By Paul Gregoire and Ugur Nedim
A little after 5.35 pm on 30 March 2015, two NSW police officers came across a truck that had been reported stolen. The vehicle was found parked out the front of the Canterbury Leagues Club on the northern side of Bridge Road.
Mr Gholam Chaheh was sitting in the driver’s seat of the truck, and his friend was on the passenger seat.
The officers arrested and cautioned the two men. Mr Chaheh told the police that another two individuals had asked him to mind the truck, while they went into the club. However, Chaheh was unable to describe what these people looked like.
The passenger said he’d been walking by when he saw Mr Chaheh sitting in the vehicle. He claimed to have asked Chaheh if he could recharge his phone, and then he got into the truck for that purpose.
The evidence provided
Later, at the hearing at Burwood Local Court, Chaheh’s friend gave a lengthier account. He said he was walking to the shops when he saw Mr Chaheh in a parked truck. He asked if he could charge his phone, and then when he got in, Chaheh gave him a lift to the shops at Belmore.
Police obtained closed circuit television footage from the leagues club, which showed the truck parked out the front from 5.24 to 5.44 pm. The footage also shows that Chaheh’s friend got out of the car when they first arrived, and went into some shops for 10 minutes.
The registered owner of the truck had parked and locked the vehicle on a street in Marrickville at around 4 pm on 27 March. When he returned at noon on 30 March, the truck was no longer where he had left it. So, he called the police to report it stolen.
Mr Chaheh appeared in the Local Court on two charges later that same year. He was charged with one count of take and drive conveyance without consent of the owner, contrary to section 154A(1)(a) of the Crimes Act 1900 (NSW).
The offence carries the same maximum penalty as larceny, which is 5 years imprisonment.
In the case of a first major traffic offence within 5 years, this carries a maximum penalty of a $3,300 fine and/or up to 18 months imprisonment, and an automatic 12 month disqualification from driving. In the case of a second or subsequent major traffic offence within 5 years, it carries a maximum penalty of a $5,500 fine and/or up to 2 years imprisonment, and an automatic 2 year disqualification.
Local Court Magistrate Mijovich dismissed the charges against Mr Chaheh on 7 October 2015, due to the fact that the time recorded on each of the court attendance notices (CAN) “was not proved to the requisite standard.”
The CAN charging take and drive conveyance without consent stated that the offence took place between 4 pm on 27 March and 12.30 pm on 30 March 2015. While the one charging drive a vehicle whilst disqualified stated that this happened between 5.45 pm and 6 pm on 30 March 2015.
Appealing the dismissal
The Director of Public Prosecutions (DPP) appealed the magistrate’s dismissal of the charges to the NSW Supreme Court on 8 September last year. The DPP also appealed the order that it pay Mr Chaheh’s legal costs.
NSW Supreme Court Justice Rothman explained that the provisions of section 154A(1)(a) of the Crimes Act outline that the taking and driving of a conveyance without consent equates to larceny. It was therefore necessary for the prosecutor to prove Chaheh had taken the truck and driven it.
According to His Honour, the evidence during the Local Court hearing left “little doubt” Chaheh had taken and driven the truck. This, he concluded, was established “beyond a reasonable doubt” via the CCTV footage, the account given by his friend, and the evidence provided by police.
The timing of the offences
As the DPP pointed out in the Supreme Court, section 16 of the Criminal Procedure Act 1986 provides that certain defects in an “indictment” – which is defined as including a CAN – “do not render the indictment bad, insufficient, void, erroneous or defective.”
“The omission of a time at which an offence was committed or the stating of a wrong time or the imperfect stating of a time” is “not to be a matter which renders an indictment bad,” Justice Rothman reasoned, unless the “time is an essential ingredient of the offence.”
In the case of Chaheh taking the truck and driving it, the exact time of the offence was not “an essential ingredient”, His Honour found.
The justice noted that during the Local Court hearing, Mr Chaheh’s defence team had not argued the indictment was deficient, but rather that there was no evidence the offences took place at the particularised times in the CANs.
The fact the offences may have occurred earlier or later on the same day did not render the charges insufficient, or warrant their dismissal. “The essential ingredients of the charges were established and the Local Court Magistrate was required to find guilt,” His Honour remarked.
The justice also pointed out that no complaint had been made in regard to “procedural unfairness” or claim of “relevant unfairness” associated with the “proof of particulars” of the offences that weren’t specified in the CANs.
Justice Rothman expressed the view that Magistrate Mijovich had “misunderstood or misapplied the distinction between essential elements of a charge, and the particulars thereof.” He found it was unnecessary for the DPP to establish that the offences occurred at the particular times in the CANs.
On 15 August this year, His Honour allowed the appeal. The order of the Burwood Local Court to dismiss the charges against Mr Chaheh on 7 October 2015 was therefore set aside. The costs order against the prosecutor was also set aside.
The justice ordered that “the matter be remitted to Burwood Local Court to be dealt with in accordance with law,” and that Mr Chaheh should pay the DPP’s “costs of and incidental to the appeal.”