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Khamis v R

Khamis v R

Case [2014] NSWCCA 152 15 August 2014

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Khamis v R [2014] NSWCCA 152
Hearing dates: 25/07/2014
Decision date: 15 August 2014
Before: Hoeben CJ at CL at [1]
McCallum J at [88]
Garling J at [89]
Decision:
Application for an extension of time within which to seek leave to appeal is refused.

Catchwords: CRIMINAL LAW - practice and procedure - application for an extension of time within which to appeal - applicant seeking leave to withdraw plea of guilty - applicant pleaded guilty to one count of sexual intercourse without consent - whether applicant understood effect of plea of guilty - whether applicant suffering from a schizophrenic episode when he entered plea of guilty - limitations of medical evidence - importance of evidence of events contemporaneous with entry of plea of guilty - unreliability of applicant as an historian - complete and logical explanation for plea of guilty available - no reasonable prospects of success - application for extension of time refused.
Legislation Cited: Crimes Act 1900 - s 61I
Criminal Appeal Act 1912 - s10(1)(b)
Cases Cited: Abdul v R [2013] NSWCCA 247
Darwiche v R; El-Zeyat v R; Aouad v R; Osman v R [2011] NSWCCA 62
Khamis v Regina [2010] NSWCCA 179
R v Stephen J Ray (No 2) [2005] NSWCCA 380
Regina v Van [2002] NSWCCA 148; 129 A Crim R 229
Sabapathy v R [2008] NSWCCA 82
Wong v The Director of Public Prosecutions (2005)155 A Crim R 37
Category: Principal judgment
Parties: Omer Ibrahim Khamis - Applicant
Regina - Respondent Crown
Representation: Counsel:
J Trevallion - Applicant
N Williams - Respondent Crown
Solicitors:
Archbold Legal - Applicant
S Kavanagh, Solicitor for Public Prosecutions - Respondent Crown

File Number(s): 2008/6846
Decision under appeal

Date of Decision:

2010-11-09 00:00:00

Before:

Blanch J CJDC

File Number(s):

2008/6846

Judgment

HOEBEN CJ at CL:

Nature of Application

On 9 November 2010 the applicant pleaded guilty to one count of sexual intercourse without consent pursuant to s 61I Crimes Act 1900 which carries a maximum penalty of 14 years imprisonment. On that occasion the applicant was sentenced to a period of imprisonment of 3 years, with a non-parole period of 1 year and 11 months. The applicant had previously served this time in prison and was on bail after a successful appeal to the Court of Criminal Appeal. Accordingly, he was released to parole on the day of the sentence.

The applicant relies upon the following ground of appeal.

1. The applicant's plea of guilty is not attributable to a genuine consciousness of guilt and was entered without a full understanding by the applicant of the implications and consequences of his doing so.

The applicant seeks the following orders:

(i) that an extension of time be granted within which to apply for leave to appeal.

(ii) That leave to appeal be granted.

(iii) That leave to adduce new evidence be granted.

(iv) That the applicant be allowed to withdraw his plea of guilty.

Factual…

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.

Continue reading Khamis v R

Details

AGLC: Khamis v R [2014] NSWCCA 152
Case: [2014] NSWCCA 152
Decision Date: 15 August 2014

CaseChat Overview and Summary

The matter of Khamis v R involved the appellant seeking leave to withdraw a plea of guilty entered in the County Court of Victoria, which had been entered in relation to a charge of sexual intercourse without consent. The appellant applied for an extension of time to appeal against the conviction and sentence. The central legal issues the court needed to address were whether the appellant understood the implications of his guilty plea and whether he was suffering from a schizophrenic episode at the time the plea was entered. Additionally, the court had to consider the limitations of the medical evidence provided and the importance of contemporaneous evidence regarding the events surrounding the plea.

The court found that the medical evidence was limited and did not provide a clear picture of the appellant's mental state at the time of the plea. The court emphasised the importance of evidence that was contemporaneous with the entry of the plea. It was noted that the appellant was unreliable as a historian of his own mental state. The court also found that there was a complete and logical explanation for the appellant's decision to plead guilty, which suggested that he understood the consequences of his plea. Given these considerations, the court concluded that there were no reasonable prospects of success in the appeal.

In light of the above, the application for an extension of time was refused. The court held that the appellant had not demonstrated a sufficient basis to warrant an extension, and thus the appeal against the conviction and sentence was not to be entertained. The court's decision underscored the significance of contemporaneous evidence and the reliability of the appellant as a witness to his own mental state at the time of the plea.

Orders