R v Lewis - [2003] NSWCCA 332

Reported Decision:
142 A Crim R 254

New South Wales

Court of Criminal Appeal

CITATION: R v Lewis [2003] NSWCCA 332

HEARING DATE(S): 11/11/2003

JUDGMENT DATE:
13 November 2003

JUDGMENT OF: Hodgson JA at 1; Grove J at 2; Howie J at 3

DECISION: The appeal should be dismissed.

CATCHWORDS: Criminal Law and Procedure - Judge's summing up - whether directions adequate to ensure a fair trial for the appellant - no request made for directions at trial - whether rule 4 should apply - undue waste of public money in preparation of appeal books and provision of legal aid for an unmeritorious appeal.

LEGISLATION CITED: Criminal Appeal Rules - rule 4

CASES CITED: R v Lewis [2001] NSWCCA 345
R v Johnson (1998) 45 NSWLR 362
R v King [2000] NSWCCA 507
R v GJH [2001] NSWCCA 128
R v Ita [2003] NSWCCA 174
R v Fowler [2003] NSWCCA 321
R v Moussa [2001] NSWCCA 427

PARTIES :
Regina v Brian James Lewis

FILE NUMBER(S): CCA 60287/03

COUNSEL: M. Grogan - Crown
T. Golding - Appellant

SOLICITORS: C.K. Smith - Crown
S. O'Connor - Appellant

LOWER COURTJURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 01/61/0149

LOWER COURT
JUDICIAL OFFICER : Price DCJ

60287/03

HODGSON JA
GROVE J
HOWIE J
THURSDAY 13 NOVEMBER 2003

R V Brian James LEWIS

Judgment

1 HODGSON JA: I agree with Howie J.

2 GROVE J: I agree with Howie J.

3 HOWIE J: The appellant was arraigned before his Honour Judge Price and a jury on an indictment containing two counts, the first that on 21 September 1997 he broke and entered a shop of the Condobolin RSL Club and stole a sum of money later identified as $27,598.15, and, in the alternative, that on or about 21 September 1997 he received the sum of $25,336.75 the property of the Condobolin RSL Club knowing it to have been stolen. After a trial, which lasted 15 days, the jury convicted the accused of the offence contained in the first count in the indictment. The trial judge had earlier directed the jury that there was no evidence to support the charge of receiving and, therefore, if they found that the appellant was not guilty of the first count, they should find him not guilty of the alternative count.

4 On 5 September 2001 the appellant was sentenced to imprisonment for a term of 3 years to commence on 11 November 2001 with a non-parole period of 1 year and 2 months, expiring on 10 June 2003. There is no application for leave to appeal against sentence.

5 There are two grounds of appeal as follows:

1. His Honour’s directions in relation to the evidence of the appellant’s mother were unbalanced and, in the circumstances of the case, unfair to the appellant such that the trial miscarried.

(a) he bore no onus of proof in relation…

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 R v Lewis

Details

AGLC: R v Lewis [2003] NSWCCA 332
Case: [2003] NSWCCA 332
Decision Date: 13 November 2003

CaseChat Overview and Summary

The case of R v Lewis involved the appellant, Lewis, who was on trial for a criminal offence. The dispute centred around the adequacy of the judge's summing up during the trial and whether the directions given to the jury were sufficient to ensure a fair trial for the appellant. The case was heard in the relevant appellate court. The appellant argued that the summing up was inadequate and that the trial judge failed to properly direct the jury on certain points of law, which prejudiced his right to a fair trial.

The legal issues that the court was required to decide included whether the trial judge's summing up was adequate, and whether the rule regarding the provision of directions to the jury was correctly applied. Additionally, the court needed to determine whether the appeal was meritless and whether the appellant's decision not to request directions at the trial should preclude him from raising the issue on appeal. The court also had to consider whether the appeal was an undue waste of public money, given the preparation of appeal books and the provision of legal aid for the unmeritorious appeal.

The court found that the trial judge's summing up was adequate and that the appellant's arguments regarding the inadequacy of the summing up were without merit. The court noted that the appellant did not request any directions during the trial and that this should have precluded him from raising the issue on appeal. Furthermore, the court determined that the appeal was an undue waste of public money due to the preparation of appeal books and the provision of legal aid for the unmeritorious appeal. Consequently, the court dismissed the appeal.

No further orders were made by the court. The appellant's appeal was dismissed, and the original conviction and sentence were upheld. The court's decision underscored the importance of ensuring that appeals are properly prepared and that public resources are not wasted on meritless appeals.

Orders