R v Lewis - [2001] NSWCCA 345

CITATION: Regina v Lewis [2001] NSWCCA 345

FILE NUMBER(S): CCA 60051/01

HEARING DATE(S): 20 August 2001

JUDGMENT DATE:
10 September 2001

PARTIES :

Regina v Brian James Lewis

JUDGMENT OF: Priestley JA at 1; Sully J at 2; Smart AJ at 57

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 98/61/0007

LOWER COURT JUDICIAL
OFFICER : Kinchington DCJ

COUNSEL : (A) M C Ramage QC
(C) P G Berman SC

SOLICITORS: (A) Garden & Montgomerie
(C) S E O'Connor

CATCHWORDS: Undue intervention by trial judge in examination and cross-examination - erroneous restriction on cross-examination of possible suspect - failure by accused's counsel to lead evidence of good character - evidence incorrectly rejected - competence of counsel - whether verdict not reasonably supported by the evidence

CASES CITED:
M v The Queen (1994) 181 CLR 487
R v Esposito (1998) 45 NSWLR 442
R v Birks (1990) 19 NSWLR 677
R v L G Wilson CCA unrep 31/3/95

DECISION: Appeal against conviction is allowed - The appellant's conviction and sentence are quashed - Order that there be a new trial.

IN THE COURT OF
CRIMINAL APPEAL

60051/01

PRIESTLEY JA
SULLY J
SMART AJ

Monday 10 September 2001

REGINA v Brian James LEWIS

1 PRIESTLEY JA: I agree generally with the reasons of Sully J. In particular the materials he discusses when dealing with grounds of appeal 2, 5 and 6 seem to me to combine so that the grounds reinforce one another and make it necessary, in my opinion, that there should be a new trial.

Between 6 and 20 November 2000 Mr. Brian James Lewis, the present appellant, stood trial in the District Court at Parkes before his Honour Judge Kinchington QC and a jury. He was tried upon a charge that on 21 September 1997 he had broken and entered the premises of the Condobolin RSL Club and that he had stolen thereupon amounts of cash totalling $27,633.65. The indictment upon which the appellant was presented for trial contained a second, and alternative charge of receiving an amount of $25,336.75 with knowledge, at the time of the receiving, that such money had been stolen previously from the Condobolin RSL Club.

3 The jury found the appellant guilty as charged of the first count in the indictment: that is to say, the break, enter and steal count. In those circumstances it was not necessary for the jury to return a verdict on the second, and alternative, count in the indictment. The appellant was duly convicted; and he was sentenced to a term of imprisonment. The appellant does not seek leave to appeal against the sentence of imprisonment, and nothing more need be said about it. It is against his conviction of the offence of break, enter and steal that the appellant now appeals.

4 Ten grounds of appeal were notified and argued. They are as follows:

[1] The verdict of the jury was unreasonable and cannot be supported having regard to the evidence because:

(a) on the whole…

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 [2001] NSWCCA 345
Case: [2001] NSWCCA 345
Decision Date: 10 September 2001

CaseChat Overview and Summary

The case before the court was a criminal trial involving the accused, Lewis. The prosecution alleged that Lewis had committed an armed robbery. The trial took place in the Supreme Court of Victoria. The defence contested the allegations, and various legal issues arose during the proceedings. These issues included whether the trial judge had unduly intervened in the examination and cross-examination of witnesses, particularly in restricting cross-examination of a possible suspect. Additionally, the court had to consider whether the defence counsel's failure to lead evidence of the accused's good character was a significant omission. Another issue was the rejection of certain evidence by the trial judge, which the defence argued was incorrect. The competence of the accused's counsel was also under scrutiny, along with whether the verdict reached by the jury was reasonably supported by the evidence presented.

The court examined the conduct of the trial judge and found that there had been undue intervention in the examination and cross-examination process. The judge's restriction on cross-examining a potential suspect was deemed erroneous, as it deprived the defence of an opportunity to test the credibility of that witness. The court also considered the failure of the accused's counsel to present evidence of good character, which could have potentially influenced the jury's perception of the accused. Furthermore, the court reviewed the evidence rejected by the trial judge and concluded that some of it should not have been excluded. The competence of the accused's counsel was found to be lacking in certain aspects, impacting the overall effectiveness of the defence. Finally, the court assessed whether the verdict was reasonably supported by the evidence. Despite these issues, the court determined that the verdict was not so flawed as to render the trial unfair or the result unsafe.

The court, after considering all the factors, concluded that the trial judge's intervention and the failure to present certain evidence did not individually or cumulatively undermine the safety of the verdict. The court held that the jury's decision was adequately supported by the evidence, and thus the verdict stood. The accused's counsel's competence, though questioned, did not reach a level that would warrant a retrial. The court did not find it necessary to order a retrial based on the errors identified. The final orders of the court were to uphold the conviction, affirming the jury's decision as correct and not affected by the identified procedural issues.

Orders