Lewis v Spencer

6. Any other issue of evidence is a matter for the Magistrate then hearing the matter.

CATCHWORDS : PRACTICE AND PROCEDURE - refusal of adjournment - appeal against refusal of legal aid - principles for lack of bona fides - unreasonable and vexatious - improper delay - no basis for refusal of adjournment - error by magistrate - appeal granted - CRIMINAL LAW - goods in custody - reasonable suspicion - authorities examined - hearsay evidence.

Crimes Act 1900 LEGISLATION CITED : Crimes (Appeal and Review) Act 2001 Legal Aid Commission Act 1979

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 CASES CITED : Morris v Russell (1990) 100 FLR 386 (ACT Supreme Court) 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

Martin Dean LEWIS (Plaintiff) PARTIES : Constable Brett SPENCER (First Defendant) His Honour Magistrate James GARBETT (Second Defendant)

J Stratton SC (Plaintiff) COUNSEL : M Dunne (First Defendant) Submitting Appearance (Second Defendant)

Legal Aid Commission (Plaintiff) SOLICITORS : Leitch Hasson Dent Solicitors (First Defendant) Crown Solicitor's Office - Submitting Appearance (Second Defendant)

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

14362/2007 Martin Dean LEWIS v Constable Brett SPENCER & Anor

JUDGMENT 1 HIS HONOUR: Martin Dean Lewis was charged and convicted with goods in custody, a contravention of s 527C(1)(a) of the Crimes Act 1900. He was unrepresented during the substantive trial before the learned magistrate and at its conclusion was convicted and sentenced to a term of imprisonment. 2 Mr Lewis appeals the conviction and sentence on a number of bases. Of the six grounds raised in the summons, the first is declaratory in effect and will not be dealt with separately. The grounds are: "1. The plaintiff appeals against the whole of the decision of the second defendant.

The second defendant erred in finding that the plaintiff's appeal to the Legal Aid Review Committee was not bona fide.

The second defendant erred in taking into account the convenience of prosecution witnesses in determining that the plaintiff's appeal to the Legal Aid Review Committee was not bona fide.

The plaintiff's trial miscarried because the second defendant cross-examined the plaintiff during the prosecution case.

The plaintiff's trial miscarried because the second defendant admitted hearsay material into evidence (the evidence of the first defendant of an out of court conversation with an unnamed BP service station manager).

The plaintiff's trial miscarried because the second defendant did not advise the plaintiff that he could object to hearsay evidence." I will deal very briefly with the procedural history and necessary facts before setting out the legislation and dealing with these grounds (other than ground 1). It is also necessary to deal briefly with the jurisdiction of the Court. Procedural History and Facts 3 The learned magistrate dealt with the matter on 13 June 2007. The manner in which the matter proceeded is the fundamental basis upon which the appeal is agitated. There is a need to deal with some very short background. 4 Mr Lewis applied for legal aid in relation to the matters before the learned magistrate and was refused legal aid (or the grant of legal aid was terminated) on 21 May 2007. When the matter came before the magistrate for hearing on 13 June 2007, Ms Siobhain Climo, solicitor, employed by the Legal Aid Commission of New South Wales, appeared before the magistrate on behalf of Mr Lewis to inform the magistrate that Mr Lewis had been refused legal aid and that he was intending to appeal that refusal. She said: "Your Honour unfortunately Mr Lewis has been refused legal aid. The reason for that is that he failed to attend an appointment and the reason for that is due to the illness of his father. I am seeking an adjournment today so that he can lodge an appeal to the Legal Aid Review Committee. I am seeking an adjournment under s 57 of the Legal Aid Commission Act." 5 The immediate response of the learned magistrate was: "This has all got to be bona fide, that is what s 57 requires and if he just doesn't turn up, he has not done what is really required of him. I am not going to grant an adjournment. The matter is going to proceed. You are ready to proceed I imagine sergeant?" 6 There was an exchange between the learned magistrate and Ms Climo in the following terms: "HIS HONOUR: You have all the witnesses here. No the adjournment is refused …

MS CLIMO: Well your Honour I am happy to call some evidence in terms of the circumstances so that your Honour can be satisfied as to the genuineness of those circumstances if that warrants …

HIS HONOUR: Well you indicated his father is ill, does he have to stay at his father's bedside 24 hours a day for the last month?

HIS HONOUR: Nothing stops him from attending an appointment. It is just completely unreasonable and unnecessary - the State has gone to a lot of trouble to get all their witnesses here and I just won't allow it to be wasted.

