Regina v Lewis [2001] NSWCCA 345

New South Wales Court of Criminal Appeal

CITATION : Regina v Lewis [2001] NSWCCA 345 FILE NUMBER(S) : CCA 60051/01 HEARING DATE(S) : 20 August 2001 JUDGMENT DATE : 10 September 2001

PARTIES : Regina v Brian James Lewis JUDGMENT OF : Priestley JA at 1; Sully J at 2; Smart AJ at 57

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 98/61/0007 LOWER COURT JUDICIAL Kinchington DCJ OFFICER :

COUNSEL : (A) M C Ramage QC (C) P G Berman SC SOLICITORS : (A) Garden & Montgomerie (C) S E O'Connor CATCHWORDS : Undue intervention by trial judge in examination and cross-examination - erroneous restriction on cross-examination of possible suspect - failure by accused's counsel to lead evidence of good character - evidence incorrectly rejected - competence of counsel - whether verdict not reasonably supported by the evidence M v The Queen (1994) 181 CLR 487 CASES CITED: R v Esposito (1998) 45 NSWLR 442 R v Birks (1990) 19 NSWLR 677 R v L G Wilson CCA unrep 31/3/95 DECISION : Appeal against conviction is allowed - The appellant's conviction and sentence are quashed - Order that there be a new trial.

IN THE COURT OF CRIMINAL APPEAL

60051/01

PRIESTLEY JA SULLY J SMART AJ

Monday 10 September 2001

REGINA v Brian James LEWIS

JUDGMENT 1 PRIESTLEY JA: I agree generally with the reasons of Sully J. In particular the materials he discusses when dealing with grounds of appeal 2, 5 and 6 seem to me to combine so that the grounds reinforce one another and make it necessary, in my opinion, that there should be a new trial.

2 SULLY J: Between 6 and 20 November 2000 Mr. Brian James Lewis, the present appellant, stood trial in the District Court at Parkes before his Honour Judge Kinchington QC and a jury. He was tried upon a charge that on 21 September 1997 he had broken and entered the premises of the Condobolin RSL Club and that he had stolen thereupon amounts of cash totalling $27,633.65. The indictment upon which the appellant was presented for trial contained a second, and alternative charge of receiving an amount of $25,336.75 with knowledge, at the time of the receiving, that such money had been stolen previously from the Condobolin RSL Club. 3 The jury found the appellant guilty as charged of the first count in the indictment: that is to say, the break, enter and steal count. In those circumstances it was not necessary for the jury to return a verdict on the second, and alternative, count in the indictment. The appellant was duly convicted; and he was sentenced to a term of imprisonment. The appellant does not seek leave to appeal against the sentence of imprisonment, and nothing more need be said about it. It is against his conviction of the offence of break, enter and steal that the appellant now appeals. 4 Ten grounds of appeal were notified and argued. They are as follows: