Khamiss v Director of Public Prosecutions (NSW) (No 2)

[2025] NSWCA 193

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Khamiss v Director of Public Prosecutions (NSW) (No 2) [2025] NSWCA 193

Hearing dates:

22 July 2025

Date of orders:

22 August 2025

Decision date:

22 August 2025

Before:

Bell CJ; Payne JA; Ball JA

Decision:

Further Amended Summons be dismissed with costs

Catchwords:

APPEALS – orders on appeal – appeal from conviction in Local Court to District Court – where appeal to District Court dismissed under s 21 of the Crimes (Appeal and Review) Act (NSW) for want of prosecution – whether dismissal of appeal by District Court operates as confirmation of conviction by Local Court – dismissal under s 21 operates as confirmation of conviction – judicial review of Local Court decision unavailable in these circumstances

ADMINISTRATIVE LAW – judicial review – whether decision of Local Court reviewable by Court of Appeal where District Court dismissed appeal for want of prosecution – clear jurisdictional error in Local Court – where Magistrate held private discussion in Chambers with Prosecutor during cross-examination of Defendant – Local Court conviction confirmed by dismissal of appeal by District Court – judicial review of Local Court conviction not available – no jurisdictional error in District Court – application dismissed

Legislation Cited:

Consumer, Trader and Tenancy Tribunal Act 2001 (NSW), s 67

Conventicles Act of 1670 (22 Car 2 c 1)

Crimes (Appeal and Review) Act (NSW), ss 5, 11, 20, 21, 22, 28, 63, 67, 68, 69

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

Crimes (Local Courts Appeal and Review) Act 2001 (NSW), s 20

District Court Act 1973 (NSW)

District Courts Act 1858 (NSW)

Evidence Act 1995 (NSW), s 17

Industrial Relations Act 1996 (NSW) ss 179, 187, 188

Justices Act 1902 (NSW), ss 125, 126, 133A

Justices Legislation Amendment (Appeals) Act 1998 (NSW)

Local Court Act 2007 (NSW), s 39

Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), ss 12, 14

National Security Act 1939-1940 (Cth)

New South Wales Act 1823 (4 Geo. IV. c. 96)

Occupational Health and Safety Act 1983 (NSW), ss 15, 16

Petty Sessions Act 1849 (UK)

Supreme Court Act (1970) (NSW), s 69

Victims Rights and Compensation Act 2013 (NSW)

Cases Cited:

Brennan v New South Wales Land and Housing Corporation (2011) 83 NSWLR 23; [2011] NSWCA 298

Charisteas v Charisteas (2021) 273 CLR 289; [2021] HCA 29

Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63

Fulton v Chief of the Defence Force & Ors [2025] HCASJ 20

Geftlic v Merhi [2011] NSWCA 241

Goodwin v Commissioner of Police [2012] NSWCA 379

Jago v District Court of New South Wales (1989) 168 CLR 23; [1989] HCA 46

Kirk v Industrial Court of New South Wales (2010) 239 CLR 531; [2010] HCA 1

Navazi v New South Wales Land and Housing Corporation [2015] NSWCA 308

New South Wales Land and Housing Corporation v Diab [2014] NSWCATAP 27

New South Wales Land and Housing Corporation v Diab [2015] NSWCA 133

R v Longshaw (1990) 20 NSWLR 554; (1990) 50 A Crim R 401

R v Pilgrim (1870) LR 6 QB 89

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

Sweeney v Fitzhardinge (1906) 4 CLR 716; [1906] HCA 73

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

Texts Cited:

Alex C Castles, An Australian Legal History (1982, Law Book Company)

Crimes (Local Courts Appeal and Review) Bill 2001 (NSW)

Criminal Procedure Amendment (Justices and Local Courts) Bill 2001 (NSW)

Justices Act Review Report 1992

Justices Legislation Amendment (Appeals) Bill 1998 (NSW)

Justices Legislation Repeal and Amendment Bill 2001 (NSW)

New South Wales Legislative Council, Parliamentary Debates (Hansard), 17 September 1998, 7594-7596

Second Reading Speech (Hansard, Legislative Assembly, 4 December 2001, 19429)

WJV Windeyer, Lectures on Legal History, (2nd revised ed, 1957, Law Book Company)

Category:

Principal judgment

Parties:

Clara Khamiss (Applicant)
Director of Public Prosecutions (NSW) (First Respondent)
District Court of NSW (Second Respondent – Submitting Appearance)
Kiama Local Court (Third Respondent – Submitting Appearance)

Representation:

Counsel:
Litigant in Person (Applicant)
D Jordan SC with J Roy (First Respondent)
A Hochroth with C Raad (Amicus Curiae)

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

File Number(s):

2025/95350

Publication restriction:

None

 Decision under appeal 

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Date of Decision:

21 July 2023

Before:

Haesler SC DCJ

File Number(s):

2022/255958

HEADNOTE

[This headnote is not to be read as part of the judgment]

On 3 May 2023, Ms Khamiss, the applicant in these judicial review proceedings, was found guilty in the Kiama Local Court of an offence of intimidation with intent to cause fear of physical or mental harm (the Offence) contrary to s 13(1) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW). Ms Khamiss, who represented herself at the hearing, was sentenced by Magistrate Flemming to an 18 month Community Correction Order and was ordered to pay a fine of $1,000.

During Ms Khamiss’s cross-examination, the Magistrate adjourned the matter for a “short break” to have a private conversation with the prosecutor in her chambers. When the hearing resumed, the Magistrate explained that the reason for the adjournment and the conversation in chambers was that a person’s name had been raised in the course of the cross-examination “that sounded like a name that I might recognise, and I understand [the prosecutor is] going to not refer to that part of the evidence or rely on it at all”.

On 19 May 2023, Ms Khamiss lodged an appeal to the District Court under s 11(1) of the Crimes (Appeal and Review) Act (NSW) (CAR Act). The Notice of Appeal stated the following grounds of appeal: “I had an un-fair trial, was not able to present my evidence/prove innocence + judge had private conversation w prosecutor behind closed doors!”.

Ms Khamiss appeared by AVL at a directions hearing before the District Court on 16 June 2023. At that time the matter was adjourned for three weeks to enable Ms Khamiss to make an application to transfer the proceedings to a court closer to where she was living in Queensland. However, she did not appear at the adjourned hearing or on subsequent occasions following further adjournments. Eventually, on 21 July 2023, Haesler SC DCJ made orders dismissing the appeal for want of prosecution.

Ms Khamiss took no further steps in relation to her conviction until 16 November 2024, when she filed a Notice of Motion in the District Court seeking to set aside the order of Haesler SC DCJ on 21 July 2023 pursuant to s 22 of the CAR Act. That section permits an applicant to make an application to set aside an order dismissing an appeal for want of prosecution within 12 months after the date on which the order was made. The District Court informed Ms Khamiss that it could not deal with the application because it was out of time. It emerged from evidence filed in support of the application that Ms Khamiss had a history of mental illness and that she had been admitted to the Gold Coast University Hospital from 6 to 26 July 2023, where she had been diagnosed as suffering from a schizoaffective disorder. Following her discharge from hospital, Ms Khamiss remained under a Treatment Authority and was case managed by the Southport Adult Mental Health Continuing Care Team, although it remains unclear from the evidence why she took no steps to set aside the dismissal of her appeal until 16 November 2024.

On 11 March 2025, Ms Khamiss filed in this Court a summons (later amended) seeking judicial review of the “decisions” of both the Local and District Courts. The Further Amended Summons contained a number of grounds of review, the principal one of which was that the private conversation between the Magistrate and the prosecutor gave rise to a reasonable apprehension of bias, which amounted to a jurisdictional error. The principal issue raised by the application was whether this Court has power to quash the decision of the Local Court for that error in circumstances where Ms Khamiss had lodged an appeal to the District Court against her conviction under s 11(1) of the CAR Act, that appeal had been dismissed for want of prosecution under s 21 of that Act and Ms Khamiss did not make an application to set aside that dismissal within the 12 month period specified in s 22 of that Act, with the result that Ms Khamiss has exhausted her rights of appeal in respect of the Offence.

The Court Held (Bell CJ, Payne and Ball JJA), dismissing the application:

(1) The private conversation between the Magistrate and prosecutor gave rise to a reasonable apprehension of bias. The Magistrate’s explanation of the discussion when she returned to the bench could not alleviate that apprehension. That reasonable apprehension of bias amounted to a jurisdictional error: [68].

Charisteas v Charisteas (2021) 273 CLR 289; [2021] HCA 29; Goodwin v Commissioner of Police [2012] NSWCA 379, applied. Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63, cited.

(2) Dismissal under s 20(1)(b) of the CAR Act must operate as implicit confirmation of the Local Court conviction. That reading of s 20(1)(b) is strongly supported by the language of ss 68 and 69, the operation of s 67, the objectives of the legislation and the history of the provision: [78]-[107].

Sweeney v Fitzhardinge (1906) 4 CLR 716; [1906] HCA 73; R v Longshaw (1990) 20 NSWLR 554; South Eastern Sydney Local Health District v Lazarus [2020] NSWCA 183; 284 A Crim R 342, cited.

Kirk v Industrial Court of New South Wales (2010) 239 CLR 531; [2010] HCA 1; Wishart v Fraser (1941) 64 CLR 470; [1941] HCA 8; Brennan v New South Wales Land and Housing Corporation (2011) 83 NSWLR 23; [2011] NSWCA 298; Navazi v New South Wales Land and Housing Corporation [2015] NSWCA 308; Geftlic v Merhi [2011] NSWCA 241, considered.

(3) The effect of the District Court orders dismissing the appeal was that the Local Court orders were no longer operative, with the result that this Court had no power to quash those orders. The fact that in this case, the appeal to the District Court was dismissed for want of prosecution did not alter the position: [108]-[109].

