Lewis v Spencer [2007] NSWSC 1383

Lewis v Spencer [2007] NSWSC 1383

The Local Court was required by s 57 of the Legal Aid Commission Act 1979 to adjourn the proceedings because the plaintiff had appealed, or intended to appeal, to the Legal Aid Review Committee and there was no evidence that the appeal lacked bona fides, was frivolous or vexatious, or was intended to improperly hinder or delay the proceedings. The magistrate took irrelevant considerations into account, including witness inconvenience and the resources involved in re-attendance, and confused the merits of the legal aid appeal with its bona fides. The refusal to adjourn was therefore erroneous, and the conviction and sentence imposed after that refusal were quashed.

Jurisdiction
Australia
Judgment Date
05 December 2007
Procedural Posture
Appeal From Local Court Conviction and Sentence for Goods in Custody Under S 527 C(1)(a) of the Crimes Act 1900 / Leave to Appeal Granted; Conviction and Sentence Quashed; Matter Remitted to Local Court for Redetermination
Outcome
Leave to appeal granted; time to file the appeal extended; refusal of adjournment quashed; conviction and sentence quashed and set aside; matter remitted to the Local Court for redetermination.
Legal Topics
['refusal of Adjournment' 'appeal to Legal Aid Review Committee' 'bona Fides' 'improper Delay' 'goods in Custody' 'reasonable Suspicion' 'hearsay Evidence' 'judicial Questioning of Unrepresented Accused' 'certiorari']
['practice and Procedure' 'criminal Law' 'legal Aid' 'evidence'] ['refusal of Adjournment' 'appeal to Legal Aid Review Committee' 'bona Fides' 'improper Delay' 'goods in Custody' 'reasonable Suspicion' 'hearsay Evidence' 'judicial Questioning of Unrepresented Accused' 'certiorari']

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Procedural Posture

Appeal From Local Court Conviction and Sentence for Goods in Custody Under S 527 C(1)(a) of the Crimes Act 1900 / Leave to Appeal Granted; Conviction and Sentence Quashed; Matter Remitted to Local Court for Redetermination

Legal Issues

  1. 1 ["Whether the Local Court erred in finding that the plaintiff's appeal to the Legal Aid Review Committee was not bona fide." 'Whether the Local Court erred by taking into account the convenience of prosecution witnesses when refusing an adjournment under s 57 of the Legal Aid Commission Act 1979.' 'Whether the trial miscarried because the magistrate questioned the plaintiff during the prosecution case.' 'Whether hearsay evidence of an out-of-court conversation with an unnamed BP service station manager was admissible.' 'Whether the Supreme Court had jurisdiction and whether leave to appeal was required.']

Ratio Decidendi

The Local Court was required by s 57 of the Legal Aid Commission Act 1979 to adjourn the proceedings because the plaintiff had appealed, or intended to appeal, to the Legal Aid Review Committee and there was no evidence that the appeal lacked bona fides, was frivolous or vexatious, or was intended to improperly hinder or delay the proceedings. The magistrate took irrelevant considerations into account, including witness inconvenience and the resources involved in re-attendance, and confused the merits of the legal aid appeal with its bona fides. The refusal to adjourn was therefore erroneous, and the conviction and sentence imposed after that refusal were quashed.

Court Disposition

Leave to appeal granted; time to file the appeal extended; refusal of adjournment quashed; conviction and sentence quashed and set aside; matter remitted to the Local Court for redetermination.

Orders

  • ['Leave to appeal be granted.' 'Time to file appeal be extended to 27 August 2007, which was the date of the filing.' 'The decision and order of the learned Magistrate his Honour James Garbett LCM refusing to adjourn the prosecution of Martin Dean Lewis made on or about 13 June 2007 be quashed.' 'The conviction and...