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: