Khalil v His Honour, Magistrate Johnson - [2008] NSWSC 1092

CITATION: KHALIL v HIS HONOUR, MAGISTRATE JOHNSON & ANOR [2008] NSWSC 1092

HEARING DATE(S): Monday 13 October 2008

JUDGMENT DATE :
17 October 2008

JURISDICTION: Common Law

JUDGMENT OF: Hall J at 1

DECISION: Leave to appeal refused.

CATCHWORDS: COURTS AND JUDGES – Magistrates – summary criminal proceedings – person with alleged mental condition – application to divert from criminal law processes – Mental Health (Criminal Procedure) Act 1990, s.32 – whether proceedings part-heard by first Magistrate following adjournment – proceedings subsequently heard and determined by another Magistrate – application under s.32 refused – failure to give opportunity make submissions before Magistrate expressed a final view on one aspect - the matter under s.32(1)(b) – held denial of procedural fairness in relation to that aspect – whether denial of procedural fairness could possibly have made a difference to the outcome – held a properly conducted adjudication could not possibly have produced a different result – leave to appeal refused

LEGISLATION CITED: Bail Act 1978
Crimes Act 1900
Crimes (Appeal and Review) Act 2001
Mental Health (Criminal Procedure) Act 1990
Supreme Court Act 1970

CASES CITED: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
Ayoub v Stapleton [2001] NSWSC 767
Bridges v Minister for Immigration & Multicultural Affairs (2001) 114 FCR 456
Commissioner of Taxation v La Rosa [2003] FCAFC 125
Confos v Director of Public Prosecutions [2004] NSWSC 1159
Director of Public Prosecutions v El Mawas [2006] 66 NSWLR 93
Fifty Property Investments Pty Limited v O’Mara [2006] NSWSC 428
Galea v Galea (1990) 19 NSWLR 263
Gibson v Repatriation Commission [2000] FCA 739
Makita (Australia) Pty Limited v Sprowles (2001) 52 NSWLR 705
Re Refuge Tribunal; ex parte Aala (2000) 204 CLR 82
Regina v Watson; ex parte Armstrong (1976) 136 CLR 248
Stead v State Government Insurance Commission (1986) 161 CLR 141
Vakauta v Kelly (1989) 167 CLR 568
Wentworth v Rogers (No 3) (1986) 6 NSWLR 642

PARTIES: Fadi KHALIL v
HIS HONOUR, MAGISTRATE Paul JOHNSON & ANOR

FILE NUMBER(S): SC No 11568 of 2008

COUNSEL: P: T Gartelmann
2D: I Bourke

SOLICITORS: P: Fay Rose Legal
1D: I V Knight (submitting appearance)
2D: S C Kavanagh

LOWER COURT JURISDICTION: Local Court

LOWER COURT FILE NUMBER(S): N/A

LOWER COURT JUDICIAL OFFICER : Johnson LCM

LOWER COURT DATE OF DECISION: 11 December 2007

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

HALL J

FRIDAY 17 OCTOBER 2008

No 11568 of 2008

FADI KHALIL v HIS HONOUR, MAGISTRATE PAUL JOHNSON & ANOR

JUDGMENT

HIS HONOUR:
Introduction

1 The proceedings in this matter were originally commenced by way of summons filed on 9 April 2008. On 24 April 2008, an amended summons was filed. Although, on its face, the relief claimed is that for which provision is made in s.69 of the Supreme Court Act 1970, the primary claim was presented as an application for leave to appeal under s.53 of the Crimes (Appeal and Review) Act 2001 against the decision of Local Court, his Honour,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2008] NSWSC 1092
Decision Date: 17 October 2008

CaseChat Overview and Summary

The case of Khalil v His Honour, Magistrate Johnson involved the appellant, Khalil, who sought a diversion from criminal proceedings due to an alleged mental condition. The matter was initially heard by one magistrate, who adjourned the proceedings. Subsequently, the matter was heard and determined by a different magistrate, who dismissed an application under section 32 of the Mental Health (Criminal Procedure) Act 1990. Khalil applied for leave to appeal against the decision of the second magistrate.

The primary legal issue before the court was whether the proceedings were part-heard by the first magistrate, following an adjournment, and if so, whether the second magistrate's refusal to grant the diversion application constituted a denial of procedural fairness. Additionally, the court had to determine whether any such denial of procedural fairness could have possibly influenced the outcome of the case, and if a properly conducted adjudication could have produced a different result.

The court found that the proceedings were indeed part-heard by the first magistrate, and there was a denial of procedural fairness in relation to one aspect of the matter. However, the court held that a properly conducted adjudication could not possibly have produced a different result. Consequently, the appeal was dismissed, and leave to appeal was refused.

The court did not make any further orders beyond dismissing the appeal and refusing leave to appeal. The reasoning was that despite the procedural irregularity, it did not affect the outcome of the case, and thus there was no basis for allowing the appeal.

Orders