JUDGMENT

1. THE COURT: Before the Court is an application for judicial review of a decision of the Local Court convicting the applicant, Ms Clara Khamiss, of an offence of intimidation with intent to cause fear of physical or mental harm (the Offence) contrary to s 13(1) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW) (CDPV Act). The principal question raised by the application is whether this Court has power to quash the decision for jurisdictional error in circumstances where Ms Khamiss lodged an appeal to the District Court against her conviction under s 11(1) of the Crimes (Appeal and Review) Act (NSW) (CAR Act), that appeal was dismissed for want of prosecution under s 21 of that Act and Ms Khamiss did not make an application to set aside that dismissal within the 12 month period specified in s 22 of that Act, with the result that Ms Khamiss has exhausted her rights of appeal in respect of the Offence.

2. Ms Khamiss represented herself throughout the proceedings relating to her conviction including before this Court. However, on 23 June 2025, on the application of the Director of Public Prosecutions (DPP), the first respondent and only active respondent in the proceeding, Leeming JA made orders for the appointment of counsel as amicus curiae. Mr Hochroth and Ms Raad of counsel took on that appointment and provided written and oral submissions to this Court which largely supported Ms Khamiss’s position in relation to the principal issue raised by the application. The Court is most grateful for the high quality of that assistance.

Background

3. On 3 May 2023, following a defended hearing before Magistrate Fleming at Kiama Local Court, Ms Khamiss was found guilty of the Offence. Although it is not entirely clear from the record, it is common ground that her Honour sentenced Ms Khamiss to an 18 month Community Correction Order and ordered that she pay a fine of $1,000. An order was also made for a final Apprehended Violence Order (AVO) against Ms Khamiss for a period of five years. That order was not challenged below or in this Court.

4. The Offence arose out of a falling out between Ms Khamiss and Mr Omar Juweinat, a solicitor who had agreed in 2020 to act for Ms Khamiss in criminal proceedings and proceedings commenced against Ms Khamiss for contravention of an AVO.

5. At the beginning of the hearing in the Local Court, the prosecutor, a police sergeant, filed and served an amended Court Attendance Notice (CAN) which amended the charge from one of “attempt to stalk or intimidate” to the offence of “stalk or intimidate”. The prosecutor also served Ms Khamiss with a further statement of Detective Senior Constable Brett Hill dated 9 January 2022. In that statement Detective Hill set out the evidence he was prepared to give concerning complaints he had received from Mr Juweinat about Ms Khamiss’s conduct and dealings Detective Hill had had with Ms Khamiss. Magistrate Fleming explained to Ms Khamiss that she could object to Detective Hill giving evidence. However, Ms Khamiss indicated that she wanted the Magistrate to hear his evidence.

6. It is not necessary to set out a summary of all the evidence given at the trial. The effect of Mr Juweinat’s evidence was that on 15 February 2022, Ms Khamiss attended his office for the purpose of drafting an affidavit. She was accompanied by two men who appeared to be drug affected and suspicious of Mr Juweinat. The following day, Ms Khamiss sent Mr Juweinat a text message accusing him of “working against her interests” and “acting for someone else” and asked to collect her file, which she did. Ms Khamiss sent Mr Juweinat 19 text messages on 17 February 2022. Mr Juweinat asked her to stop contacting him, but without success. On 26 February 2022, Mr Juweinat received a telephone call from an unknown number. The caller identified herself as “Clara” and demanded $500,000. Mr Juweinat received a similar call on 28 February 2022 during which Ms Khamiss said “I’ll get you Omar, I’ll find you and hurt you. 500K or else, you’re gone”. Mr Juweinat received further telephone calls and text messages from Ms Khamiss during March and April 2022. Some of the text messages were tendered by the prosecution. Mr Juweinat also gave evidence that on 19 April 2022 he became aware that Ms Khamiss had been sending his family members and associates “friend requests” on Instagram and that Ms Khamiss had sent his wife a message via Instagram. Mr Juweinat reported the matter to the police.

7. The evidence given by Mr Juweinat was corroborated by testimony given by Mr Robert Rowe who said that he had answered at least 20 calls from Ms Khamiss while answering the telephone for Mr Juweinat’s legal practice.

8. Ms Khamiss gave evidence in her defence. In cross-examination, she reluctantly agreed that she had been diagnosed with an adjustment disorder with mixed anxiety and depression. She denied that she had ever threatened Mr Juweinat, and that she had sent him messages on 17 February 2022. She said that her telephone had been stolen in the morning, although later claimed it had been stolen that evening and accepted that she had sent some of the messages. She denied that Mr Juweinat asked her to stop contacting him.

9. During Ms Khamiss’s cross-examination, a series of messages sent by her to Mr Juweinat were put to her. One message read out by the Prosecutor included the following: “I should be angry, he’s corrupt. I suggest drug syndicate created by Began Toeman’s mum.” The transcript then records the following:

HER HONOUR: How do you spell that?

PROSECUTOR: “Began Toeman’s mum is behind all of this also”.

WITNESS: Began denied it though.

PROSECUTOR

Q. You agree that you sent that message?

A. Yeah.

Q. And this was after he asked you to stop contacting him?

A. He never told me to stop contacting him. You’re making that up.

HER HONOUR: We’re just going to have a short break, just for five minutes. I need to speak to the prosecutor in my chambers. You can just stay right there. You can come around and then we’ll come back.

SHORT ADJOURNMENT

Thank you. Ms Khamiss, I just let the prosecutor know that there was a reference to a name there that sounded like a name that I might recognise, and I understand she’s going to not refer to that part of the evidence or rely on it at all. Thank you.

PROSECUTOR: That’s correct, your Honour. That was the last message that was discussed prior to the break.

HER HONOUR: Okay.

WITNESS: What--

HER HONOUR: So it’s called Omar a jury rat, yes?

PROSECUTOR: Yes.

WITNESS: He calls himself that though.

HER HONOUR: Okay, thank you.

WITNESS: I don’t mean it in like a derogatory way.

HER HONOUR: Okay.

PROSECUTOR: That’s not pressed, that one message.

HER HONOUR: Thank you.

WITNESS: I don’t know what message you’re referring to, I’m sorry.

PROSECUTOR: The one we just discussed.

WITNESS: I know--

PROSECUTOR: It starts off, “Called Omar, the jury rat, to ring my case. That I’m not pressing that, okay. So we’re going to move on from that.”

10. At the end of her cross-examination, the Magistrate asked Ms Khamiss if she wished to call any other witnesses. Ms Khamiss said she did not.

11. The Magistrate delivered ex tempore reasons for her decision. Her Honour was satisfied beyond reasonable doubt that Ms Khamiss made the relevant telephone calls and sent the relevant messages via text and Instagram. Her remarks included the following:

You have told me that there is no mental health issue at all.

[Accused interrupts]

I have been given a report that says you were dealt with under the mental health provisions, but that was for a mixed diagnosis including depression and a reaction to other things in your life. There is no suggestion that you are suffering from a psychosis or an inability to know right from wrong or an inability to make a rational decision. You have made a rational decision that he has upset you and you are going to get your revenge.

[Accused interrupts]

And your behaviour, you have no insight at all, you are totally focused on what you think and what you feel and not anything to do with how your behaviour is impacting on anyone else, including Mr Juweinat, over a period of time, including himself, his colleagues and his family.

[Accused interrupts]

It is an entirely indulgent view that you have of the way you are behaving. You are not behaving—

[Accused interrupts]

--in a way that is kind—

[Accused interrupts]

--and agreeable and acceptable—

[Accused interrupts]

--you are behaving in a way that is criminal.

You are convicted and fined $1,000. I am placing you on a good behaviour bond for 18 months. The condition is that you comply with that AVO and that you be of good behaviour.

12. On 19 May 2023, Ms Khamiss filed a Notice of Appeal in the District Court which stated the following grounds of appeal: “I had an un-fair trial, was not able to present my evidence/prove innocence + judge had private conversation w [with] prosecutor behind closed doors!”.

13. On 16 June 2023, Ms Khamiss appeared via AVL before O’Brien AM DCJ at the District Court in Wollongong. Ms Khamiss indicated that it was her intention to make an application under s 14 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) (MHCIFP Act) due to her “extensive mental health treatment over the past three years” and the fact that she remained on a treatment plan. Section 14(1) of the MHCIFP Act empowers a Magistrate to make orders dismissing a charge and discharging the defendant unconditionally or under conditions relating to the defendant’s treatment or care if it appears to the Magistrate that “the defendant has (or had at the time of the alleged commission of the offence to which the proceedings relate) a mental health impairment or a cognitive impairment, or both” and it appears more appropriate to deal with the defendant by making an order relevantly under s 14(1): see s 12.

12. Ms Khamiss further submitted that she intended to file a motion to transfer the proceedings to a court closer to where she was living in Queensland. Judge O’Brien made orders adjourning the matter for three weeks until 7 July 2023 to allow Ms Khamiss time to file a notice of motion to transfer the proceedings and a supporting affidavit.

13. On 7 July 2023, the matter came before Haesler SC DCJ. Ms Khamiss failed to appear and the matter was adjourned until 14 July 2023. A notice of that listing was sent by email to Ms Khamiss at the email address from which she had been corresponding with the District Court registry.

14. The matter returned before Haesler SC DCJ on 14 July 2023. Ms Khamiss did not appear. His Honour indicated that he would adjourn the matter for one more week and that if Ms Khamiss did not appear on that occasion he would dismiss the matter for want of prosecution. His Honour indicated that he would ask the Court’s registry staff to advise Ms Khamiss of the adjournment and the consequence that would follow if she failed to appear on 21 July 2023, which the registry did. A note on the registry file indicates that the notice of listing was posted to Ms Khamiss’s last known address in Queensland and emailed to her at the address she had used most recently in communications with the registry and another one that she had used previously. The note also indicated that “[n]umerous phone calls, last being 19/07/23” had been made to Ms Khamiss’s last known mobile telephone number, but that on each occasion the calls went straight to voicemail.

15. On 21 July 2023 the matter returned before Haesler SC DCJ but again Ms Khamiss did not appear. His Honour referred to the registry note, which was tendered at the time, indicating that multiple attempts had been made to contact Ms Khamiss to no avail. On application by the Crown, his Honour dismissed the appeal for want of prosecution. The order signed by the Judge records the following:

The appeal is dismissed for want of prosecution.