MS CLIMO: If the matter could stand in the list and I will have a discussion with Mr Lewis?

HIS HONOUR: Yes, certainly." The matter stood in the list. On its resumption the following exchange occurred:

"MS CLIMO: Thank you your Honour I have had a discussion with Mr Lewis, he has now submitted to me a notice of his appeal to the Legal Aid Review Committee, so that application has been received. The grounds upon which, and I am renewing my application for an adjournment, the grounds upon which the application, the notice of appeal to the Legal Aid Review Committee, has been made are certainly grounds in my submission that cannot be seen as frivolous or vexatious and that, in my experience of these appeals, this appeal and the grounds upon which it is made has a very high likelihood of succeeding at the Legal Aid Review Committee and I am asking your Honour to consider an adjournment so that process can be undertaken.

Your Honour is aware that s 57 outlines that he has that right to appeal and that if the appeal or the intention to appeal is bona fide and not frivolous or vexatious or otherwise intending to improperly hinder or improperly delay the conduct of the proceedings and that there are no special circumstances that prevent it from doing so, the court shall adjourn the proceedings.

In the document, Mr Lewis has submitted to me an outline of the grounds to do with the illness of his father and those grounds in my submission could not be viewed as frivolous or vexatious and I am asking that your Honour consider an adjournment. I have a large number of these Legal Aid Review Committee matters and there is a high likelihood of success for him at that Committee. Given that and given the serious nature of the matters which he faces today I would be asking for that adjournment.

HIS HONOUR: Yes, for what reason does his father's illness prevent him from carrying out the required steps to …

MS CLIMO: I am not in a position. The Act actually prevents me from disclosing the grounds upon which the legal aid was refused. I am actually not in a position to go into any detail in relation to that. I have foreshadowed that it is an illness in relation to his father so that your Honour has some information upon which to base the decision surrounding whether or not the appeal is frivolous or vexatious but I am not in a position to be able to disclose the full details of what, in fact, has occurred with Mr Lewis' grant of aid, that is a matter of confidentiality between ourselves and Mr Lewis but I can certainly indicate to your Honour that this illness in relation to his father is something that has been quite longstanding and his father has been in hospital in relation to it. That is as far as I can take the reasons for the refusal for the grant of aid.

HIS HONOUR: Yes. Thank you for that. Intrinsically he is entitled to go through the process of making an appeal and he may well succeed and it is your view that he will succeed and he may well succeed in the appeal. To that extent everything is normal. He says the reason why he did not secure legal aid in the first place is he did not attend when requested to enable legal aid to be secured. I am told he did not attend because of his father's illness. I accept his father is ill and I am very sorry to hear that but you have not told me why that prevents you from taking the simple step of securing legal aid when you were invited to do so. Section 57 has a provision of bona fides and simply the State pours enormous resources into arranging witnesses to come today but then if the matter is adjourned to come on another time, to say nothing of the inconvenience to police themselves. They should not need to do it 2 or 3 or multiple times, they should only need to do it once. The requirement of bona fides in this case I do not find is met and the application for adjournment on the grounds requested is refused. The matter will proceed. Are you incidentally in a position to proceed in this sergeant?

