R v Lewis [1988] HCA 24

High Court of Australia Wilson, Brennan, Dawson, Toohey and Gaudron JJ. R v Lewis [1988] HCA 24

ORDER Application for special leave to appeal refused.

The Court delivered the following written judgment:—

May 20 Wilson, Brennan, Dawson, Toohey and Gaudron JJ.

This is an application by the Crown for special leave to appeal from a decision of the Supreme Court of the Northern Territory sitting as the Court of Criminal Appeal delivered on 17 July 1987 whereby a conviction of the respondent was quashed and a judgment and verdict of acquittal entered. There are two grounds advanced in support of the application, both of them concerning the procedure followed by the Court in dealing with the respondent's appeal. It is necessary to describe the course of events in some detail.

On 24 October 1986 the respondent was convicted of unlawful assault on a female with intent to have carnal knowledge accompanied by a circumstance of aggravation in that he had carnal knowledge of that female. The charge was laid pursuant to s. 192(1) and (4) of the Criminal Code N.T.. An application for leave to appeal, on grounds which were never pursued, was lodged. The application came on for hearing on 7 May 1987 by a Court comprising O'Leary C.J., Maurice J. and Muirhead A.J. At the commencement of the proceedings on that day, counsel appearing for the respondent was given leave to withdraw and the matter continued thereafter with the respondent unrepresented but indirectly deriving some benefit from the participation of counsel as amicus curiae. The respondent tendered a twelve-page handwritten document as an outline of the grounds upon which he wished to appeal. Since they raised matters of fact or mixed law and fact, it was necessary for him to obtain the leave of the Court: Criminal Code, s. 410(b). Discussion then proceeded for some hours between members of the Court and the respondent, the amicus curiae and counsel appearing for the Crown. The subject of discussion was the manner in which the Court should proceed to hear the application for leave and in particular whether additional evidence should be received. The matter was then adjourned to the following day. On resumption on 8 May 1987, the Chief Justice sketched the course that the case had taken to that point and continued: