Nichles v The King (No 1)

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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

  1. 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.

  2. 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).

  3. 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.

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

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Details
Case
[2024] NSWDC 625
Decision Date

CaseChat Overview and Summary

The case of Nichles v The King (No 1) involved the appellant, Nichles, appealing against decisions made by the Local Court. Nichles sought interlocutory relief in the form of a stay of proceedings, as well as other forms of relief, and a permanent stay of proceedings against criminal charges brought against him. The Local Court declined to grant any form of relief, leading to the appeal being brought to the District Court.

The primary legal issue the court was required to decide was whether the District Court had the jurisdiction to grant relief against interlocutory orders made by the Local Court. Additionally, the court needed to determine whether the case presented sufficient grounds to warrant a permanent stay of the criminal proceedings against Nichles.

In delivering the judgment, the court noted that it did not have the authority to grant relief against any interlocutory order made by the Local Court. It was established that the District Court lacked the jurisdiction to intervene in interlocutory matters decided by a lower court. The court further found that this was not a proper case in which to grant a permanent stay of the criminal charge against Nichles. The reasons for the refusal were grounded in the absence of any compelling circumstances that would warrant such a stay. Consequently, the appeal was dismissed, and the orders of the Local Court were upheld.

Orders

Orders of the court

The appeal is dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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