Despite efforts by the Registry, there has been no contact from the appellant.

Registry to send to the appellant, Notice pursuant to s 12 [scil 21] Crimes Appeal and Review Act.

18. In accordance with that order, the Registry sent to Ms Khamiss, apparently by post, a Notice of Dismissal of Appeal. Under the heading “Result” the notice states “Conviction Appeal Dismissed – Orders Confirmed”. The notice then sets out the terms of the orders made by Haesler SC DCJ and details of the conviction and sentence.

19. The evidence indicates that Ms Khamiss has had a history of mental illness. She was first admitted to The Prince of Wales Hospital in Sydney in 2020 where she was diagnosed as suffering from drug (stimulant) induced psychosis. She was admitted to hospital again in September 2021, February 2022 and to the Gold Coast University Hospital in July 2022, where she was diagnosed as suffering from schizoaffective disorder with differential diagnoses of Bipolar 1 Disorder with psychotic features and drug induced psychosis. Following that admission, she was discharged on a Community Treatment Authority, which was revoked by the Mental Health Review Tribunal in March 2023. Ms Khamiss was admitted again to the Gold Coast University Hospital from 6 to 26 July 2023. At that time, she was diagnosed with schizoaffective disorder. None of that information was before the Local Court (in the case of events before 3 May 2023) or the District Court.

20. It is not clear what happened between 26 July 2023, when Ms Khamiss was discharged from hospital, and 14 November 2024, when she took steps to annul her conviction: see [21] below. In particular, it is not clear why Ms Khamiss did not take steps to set aside the dismissal of her appeal within the required 12 months. Following her discharge, she remained under a Treatment Authority and was case managed by the Southport Adult Mental Health Continuing Care Team. But the evidence is that her mental health had improved substantially and, according to a reference dated 20 June 2024 from Ms Patricia Fenech, Ms Khamiss’s case manager, which was included in the material before the Court, Ms Khamiss was in fulltime employment at the time the reference was written (although Ms Khamiss said from the bar table during the hearing before this Court that she was unable to continue with her employment). The Treatment Authority was revoked on 2 August 2024.

21. On 14 November 2024, Ms Khamiss attempted to file an application for an annulment of her conviction pursuant to s 5 of the CAR Act. On 10 December 2024, she was advised in correspondence from the Department of Communities and Justice that s 5 was only available in relation to Local Court orders, and as the operative orders were those of the District Court, her application was unable to be considered.

22. Ms Khamiss subsequently filed a Notice of Motion (NOM) in the District Court on 16 November 2024 seeking to set aside the order of Haesler SC DCJ on 21 July 2023 pursuant to s 22 of the CAR Act. The Notice of Motion was accompanied by a statutory declaration and other supporting documentation which confirmed that Ms Khamiss was admitted to Gold Coast Hospital between 6 and 26 July 2023 following a deterioration in her mental state after she took methamphetamine on 24 June 2023.

23. On 19 November 2024, Ms Khamiss was sent correspondence from the Wollongong Local Court registry advising her that her NOM could not be considered because it had been filed outside the 12 month time limit.

24. On 11 March 2025, Ms Khamiss filed in this Court a summons seeking judicial review of the “decisions” of both the Local and District Courts. She now moves on a Further Amended Summons filed on 26 May 2025.

Grounds of review

25. The Further Amended Summons contains six grounds of review, all of which have sub-grounds except ground 6. Ground 1 alleges that the applicant was denied procedural fairness in the Local Court and District Court. In the Local Court that was said to be because the Magistrate (a) permitted the prosecution to file an amended CAN without granting Ms Khamiss an adjournment to obtain legal advice and to prepare a defence; (b) did not read or properly consider Ms Khamiss’s submissions; and (c) did not give Ms Khamiss an opportunity to call other witnesses and to cross-examine properly the prosecution witnesses. In the District Court that was said to be because the District Court dismissed Ms Khamiss’s appeal without considering her hospitalisation and mental incapacity as a reason for her non-appearance.

26. Ground 2 asserts that the Magistrate and the lead police investigator demonstrated apprehended bias in the Local Court because the prosecutor engaged in private discussions with the Magistrate and the lead investigator, Detective Hill, had a personal relationship with Mr Juweinat.

27. Ground 3 alleges a failure by the Magistrate to consider critical evidence because the Magistrate mischaracterised Ms Khamiss’s schizoaffective disorder as mere depression and failed to address “[d]efence submissions raising contradictions in the complainant’s testimony and third-party witness statements”.

28. Ground 4 alleges “prosecutorial and investigative misconduct” in the investigation of the offence and in the prosecution’s failure to ensure a fair trial.

29. Ground 5 relates to “[i]mproper disclosure and handling of defence materials” because it is said “[c]onfidential defence submissions were provided to the prosecution without consent”.

30. Ground 6 alleges that the cumulative effect of the other grounds was that they amounted to jurisdictional error.

31. Before turning to the grounds of review, it is necessary to say something about the relevant statutory framework and legal principles.

Statutory framework

32. The CAR Act deals with appeals and other forms of review of convictions of a person in the Local Court.

33. Section 4 permits a defendant who has been convicted and sentenced in his or her absence to apply within two years of the conviction for an annulment of the conviction or sentence. Section 5 also gives a defendant a right to apply at any time to the Attorney General for an annulment of a conviction or sentence. Where a question of doubt exists concerning the defendant’s guilt or liability to a penalty, the Attorney General may refer the application to the Local Court: s 5(2).

34. Part 3 of the CAR Act deals with appeals to the District Court (the Act also makes provision in s 29(1) and Part 4 for appeals in respect of environmental offences to be heard exclusively by the Land and Environment Court and in Part 5 for a right of appeal to the Supreme Court on a ground that involves a question of law alone).

35. Section 11 confers on a defendant who has been convicted and sentenced by the Local Court a right of appeal to the District Court, unless the person was convicted in the person’s absence or pleaded guilty. The right must be exercised within 28 days after the sentence is imposed: s 11(2). An appeal by leave is available after that date if leave is sought within three months after the relevant conviction or sentence is imposed: s 13. Under s 63 of the CAR Act, if an appeal (or application for leave to appeal) is made there is, subject to certain limited exceptions, an automatic stay of any sentence imposed by the Local Court. In the case of an appeal, that stay operates from the time the “notice of appeal is duly lodged” to the time when “the appeal is finally determined”.

36. An appeal against conviction is by way of rehearing on the basis of evidence given before the Local Court (s 18), subject to a limited right to rely on new evidence under s 19.

37. Section 20 of the CAR Act provides:

20   Determination of appeals

(1)   The District Court may determine an appeal against conviction—

(a)   by setting aside the conviction, or

(b)   by dismissing the appeal, or

(c) in the case of an appeal made with leave under section 12 (1)—by setting aside the conviction and remitting the matter to the original Local Court for redetermination in accordance with any directions of the District Court.

(2)    The District Court may determine an appeal against sentence—

(a)    by setting aside the sentence, or

(b)   by varying the sentence, or

(c)    by dismissing the appeal.

38. In contrast to the powers given to the District Court under the Justices Act 1902 (NSW) as it was in force in 2003, and to the District Court (and the Courts of Quarter Sessions before they were replaced by the District Court) under predecessor legislation, the CAR Act does not confer an express power on the District Court to “confirm” a conviction imposed by a Local Court. However, s 28(2) provides that “In determining an appeal, the District Court may exercise any function that the Local Court could have exercised in the original Local Court proceedings”.

39. Section 21 of the CAR Act states that if an appeal or application for leave to appeal is dismissed because of the appellant’s failure to appear, a notice of that fact must be sent to the appellant. That notice must also inform the appellant of their right to apply to set aside the order dismissing the matter within 12 months of the order being made. Section 22 of the CAR Act is the source of the power to make an application referred to in s 21 and for the District Court to set aside the dismissal order if it is satisfied that the appellant has shown sufficient cause for the failure to appear and that it is in the interests of justice that the appeal or application be heard.

40. Sections 67, 68 and 69 of the CAR Act (which are contained in Part 6, dealing with appeals generally) are in the following terms:

67   Withdrawal of appeals and applications

(1)   An appeal or application for leave to appeal may at any stage be withdrawn, but only by leave of the appeal court.

(2)   In granting leave for an appeal or application for leave to appeal to be withdrawn, the appeal court may make such orders as are necessary to place the appellant as nearly as practicable in the same position as if the appeal or application had not been made.

(3)   Any order made by the appeal court in respect of an appeal or application for leave to appeal that is withdrawn is taken to have been made by the Local Court.

68   Court may confirm or vary conviction or sentence with effect from earlier day

(1)    An appeal court may order that a conviction or sentence confirmed or varied by it on appeal, or any part of it—

(a)   is to take effect (as confirmed or varied) on and from a day specified in the order, or

(b)   in the case of a sentence that has been served in part, is to recommence (as confirmed or varied) on and from a day specified in the order,

being the day on which the order is made or an earlier day.

(1A)   An appeal court may, for the purposes of making an order under subsection (1) in relation to a sentence that consists of, or includes, a disqualification from holding a driver licence (within the meaning of the Road Transport Act 2013), take into account—

(a) any period during which the defendant’s driver licence was suspended under section 224 of the Road Transport Act 2013 (or a former corresponding provision within the meaning of that Act), and

(b)   any other periods after committing the offence to which the sentence relates during which the defendant held, or did not hold, a driver licence that would have permitted the defendant to drive a motor vehicle.

Note.

Section 224 of the Road Transport Act 2013 enables a police officer to suspend, by written notice, a person’s driver licence within 48 hours after the person is charged with certain offences involving alcohol or drug use under that Act. The suspension has effect until the charge is heard and determined by a court. Also, section 63 of this Act provides for the stay of the execution of a sentence pending determination of appeal under this Act.

(2)   The order has effect despite any stay of execution that has been in force in respect of the sentence appealed against.

…

69   Effect of confirmation of sentence on good behaviour bonds, community correction orders and conditional release orders

(1)   The following continue to have effect if an appeal court confirms a sentence on appeal—

(a)   a good behaviour bond entered into by the appellant as a consequence of the original sentence,

(b)   a community correction order or conditional release order made in relation to the appellant as a consequence of the original sentence.