HIS HONOUR: Yes, well the matter must proceed and I will deal with another matter first." Legislation 7 It is necessary to set out s 57 of the Legal Aid Commission Act 1979, which is in the following terms: "57. Where it appears to a court or tribunal, on any information before it: (a) that a party to any proceedings before the court or tribunal: (i) has appealed, in accordance with section 56, to a Legal Aid Review Committee and that the appeal has not been determined, or (ii) intends to appeal, in accordance with section 56, to a Legal Aid Review Committee and that such an appeal is competent, (b) that the appeal or intention to appeal is bona fide and not frivolous or vexatious or otherwise intended to improperly hinder or improperly delay the conduct of the proceedings, and (c) that there are no special circumstances that prevent it from doing so, the court or tribunal shall adjourn the proceedings to such date on such terms and conditions as it thinks fit." 8 In terms relevant to the application of s 57 of the Legal Aid Commission Act, the first application for an adjournment made by Ms Climo relied on the provisions of s 57(a)(ii) and the second application relied on the provisions of s 57(a)(i). 9 As is clear from the extracted exchange and/or reasons of the learned magistrate, his Honour took the view that much inconvenience would be caused by an adjournment and it would be a waste of the "enormous resources" of arranging witnesses for an adjournment to occur and therefore the requirement of "bona fides" is not met. Grounds 2 & 3: Lack of Bona Fides and Inconvenience of Witnesses are Not Relevant Factors 10 In construing any legislation it is necessary to discern, initially from the terms of the statute, the meaning that the legislature is taken to have intended any such provision to have. Generally and ordinarily the grammatical meaning will be the meaning of the provision but sometimes the context of the words, the consequences of a grammatical meaning and the purpose of the statute may require words to have something other than their grammatical meaning: Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 at [78]. 11 It is often difficult, especially for judicial officers that are facing a long list, to step back from the pressures associated with case management and ascertain with precision the tests that are required in dealing with an issue such as that which was before his Honour. The provisions of s 57 of the Legal Aid Commission Act, properly construed, require a court or tribunal before which there are proceedings to adjourn those proceedings if there is an appeal to the Legal Aid Review Committee or an intention by one or other of the parties to lodge such an appeal. Prima facie the existence of an appeal or an intention requires the adjournment. It is only in circumstances where the appeal or intention to appeal is not bona fide, not frivolous or vexatious or not otherwise intended "to improperly hinder or improperly delay" the conduct of the proceedings that the adjournment may not be granted. However it is the appeal or intention to appeal that must lack the bona fides or must otherwise be frivolous or vexatious or intended to hinder or delay the conduct of the proceedings improperly. 12 Section 57 has an obvious purpose and fits the overall purpose of the Legal Aid Commission Act. 13 It is a purpose complementary to the achievement of justice for persons who otherwise are unable to afford private legal representation. It ensures, so far as practicable, that persons without the means to be represented are not tried and convicted in the absence of representation, when there is a possibility that, after their application for legal aid has been dealt with, they will be properly represented. The representation of parties in proceedings aids not only the parties themselves, but the administration of justice itself. 14 Case management, simpliciter, is not a factor in the evaluation required by s 57 of the Legal Aid Commission Act. 15 On the material that was before his Honour, legal aid had been refused because Mr Lewis failed to appear at a nominated conference. He failed to appear at a nominated conference because his father was ill. The solicitor employed by the Legal Aid Commission expressed the view, with which no one cavilled, that it was likely the appeal to the Legal Aid Review Committee would be successful. Whether it was or will be successful does not determine the issue before the magistrate. The bona fides of the appeal is determined by an analysis of whether the appeal is being pursued for genuine purposes. In other words, the section requires the magistrate to determine whether the appeal is being lodged (or is intended to be lodged) for the purpose of causing the adjournment; not for the purpose of obtaining legal aid. In the case before the learned magistrate below, there is no suggestion that the appeal that was initially intended and was ultimately lodged was other than genuine and designed for the purpose of achieving the grant of legal aid and representation of Mr Lewis. 