KLEWER v FLEMING LCM [2005] NSWSC 1318

KLEWER v FLEMING LCM [2005] NSWSC 1318

The appeal failed because the magistrate was entitled to make the factual findings she made, the plaintiff's own admissions and evidence supported the resist arrest convictions, no error of law was shown in the magistrate's approach to the arrest, evidence, or disqualification applications, and the accepted evidence of Mr and Mrs Gintowt supported the assault and knife offences while leaving no basis for self-defence or reliance on s 22 of the Companion Animals Act 1998. Leave to appeal on factual or mixed grounds was refused because those grounds lacked merit.

Jurisdiction
Australia
Judgment Date
10 January 2006
Procedural Posture
Appeal From Local Court Convictions / Supreme Court Appeal Judgment
Outcome
Appeal dismissed with costs
Legal Topics
['resist Arrest' 'assault' 'carrying a Knife in a Public Place' 'appeal on Question of Law' 'leave to Appeal on Questions of Fact or Mixed Fact and Law' 'lawfulness of Arrest' 'judicial Disqualification' 'apprehended Bias']
['criminal Law' 'criminal Procedure' 'evidence'] ['resist Arrest' 'assault' 'carrying a Knife in a Public Place' 'appeal on Question of Law' 'leave to Appeal on Questions of Fact or Mixed Fact and Law' 'lawfulness of Arrest' 'judicial Disqualification' 'apprehended Bias']

Case Brief

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Procedural Posture

Appeal From Local Court Convictions / Supreme Court Appeal Judgment

Legal Issues

  1. 1 ['Whether the Local Court magistrate erred in convicting the plaintiff of two charges of resisting arrest.' "Whether the plaintiff's arrest was unlawful or improper because police could have proceeded by court attendance notice." "Whether the magistrate erred in accepting the evidence of police officers and Mr and Mrs Gintowt over the plaintiff's evidence." 'Whether the magistrate should have disqualified herself for apprehended bias.' "Whether the plaintiff's conduct with the knife was justified by self-defence or s 22 of the Companion Animals Act 1998." 'Whether leave should be granted to appeal on questions of fact or mixed fact and law.']

Ratio Decidendi

The appeal failed because the magistrate was entitled to make the factual findings she made, the plaintiff's own admissions and evidence supported the resist arrest convictions, no error of law was shown in the magistrate's approach to the arrest, evidence, or disqualification applications, and the accepted evidence of Mr and Mrs Gintowt supported the assault and knife offences while leaving no basis for self-defence or reliance on s 22 of the Companion Animals Act 1998. Leave to appeal on factual or mixed grounds was refused because those grounds lacked merit.

Court Disposition

Appeal dismissed with costs

Orders

  • ['Appeal dismissed with costs']