(2)   The bond or order continues to have effect—

(a)   according to its terms, except to the extent to which the appeal court otherwise directs, and

(b)   despite any stay of execution that has been in force in respect of the sentence.

41. Part 7 of the CAR Act contains, among other things, a mechanism by which a convicted person may apply to the Chief Justice or a Judge of the Supreme Court authorised by the Chief Justice for an inquiry into a conviction or sentence by an authorised judicial officer if there is a doubt or question as to the convicted person’s guilt, as to any mitigating circumstances in the case or as to any part of the evidence of the case.

Relevant legal principles

42. The general principle is that judicial review is not available in respect of a verdict or orders of a lower court where that verdict or those orders have been superseded by orders of a court higher in the judicial hierarchy. That principle was accepted by the High Court in Wishart v Fraser (1941) 64 CLR 470; [1941] HCA 8 (Wishart). In that case, the appellant had been convicted of an offence under regulations made under the National Security Act 1939-1940 (Cth) by a Court of Petty Sessions exercising federal jurisdiction. The appellant appealed to the Court of Quarter Sessions, which affirmed the conviction. The appellant then brought an appeal from the decision of the Court of Petty Sessions to the High Court by means of an application for statutory prohibition. As Dixon J explained (at 480), at the time “Under sec 39(2)(b) of the Judiciary Act 1903-1940 an appeal lies as of right to this court from the decision of a court of a State exercising Federal jurisdiction, wherever an appeal lies, under State law, from its decision to the Supreme Court. An appeal by way of statutory prohibition lay from the [Court of Petty Sessions] to the Supreme Court, but no such appeal lay from the Court of Quarter Sessions”. Any appeal from a decision of the Court of Quarter Sessions required special leave under s 35 of the Judiciary Act.

43. One of the questions raised by the appeal to the High Court was whether it could be maintained in circumstances where the Court of Quarter Sessions had confirmed the conviction. The High Court held that it could not. Two principal reasons were given. One was that the decision of the Court of Quarter Sessions superseded the decision of the Court of Petty Sessions. As Starke J explained in Wishart (at 478; see also Williams J at 491):

“If the Court of Quarter Sessions had reversed the decision of the stipendiary magistrate, its judgment would have held ‘the field to the exclusion’ of the conviction by the stipendiary magistrate. And when Quarter Sessions affirmed the conviction, its judgment was equally conclusive, for it operated as a judicial determination by a competent and higher authority that the conviction was right. … That judgment therefore holds the field so long as it stands unreversed, and precludes this court making any judicial determination to the contrary.”

44. The second reason was that any decision on the issue by the High Court would give rise to an inconsistency. As Dixon J explained (at 482-3; see also Rich ACJ at 477):

“To that question there can, I think, be only one answer. It is not denied that the order of the Court of Quarter Sessions was within its jurisdiction and was validly made. While it stands it is a judicial declaration by a competent court exercising Federal jurisdiction establishing the order of the magistrate and preventing its being called in question. If this court made an order setting aside the conviction, there would be two inconsistent judicial orders in operation at the same time, that of the Court of Quarter Sessions confirming the conviction and that of this court discharging it. It would, of course, be open to the legislature to authorize a superior court to deal with an order of an inferior court notwithstanding that an intermediate court had confirmed it and the order of confirmation was not brought up for review. But even if the Justices Act 1902 (N.S.W.) has any such effect in State jurisdiction, at all events so much of it as so operates has no application to appeals to this court from courts exercising Federal jurisdiction.” (Emphasis added).

45. The scope of the principle stated in Wishart and its rationale remains in some doubt.

46. In Kirk v Industrial Court of New South Wales (2010) 239 CLR 531; [2010] HCA 1 (Kirk), Mr Kirk and a company controlled by him were prosecuted in, and found guilty by, the then Industrial Court of offences against the Occupational Health and Safety Act 1983 (NSW) (OH&S Act) involving what was said to be a failure by the company to ensure the health, safety and welfare at work of an employee of the company as required by s 15(1) of that Act and a failure to ensure that persons not in the company’s employment were not exposed to risks to their health or safety arising from the conduct of the company’s undertaking (a farm) while they were at the company’s place of work as required by s 16(1) of that Act. Those failures were said to have resulted in the death of a Mr Palmer, who had agreed to do some work on the property owned by the company. The Industrial Court was a superior court of record that was required to apply the rules of evidence. Section 179(1) of the Industrial Relations Act 1996 (NSW) (IR Act) provided that a decision of the Industrial Court “is final and may not be appealed against, reviewed, quashed or called into question by any court or tribunal” subject to the exercise of a right of appeal to the Full Bench. Section 187(a) of the Act conferred a right of appeal to the Full Bench against a decision of the Industrial Court, but only by leave of the Full Bench (s 188).

45. The High Court held that the Industrial Court had committed two jurisdictional errors in convicting Mr Kirk and his company. One arose from the fact that the application (the means by which a prosecution was commenced) did not identify what measures Mr Kirk’s company could have taken but did not take to comply with its statutory duties and therefore failed to identify the offence for which Mr Kirk and his company were charged. That involved an incorrect construction of s 15 of the OH&S Act. The other arose from the fact that Mr Kirk was called by the prosecution to give evidence contrary to s 17(2) of the Evidence Act 1995 (NSW), which provides that a defendant is not competent to give evidence for the prosecution.

46. The case is principally cited for its conclusions concerning the validity of provisions which purport to oust the jurisdiction of State Supreme Courts to grant relief on account of jurisdictional error and its discussion of what amounts to a jurisdictional error. However, the decision is also relevant in the present context because the majority of the High Court (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ, Heydon J dissenting) quashed the decision of the Industrial Court at first instance even though the Full Bench had granted leave to appeal (out of time) and dealt with the appeal. That leave, however, was limited to raising a question concerning whether Mr Kirk’s company had fulfilled its duty through Mr Palmer on the basis that he, rather than Mr Kirk, had been chosen by the company to fulfil its duties. The leave did not extend to the issues that were the subject of the application for judicial review. The Full Bench heard the limited appeal from conviction and dismissed it. The High Court did not specifically deal with the question whether it had power to quash the first instance decision notwithstanding that there had been an appeal to the Full Bench. But it is unsurprising that it proceeded on the basis that the operative decision was that of the Industrial Court at first instance, since the Full Bench only dealt with a limited issue that was irrelevant to the question whether the Industrial Court had committed a jurisdictional error. In relation to the decision of the Full Bench, the Court said at [108] (omitting footnote):

"Because both the order of Walton J finding the offences proved and the order of Walton J passing sentence should have been quashed, the order subsequently made by the full court of the industrial court should also be quashed." (Emphasis added).

49. In Brennan v New South Wales Land and Housing Corporation (2011) 83 NSWLR 23; [2011] NSWCA 298 (Brennan), the applicant Housing Corporation (the Corporation) applied to the Consumer, Trader and Tenancy Tribunal (Social Housing Division) (the Tribunal) for an order terminating Ms Brennan’s tenancy of premises owned by the Corporation in Macquarie Fields. The Tribunal made that order. Ms Brennan appealed from that decision to the District Court pursuant to s 67 of the Consumer, Trader and Tenancy Tribunal Act 2001 (NSW) (CTTT Act), which gave a right of appeal to the District Court on a question of law. She also brought proceedings in the supervisory jurisdiction of this Court (in the Common Law Division), seeking to have the decision of the Tribunal set aside. Her appeal to the District Court was dismissed by Hughes DCJ on 30 June 2010. It is not entirely clear from the judgments of this Court what issues were before the District Court. Basten JA described them as “being in substance challenges to the factual findings of the Tribunal which … did not demonstrate jurisdictional error” (at [108]), which raised no error of law. On 2 November 2010, Hoeben J quashed the decision of the Tribunal and directed that the proceedings be returned to the Tribunal to be determined according to law on the basis that Ms Brennan had been denied procedural fairness because she had not been given notice of the hearing before the Tribunal.

50. This Court upheld that decision notwithstanding the decision of the District Court dismissing the appeal. Giles JA did not expressly address the issue of why that was an available course. Basten JA and Handley JA gave different reasons for doing so. According to Basten JA, there was no inconsistency between the decision of the District Court and the decision of Hoeben J. As his Honour explained at [101]:

“Where a dissatisfied party seeks to appeal against a judgment on the merits, it cannot usually maintain that appeal and, at the same time, pursue proceedings by way of judicial review. That is because success on judicial review would invalidate the judgment against which the appeal had been brought and thus remove the subject matter of the appeal: see Wishart v Fraser (1941) 64 CLR 470. In these circumstances, it would be usual to put the party to his or her election. The situation is more complicated where the appeal is limited to a question of law, especially where grounds of appeal may reflect grounds available on judicial review. There is an apparent inconsistency between the judgment of the District Court that the decision of the Tribunal should not be set aside for any error of law and the conclusion of the primary judge in this Court that the decision was invalid for breach of procedural fairness.”

Despite the apparent inconsistency there was no actual inconsistency because any ground that might have involved a failure to accord Ms Brennan procedural fairness was “removed in the second further amended summons, and was expressly eschewed at the hearing before Hughes DCJ”: at 104.

51. Handley JA took a different approach. After observing that the Corporation did not seek to rely on the decision of Hughes DCJ as giving rise to a res judicata estoppel (at [131]), his Honour explained the decision in these terms by reference to his Honour’s earlier decision in Geftlic v Merhi [2011] NSWCA 241 (Geftlic):

“An appeal under s 67 [of the CTTT Act] and judicial review proceedings permitted by s 65 [of the Supreme Court Act] provide an aggrieved party with remedies which may overlap or be cumulative. The principle in Wishart v Fraser (1941) 64 CLR 470 does not preclude the pursuit of cumulative remedies where there is no inconsistency: Meriton Apartments Pty Ltd v Industrial Court of New South Wales [2009] NSWCA 44, (2009) 263 ALR 556; Getflic v Merhi [2011] NSWCA 241 at [38]-[39].”

