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Supreme Court 5 December 2007

Lewis v Spencer

[2007] NSWSC 1383

Also reported as (2007) 179 A Crim R 48
Theft & property
PRACTICE AND PROCEDURE REFUSAL OF ADJOURNMENT APPEAL AGAINST REFUSAL OF LEGAL AID PRINCIPLES FOR LACK OF BONA FIDES UNREASONABLE AND VEXATIOUS IMPROPER DELAY

Citation: Lewis v Spencer [2007] NSWSC 1383
Court: Supreme Court of New South Wales (Common Law Division)
Date: 5 December 2007
Judge(s): Rothman J

Background

The appellant was charged with having goods in custody under s 527C(1)(a) of the Crimes Act 1900. He had applied for legal aid but was refused after missing an appointment, which he attributed to his father's illness. When the matter came before the Local Court for hearing, a Legal Aid Commission solicitor appeared and sought an adjournment to allow the appellant to appeal the refusal of legal aid to the Legal Aid Review Committee.

The Magistrate refused the adjournment, characterising the circumstances as lacking bona fides. His Honour considered the inconvenience to prosecution witnesses and questioned whether the appellant's father's illness genuinely prevented him from attending the appointment. The matter proceeded without the appellant being represented, during which the Magistrate also questioned the appellant during the prosecution case and allowed hearsay evidence. The appellant was convicted and sentenced to imprisonment.

The appellant then appealed to the Supreme Court on six grounds, principally challenging the refusal of the adjournment, the Magistrate's cross-examination of him during the prosecution case, and the admission of hearsay evidence.

  • Whether the Magistrate erred in finding that the appellant's appeal to the Legal Aid Review Committee was not bona fide under s 57 of the Legal Aid Commission Act 1979
  • Whether it was an error to take into account the convenience of prosecution witnesses when assessing bona fides
  • Whether the trial miscarried because the Magistrate cross-examined the appellant during the prosecution case
  • Whether the trial miscarried through the admission of hearsay evidence (an out-of-court statement by an unnamed BP service station manager)
  • Whether the Magistrate erred by failing to advise the unrepresented appellant of his right to object to hearsay evidence

Decision

Rothman J found that the Magistrate had no proper basis to refuse the adjournment. There was no evidence before the Magistrate establishing a lack of bona fides on the part of the appellant. The solicitor from the Legal Aid Commission had presented grounds for the appeal to the Legal Aid Review Committee, indicated those grounds were not frivolous or vexatious, and expressed a view that the appeal had a high likelihood of success.

The Magistrate compounded the error by treating the convenience of prosecution witnesses as a relevant consideration when assessing bona fides. That consideration is simply irrelevant to the statutory test under s 57 of the Legal Aid Commission Act 1979. Rothman J characterised this as taking into account an irrelevant consideration and applying the wrong test, which constituted a jurisdictional error.

Because the trial proceeded as a direct result of the erroneous refusal of the adjournment, the conviction and sentence that followed could not stand. Rothman J quashed both the refusal and the conviction, and remitted the matter to the Local Court for redetermination. The orders directed that the redetermination occur without reference to the exchange between the Magistrate and the appellant recorded in the transcript.

On the remaining grounds concerning hearsay evidence and the Magistrate's questioning of the appellant, Rothman J noted these as matters that would require factual assessment. Those evidentiary questions were left to the Magistrate hearing the matter on remittal.

Orders Made

  • Leave to appeal granted
  • Time to file appeal extended to 27 August 2007 (the date of filing)
  • The Magistrate's decision refusing the adjournment quashed
  • The conviction and sentence quashed and set aside
  • The matter remitted to the Local Court for redetermination, without reference to the exchange between the Magistrate and the accused recorded in the transcript
  • Any other evidentiary issues left to the Magistrate hearing the matter on remittal

Key Takeaways

  • Under s 57 of the Legal Aid Commission Act 1979, a court must adjourn proceedings where an appeal against refusal of legal aid is bona fide and not frivolous, vexatious, or an improper delay; no evidence of a lack of bona fides means no basis to refuse the adjournment.
  • The convenience of prosecution witnesses is irrelevant to whether a legal aid appeal is bona fide, and treating it as relevant is an error going to the exercise of jurisdiction.
  • Where a trial proceeds as a direct consequence of a legally flawed refusal of an adjournment, the resulting conviction cannot be sustained.
  • A conviction quashed on appeal arising from procedural error will ordinarily be remitted for redetermination rather than simply set aside, preserving the opportunity for a properly conducted trial.
  • Rothman J confirmed that questions requiring factual assessment by the Magistrate are not questions of law "alone" for the purposes of s 52 of the Crimes (Appeal and Review) Act 2001, making leave to appeal necessary under s 53(1) of that Act.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 527C(1)(a)
- Crimes (Appeal and Review) Act 2001 (NSW), ss 52, 53(1)
- Legal Aid Commission Act 1979 (NSW), s 57

Cases:
- Ex Parte Patmoy; Re Jack [1944] 44 SR (NSW) 351
- Fibre-Tek (Gold Coast) Pty Ltd v Sky Bennett [2006] NSWSC 1100
- Krishna v DPP (NSW) [2007] NSWCCA 318
- Manley v Tucs (1985) 40 SASR 1
- Morris v Russell (1990) 100 FLR 386
- Parker v Todhunter (1987) 89 FLR 294
- Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355
- Public Service Association v Federated Clerks Union (1991) 173 CLR 132
- Shaaban Bin Hussein v Chong Fook Cam [1970] AC 942
- Williams v Keelty [2001] FCA 1301; (2001) 111 FCR 175