Khoury v R (No 1) [2021] NSWDC 434

District Court New South Wales

Medium Neutral Citation: Khoury v R (No 1) [2021] NSWDC 434 Hearing dates: 21 July 2021 Date of orders: 21 July 2021 Decision date: 21 July 2021 Jurisdiction: Criminal Before: Montgomery DCJ Decision: (1) Leave granted to appeal all grounds granted pursuant to S 12 Crimes (Appeal and Review) Act 2001 (NSW). Catchwords: CRIME — Appeal and review — Appeal from Local Court to District Court MENTAL HEALTH – Mental Health (Forensic Provisions) Act 1990 (NSW) s 32 Legislation Cited: Crimes (Appeal and Review) Act 2001 (NSW) s 12 Mental Health (Forensic Provisions) Act 1990 (NSW) s 32 Cases Cited: Huynh v R [2021] NSWCCA 148 Category: Procedural rulings Parties: Mr Khoury, Appellant Regina Representation: Mr Kemp, Solicitor for the ODPP Mr Tuckey, Counsel for the Appellant File Number(s): 2020/00208748 Decision under appeal Court or tribunal: Local Court of NSW Jurisdiction: Criminal Date of Decision: 11 March 2021 Before: Robinson LCM File Number(s): 2020/00208748

Judgment (ex tempore) 1. The first matter for determination today concerns the Notice of Motion dated 27 May 2020 upon which the applicant, being the appellant in this All-Grounds Appeal, seeks to proceed. The agreed position between the parties is that as this is an appeal against a refusal by the Learned Magistrate of the s 32 application; it should proceed as a conviction appeal with leave. The parties have directed the Court to Huynh v R [2021] NSWCCA 148. In that case, the Court of Criminal Appeal composed of the Chief Justice and Justices Beech-Jones and Adams, were concerned with provisions under the Crimes Act 1914 (Cth), specifically s 20B(q) and s 19B. 2. In Huynh, the first question asked of the Court for determination was, can the District Court exercise the power confirmed by former s 32 of the Mental Health (Forensic Provisions) Act 1990 (NSW) in an appeal against conviction or sentence under the Crimes (Appeal and Review) Act 2001 (NSW) ('Appeal Act'). 3. The following related questions are set out in the headnote to the judgment. The determination was that the Crimes (Appeal and Review) Act 2001 (NSW) enables the District Court in determining an appeal to exercise any function that the Local Court could have exercised in the original proceedings. The Court is not confined to procedural powers exercised "in determining an appeal". 4. The concept of "function" in s 28(2) embraces an exercise of powers such as that conferred by former s 32 of the Mental Health (Forensic Provisions) Act 1990 (NSW). On an appeal, the District Court should have available to it, the full range of power to deal with charges as the Local Court possessed to the extent that the language of the Appeal Act permits. Specifically, the Court of Criminal Appeal determined that: "…the power conferred by the former s 32 of the Mental Health (Forensic Provisions) Act is only exercisable by the District Court in an appeal under the Appeal Act that challenged the appellant's conviction. The District Court does not have an implied power to make an order setting aside the conviction entered in the Court below when only hearing a sentence appeal". 1. Accordingly, I agree with the position of law in regard to which the parties have joined in assisting the Court, that the substance of the appeal before me being firstly, an appeal against the refusal of a s 32 application by the Learned Magistrate below should proceed as an All-Grounds Appeal. Indeed, the applicant here properly brings these proceedings on the all-grounds basis. 2. It is in that context that the notice of motion to which I referred seeks an order for leave to appeal against convictions in the Local Court after a plea of guilty pursuant to s 12 of the Crimes (Appeal and Review) Act 2001 (NSW). 3. In my view it is appropriate to make the order sought in the Notice of Motion granting leave to the appellant, pursuant to s 12 of the Appeal Act, to proceed against the conviction in the Local Court after a plea of guilty was entered. 4. The Crown does not oppose that leave being granted. Indeed, before the Learned Magistrate on 11 March 2021, the prosecutor informed the Court that the Crown did not wish to be heard against proceeding under s 32. Thereafter, the applicant here made that application before the Learned Magistrate as a first step in the hearing. It was only following her Honour's refusal of that application and seeking that her Honour proceed other than according to law to conviction, that the applicant entered his plea of guilty. 5. That the plea of guilty was only entered in consequence of refusal of the s 32 application is in my view a substantial and proper basis, even were it to stand alone, that leave should be granted under s 12. 6. In my opinion, the matters presented in evidence in the Court below fitted comfortably within the statutory purposes of s 32. It is in relation to that consideration going to a conclusion of mine that the applicant has significant prospects of success in making that application afresh, that I have further reason to grant the leave.