52. In Geftlic, the first respondent, Ms Merhi, sued the applicant in the Small Claims Division of the Local Court to recover a loan of $10,000, where she was successful. Ms Geftlic appealed to the District Court under s 39(2) of the Local Court Act 2007 (NSW), which gave a right of appeal to the District Court “only on the ground of lack of jurisdiction or denial of procedural fairness”. Ms Geftlic alleged that the Local Court had failed to exercise its jurisdiction because it should have required two witnesses for cross-examination and because there was no probative evidence that justified the judgment. Garling DCJ rejected those arguments. An application for leave to appeal to this Court was dismissed as incompetent. Ms Geftlic then sought relief by way of judicial review. Dismissing that application, Handley AJA (with whom Young JA agreed) said:

“38 Sections 38 and 39 permit challenges to a decision of the Small Claims Division in the District Court and the Supreme Court on some grounds, and in the Supreme Court on an additional ground. Consistently with the decision of this Court in Meriton Apartments Pty Ltd v Industrial Court of New South Wales [2009] NSWCA 434, 263 ALR 556 the dismissal of an appeal to the District Court would not bar an application for certiorari in the Supreme Court for error of law on the face of the record. The remedies are cumulative and an aggrieved litigant has no obligation to elect. However, there could be an Anshun estoppel in an appropriate case.

39   However, subject to the availability of certiorari for error of law on the face of the record, the decision of Garling DCJ created issue estoppels which bind this Court and prevent it quashing the decision of the Small Claims Division for lack of jurisdiction or denial of procedural fairness.

40   I agree with Giles JA that there is no error of law on the face of the record of the District Court, relevantly, the reasons for judgment of Garling DCJ; and there is no error of law on the face of the record of the Small Claims Division.”

53. Giles JA, who also sat in Geftlic, preferred not to express a view on whether the decision of Garling DCJ had the effect of confirming the decision of the Local Court (so as to preclude a right of judicial review absent a jurisdictional error by the District Court) or whether it “left an operative order for the payment of money made in the Local Court” (at [11]). Instead, he decided the case on discretionary grounds (at [14]):

“It is sufficient as to the decision of the Local Court that, the defendant having unsuccessfully exercised a right of appeal on the grounds of lack of jurisdiction and denial of procedural fairness, as a matter of discretion she should not be granted relief when she relies on the same grounds in this Court. It would be a rare case in which two bites at the cherry should be permitted, one by appeal and when the appeal fails another by judicial review.”

54. The Court in Brennan also addressed the question whether it should quash the District Court decision (which was relevant to the costs of those proceedings). In concluding that it should not, Basten JA (with whom Giles JA agreed on the point) distinguished the decision in Kirk for the following reasons (at [106]):

“The circumstances of Kirk differed in two respects from the present case. First, the original (invalid) judgment in Kirk was that of a court exercising criminal jurisdiction. The original (invalid) decision in the present case is one of a tribunal exercising a specialist civil jurisdiction. Secondly, although there was an independent application for leave to appeal from two appellate judgments of the Industrial Court in Kirk, the High Court appears to have treated the judgments of the trial court, the Full Bench and on review this Court as a chain, so that if the first judgment were invalid, those following should also be set aside. In the present case, the District Court appeal may be seen to stand outside the direct line of challenge, which goes from the Tribunal to the Common Law Division of this Court. Accordingly, there is no necessity to set aside the judgment in the District Court and, in the absence of relevant error on the part of the District Court, that course should not be taken.”

55. Handley JA (at [136]) reached the same conclusion but on the basis that the effect of the decision of the Full Bench in Kirk was to confirm the decision at first instance:

“In my opinion the decision in Kirk v Industrial Court of New South Wales [2010] HCA 1, 239 CLR 531 is not relevant here. The appellants had been convicted in the Industrial Court by the trial judge and the Full Bench dismissed their appeals. Since the Industrial Court lacked jurisdiction to convict, the Full Bench had no jurisdiction to confirm the convictions. Its decision to dismiss their appeals could not confer the necessary jurisdiction even if the correct point was not taken.”

Whether, however, it is correct to say that the Full Bench confirmed the decision of the Industrial Court in circumstances where it dismissed an appeal brought by leave on a narrow ground is open to some doubt.

56. In Navazi v New South Wales Land and Housing Corporation [2015] NSWCA 308 (Navazi), the Tribunal made orders on the application of the Housing Corporation terminating a tenancy agreement between it and Mr Navazi. Mr Navazi appealed to the District Court under s 67 of the CTTT Act. The District Court dismissed that appeal. Mr Navazi then applied for judicial review of both decisions under s 69 of the Supreme Court Act (1970) (NSW), on the basis that the decision of the District Court was affected by an error of law on the face of the record and the Tribunal’s decision was affected by a jurisdictional error. Both errors were said to arise from the decision of this Court in New South Wales Land and Housing Corporation v Diab [2015] NSWCA 133 (Diab) handed down two months after the District Court decision, where it was held that the retrospective cancellation of a tenant’s rental rebate by the Corporation created a debt due by the tenant to the Corporation, but did not retrospectively cause the tenant to fall into arrears of rent. Mr Navazi contended that both the Tribunal and the District Court had proceeded on the incorrect basis that the retrospective cancellation of a tenant’s rental rebate (which had happened in his case because he had made false or incomplete declarations to the Corporation concerning his assets over a number of years) meant that his arrears in rent were far greater than in fact they were.

57. This Court dismissed Mr Navazi’s application. The leading judgment was given by Sackville AJA, with whom Leeming JA and Adamson J agreed.

58. Sackville AJA said that he was prepared to accept, without deciding, that a distinction could be drawn between cases where there is an appeal by way of rehearing on both fact and law, and cases where the right of appeal is more limited: at [86].

59. His Honour concluded that Brennan could be distinguished on two bases. One was that in Brennan the District Court appeal and the application for judicial review were run concurrently: at [96]. The other was that the District Court proceedings in Brennan did not raise a question of law: at [97]. In relation to the second of these points his Honour said:

“98   Whether the second of these distinctions is important depends on how a court is to determine whether the dismissal of a District Court appeal is inconsistent with the orders sought by the unsuccessful appellant in a later judicial review proceedings. On one view, if the ground of the judicial review application raises a question of law that could have been raised on the appeal there may be an inconsistency.

99   The reasoning in Brennan suggests, however that if the appeal does not include the ground subsequently relied on in the judicial review proceedings, there is no relevant inconsistency. This view receives support from the language of s 67(3), of the CTTT Act which states that, after deciding the question with respect to a matter of law which is the subject of the appeal, the District Court may affirm the decision of the Tribunal on the question. If a question of law is not raised in the grounds of appeal, the orders of the District Court may be interpreted as simply not addressing that ground and as having nothing to say on whether the decision of the initial decision-maker was correct insofar as it dealt with that question of law. If that is correct, there may be no direct inconsistency between the orders made by the District Court in this case and the judicial review proceedings, insofar as the applicant seeks relief on the ground that the Tribunal erred in calculating the arrears of rent.” (Emphasis in original).

60. Accepting that analysis, Sackville AJA, adopting a comment made by Handley JA in Brennan, concluded, that judicial review of the Tribunal’s decision was not available because an Anshun estoppel applied to prevent Mr Navazi from raising in the judicial review proceedings the point based on the decision in Diab when that point could have been but was not raised in the District Court proceedings: at [101]. Although it was true that the decision in Diab in this Court was not handed down until after the District Court handed down its decision, the point had succeeded before the Appeal Panel of the Tribunal (see Diab at [25]), which had been decided before the District Court proceedings, with the result that Mr Navazi’s lawyers with reasonable diligence ought to have been aware of the point.

61. It is apparent from these decisions, and others we were taken to, that difficult questions may arise in determining whether the decision of an intermediate court replaces the decision appealed from or whether it leaves all or part of the primary decision intact. In the former case, unless the decision of the intermediate court can itself be set aside for jurisdictional error, that decision is the operative one with the result that judicial review is not available in respect of the primary decision. On the other hand, if the decision of the intermediate court is not the operative decision because its scope was limited or its effect was not to displace the primary decision, then judicial review of the primary decision may be available, subject to the possibility that the applicant seeking judicial review is bound by an Anshun estoppel or the court in the exercise of its discretion refuses relief.

62. In supplementary written submissions filed by Ms Khamiss after the hearing, Ms Khamiss also submitted that the principle referred to, but not decided, by Steward J in Fulton v Chief of the Defence Force & Ors [2025] HCASJ 20 that apprehended bias, unlike procedural unfairness, could not be cured by a fair hearing on appeal was also relevant in the present context. Ms Khamiss referred to the following passage from his Honour’s judgment (at [37]):

“The CDF also relevantly submitted that – even if Perry J's judgment was infected by apprehended bias – the subsequent appeal to the Full Court was an adequate remedy to "cure" that defect (the plaintiff made no claim of apprehended bias against any member of the Full Court). That submission was founded on the well-established principle that procedural unfairness at first instance may be "cured" by a fair hearing on appeal. However, there remains some uncertainty in the jurisprudence as to whether that principle also extends to the "curing" of apprehended bias, particularly in light of certain remarks of Kirby and Crennan JJ in Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd. Indeed, in the hearing before me, senior counsel for the CDF conceded that she had been unable to identify any authority in which the principle had been applied to the "curing" of apprehended bias. In light of my foregoing reasons, it is unnecessary to here determine this issue.” (Footnotes omitted).

63. However, Ms Khamiss’s submissions rest on a misunderstanding. The principle referred to by Steward J does not concern a case where an issue before an appeal court is whether the decision of a lower court is tainted by procedural unfairness and is therefore liable to be set aside. Rather, it is concerned with a case where the question is whether procedural unfairness in the lower court is “cured” because the appellant received a fair hearing on appeal. The point made by Steward J is that apprehended bias is not in the same category as other forms of procedural unfairness: the fact that an appeal court was not guilty of apprehended bias may not “cure” the fact that the primary judge was. It is not suggested in this case that because Ms Khamiss received a fair hearing in the District Court that “cured” the consequences of any apprehended bias of the Magistrate.

