the incident which shows no damage to the offside front guard of his vehicle and he contrasts this appearance with scratches, dents and missing paint in that area which can be seen in the later photographs taken after the incident by Constable Cullen. 10 The appellant contends that this corroborates his evidence that he did not "drive at" Constable Harder because it can be deduced that the constable was not in front, but at the side, of the oncoming vehicle. It was not disputed that, having perceived imminent danger Constable Harder leapt and landed on the bonnet of the vehicle, this is congruent with in the appellant's own submission that "he admits jumping onto (the) car." 11 This evidence was there for the jury to assess. It might be observed that, it being open to the jury to conclude that the constable leapt to avoid imminent danger created by the appellant, whether the car was likely to impact him directly or tangentially, the appellant would not escape liability. A significant analogy on the potential of liability can be drawn from the circumstances where a person may have jumped from a window because of a well founded apprehension of violence: Royall v The Queen 1990 172 CLR 378. 12 Grounds 5 and 6, referring to conflicting statements and the credibility of the complainant, obviously raise matters which were to be determined at trial by the tribunal of fact and, absent demonstration of legal error so as to invoke intervention by this Court, submissions of this kind cannot avail the appellant. 13 I turn to ground 7. On the third day of trial, a sheriff's officer communicated a message received from a juror that the juror was ill. The information was not elaborated beyond "food poisoning, in tomorrow." 14 The appellant's counsel at trial opposed the discharge of the non attending juror. At the time the Crown did not object to such an order. However, his Honour did not discharge the juror and adjourned to the following day. When dispersing the remaining jurors and explaining to them the reason for adjournment, his Honour said, inter alia, "an accused person is always entitled to be tried by a jury of twelve" (emphasis added) and it may be that that unqualified statement is the source of the appellant's vigorous assertion that he was "entitled" to a jury of twelve. 15 On that following day, the juror was still absent. Another message was relayed stating that the juror had an appointment with a doctor on that day (Thursday) at 11.15 am and needed that day to "get over problem" and should be in on Friday. 16 In the interim a note was received from the remaining jurors expressing their concern about the extension of the trial beyond estimates given to them prior to the selection process. Having regard to the content of the message specifying the doctor's appointment, his Honour adjourned until 12.30 pm in order to have further enquiries made. These produced a facsimile transmission from the juror of a medical certificate referring to the juror having had symptoms of gastroenteritis for two days and being unable to perform jury duty. The Court adjourned until Friday morning. 17 On that morning there was a further message relayed to his Honour that the juror had reached Central Station but become violently ill and had been advised to seek immediate medical attention. At this point the appellant's counsel announced that he "formally opposed" the discharge of the juror but did not wish to be heard further. 18 His Honour then ordered the discharge of the juror and the trial continued to completion with a panel consisting of the eleven remaining jurors. 19 The continuation of the trial with a jury so constituted is expressly authorized by the Jury Act 1977 (s 22): "22. Where in the course of any trial or coronial inquest any member of the jury dies or is discharged by the court or coroner whether as being through illness incapable of continuing to act or for any other reason, the jury shall be considered as remaining for all the purposes of that trial or inquest properly constituted if; (a) in the cases of criminal proceedings, the number of its members: (i) is not reduced below 10 ……" 20 As was observed in Wu v The Queen 1999 199 CLR 99 (per Gleeson CJ and Hayne J @ 106): "…the whole purpose of s 22 is to provide that a trial can proceed before a jury despite the discharge of one or more of its members. That is, there can be a fair and lawful trial of an accused despite the discharge of a juror in the course of the proceedings." 21 The appellant was not deprived of any entitlement vested in him. The expression "trial by jury" even when constitutionally entrenched does not mean trial by an irreducible number of twelve jurors comprising the panel: Brownlee v The Queen 2001 207 CLR 278. 22 Ground 8 focussed upon the admission into evidence of the statement of Diederik Hagenbeck a person who, the evidence showed, had left Australia and not returned. It appears that he was a Dutch tourist. It was expressly conceded by the appellant's counsel that the statutory requirements for tender of the statement had been complied with by the Crown. Objection was raised, however, to the whole statement on the basis of the lack of opportunity to cross examine the maker and, alternatively, to parts of the statement on discrete bases. As to the latter, his Honour upheld some of the objections and the relevant parts were excised. No complaint is now made about these individual rulings but the absence of cross examination continues to be a matter of complaint. 23 It is inherent in the very nature of the statutory facility to admit a statement in these circumstances that the witness will not be present and amenable to cross examination. Nothing is shown to demonstrate miscarriage of his Honour's discretion on this aspect nor in his instructions to the jury in regard to how they should treat the content of the statement. 24 The appellant did not elaborate upon ground 9 which simply states "mechanical defect", however, insofar there might have been any issue concerning the condition of the vehicle driven by him it was a matter for determination at trial. 