Citation: Khoury v R (No 1) [2021] NSWDC 434
Court: District Court of NSW
Date: 21 July 2021
Judge(s): Montgomery DCJ
Background
The appellant had faced charges in the Local Court and sought to have them dealt with under s 32 of the Mental Health (Forensic Provisions) Act 1990 (NSW), a provision allowing a magistrate to divert a defendant away from the ordinary criminal process where mental health considerations are relevant. The Learned Magistrate refused that application on 11 March 2021. Following that refusal, and only after being pressed to proceed to conviction, the appellant entered a plea of guilty.
The appellant then sought to challenge the outcome through an all-grounds appeal in the District Court. The immediate question before Montgomery DCJ was a procedural one: whether leave to appeal against the conviction (entered on a plea of guilty) should be granted under s 12 of the Crimes (Appeal and Review) Act 2001 (NSW).
Legal Issues
- Whether an appeal against a magistrate's refusal of a s 32 mental health diversion application should proceed as an all-grounds conviction appeal in the District Court.
- Whether the District Court, on such an appeal, can exercise the same powers available to the Local Court, including the power to deal with a s 32 application.
- Whether leave to appeal against a conviction entered on a guilty plea should be granted under s 12 of the Crimes (Appeal and Review) Act 2001 (NSW).
Decision
Issue 1: Procedural framing of the appeal
Both parties agreed, and the Court accepted, that an appeal against the refusal of a s 32 application should proceed as an all-grounds conviction appeal (at [5]). The Court relied on the Court of Criminal Appeal's reasoning in Huynh v R [2021] NSWCCA 148, which confirmed that the Crimes (Appeal and Review) Act 2001 (NSW) enables the District Court, when determining an appeal, to exercise any function the Local Court could have exercised in the original proceedings (at [3]-[4]).
Issue 2: Availability of s 32 powers on appeal
Drawing on Huynh, the Court confirmed that the concept of "function" under the Appeal Act is broad enough to embrace powers conferred by former s 32 of the Mental Health (Forensic Provisions) Act 1990 (NSW) (at [4]). The District Court therefore has available to it, on appeal, the full range of powers the Local Court possessed to deal with the charges.
Issue 3: Leave to appeal the guilty plea conviction
Montgomery DCJ granted leave under s 12 of the Appeal Act. The guilty plea had been entered only after the Magistrate refused the s 32 application, making it a direct consequence of that refusal, which the Court regarded as a substantial and proper basis for leave standing alone (at [9]). The Court also noted that the evidence presented below appeared to fit comfortably within the statutory purposes of s 32, giving the appellant significant prospects of success on a fresh application, providing a further reason to grant leave (at [10]). The Crown did not oppose the grant of leave (at [8]).
Orders Made
- Leave granted to appeal all grounds pursuant to s 12 of the Crimes (Appeal and Review) Act 2001 (NSW).
Key Takeaways
- The Court of Criminal Appeal in Huynh v R confirmed that the District Court, when hearing an appeal from the Local Court, can exercise the full range of functions the Local Court possessed, including powers under former s 32 of the Mental Health (Forensic Provisions) Act 1990 (NSW) (at [3]-[4]).
- An appeal against a magistrate's refusal of a s 32 mental health diversion application is properly framed as an all-grounds conviction appeal in the District Court (at [5]).
- Where a guilty plea is entered only after, and as a direct consequence of, a refused s 32 application, that sequence of events can constitute a substantial and proper basis for granting leave to appeal the conviction under s 12 of the Crimes (Appeal and Review) Act 2001 (NSW) (at [9]).
- Evidence that appears to fit comfortably within the statutory purposes of s 32 can support a conclusion that an appellant has significant prospects of success on a fresh application, reinforcing the grant of leave (at [10]).
- The Crown's position, including a statement before the Magistrate that it did not oppose proceeding under s 32, was noted by the District Court as relevant context in the leave application (at [8]).
Legislation and Cases Referenced
Legislation
- Crimes (Appeal and Review) Act 2001 (NSW) s 12
- Mental Health (Forensic Provisions) Act 1990 (NSW) s 32
Cases
- Huynh v R [2021] NSWCCA 148