Nichles v The King (No 1)

District Court

New South Wales

Medium Neutral Citation:

Nichles v R (No 1) [2024] NSWDC 625

Hearing dates:

17, 23 September 2024

Date of orders:

23 September 2024

Decision date:

23 September 2024

Jurisdiction:

Criminal

Before:

Neilson DCJ

Decision:

The appeal is dismissed.

Catchwords:

Appeal from Local Court – Appeal against failure of Local Court to grant interlocutory relief, a stay of proceedings and other relief, and a failure to grant a permanent stay of proceedings – District Court has no power to grant relief against any interlocutory order – This not a proper case in which to grant a permanent stay of a criminal charge.

Legislation Cited:

Civil Procedure Act2005, s 144.

Crimes(AppealandReview)Act 2001, Pt 3.

Crimes (Domestic and Personal Violence) Act 2007, ss 14(1).

DistrictCourtAct1973.

Domestic and Family Violence Protection Act 2012 (Qld), s 37.

LocalCourt Act 2007, Pt 4.

ProtectionoftheEnvironmentOperations Act 1997, s 290(2).

Cases Cited:

HuangvNazaran [2021] NSWCA 243.

Mahommed v Unicomb [2017] NSWCA 65.

Texts Cited:

Nil.

Category:

Principal judgment

Parties:

Crown – R (NSW)
Appellant - Kimberley Nichles

Representation:

Counsel:
Crown – Ms Ng, L.
Appellant – Self-represented.

Solicitors:
Crown – Office of the Director of Public Prosecutions (NSW).
Appellant – Self-represented.

File Number(s):

2024/00065034

Publication restriction:

Nil.

 Decision under appeal 

Court or tribunal:

Local Court

Jurisdiction:

Criminal

Date of Decision:

24 July 2024

Before:

Magistrate Milledge

Judgment

1. HIS HONOUR: This is an appeal from a decision of Magistrate Milledge sitting in the Local Court at Waverley on 24 July 2024. Her Honour's decision was not a final decision.

Background Facts

2. To understand what has occurred, it is necessary to review some of the relevant facts. By Court Attendance Notice (CAN) served on 19 February 2024, the appellant is charged with an offence contrary to s 14(1) of the Crimes (Domestic and Personal Violence) Act 2007.

3. The allegation contained in the CAN is that she did between 3:00pm and 3.30pm on 24 December 2023 at Bondi Beach, knowingly contravene a restriction specified in an order. The order in question was made by the Southport Magistrates Court in the State of Queensland on 5 December 2019. Under the law of that State, the order is called a "protection order" and was made pursuant to the s 37 of the Domestic and Family Violence Protection Act 2012 (Qld).

4. It appears to be common ground, although I may be incorrect in that, that it is a nationally recognised DVO. The protection order itself states that. Inter alia, the order prohibited the appellant from following or remaining or approaching to within 100 metres of "the aggrieved" when the aggrieved is at any place. There are two exceptions to that order. The first is when the aggrieved was appearing personally before a Court or tribunal and except in compliance with an order of a Court.

5. The aggrieved we would describe in New South Wales as…