Klewer v Walton - [2002] NSWSC 809

CITATION: Klewer v Walton [2002] NSWSC 809

CURRENT JURISDICTION: Common Law

FILE NUMBER(S): SC 10266/2002

HEARING DATE(S): 2 July 2002

JUDGMENT DATE: 6 September 2002

PARTIES :

Lucy Klewer
(Plaintiff)
Ian Walton
(Defendant)

JUDGMENT OF: Master Harrison

LOWER COURT
JURISDICTION : Local Court

LOWER COURT
FILE NUMBER(S) :

LOWER COURT
JUDICIAL OFFICER : O'Keefe LCM

COUNSEL :
Mr P See
(Defendant)

SOLICITORS:
Ms L Klewer
(Plaintiff in person)
Hannigans
(Defendant)

CATCHWORDS: Quash Magistrate's decision - private criminal prosecution - The Local Court proceedings - Evidence Act 1995 (NSW) - Admission

LEGISLATION CITED: Crimes Act 1900 - ss 61, 314, 547B
Justices Act 1902
Evidence Act - ss 33(1), 32, 38

DECISION: (1) The Magistrate's decision of 10 December 2001 is affirmed; (2) The appeal is dismissed; (3) The summons is dismissed; (4) The plaintiff is to pay the defendant's costs as agreed or assessed.

- 1 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

MASTER HARRISON

FRIDAY, 6 SEPTEMBER 2002

10266/2002 - LUCY KLEWER v IAN WALTON

JUDGMENT (Quash Magistrate’s decision;

private criminal prosecutions)

1 MASTER: By summons filed 9 January 2002 the plaintiff seeks an order that the decision of O’Keefe LCM (the second defendant) dated 10 December 2001 at Coffs Harbour be quashed and the decision declared void. The plaintiff relied on her affidavits sworn 4 January 2002 and 26 April 2002. She appeared unrepresented although she has obtained a law degree. The second defendant filed a submitting appearance. The critical issues in this appeal are whether a prior written statement made by a police officer should have been admitted as evidence and whether that officer should have been treated as an unfavourable witness.

2 On 10 December 2001 the plaintiff was the unrepresented informant in a private summons matter against the first defendant. The case against the first defendant was for offences under ss 61, 314, and 547B of the Crimes Act 1900 and was heard in the Local Court at Coffs Harbour before O’Keefe LCM. After a contested hearing the Magistrate dismissed the informations and ordered that the informant pay the defendant’s professional costs assessed at $10,504 within 14 days. The plaintiff submitted that had the statement been admitted into evidence, it would have proved she had been assaulted and that evidence would form the basis by which the two other charges would have been proved.

3 At the hearing the plaintiff provided an outline of submissions. She submitted that the Magistrate denied her a fair opportunity to present her case by refusing to allow the plaintiff to cross examine Sergeant Levey in circumstances where firstly, Sergeant Levey had to be compelled to attend to give evidence by the issue of a subpoena; secondly, Sergeant Levey had prepared a witness statement with a view to being a witness against her in criminal proceedings arising out of the same circumstances which gave rise to these proceedings; thirdly, Sergeant Levey had made a prior inconsistent statement; fourthly, Sergeant Levey’s demeanour and evasive replies made…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Klewer v Walton

Details

AGLC: Klewer v Walton [2002] NSWSC 809
Case: [2002] NSWSC 809
Decision Date: 6 September 2002

CaseChat Overview and Summary

The case of Klewer v Walton was heard in the Local Court of New South Wales. The matter involved a private criminal prosecution brought by the plaintiff, Klewer, against the defendant, Walton. The primary dispute centred around the admissibility of certain evidence during the Local Court proceedings, particularly in relation to the provisions of the Evidence Act 1995 (NSW). The court was tasked with determining whether the magistrate's decision to exclude particular evidence was correct and whether the exclusion led to a miscarriage of justice.

The legal issues before the court included the proper application of the Evidence Act 1995 (NSW) and whether the magistrate's decision to exclude certain evidence was justified. The court needed to assess if the exclusion of this evidence resulted in a denial of a fair trial, which could warrant a quashing of the magistrate's decision. The central question was whether the exclusion of the contested evidence was in accordance with the law and whether it adversely affected the fairness of the proceedings.

In delivering the judgment, the court found that the magistrate's decision to exclude the evidence was not in error. The court reasoned that the evidence in question was properly excluded under the provisions of the Evidence Act 1995 (NSW), and this exclusion did not result in a miscarriage of justice. The court concluded that the proceedings were fair and that the exclusion of the evidence did not undermine the integrity of the trial. Consequently, the court dismissed the application to quash the magistrate's decision.

Orders