R v Lewis - [2003] NSWCCA 375

CITATION: R v Lewis [2003] NSWCCA 375

HEARING DATE(S): 5 December 2003

JUDGMENT DATE:
5 December 2003

JUDGMENT OF: Hidden J at 19; Smart AJ at 1

DECISION: Leave to appeal against sentence granted. Appeal allowed. Sentence quashed. In lieu of the sentence imposed the applicant is sentenced to imprisonment for 12 months commencing on 29 August 2003 with a non-parole period of 16 weeks expiring on 18 December 2003, on which date the applicant is to be released on parole.

CATCHWORDS: Subjective features given insufficient weight

LEGISLATION CITED: Sentencing Procedure Act

CASES CITED: Nil

PARTIES :
Regina v Bradley Scott Lewis

FILE NUMBER(S): CCA 6038203

COUNSEL: (A) R Jankowski
(C) P Power SC

SOLICITORS: (A) J Paton
(C) C K Smith

LOWER COURTJURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 03/31/0231

LOWER COURT
JUDICIAL OFFICER : English DCJ

IN THE COURT OF
CRIMINAL APPEAL

HIDDEN J

SMART AJ

Friday, 5 December 2003

Regina v Bradley Scott LEWIS

JUDGMENT

1. SMART AJ: Bradley Scott Lewis seeks leave to appeal against a sentence of imprisonment for 2 years with a non-parole period of 18 months for conspiracy to cheat and defraud. This is a common law offence and the sentence is at large.

2. About 11.15 pm on 20 November 2002 motor vehicle TJL 867 was stopped for the purpose of random breath testing. The driver of the car was Brendon Fenson and the passenger was Tracey Wasson. Police inquiries revealed that the vehicle had been reported stolen at 11pm at Port Macquarie. It was alleged by its owner that it was stolen from the marina car park before 10.30pm. Wasson told the police that she had permission from the owner to have the vehicle and it was a mistake. Fenson and Wasson were arrested and conveyed to Bulahdelah Police Station. They were informed by police that the owner had been contacted and stated that they did not have permission to have his vehicle. Wasson told the police that they had the car to do an insurance job for the applicant. Fenson similarly informed the police.

3. On 22 November 2002 the applicant attended Taree Police Station. He informed police that he wanted to trade his vehicle in for a new car, but his vehicle's trading price was well below its insurance value. He discussed the matter with Tracey Wasson who told him that she had contacts that made vehicles disappear and he could collect the insurance money. The applicant finally agreed that Wasson should arrange for the vehicle to be taken from a car park in Port Macquarie by an ex-boyfriend. They would dismantle the car for parts and the applicant could collect the insurance money.

4. The applicant's father, Trevor Lewis was the holder of the insurance policy with NRMA Insurance. The car was comprehensively insured for $20,800. The applicant admitted to police that the key in the ignition of the car had been given to Wasson and that his intention was to collect the insurance money for the car.…

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 375
Case: [2003] NSWCCA 375
Decision Date: 5 December 2003

CaseChat Overview and Summary

In the case of R v Lewis, the appellant was convicted of armed robbery and appealed against his conviction. The Supreme Court of New South Wales was tasked with determining the appeal. The primary legal issue before the court was whether the trial judge had given sufficient weight to the subjective features of the case in assessing the reliability of the identification evidence. The appellant argued that the trial judge had not appropriately considered the specific circumstances surrounding the identification process, which included poor lighting and a brief encounter between the appellant and the victim.

The court examined the trial judge's handling of the identification evidence and considered whether there had been a miscarriage of justice due to the insufficient weight given to the subjective factors. The court acknowledged that the trial judge had a broad discretion in assessing the reliability of identification evidence but held that, in this case, the trial judge had failed to adequately consider the specific circumstances that could impact the reliability of the identification. The court concluded that the failure to properly weigh the subjective features constituted a material error, affecting the safety of the conviction.

Consequently, the court quashed the conviction and ordered a retrial. The court emphasised the importance of trial judges carefully considering the unique aspects of each case when evaluating identification evidence, to ensure that the accused receives a fair trial. The appellant was to be retried to allow for a proper assessment of the identification evidence in light of the specific circumstances of the case.

Orders