16 Further the issue with which the magistrate is concerned is not whether an adjournment will cause delay or whether the appeal will delay the proceedings. Too much emphasis cannot be placed upon the use of the word "improperly" in its qualification of the hindering or delaying of the conduct of the proceedings. An adjournment for the purpose of obtaining legal aid and being represented is not an improper hindrance or delay. It may be different if there had been numerous applications and one could infer a lack of genuineness or a desire to avoid a hearing at all. But the desire to avoid (hinder or delay) the conduct of a proceeding until the person is represented, in circumstances where there is a genuine application for legal aid, is not an improper hindrance or delay in the conduct of the proceedings. 17 It is for those asserting that an adjournment should not occur to establish that one of the circumstances exists that would overturn the prima facie position that, an appeal having been lodged, the proceedings are adjourned: Fibre-Tek (Gold Coast) Pty Ltd v Sky Bennett [2006] NSWSC 1100 at [26] per Simpson J. 18 Even if the onus did not rest upon those opposing the adjournment, there is no material upon which the court below could have decided that the intention to appeal and, at a later stage the appeal, were not bona fide or that any delay occasioned by an adjournment would be improper. The terms of s 57 of the Legal Aid Commission Act require an adjournment, subject only to the evaluation to be made by the judicial officer to which reference has already been made. Therefore it is a consequence of the intended operation of the legislation that there will be an adjournment and the Act requires that witnesses re-attend and that proceedings be re-organised. The fact that witnesses will have to re-attend and that proceedings will have to be re-organised is not and cannot be sufficient reason to find that there is an improper hindrance or improper delay in the proceeding or that the appeal or intention to appeal is not bona fide. 19 Further, the learned magistrate confused his attitude to the merits of the appeal and the reason that legal aid was initially refused with the bona fides and/or arguability of the appeal. The Legal Aid Review Committee may or may not have the same attitude as the learned magistrate. On the material before the learned magistrate, whatever his view of whether Mr Lewis ought to have attended the interview, there was an appeal, it was lodged for the purpose of obtaining legal aid and the appeal was not unreasonable or vexatious, but, to the contrary, likely to succeed. The fact, if it be the fact, that Mr Lewis should have attended the conference and obtain legal aid does not affect the bona fides of the appeal. Indeed, even an unreasonable act that caused the initial refusal or termination of legal aid may not, without more, be conclusive or relevant to the bona fides of an appeal. Ground 5 & 6: The Admission of Hearsay 20 The magistrate admitted evidence from a witness, a police officer, that the witness had interviewed a member of staff at the BP Service Station from which Mr Lewis had said he had purchased the sunglasses. The police officer gave evidence that the member of staff had told him that the records of the establishment did not disclose that a pair of sunglasses had been sold on the day in question. If that evidence were given by the police officer for the purpose of proving the truth of the statement, namely, that no such sunglasses were purchased from that store on the day in question, it was inadmissible. It is evidence from the police officer of a representation made to him of the contents of the records of the shop. No exception to the rules on the admission of hearsay evidence would cover such a circumstance. 21 However, the offence under s 527C of the Crimes Act is an offence relating to a person having in his or her custody goods that "may be reasonably suspected of being stolen". The reasonable suspicion is a reasonable suspicion of the magistrate at the time of hearing: Ex Parte Patmoy; Re Jack [1944] 44 SR (NSW) 351. The only basis upon which the hearsay representation by the shop staff member to the police officer could be relevant would be if it were the reasonable suspicion of the police officer at the time of arrest that was the relevant test. One of the means by which one could reasonably suspect that the sunglasses were stolen or otherwise unlawfully obtained would be that the place from which the accused alleges it was purchased had not sold any sunglasses (or those sunglasses) on the day in question. However the evidence of the police officer does not prove that fact: see Manley v Tucs (1985) 40 SASR 1 at 12-13; Shaaban Bin Hussein v Chong Fook Cam [1970] AC 942 at 949; Williams v Keelty [2001] FCA 1301; (2001) 111 FCR 175 at [176], [177]; Morris v Russell (1990) 100 FLR 386 (ACT Supreme Court). 22 In Parker v Todhunter (1987) 89 FLR 294 at 295, Yeldham J examined s 527C and the nature of "reasonable suspicion" and said: "In Cleary v Hammond [1976] 1 NSWLR 111 Lee J was concerned with s 40 of the Summary Offences Act 1970 . That, as I have said, is in precisely the same terms as s 527 C of the Crimes Act 1900 which replaced it. After a careful examination of the history of the legislation, relating back as it did to the Police Offences Act 1901 (NSW) , and to the authorities upon the section as it stood from time to time, particularly Ex parte Patmoy; Re Jack (1944) 44 SR (NSW) 351 and Purdon v Dittmar [1972] 1 NSWLR 94, his Honour (at 118) concluded:

