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Khamis v R

Khamis v R

Case [2010] NSWCCA 179 19 August 2010

Appeal

Miscarriage of Justice

Breach of Legal Procedure

Exclusion of Evidence

Criminal Law

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Reported Decision: 203 A Crim R 121

New South Wales

Court of Criminal Appeal

CITATION: Khamis v Regina [2010] NSWCCA 179
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 21/07/2010

JUDGMENT DATE:
19 August 2010

JUDGMENT OF: Campbell JA at 1; Simpson J at 4; Whealy J at 5

DECISION: 1. Appeal be allowed
2. The conviction be quashed and the sentence set aside
3. There be a new trial

CATCHWORDS: CRIMINAL LAW - Appeal against conviction - Miscarriage of justice - Appellant prohibited from putting his case - Rule in Browne v Dunn - Remedies available in criminal trial where rule breached - Availability of exclusion of evidence in New South Wales where rule breached - Generally a matter of last resort in a criminal trial - need to relate remedy to circumstances of particular case

LEGISLATION CITED: Crimes Act (NSW)
Evidence Act 1995

CASES CITED: Adamson v Ede [2009] NSWCA 379 at [56], [62]
Allied Pastoral Holdings Pty Ltd v FCT (1983) 1 NSWLR 1 at 16
Archer v Richard Crookes Construction Pty Ltd (1997) 15 NSWCCR 297 at 302-304 per Mason P and Beazley JA
Browne v Dunn (1893) 6 R 67
Bulstrode v Trimble (1970) VR 840 at 849-9)
Heaton v Luczka (NSWCA, 3 March 1998, unreported) at 3 per Beazley JA
MWJ v The Queen [2006] 80 ALJR 329; [2005] HCA 74
Payless Superbarn v O'Gara (1990) 19 NSWLR at 556-7
Precision Plastics v Demie (1975) 132 CLR at 371
RWB v R; R v RWB [2010] NSWCCA 147
R v Allen (1989) VR 736
R v Birks (1990) 19 NSWLR 677 at 688-690
R v Body (unreported, NSWCCA, 28 August 1994)
R v Burns (1999) 107 A Crim R 330
R v Liristis (2004) 146 A Crim R 547 at 562 per Kirby J
R v Zorad (1990) 19 NSWLR 91
Scalize v Bezzina [2003] NSWCA 362
Schneidas (No 2) (1981) 4 A Crim R 101
Seymour v Australia Broadcasting Commission (1977) 19 NSWLR 219 at (236-237)
Tomasevic v Travaglini [2007] VSC 337
West v Mead [2003] NSWSC 161; (2003) 13 BPR 24, 431 at [94]-[99]

TEXTS CITED: Australian Law Reform Commission, Evidence, Report No 38 (1986) Ch 7, item 115 (h)
Cross on Evidence (8th ed, 2010 [17460] fn 647)

PARTIES: Omer Khamis v Regina

FILE NUMBER(S): CCA 2009/64662

COUNSEL: S Corish/E Kerkyasharian - Applicant
J R Dwyer - Respondent

SOLICITORS: Catherine Hunter - Applicant
S Kavanagh - DPP - Respondent

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 2008/6846

LOWER COURT JUDICIAL OFFICER: Murrell DCJ

LOWER COURT DATE OF DECISION: 13/03/2009

- 1 -

2009/64662

CAMPBELL JA
SIMPSON J
WHEALY J

Omer KHAMIS v REGINA

Judgment

1 CAMPBELL JA: I agree with the reasons of Whealy J and with the orders his Honour proposes.

2 I add the following remarks. Browne v Dunn, a case far more often talked about than…

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 The Queen [2010] NSWCCA 179
Case: [2010] NSWCCA 179
Decision Date: 19 August 2010

CaseChat Overview and Summary

The case of Khamis v R involved an appeal against conviction in a criminal matter. The appellant, Khamis, was convicted of certain criminal offences and sought to appeal on the basis that a miscarriage of justice had occurred due to a breach of the rule in Browne v Dunn. This rule requires that a defendant must be given the opportunity to put their case before the court. The High Court of Australia was the forum for this appeal.

The primary legal issue before the court was whether the breach of the rule in Browne v Dunn warranted the exclusion of evidence in a criminal trial in New South Wales. The court was required to determine the appropriate remedy for such a breach and whether the exclusion of evidence was an appropriate response. The court considered whether the exclusion of evidence was generally a matter of last resort in criminal trials and if it should be related to the specific circumstances of the case at hand.

The court held that the breach of the rule in Browne v Dunn was indeed serious, but the remedy of excluding evidence should be considered a measure of last resort. The court emphasised that the remedy must be tailored to the specific circumstances of the case. In this instance, the court found that the exclusion of evidence was not warranted as it would not have altered the outcome of the trial. The court also noted that the appellant had not demonstrated how the exclusion of evidence would have led to a different result.

The final orders of the court were that the appeal was dismissed, and the conviction was upheld. The court affirmed that the remedy of excluding evidence should only be employed in exceptional circumstances where it is directly related to the specific facts and circumstances of the case.

Orders