Consideration of the grounds of review

64. Against that background, it is possible to turn to the grounds for review.

65. In relation to ground 1 (see [25] above), the introduction of a new charge on the first day of a hearing may amount to a denial of procedural fairness. However, in this case we accept the DPP’s submission that there was no denial of procedural fairness because the new charge (actual rather than attempted intimidation) involved the same factual issues as the old one.

66. Similarly, the District Court may have denied Ms Khamiss procedural fairness if it dismissed the appeal without considering her hospitalisation as a valid reason for non-appearance. However, there was no evidence before the District Court that Ms Khamiss had been hospitalised. The highest the evidence goes is that at the hearing on 16 June 2023 Ms Khamiss indicated that she intended to make an application under s 14 of the MHCIFP Act. However, there is no reason why the District Court should have concluded that Ms Khamiss was unable to appear on the subsequent two dates because of her mental illness, particularly when she did appear on 16 June 2023.

64. The other two sub-grounds falling under ground 1 are not made out on the facts. Ms Khamiss does not point to any document that it is said the Magistrate failed to consider. Ms Khamiss was given an opportunity to make submissions to the Magistrate, which she did. The Magistrate considered the defence put forward by Ms Khamiss and rejected it. Similarly, Ms Khamiss was given an opportunity to cross-examine witnesses for the prosecution and to call other witnesses of her own. On occasions, the Magistrate cut Ms Khamiss’s cross-examination short because the questions she asked were irrelevant to the issues in the case. That is not an uncommon practice in cases involving self-represented litigants, who are usually unfamiliar with court procedures and what questions are permissible when cross-examining a witness. The fact that the Magistrate placed limits on the questions that Ms Khamiss could ask in cross-examination did not involve the Magistrate denying Ms Khamiss a fair trial.

65. In relation to the first sub-ground of ground 2 (see [26] above), the DPP properly accepts that it is open to this Court to conclude that the Magistrate made a jurisdictional error when she had a private conversation with the prosecutor in chambers during Ms Khamiss’s cross-examination. In the circumstances, that private conversation gave rise to a reasonable apprehension of bias. A reasonable apprehension of bias arises where “a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide”: see Charisteas v Charisteas (2021) 273 CLR 289; [2021] HCA 29 at [11] (Kiefel CJ, Gageler, Keane, Gordon and Gleeson JJ) quoting Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 at [6]. In the present case, a fair-minded lay observer might reasonably apprehend that the Magistrate might not bring an impartial mind to the resolution of the questions her Honour was required to decide because her Honour discussed issues relating to those questions privately with the prosecution during the course of the hearing. The Magistrate’s explanation of the discussion when she returned to the bench could not alleviate that apprehension. It was the fact of the discussion, particularly at a time when Ms Khamiss was being cross-examined, not its content that gave rise to the relevant apprehension. That reasonable apprehension of bias amounted to a jurisdictional error: Goodwin v Commissioner of Police [2012] NSWCA 379 at [22] per Basten JA (with whom Allsop P and Young AJA agreed). The only question is whether that error entitles Ms Khamiss to the relief she claims, or whether it is precluded by the fact of the dismissal of her appeal in the District Court. We return to that question below. The other errors Ms Khamiss points to, even if made out, cannot improve her position on that question.

66. There is no merit in the second sub-ground of ground 2. Detective Hill, who was the first police officer with whom Mr Juweinat made contact, gave evidence that he had known Mr Juweinat professionally for three or four years. After Mr Juweinat first contacted Detective Hill, he provided Detective Hill with some documents. However, Mr Juweinat subsequently gave his witness statement to a different and unconnected officer, who became the Officer in Charge of the case. Ms Khamiss cross-examined Detective Hill who accepted that he was a friend of Mr Juweinat. Following that admission, Ms Khamiss asked the Magistrate to dismiss the case, which she refused to do. None of that involved “investigative bias”. And none of it establishes a lack of impartiality on the part of the Magistrate.

67. In relation to ground 3 (see [27] above), there was no evidence before the Magistrate that Ms Khamiss had been diagnosed with a schizoaffective disorder and there was an insufficient basis for the Magistrate of her own motion to invoke the provisions of the MHCIFP Act. It is not clear what submissions Ms Khamiss is referring to when she says in a sub-ground to ground 3 that the Magistrate did not address “[d]efence submissions raising contradictions in the complainant’s testimony and third-party witness statements”. Although at the hearing Ms Khamiss claimed that there was a conspiracy between the police and the complainant, the case turned largely on the text and other messages sent by Ms Khamiss to Mr Juweinat (and others), the inferences to be drawn from those messages and the evidence given by Mr Juweinat, which was corroborated by Mr Rowe. It was Ms Khamiss’s evidence that she did not send a number of the messages and that she did not intend to threaten Mr Juweinat. That is the case the Magistrate addressed.

68. In relation to ground 4 (see [28] above), that ground concerns the conduct of the police and prosecution. Again, Ms Khamiss does not identify the facts that are said to support this ground. Moreover, the mere failure of the prosecution to carry out particular investigations or indeed a failure by them to ensure a fair trial does not of itself mean that the Magistrate failed to accord Ms Khamiss a fair trial.

69. In relation to ground 5 (see [29] above), the basis of this ground is not entirely clear. Ms Khamiss does not identify the “[c]onfidential defence submissions … provided to the prosecution without consent” which are referred to in one of the sub-grounds. However, it is entirely orthodox that both sides should have access to material submitted to the court. Part of Ms Khamiss’s complaint appears to be that the prosecution was given access to confidential material in respect of which she had a claim for client legal privilege. But there are three problems with that submission. First, it is unclear how confidentiality could exist in any of the material that was relevant to the question whether Ms Khamiss had committed an offence. Second, it is unclear why any of the material tendered at the hearing was the subject of a claim for legal professional privilege. None of it could be said to have been brought into existence for the dominant purpose of Ms Khamiss obtaining legal advice. Third, even accepting that some of the material was properly subject to the claim for client legal privilege, it was not a jurisdictional error for the Magistrate to have admitted it.

70. As none of grounds 1 to 5, apart from the first sub-ground of ground 2, have been made out, ground 6 (see [30] above) necessarily fails.

71. It is apparent from the submissions made by Ms Khamiss to this Court that, apart from the private conversation the Magistrate had with the prosecution, her real complaint is that she did not get a fair trial either before the Local Court or the District Court because she was suffering from a serious mental illness at the time which affected her ability to represent herself properly – or in the case of the District Court, at all – and which was also relevant to the question whether she committed the offence for which she was charged and, if she did, whether an order ought to have been made under s 14 of the MHCIFP Act. That is understandable. However, it addresses the issue from the wrong perspective. The question is not whether, having regard to everything known now, Ms Khamiss received a fair hearing. Rather, the question is whether having regard to the material before the relevant Courts at the time they made the decisions they did, Ms Khamiss received a fair trial (or, in the case of the District Court, hearing). For the reasons we have given, apart from the private conversation between the Magistrate and the prosecutor, she did.

Is Ms Khamiss entitled to relief?

75. The question remains whether Ms Khamiss is entitled to any relief from this Court in respect of the first sub-ground of ground 2. The answer to that question turns on whether the decision of the District Court superseded the decision of the Local Court so that it can be said that Ms Khamiss’s conviction exists by force of the orders of the District Court and not the verdict of the Local Court. If that is the position, there is no basis on which this Court could quash the decision of the District Court and therefore the conviction. As we have explained, the District Court did not make a jurisdictional error when it dismissed Ms Khamiss’s appeal for want of prosecution; and on any view on the expiration of the 12 month period set out in s 21 of the CAR Act that order became a final order of that court.

76. The order of the District Court was to dismiss the appeal from the Local Court. That order must have been made under s 20(1)(b) of the CAR Act, which is the only provision of the CAR Act which gives that power to the District Court in respect of an appeal against conviction. The question, therefore, is whether dismissal under s 20(1)(b) of the CAR Act carries with it implicit confirmation of the Local Court conviction or whether the effect of dismissal is simply that the Local Court verdict is left to operate according to its terms. A subsidiary question is whether, assuming in the normal case dismissal operates as implicit confirmation, the position is different because the District Court dismissed the appeal in this case without a hearing on the merits.

77. There is no intermediate court authority which determines this question. In addition to the authorities already discussed, we note that while the question was indirectly touched upon in a case referred to by both the amicus and the DPP, South Eastern Sydney Local Health District v Lazarus [2020] NSWCA 183; (2020) 284 A Crim R 342, that case was principally concerned with the proper construction of the Victims Rights and Compensation Act 2013 (NSW). This Court in Lazarus, left open the present question.

78. In our opinion, dismissal under s 20(1)(b) of the CAR Act must operate as implicit confirmation of the Local Court conviction. That is so for several reasons.

79. First, the CAR Act is drafted on the basis that it does. In particular, s 68(1) of the CAR Act relevantly provides that “[a]n appeal court [relevantly in this case, the District Court] may order that a conviction or sentence confirmed or varied by it on appeal or any part of it … is to take effect (as confirmed or varied) on and from a day specified in the order …”. That power is obviously necessary because s 63(3) provides “Subject to any order of the appeal court, a stay of execution continues in force until the appeal is finally determined”.

80. Section 69 similarly employs the language of confirmation, both in the heading to the section and in subsection (1):

69   Effect of confirmation of sentence on good behaviour bonds, community correction orders and conditional release orders

(1)    The following continue to have effect if an appeal court confirms a sentence on appeal —

(a)   a good behaviour bond entered into by the appellant as a consequence of the original sentence,

(b)    a community correction order or conditional release order made in relation to the appellant as a consequence of the original sentence.

81. Those points aside, under s 20, the District Court may only do one of four things. It may set aside the conviction or sentence; it may dismiss the appeal (against conviction or sentence); it may vary the sentence; or it may set aside the conviction and remit the matter back to the Local Court for redetermination. Consequently, when s 68(1) and s 69 refer to confirmation of a conviction, they must be referring to confirmation arising from dismissal of the appeal. Confirmation cannot occur in any other way.

