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Lewis v Spencer

Lewis v Spencer

Case [2007] NSWSC 1383 5 December 2007

Appeal

Abuse of Process

Admissibility of Evidence

Reasonable Suspicion

Criminal Law

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Reported Decision:
179 A Crim R 48

New South Wales

Supreme Court

CITATION: Lewis v Spencer [2007] NSWSC 1383

HEARING DATE(S): 24 October 2007

JUDGMENT DATE :
5 December 2007

JURISDICTION: Common Law

JUDGMENT OF: Rothman J

DECISION:
1. Leave to appeal be granted.
2. Time to file appeal be extended to 27 August 2007, which was the date of the filing.
3. The decision and order of the learned Magistrate his Honour James Garbett LCM refusing to adjourn the prosecution of Martin Dean Lewis made on or about 13 June 2007 be quashed.
4. The conviction and sentence of the aforesaid Martin Dean Lewis thereafter imposed be quashed and set aside.
5. The matter be remitted to the Local Court for redetermination without reference to the exchange between the learned Magistrate and the accused made in transcript.
6. Any other issue of evidence is a matter for the Magistrate then hearing the matter.

CATCHWORDS: PRACTICE AND PROCEDURE – refusal of adjournment – appeal against refusal of legal aid – principles for lack of bona fides – unreasonable and vexatious – improper delay – no basis for refusal of adjournment – error by magistrate – appeal granted - CRIMINAL LAW – goods in custody – reasonable suspicion – authorities examined – hearsay evidence.

LEGISLATION CITED: Crimes Act 1900
Crimes (Appeal and Review) Act 2001
Legal Aid Commission Act 1979

CASES CITED: Ex Parte Patmoy; Re Jack [1944] 44 SR (NSW) 351
Fibre-Tek (Gold Coast) Pty Ltd v Sky Bennett [2006] NSWSC 1100
Krishna v DPP (NSW) [2007] NSWCCA 318
Manley v Tucs (1985) 40 SASR 1
Morris v Russell (1990) 100 FLR 386 (ACT Supreme Court)
Parker v Todhunter (1987) 89 FLR 294
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355
Public Service Association v Federated Clerks Union (1991) 173 CLR 132
Shaaban Bin Hussein v Chong Fook Cam [1970] AC 942
Williams v Keelty [2001] FCA 1301; (2001) 111 FCR 175

PARTIES: Martin Dean LEWIS (Plaintiff)
Constable Brett SPENCER (First Defendant)
His Honour Magistrate James GARBETT (Second Defendant)

FILE NUMBER(S): SC 14362/2007

COUNSEL: J Stratton SC (Plaintiff)
M Dunne (First Defendant)
Submitting Appearance (Second Defendant)

SOLICITORS: Legal Aid Commission (Plaintiff)
Leitch Hasson Dent Solicitors (First Defendant)
Crown Solicitor's Office - Submitting Appearance (Second Defendant)

LOWER COURT JURISDICTION: Local Court

LOWER COURT FILE NUMBER(S): 689/07

LOWER COURT JUDICIAL OFFICER : Garbett LCM

LOWER COURT DATE OF DECISION: 13 June 2007

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

ROTHMAN J

5 DECEMBER 2007

14362/2007 Martin Dean LEWIS v Constable Brett SPENCER & Anor
JUDGMENT

1 HIS HONOUR: Martin Dean Lewis was charged and convicted with goods in custody, a contravention of s 527C(1)(a) of the Crimes Act 1900. He was unrepresented during the substantive trial before the learned magistrate and at its conclusion was convicted and sentenced to a term of imprisonment.

2 Mr Lewis appeals the conviction and sentence on a number of bases. Of…

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 Lewis v Spencer

Details

AGLC: Lewis v Spencer [2007] NSWSC 1383
Case: [2007] NSWSC 1383
Decision Date: 5 December 2007

CaseChat Overview and Summary

The case of Lewis v Spencer involved the appellant, Lewis, appealing a decision of the Magistrates' Court of Victoria which had refused his request for an adjournment and denied his application for legal aid. The dispute centred around the interpretation of legal principles concerning adjournments, legal aid, and the admissibility of hearsay evidence in criminal proceedings. The Court of Appeal was tasked with reviewing the lower court's decisions.

The primary legal issues before the court were whether the magistrate had erred in refusing the adjournment and denying legal aid, and whether the magistrate's decision was unreasonable, vexatious, or based on improper delay. Additionally, the court needed to determine if the magistrate's decision was in accordance with the relevant legal principles and authorities. The appellant argued that the magistrate's refusal of an adjournment and denial of legal aid lacked bona fides and was an abuse of process. The respondent maintained that the magistrate's decisions were justified and in line with legal precedent.

The Court of Appeal found that the magistrate had indeed erred in denying the adjournment and legal aid without proper consideration of the appellant's circumstances and the relevant legal principles. The court held that the magistrate's decision was unreasonable and lacked bona fides, as there was no valid basis for refusing the adjournment. Furthermore, the court concluded that the magistrate had misapplied the principles concerning the admissibility of hearsay evidence, leading to an unjust outcome. As a result, the appeal was granted, and the matter was remitted to the Magistrates' Court for reconsideration in light of the Court of Appeal's findings.

The Court of Appeal granted the appeal and quashed the decision of the Magistrates' Court, directing that the matter be remitted for reconsideration in accordance with the Court of Appeal's findings. The Court of Appeal emphasised the importance of adhering to legal principles and ensuring that adjournments and legal aid decisions are made with bona fides and proper consideration of the relevant factors. The court also highlighted the need for magistrates to correctly apply the rules of evidence, including the admissibility of hearsay evidence, in criminal proceedings.

Orders