25 The written submissions advert to two matters which may be intended to be comprehended within the articulation of ground 2. 26 Section 33 of the Evidence Act is in these terms: "33 (1) Despite section 32 in any criminal proceeding, a police officer may give evidence in chief for the prosecution by reading or being led through a written statement previously made by the police officer. (2) Evidence may not be so given unless: (a) the statement was made by the police officer at the time of or soon after the occurrence of the events to which it refers, and (b) the police officer signed the statement when it was made, and (c) a copy of the statement had been given to the person charged or to his or her lawyer a reasonable time before the hearing of the evidence for the prosecution. (3) A reference in this section to a police officer includes a reference to a person who, at the time the statement concerned was made, was a police officer." 27 The Crown Prosecutor sought that Constable Harder's statement be read pursuant to that provision. His Honour delivered a separate judgment on this application. He recounted the chronology of the incident on 1 September, the transport of the constable to hospital and his treatment including surgery, his discharge from hospital on 4 September and the making of the statement on 9 September. Constable Harder was examined on voir dire and testified that he had not spoken to any other police officer between the incident and the making of the statement. His Honour found that the requirements of the section were fulfilled and that finding was clearly open to him. 28 It is apparent that the provision exists to recognize the reality that police officers frequently are required to testify long after events have occurred and that in the intervening period they may be likely to have been involved in a multiplicity of incidents about which they may also be required at some future time to testify. A practice of reciting statements which have been learned by heart - a recognized past practice - represented more a test of recall of the recitation than a recall of events and s 33 provides a transparent practice of evidencing matters which would be fresh in the memory at the time of making the statement. 29 It is relatively infrequent that the police officer would be speaking of matters which concerned that officer so directly as a victim although, as Mr Dawe QC for the Crown in the appeal observed, there are no doubt other such cases when, for example, officers are the victims of assault or resisting arrest, the situation would be similar. 30 The provision vests a discretion and his Honour exercised it by declining to permit the reading of the statement. He indicated a preference that the constable be led through the statement, subject to the exclusions which he had ruled on an individual basis and it was observed that much of the evidence was in fact adduced by non leading questions. There is nothing to support a conclusion that the appellant was treated with any unfairness in this regard. 31 The second topic raised by the appellant in his written submissions refers to "the High Court's decision in Edwards" which is a reference to Edwards v The Queen 1993 178 CLR 193. That case dealt with requirements which must be fulfilled where the telling of lies by an accused is relied upon by the Crown as proof of guilt or as corroboration of other evidence, in distinction from merely being relied upon to strengthen a prosecution case. No direction of the kind contemplated in that authority was given by his Honour, nor was it sought by counsel for the appellant. Obviously this was because the Crown case was not relying upon the telling of lies in the manner which required the direction. It is apparent that the Crown was inviting the jury to disbelieve the version of the facts given by the appellant but that is an entirely different issue. 32 A complaint was raised about the supply of transcripts in response to requests by the jury after they had retired upon deliberation. Express authority is vested by s 55C of the Jury Act 1997: "55C. A copy of all or any part of the transcript of evidence at a trial or inquest may, at the request of the jury, be supplied to the members of the jury if the judge or coroner considers that it is appropriate and practicable to do so." 33 The record of trial shows what occurred and there is no basis for legitimate complaint by the appellant about this matter. 34 Ground 1 seeks to challenge the verdict as unreasonable or on the basis that it cannot be supported having regard to the evidence. When such a ground is raised this Court must determine whether upon the whole of the evidence, it was open to the jury to be satisfied of guilt beyond reasonable doubt: M v The Queen 1994 181 CLR 487. The formula has been discussed in other cases and it is not necessary to explore them now. The appellant has obviously been accessing authorities going back as far as Mraz v The Queen 1955 93 CLR 493 and has extracted expressions such as "the accused may thereby have lost the chance of acquittal which was fairly open to him". I mention in passing that in that particular case the observation was germane to the application of the proviso to s 6(1) of the Criminal Appeal Act 1912. The question of application of the proviso does not arise unless error at trial has been demonstrated and none such has been shown in this instance. 35 Obviously there was a contest between the evidence adduced by the prosecution and that given by the appellant. An examination of the whole of the evidence leads to a conclusion that it was fairly open to the jury to be satisfied of guilt beyond reasonable doubt and, I would add, plainly so. 36 I propose that the appellant be granted any necessary extension of time for filing his notice of appeal against conviction, but the appeal be dismissed. 37 KIRBY J: I agree with Grove J. 38 HISLOP J: I agree with Grove J. **********

Chisari v Regina

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