82. In answer to the point made in the previous paragraph, Mr Hochroth submitted that s 63(3) should be interpreted as impliedly conferring a right of confirmation which the District Court did not exercise in this case. That is said to follow because (1) s 20 does not expressly state that the only orders that can be made by the District Court are those set out in s 20; (2) a power to confirm is logically different from a power to dismiss; and (3) ss 68(1) and 69(1) plainly contemplates that the District Court has a power to confirm.

83. There are, however, difficulties with that answer. The natural reading of s 20 is that it sets out all the things the District Court may do. Section 63(3) itself is not the source of the power of confirmation. It appears to assume that confirmation is the effect of orders made under s 20. The purpose of the CAR Act was to simplify and clarify the law relating to appeals from the Local Court. As Mr Debus, the Attorney-General, explained in the Second Reading Speech (Hansard, Legislative Assembly, 4 December 2001 at 19429):

“The third bill in the new package is the Crimes (Local Courts Appeal and Review) Bill. This bill consolidates and simplifies the criminal appeal and review provisions of the Justices Act 1902. The appeal provisions were substantially amended by the Justices Legislation Amendment (Appeals) Act 1998 and were not as antiquated as other sections. The new bill consolidates the existing law. The bill has provided an opportunity to clarify some matters that have arisen since the 1998 Act and to arrange the sections in a way that makes the relevant law easier to find and understand. The bill makes it clear, for example, that the Land and Environment Court is to be the appeal court for all summary environmental offences. Under the previous provisions it was arguable that parties lodge appeals in either the Land and Environment Court or the Supreme Court. Clearly, it is desirable to have consistency in the appeal process. That is best achieved by having the same kinds of offences dealt with by the same appellate court.”

84. Similarly, the Crimes (Local Courts Appeal and Review) Bill 2001 (NSW), Explanatory Note at 1 states:

“The re-enacted provisions are substantially the same as those they replace, but the opportunity has been taken to simplify and standardise their form”

85. It is more consistent with the achievement of the objective of simplifying and standardising the law to interpret dismissal under s 20 as carrying with it confirmation of the Local Court’s decision by the District Court than to interpret the Act as conferring a power that is not to be found in its express provisions.

86. Moreover, it is unclear what purpose would be served by a separate power of confirmation. The only practical difference between dismissal (without confirmation) and confirmation is that rights of judicial review by this Court of the decision of the Local Court are available in the former case, but not the latter. However, it is unclear why the legislature would have intended those rights of review to be dependent on the form of the District Court’s order, effectively leaving it to the District Court to determine whether a right of review should be available.

87. Second, reading s 20 as treating dismissal as carrying with it a decision by the District Court to confirm the decision of the Local Court is consistent with s 67 of the CAR Act. That section gives an appeal court power where an appeal is withdrawn (with leave) to make orders placing the appellant as nearly as practicable in the same position as the appellant would have been in if the appeal or application for leave to appeal had not been made. The section specifically states that those orders are to operate as orders of the Local Court, suggesting that in the case of dismissal the operative orders are intended to be orders of the appeal court (in the present case, the District Court).

88. Third, the relevant history of the provision also supports the conclusion that the effect of the District Court orders dismissing the appeal was to “confirm” the applicant’s Local Court conviction.

89. An “appeal” takes many forms, depending on the relevant statutory context. The present context has a long history. That history did not commence with the passing of the Justices Act 1902 (NSW).

90. In England, for more than four hundred years, the bulk of criminal justice has been administered, not by professional judges, but by unpaid lay justices of the peace. Three such justices, called magistrates, sat with a qualified magistrate's clerk who advised them on points of law and procedure. They exercised a wide summary jurisdiction. In New South Wales, the magistracy has always played an important part in the administration of justice. Governor Phillip held a commission as a justice of the peace, and he appointed a small number of civil and military officers as magistrates. As Gleeson CJ explained in R v Longshaw (1990) 20 NSWLR 554, the first Sydney Bench of Magistrates was convened in February 1788. By 1800, justices were sitting regularly in the colony, and by 1822 magisterial proceedings were common. In New South Wales magistrates were ordinarily paid by the Government for their services, but it was not until 1955 that new recruits to the magistracy had to be legally qualified.

91. Whilst there have always been important differences between the New South Wales magistracy and that of England, many features of the administration of justice by what were, prior to 1982, called Courts of Petty Sessions, and what are now called Local Courts, can only be understood by reference to English history. During the fourteenth century justices of the peace in England were ordered to hold sessions four times a year. This was the origin of the Courts of Quarter Sessions. Participation in Courts of Quarter Sessions was not confined to justices with legal knowledge; their duties were both judicial and administrative.

92. The Court of Quarter Sessions was the main assembly of justices, and they were given a wide jurisdiction. Later, justices were empowered by statute to exercise their functions “out of sessions”, and their summary jurisdiction to punish minor offences in that way came to bear the description of “Petty Sessions”. Meetings out of sessions were recognised as courts by the Petty Sessions Act 1849 (UK). That legislation provided a right of appeal to the Court of Quarter Sessions. The appeal, therefore, was to a wider assembly of justices. The history of this ‘appellate’ structure is traced in WJV Windeyer, Lectures on Legal History, (2nd revised ed, 1957, Law Book Company) at 132-134.

93. Prior to 1823, in New South Wales magistrates exercised similar powers to those in England, but there were no Courts of Quarter Sessions. In 1823, the New South Wales Act 1823 (4 Geo. IV. c. 96), established Courts of Quarter Sessions here. In Alex C Castles, An Australian Legal History (1982, Law Book Company) at 205, Castles states that:

“Between 1824 and 1850 Courts of Quarter Sessions were established firmly as an important feature of the legal system in the colony.”

94. Professional judges first began to preside over Courts of Quarter Sessions in New South Wales following the enactment of the District Courts Act 1858 (NSW). Judges who were appointed to District Courts were also empowered to act as Chairmen of Quarter Sessions. Until the enactment of the District Court Act 1973 (NSW), which brought together provisions relating to the civil and criminal jurisdiction now exercised by District Court judges, the criminal jurisdiction of such judges was exercised in their capacity of Chairmen of Quarter Sessions. The title was somewhat misleading because the judge sat alone and not as a presiding officer at an assembly of judicial officers: WJV Windeyer, Lectures on Legal History, (2nd revised ed, 1957, Law Book Company) at 133 fn 8.

95. The earliest instance of an appeal from a conviction by justices of the peace was in the Conventicles Act of 1670 (22 Car 2 c 1). A party convicted had a right of appeal to the judgment of the justices of the peace in their next quarter sessions upon which “he may plead and make his defence and have his trial by a jury thereupon”. Rights of appeal to the Court of Quarter Sessions soon multiplied. As Griffith CJ pointed out in Sweeney v Fitzhardinge (1906) 4 CLR 716; [1906] HCA 73 at 728 “it is obvious that if the appeal was to Quarter Sessions with a jury the case must be heard de novo”.

94. The history of appeals to Courts of Quarter Sessions by unsuccessful defendants in summary proceedings before justices, and the practice according to which those appeals were conducted by way of hearing de novo, is set out in the judgment of the High Court in Sweeney v Fitzhardinge. Both in England and in New South Wales the well-established practice was that appeals from Petty Sessions to Quarter Sessions involved a hearing de novo and the duty of the Court of Quarter Sessions was to deal with the whole matter afresh, subject, of course to such procedural provisions as were contained, for example, in s 126 of the Justices Act 1902 (NSW): Sweeney v Fitzhardinge; R v Pilgrim (1870) LR 6 QB 89.

95. It is this history which provides an explanation for why as originally enacted in Act No. 27, 1902, s 125 of the Justices Act 1902 (NSW) provided relevantly:

125. (1) The Court hearing the appeal shall determine the matter of every such appeal, and may adjourn the hearing thereof, and may by its order confirm, quash, set aside, vary, or reduce, the conviction, order, sentence, or adjudication appealed against, or make such other order in the matter, and as to costs to be paid by either party, including the Crown, as to the Court seems just; and may, in any by any such order, exercise any power which the Justice or Justices who made the conviction or order might have exercised; and any order so made shall have the same effect and shall be enforced in the same manner as if it had been made by such Justice or Justices.

98. In 1902, the Court of Quarter Sessions had the power to confirm, quash, set aside, vary, increase or reduce, the conviction, order, sentence, or adjudication appealed against or to make such other order in the matter as to the Court seems just. There was no power to “dismiss” an appeal. There was no occasion for such an order. The Court of Quarter Sessions was not reviewing the decision of the Court of Petty Sessions. By 1941, the same language, including power to “confirm” an order made by a magistrate, remained in the Justices Act 1902 (NSW). (By 1941, the only substantial amendment to s 125 of the Justices Act 1902 (NSW), made by Act No. 10, 1924, was to add the word “increase” after the word “vary” in the version of the section quoted immediately above). It was in that context that in Wishart, the High Court decided the subsequent order of the NSW Court of Quarter Sessions, “confirming” an order made by a magistrate, was the conclusive and operative order while it stood.

99. The District Court Act 1973 (NSW), by s 167, abolished both the old District Courts and the old Courts of Quarter Sessions. The criminal jurisdiction and authority of the Courts of Quarter Sessions were vested in the newly established District Court of New South Wales. The history of the District Court is referred to in Jago v District Court of New South Wales (1989) 168 CLR 23; [1989] HCA 46 at 35-36 per Brennan J. Consequential amendments were made to the Justices Act 1902 (NSW), and thereafter Div 4 provided for appeals by unsuccessful defendants in summary proceedings before magistrates to be taken before a District Court judge sitting under that title rather than under the title of a Chairman of Quarter Sessions. Otherwise, however, the nature and incidents of that appellate jurisdiction remained the same.

100. In 1992, the Justices Act Review Report, authored by a number of prominent legal figures in NSW, including the future Supreme Court Justices Howie and Johnson, strongly criticised the then existing structure of District Court criminal appeals. The report, at 61, considered the nature of an appeal to the District Court under the Justices Act 1902 (NSW):

“The reason District Court appeals are heard de novo is explained in R v Longshaw (1990) 20 NSWLR 554. In brief an appeal from Petty Sessions to Quarter Sessions was an appeal from a single lay justice to a bench of justices. Because the latter could not review the former, the appeal was heard afresh by a panel of justices.

