Reg v Lewis - [1988] HCATrans 84

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Darwin No Dl3 of 1987
B e t w e e n -

THE QUEEN

Applicant

and
MICHAEL ANTHONY LEWIS

Respondent

Application for special leave
to appeal

WILSON J

BRENNAN J

DAWSON J

Lewis

TOOHEY J

GAUDRON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 4 MAY 1988, AT 2.20 PM

C2T 1 7 / 1 / AC

4/5/88

MR J. GLISSANi QC: May it please the Court, I appear with
my earned friend, MR W.J. KARCZEWSKI, for the
applicant. (instructed by the Sol1c1tor for the
Northern Territory)

MR T.J. HIGGlNS, QC: If the Court pleases, I appear with
my learned friend, MR J. BREWSTER, for the respondent.
(instructed by Macph1llamy & Co)

WILSON J: Yes, Mr Glissan.
MR GLISSAN: If the Court pleases, I hand up copies of our
outline.
Your Honours, this is a somewhat unusual

application for special leave in the sense, at
least, that it involves an appeal by the Crown
in right of the Northern Territory against the
acquittal of the accused by a Court of Criminal
Appeal and that it is based, essentially, so far
as the application for special leave is concerned,
on two procedural matters which have not directly,
so far as our researches at least reveal, been
decided by Your Honours' Court in that context.
The first is the question of reconstitution

of the Court at a time after which the hearing
had, in substance, been embarked upon and I should
acknowledge to Your Honours at this stage that
there is, perhaps, a threshold problem from the
point of view of the application for special leave
in that no active objection was taken to that course
by counsel who appeared at the appeal. That may
be, subject to Your Honours' hearing me in relation
to it, able to be fairly readily explained but
the important poin½ for which we actively seek
this Court's intervention in relation to, relates
to the second ground as it is set out in the outline;
that is to say that the Court determined the appeal
without having heard, or given the opportunity

for advancement of argument, the Crown in relation
Your Honours, I do not, if it is possible -
to the substantive point.

WILSON J: Are you referring to the ground that the Court
would need to add at the time it handed down its
decision on ..... the unsafe grourid.

MR GLISSAN: Essentially, Your Honour, yes.
(Continued on page 3)

C2Tl7/2/AC 2 4/5/88
Lewis

MR GLISSAN:	Your Honour, if I could endeavour to encapsulate the events as they occurred before the Court of
Criminal Appeal. This was a matter in which the
respondent to the appeal was unrepresented at his
appeal and a somewhat unusual course was adopted. Counsel, whose standing is not, in our submission, from the
material,at all clear, who is referred throughout
as amicus curia but seems to take an active part
in…

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 Reg v Lewis

Details

AGLC: Reg v Lewis [1988] HCATrans 84
Case: [1988] HCATrans 84
Decision Date

CaseChat Overview and Summary

The case of *Reg v Lewis* involved an application for special leave to appeal to the High Court of Australia. The applicant was the Crown in right of the Northern Territory, appealing against the acquittal of the respondent, Michael Anthony Lewis, by the Northern Territory Court of Criminal Appeal. The Crown's application for special leave was primarily based on two procedural grounds.

The legal issues before the High Court concerned the propriety of the Court of Criminal Appeal's conduct during the appeal hearing. Specifically, the Crown argued that the Court of Criminal Appeal had reconstituted itself after the hearing had substantially commenced without direct advertence to this change, and more significantly, that it had determined the appeal without affording the Crown an opportunity to present argument on the substantive grounds of appeal. The Crown also raised the issue of whether an active objection to these procedural irregularities was a prerequisite for raising them on appeal.

The Crown's submission was that the Court of Criminal Appeal had adopted an unusual course in hearing the appeal of an unrepresented respondent, with counsel appearing as amicus curiae but actively participating. The appeal hearing, which extended over several days, involved the court being composed of different judges on different occasions without explicit notification. Crucially, the Crown contended that no argument on the merits of the appeal was ever presented to the Court of Criminal Appeal, despite extensive evidence being led on preliminary matters. The Crown sought the High Court's intervention to address these procedural deficiencies.

Orders