Khamiss v Director of Public Prosecutions (NSW)

[2025] NSWCA 140

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Khamiss v Director of Public Prosecutions (NSW) [2025] NSWCA 140

Hearing dates:

23 June 2025

Decision date:

23 June 2025

Before:

Leeming JA

Decision:

1. Refer the further amended summons filed 26 May 2025, together with the parties’ submissions filed 24 March 2025 and 20 June 2025, to the Registrar for referral to the NSW Bar Association for the purpose of appointing counsel as an amicus curiae.

2. Note that the summons is presently listed for hearing on 22 July 2025 and that my present view is that the appropriate course would be for any amicus to file and serve written submissions sufficiently in advance of the hearing date to enable a written response from each of the Director and Ms Khamiss. If the availability of counsel is such that the hearing date of 22 July 2025 must be vacated, then my present view, which accords with that of Ms Khamiss and the Director, is that that should occur.

3. In the event that counsel accepts an appointment as amicus, note that the Registrar will make further directions for the supply of written submissions and, if necessary, the vacation and reallocation of a hearing date.

4. Note that the parties’ expectation is that the hearing will occupy half a day.

Catchwords:

PROCEDURE – appointment of amicus curiae – suggested by respondent and unopposed by applicant – questions of general principle arising – matter referred to Registrar for purpose of appointing amicus

Legislation Cited:

Crimes (Appeal and Review) Act 2001 (NSW)

Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 13

Justices Act 1902 (NSW)

Supreme Court Act 1970 (NSW), s 69

Cases Cited:

David Resler Walton by his tutor John Mann v Terence Hartman as executor of the estate of Wanda Resler [2019] NSWSC 1749

South Eastern Local Health District v Lazarus [2020] NSWCA 183; 284 A Crim R 342

Wishart v Fraser (1941) 64 CLR 470; [1941] HCA 8

Category:

Principal judgment

Parties:

Clara Khamiss (Applicant)
Director of Public Prosecutions (First Respondent)
District Court of New South Wales (Second Respondent, submitting appearance)
Kiama Local Court (Third Respondent, submitting appearance)

Representation:

Counsel:
Applicant in person
E Gadsby (Solicitor, First Respondent)

Solicitors:
Office of the Department of Public Prosecutions (First Respondent)
Crown Solicitor for NSW (Second and Third Respondents)

File Number(s):

2025/95350

Publication restriction:

Nil

 Decision under review 

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Date of Decision:

21 July 2023

Before:

Haesler SC DCJ

File Number(s):

2022/255958

EX tempore JUDGMENT

1. LEEMING JA: This matter was referred to me by the Registrar in response to the suggestion by the first respondent, the NSW Director of Public Prosecutions, that this proceeding seeking judicial review of the dismissal for want of prosecution of an all grounds appeal to the District Court from the Local Court was one that was suitable for the appointment of an amicus. Such a referral is not opposed by the plaintiff, Ms Clara Khamiss, who appears for herself. The issues emerge reasonably clearly from her written submissions filed on 24 March 2025 of some 16 pages and, more particularly, those filed recently, prepared by Ms Roy of counsel for the Director, of 51 pages on 20 June 2025.

2. The essence of the position is as follows. Ms Khamiss was convicted in the Local Court of an offence of intimidation pursuant to s 13(1) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW). She brought an appeal to the District Court of New South Wales which was dismissed for want of prosecution. In these further proceedings, pursuant to s 69 of the Supreme Court Act 1970 (NSW), Ms Khamiss asserts that both the Local Court and District Court decisions are affected by jurisdictional error, and her submissions identify a number of paths said to lead to that conclusion.

3. The Director draws particular attention to a concession. It is formally conceded in the response to the further amended summons filed on 26 May 2025 that jurisdictional error on the basis of apprehended bias as identified in ground 2 of that summons on the part of the Local Court is made out. However, the Director maintains that that does not give rise to any entitlement to relief pursuant to s 69 of the Supreme Court Act 1970, because, so it is contended, the Local Court’s judgment or order was superseded by that of the District Court dismissing her appeal.

