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Court of Criminal Appeal 15 August 2014

Khamis v R

[2014] NSWCCA 152

Sexual offences
CRIMINAL LAW PRACTICE AND PROCEDURE LIMITATIONS OF MEDICAL EVIDENCE NO REASONABLE PROSPECTS OF SUCCESS

Citation: Khamis v R [2014] NSWCCA 152
Court: Court of Criminal Appeal, NSW
Date: 15 August 2014
Judge(s): Hoeben CJ at CL; McCallum J; Garling J

Background

The applicant had pleaded guilty in November 2010 to one count of sexual intercourse without consent under s 61I of the Crimes Act 1900, receiving a sentence of three years' imprisonment with a non-parole period of one year and eleven months. Because he had already served that time on remand and in custody following an earlier conviction, he was released to parole on the day of sentencing.

The underlying offence involved allegations that in the early hours of 28 October 2007, the applicant entered the bedroom of a 16-year-old complainant at her family home and sexually assaulted her while she was asleep. The applicant's account at the time, and in subsequent proceedings, was that any contact was consensual and initiated by the complainant.

Several years after the plea, the applicant sought an extension of time to appeal against his conviction, relying on new psychiatric evidence to argue that he had been experiencing a schizophrenic episode when he entered the plea and had not genuinely understood what pleading guilty meant.

  • Whether an extension of time should be granted to permit the applicant to seek leave to appeal out of time.
  • Whether the applicant's guilty plea was genuine and entered with a full understanding of its implications and consequences.
  • Whether the psychiatric evidence was sufficient to raise a doubt about the integrity of the plea at the time it was entered.
  • Whether refusing the application would result in a substantial injustice to the applicant.

Decision

Hoeben CJ at CL dismissed the application, concluding that the ground of appeal had not been made out and that no useful purpose would be served by granting an extension of time. His Honour's analysis centred on the integrity of the plea at the moment it was entered, which he described as the critical question when an applicant seeks to withdraw a guilty plea on this basis.

The Chief Judge found that the psychiatric evidence was significantly weakened by two factors: the evidence rested heavily on histories given by the applicant to the examining psychiatrists, and the applicant was found to be an unreliable historian. Evidence from the two solicitors who had advised the applicant at the time of the plea was careful and credible, and pointed clearly to the applicant having understood the nature and effect of the plea. The court also identified a complete and logical explanation for the plea that was entirely consistent with a rational, voluntary decision rather than with a lack of understanding caused by mental illness.

McCallum J agreed with the Chief Judge's reasons, observing that the psychiatric evidence went no higher than establishing a bare possibility that the applicant had not understood his plea, and that this was, in context, a very remote possibility. Her Honour also noted the particular hardship to the complainant that would result from an extension of time, given that the complainant would face the difficult choice of giving evidence again or having the matter proceed on the record of her earlier testimony.

Garling J concurred in full, adding that in his view the applicant had entered the plea in full knowledge of what it meant and of the immediate and beneficial consequences it would bring.

Orders Made

  • The application for an extension of time within which to seek leave to appeal was refused.

Key Takeaways

  • When an applicant seeks to withdraw a guilty plea on the basis of mental illness, the central inquiry is the integrity of the plea at the precise time it was entered, not the applicant's general psychiatric history.
  • Psychiatric evidence that relies substantially on histories provided by a witness found to be an unreliable historian carries reduced weight in assessing whether a plea was genuine and informed.
  • A complete and logical explanation for a plea of guilty, supported by credible evidence from lawyers who advised the applicant at the time, can be sufficient to defeat a challenge based on claimed mental incapacity.
  • The Court of Criminal Appeal confirmed that the interests of finality and the potential hardship to complainants are material considerations when deciding whether to extend time for an appeal, alongside the question of substantial injustice to the applicant.
  • Refusing an extension of time is appropriate where the prospects of success on the proposed appeal are not reasonable, even when the applicant raises a mental health ground.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 61I (sexual intercourse without consent)
- Criminal Appeal Act 1912 (NSW), s 10(1)(b)

Cases:
- Abdul v R [2013] NSWCCA 247
- Darwiche v R; El-Zeyat v R; Aouad v R; Osman v R [2011] NSWCCA 62
- Khamis v Regina [2010] NSWCCA 179
- R v Stephen J Ray (No 2) [2005] NSWCCA 380
- Regina v Van [2002] NSWCCA 148; 129 A Crim R 229
- Sabapathy v R [2008] NSWCCA 82
- Wong v The Director of Public Prosecutions (2005) 155 A Crim R 37