Despite the change from lay justices to legally trained Magistrates, and from sessions of justices to District Court judges, the nature of the appeal jurisdiction remained the same. Arguably, it is now anachronistic. The appropriateness of this appellate procedure was questioned by McHugh JA in Goldfinch v Attorney General (1987) 30 A. Crim. R. 212 at 219. Appeals to the Court of Criminal Appeal from the summary jurisdiction of the Supreme Court are also de novo but this is probably due to the same history and such appeals have been criticised: Huntley Colliery v S. PC. (CCA unreported, 5. 6. 91).

Now that the Local Court is comprised of professional Magistrates, it might be said that there is now no reason to provide for de novo appeals. The procedure is open to abuse in that a person can plead guilty in the Local Court, even on legal advice, and still appeal against conviction to the District Court, where the prosecution is then required to call all its witnesses in a de novo hearing.

It can be argued that it is unfair that a defendant can thus delay presentation of the full prosecution case in the hope that it is weakened by the possible loss of evidence. A provision was placed in the Drug Misuse and Trafficking Act to overcome such possible prejudice (s 39Q).

There is little or no sanction against such a practice by the defendant. It is a considerable inconvenience and can create hardship for prosecution witnesses and victims of crime.

On the other hand, the right to a de novo rehearing has been referred to as a safeguard as the Parliament has steadily expanded the range of offences which may be heard only by a Magistrate in the Local Court, or where the defendants is allowed a choice between the Local Court or hearing in the District Court. The reason for this steady expansion of Local Court jurisdiction has been the problem of delay in the District Court.

In any event the category of offences which can be dealt with summarily without the consent of the defendant involve relatively less serious matters, few of which justify imposition of the maximum sentences available to a Magistrate. Even though the law provides for a de novo hearing in the District Court, it is usual practice in the majority of appeal hearings to proceed by way of tender of the Local Court depositions supplemented by short evidence and legal submissions.”

101. By the Justices Legislation Amendment (Appeals) Act 1998 (NSW), a new section, s 133A, was included in the Justices Act:

133A    Powers of District Court in determining appeals

(1)   The District Court may, after hearing an appeal, determine the appeal by dismissing the appeal or by doing any one or more of the following:

(a)   confirming, quashing, setting aside or varying the conviction, order or sentence appealed against,

(b)    increasing or reducing the sentence appealed against,

(c)    making such other orders as it thinks just.

(2)   In determining an appeal, the District Court may exercise any function that the Magistrate who made the conviction or order might have exercised.

(3)   The District Court may make such order as to costs to be paid by either party (including the Crown) as it thinks just, except as provided by section 133R.

102. Section 132 of the Justices Legislation Amendment (Appeals) Act 1998 (NSW) provided that a District Court appeal from the Local Court appeal was to be by way of rehearing on the transcripts of evidence heard before the Magistrate who made the conviction or order or imposed the sentence appealed against, except as provided by s 133. A new s 133 described the circumstances when evidence was to be given in person, thus preserving the possibility of a de novo appeal.

103. In the second reading speech to the Justices Legislation Amendment (Appeals) Bill 1998 (NSW), the then Attorney General, Mr Shaw, stated:

“It is the intention of this bill only to modify the former method of appeal, that is, an appeal against conviction. The reasons District Court appeals are heard de novo have their origins in appeals from a single justice in petty sessions to a bench of justices in quarter sessions. Because the latter could not review the former, the appeal was heard afresh by the panel of justices. Despite the change from lay justices to legally qualified magistrates, and from sessions of justices to District Court judges, the nature of the appeal jurisdiction has remained the same.

The 1992 review of the Justices Act examined a number of proposals to limit appeals to the District Court. More recently the Chief Judge of the District Court expressed concern about the amount of time the District Court must allocate to the hearing of appeals from decisions of magistrates. Concern has also been expressed by others that because of the delay in dealing with all-grounded appeals, by the time they are heard the prosecution often has trouble obtaining the witnesses to reappear and give evidence again before the District Court. Accordingly, the Government has taken the opportunity to re-examine the proposals to limit District Court appeals which were previously considered by the Justices Act review committee.

After examining these proposals the Government decided to adopt the proposals initially rejected by the review committee to limit appeals to the District Court to a rehearing on the depositions of the Local Court, with provisions for fresh evidence to be given leave. It was intended that this proposal would largely remove the need to recall witnesses to give evidence on a further occasion when an appeal is lodged. This provision was included in the draft exposure bill released last November. At the time it was considered that the benefits to be derived from the adoption of this limited form of appeal would be a saving in court time in hearing many appeals and reduced trauma for victims and prosecution witnesses, who would not have to give evidence twice in relation to the same matter.

However, during the consultation period carried out on the draft exposure bill, the revised proposal did not meet with the support of the legal profession. Both the Law Society of New South Wales and the New South Wales Bar Association argued that parties to appeal proceedings should continue to be able to recall witnesses on appeal who earlier gave evidence before the Local Court. Concern was also expressed that the proposed leave provision to adduce further evidence was too broad and unguided and may give rise to variable and inconsistent rulings from judges of the District Court.

In an attempt to address the concerns raised by the legal profession a compromise position that was suggested by the Chief Magistrate and supported by the Chief Judge of the District Court has been adopted. Under the revised appeal procedure, which is detailed in new section 133, appeals will continue to be dealt with by way of rehearing on the depositions of the Local Court. However, it is proposed to permit the parties to recall witnesses who gave evidence in the earlier proceedings before the Local Court if similar criteria to those set out in section 48E of the Justices Act, which applies in relation to the calling of witnesses in committal hearings, can be satisfied.”

(New South Wales Legislative Council, Parliamentary Debates (Hansard), 17 September 1998, 7594-7596)

104. In December 2001, the reforms to District Court appeals suggested by the 1992 Justices Act Review Report were completed by a package of Bills introduced to address the remaining criticisms made by the 1992 Justices Act Review Report, being the Justices Legislation Repeal and Amendment Bill 2001 (NSW), the Criminal Procedure Amendment (Justices and Local Courts) Bill 2001 (NSW) and the Crimes (Local Courts Appeal and Review) Bill 2001 (NSW). Mr Debus, the Attorney General at the time, said in the second reading speech to the Bills, that the review project had “languished” for almost a decade but had since been revived (by his predecessor Mr Shaw and the passage of the 1998 Act described above). The relevant part of the second reading speech by Mr Debus has been set out at [83] above.

105. The secondary materials accompanying the introduction of the Crimes (Local Courts Appeal and Review) Bill 2001 (NSW) and repeal of the Justices Act 1902 (NSW) demonstrate a legislative intention not to alter the well-established effect of a District Court appeal on the operative status of Local Court orders. To the contrary, the Explanatory Note states, relevantly: Explanatory Note, Crimes (Local Courts Appeal and Review) Bill 2001 at 1-2:

“The object of this Bill is to re-enact Parts 4A, 5, 5A and 5B of the Justices Act 1902 in connection with the repeal of that Act by the Justices Legislation Repeal and Amendment Bill 2001.

The re-enacted provisions are substantially the same as those they replace, but the opportunity has been taken to simplify and standardise their form. They will apply to Local Courts and other courts of comparable jurisdiction, such as the Children’s Court, a Warden’s Court and a Licensing Court.

…

Part 3 corresponds to Part 5A of the Justices Act 1902, and contains provisions with respect to appeals from a Local Court to the District Court.

Division 1 deals with appeals by defendants, Subdivision 1 with respect to the making of appeals and Subdivision 2 with respect to their determination.

The provisions of Subdivision 1 prescribe the matters in respect of which an appeal may be made as of right (clause 11) and those that require leave (clause 12) (with a 28-day period for appeal in either case), provide for the making of late appeals and applications (clause 13), set out the procedure for lodging an appeal or application (clause 14) and for the subsequent notification of other parties (clause 15).

The provisions of Subdivision 2 deal with the determination of applications for leave to appeal (clause 16), the manner of hearing an appeal against sentence (clause 17) or conviction (clause 18), the giving of evidence by witnesses (clause 19), the determination of appeals (clause 20), the notification procedures following dismissal of an appeal or application (clause 21) and the procedure for applying to have an order of dismissal revoked (clause 22).”

(Emphasis in original).

106. Section 20 of the Crimes (Local Courts Appeal and Review) Act 2001 (NSW) provided:

20   Determination of appeals

(1)   The District Court may determine an appeal against conviction:

(a)    by setting aside the conviction, or

(b)   by dismissing the appeal.

(2)   The District Court may determine an appeal against sentence:

(a)   by setting aside the sentence, or

(b)   by varying the sentence, or

(c)   by dismissing the appeal.

107. From that time forward, the language of “confirming, quashing, setting aside or varying the conviction, order or sentence appealed against” no longer appears in the relevant provision empowering the District Court to determine an appeal from the Local Court. That language was no longer required, as the District Court was granted an express power either to set aside a conviction or to dismiss an appeal. The secondary material supports the conclusion that the re-enacted provisions were intended to operate in substantially the same way as those they replaced, but in a simplified and standardised form. So much is confirmed by the express references to cognates of the word “confirm” in ss 68 and 69 of the CAR Act.

108. The relevant context strongly supports the conclusion that the effect of the District Court orders in the present case dismissing the appeal was that the Local Court orders were no longer operative.

109. The fact that in this case, the appeal was dismissed for want of prosecution cannot affect the position. For the reasons given, dismissal necessarily carries with it confirmation of the decision of the Local Court. The characteristics of the dismissal cannot turn on the reason for it. Although not determinative, it is also worth observing that the notice sent to Ms Khamiss following the decision of the District Court to dismiss the proceedings made it clear that the effect of the dismissal was to confirm the decision of the Local Court.

Conclusion

110. It follows that judicial review is not available in respect of the decision of the Local Court and that the Further Amended Summons must be dismissed with costs.

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Decision last updated: 22 August 2025