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Court of Criminal Appeal 25 September 2013

Ghassan Khodr v R

[2013] NSWCCA 221

Other
APPEAL FAILURE TO PROSECUTE APPEAL APPLICATION BY CROWN FOR DISMISSAL

Citation: Ghassan Khodr v R [2013] NSWCCA 221
Court: Court of Criminal Appeal
Date: 25 September 2013
Judge(s): Hoeben CJ at CL, Bellew J, Barr AJ

Background

The applicant had been sentenced in the District Court on 24 March 2005 to a total term of 12 years imprisonment, commencing 6 July 2002 and expiring 30 June 2014, with a non-parole period that expired on 30 June 2011. He was released on parole on that date. The sentence related to a number of matters dealt with by Judge Balla in the District Court.

A notice of intention to appeal was filed in April 2005, but with extensions it expired in April 2006. A further notice of intention to appeal was then filed on 31 March 2011, approximately five years out of time.

The Crown brought a notice of motion seeking dismissal of that further notice of intention to appeal, citing the applicant's failure to prosecute the appeal with any diligence. Between October 2011 and April 2013, the matter came before the Court's registrar on more than 20 occasions, with the applicant appearing on only some of those occasions.

  • Whether the applicant's notice of intention to appeal should be dismissed for failure to prosecute the appeal with diligence.

Decision

Bellew J, delivering the principal judgment, found on the evidence that the appeal had not been prosecuted with any degree of diligence. Despite numerous appearances before the registrar over an approximately 18-month period, the matter had not advanced. On some occasions the applicant had sought assistance through the court's pro bono scheme and with filing submissions, but no meaningful progress resulted.

The Court was satisfied that the applicant had been properly notified of the Crown's dismissal application. A copy of the notice of motion had been served on both the applicant and his parole officer in July 2013, and the applicant was called three times on the hearing day without response.

Bellew J concluded that the complete lack of diligence in prosecuting the appeal warranted dismissal. Hoeben CJ at CL and Barr AJ both agreed, and the Court made orders dismissing the notice of intention to appeal and the appeal.

Orders Made

  • The notice of intention to appeal filed on 31 March 2011 is dismissed.
  • The appeal is dismissed.

Key Takeaways

  • The Court of Criminal Appeal confirmed that a persistent and complete failure to prosecute an appeal with diligence is sufficient grounds for the Crown to obtain a dismissal order by notice of motion.
  • A notice of intention to appeal filed approximately five years out of time, combined with no meaningful progress over more than 20 registrar appearances spanning 18 months, was treated as a clear case of want of prosecution.
  • Proper service of the dismissal application on both the applicant and his parole officer satisfied the Court that the applicant was on notice, even though he did not appear at the hearing.
  • In dismissing the appeal, the Court acted unanimously and without hesitation, reflecting that the procedural threshold for dismissal in such circumstances is not a high one where the evidence of inaction is clear.

Legislation and Cases Referenced

No legislation or cases were cited in the judgment text or metadata provided.