4. Two additional matters should be mentioned. The first is that there is, according to the Director’s written submissions, some disparity between the reasons given by the District Court, which referred to the dismissal of the appeal for want of prosecution, and the order recorded in JusticeLink, which adopted the traditional language of confirming the conviction. The second is the matter raised by Bell P in South Eastern Local Health District v Lazarus [2020] NSWCA 183; 284 A Crim R 342 at [23] concerning the effect of the change of language in the Crimes (Appeal and Review) Act 2001 (NSW) from that which had appeared in the Justices Act 1902 (NSW). There is consideration of aspects of these issues, by reference to Wishart v Fraser (1941) 64 CLR 470; [1941] HCA 8, in the same judgment.

5. As noted above, Ms Khamiss does not oppose the application. In my view this is a case where the Court would be assisted by written and if necessary oral submissions by an amicus if one is available, in accordance with the principles collected in David Resler Walton by his tutor John Mann v Terence Hartman as executor of the estate of Wanda Resler [2019] NSWSC 1749 at [23]-[26]. The summons gives rise to questions of principle which are generally applicable in the review of decisions in the District Court’s appellate criminal jurisdiction from convictions and sentences imposed by the Local Court. The parties’ written submissions identify the point. It would appear to be relatively straightforward - by which I mean it would not be necessary at least in the first instance to do more than have regard to the two sets of submissions I have identified - for counsel to determine whether to accept the referral. The order I have in mind would leave it to the amicus to identify the extent of the matters on which he or she is of the view the Court would be assisted, but my present opinion is that it would include the matters referred to above.

6. One complicating factor is introduced by the timing. At present, the matter is listed for hearing on 22 July 2025. It is desirable, but not essential, that that date be maintained. That date was allocated on 11 June 2025, before receipt of the Director’s submissions, and before the extent of the questions of principle of general application were made apparent in those submissions.

7. One other matter turns upon timing. That is that Ms Khamiss’ application itself is substantially out of time. That said, in light of the questions of principle raised by it, the Director in part has formally acknowledged that she does not oppose the extension of time that is sought in some circumstances (which turn upon the correct legal position). The time that has elapsed has another consequence. The sentence that was imposed, which was a community correction order with a duration of 18 months and a fine of $1,000, has been fully served. That does not detract from Ms Khamiss’ entitlement to seek and obtain orders if she is entitled to quash the conviction. But it does mean, as she very fairly acknowledged, that in the scheme of things if the hearing in this Court which has already been substantially delayed, is to be delayed by a few more weeks in order to obtain the assistance of an amicus, that is a relatively small price to pay in the scheme of things. I am of the view that the course I propose accords with the overriding purpose to facilitate the just, quick and cheap resolution of the proceeding.

8. For those reasons I am minded to make the orders proposed by the Director. I should before doing so acknowledge the appropriateness of the course taken by the Director, namely, of clearly flagging in a letter to the Registrar of 20 June 2025 accompanying her submissions, the potential for appointing an amicus.

9. The Court’s orders will be:

1. Refer the further amended summons filed 26 May 2025, together with the parties’ submissions filed 24 March 2025 and 20 June 2025, to the Registrar for referral to the NSW Bar Association for the purpose of appointing counsel as an amicus curiae.

2. Note that the summons is presently listed for hearing on 22 July 2025 and that my present view is that the appropriate course would be for any amicus to file and serve written submissions sufficiently in advance of the hearing date to enable a written response from each of the Director and Ms Khamiss. If the availability of counsel is such that the hearing date of 22 July 2025 must be vacated, then my present view, which accords with that of Ms Khamiss and the Director, is that that should occur.

3. In the event that counsel accepts an appointment as amicus, note that the Registrar will make further directions for the supply of written submissions and, if necessary, the vacation and reallocation of a hearing date.

4. Note that the parties’ expectation is that the hearing will occupy half a day.

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Decision last updated: 25 June 2025