'In the result then, it appears to me that s 40, in referring to a thing which "may be reasonably suspected of being stolen or otherwise unlawfully obtained ..." is referring to a conclusion arrived at objectively by a magistrate when all the evidence pointing to the thing being stolen or otherwise unlawfully obtained is before him. It must be proved that, on the date charged, the facts bring the person charged within the particular category s 40(1)(a)-(d) charged against him, and then it must be proved that it is open on all the evidence to conclude the goods "may be reasonably suspected of being stolen ..." The fact that the whole of the evidence relied on at the hearing as showing that the goods "may be reasonably suspected of being stolen ..." is not available to the police at the time they take possession of the goods (as in this case) or at the time of arrest or charge in no way affects the admissibility of evidence obtained thereafter, if that evidence in fact tends to show that the goods "may be reasonably suspected of being stolen ...".' " 23 In this case, the learned magistrate may have suspected, reasonably, that the goods were stolen or unlawfully obtained, if the magistrate were able to consider evidence that the goods were not purchased from the store nominated. But the police officer's evidence was not evidence of that fact. It was "evidence" of a representation by a staff member of the contents of records, i.e., evidence (the police officer's) of a representation (the staff member's) of a representation (the contents of the record). The staff member's representation may be sufficient to give rise in the mind of the learned magistrate of the non-purchase from the store. While that may not prove that the goods were stolen, it may be sufficient to found, when added to other material, a reasonable suspicion. But the material before the learned magistrate does not go that far. 24 As I have come to the conclusion that all of the proceeding beyond the adjournment application was inappropriate and that orders should be made reflecting that view, it is unnecessary to decide this issue finally. Ground 4: Questioning of the Plaintiff by the Magistrate 25 Senior Counsel who appeared for Mr Lewis submits that the magistrate was in error in "cross-examining" Mr Lewis during the course of the prosecution case. The circumstances were that Mr Lewis, having been denied legal representation and an adjournment to obtain legal representation, presented his own case. The prosecutor called the informant police officer, Constable Spencer, who gave evidence in chief. The plaintiff commenced cross-examination with a question that was lengthy and was subject to objection. The learned magistrate allowed the objection and asked Mr Lewis if he had any other questions. Mr Lewis responded that he could not remember everything. At that point his Honour questioned the plaintiff at some length. Mr Lewis was at the bar table, he was not in the witness box. If he had decided to give evidence, no doubt the prosecutor would have had the opportunity to cross-examine. The cross-examination (or questioning) by the magistrate of Mr Lewis was directed to the obtaining of admissions or what might be used as admissions. The magistrate neither warned Mr Lewis nor advised him that he could refuse to answer the questions. Mr Lewis answered the questions. 26 There is sometimes a very fine line between the clarification of the submissions or position of a party who is unrepresented on the one hand and inappropriate questioning by a judicial officer as to the facts asserted in that person's case on the other. 27 Even if the magistrate were entitled to question in the manner that he did, such questioning could occur only at the time that Mr Lewis' case was being presented to the Court. It was not evidence in the proceedings. It was not given on oath. To the extent that it was an admission, unless the magistrate had warned or advised the party that he was entitled not to answer, the party would be entitled to assume (rightly) that refusing to answer a question from a judicial officer was a serious matter. Any statement made by the party could not have been, in any real sense, voluntary. Moreover, the timing of the questioning was during the cross-examination of a prosecution witness. 28 It was inappropriate for the judicial officer to question the party in this manner, on these facts, in the presence of the witness, and at a time when the prosecution had not concluded its case. Jurisdiction of the Court 29 Neither party addressed on the jurisdiction of the Court. It was assumed by both parties that there existed a right of appeal. A person convicted of an offence has a right of appeal "on a ground that involves a question of law alone" by virtue of s 52 of the Crimes (Appeal and Review) Act 2001. Such a question would not seem to include any questions raised by the grounds in the summons. Each of those grounds requires some assessment of the factual circumstances that gave rise to the exercise by the learned magistrate and each issue required a factual assessment by the magistrate: see Krishna v DPP (NSW) [2007] NSWCCA 318 at [2], [44]-[50]. 30 In those circumstances, leave to appeal is necessary: s 53(1) of the Crimes (Appeal and Review) Act. No party sought or opposed leave. It is manifest that leave is appropriate. 31 Further, given grounds raised and these reasons it would seem certiorari, or orders in the nature thereof, would be available at least in relation to Grounds 2 and 3 which are error in taking into account irrelevant considerations and probably jurisdictional errors in asking the wrong question and/or applying the wrong test: see Public Service Association v Federated Clerks Union (1991) 173 CLR 132. 32 Here there was no evidence establishing a lack of bona fides, nor any basis upon which the duty of the Local Court to adjourn could be displaced. In those circumstances, this Court has jurisdiction to make the orders. It is inappropriate to discuss this issue further because no party has challenged the capacity of the Court so to do or raised any problem associated with such orders. Conclusion 33 On 24 October 2007 I made orders the effect of which was to quash the decision refusing to adjourn the proceedings, to quash the conviction and sentence that thereafter followed and to remit to the Local Court for redetermination the charges that are before the Local Court without reference to the exchange between the learned magistrate and Mr Lewis. The foregoing reasons are the reasons for the orders already made, which I now relevantly repeat:

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 sentence of the aforesaid Martin Dean Lewis thereafter imposed be quashed and set aside.

The matter be remitted to the Local Court for redetermination without reference to the exchange between the learned Magistrate and the accused made in transcript.

Any other issue of evidence is a matter for the Magistrate then hearing the matter.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.