R v WALSH [2004] NSWCCA 290

New South Wales Court of Criminal Appeal

CITATION : R v WALSH [2004] NSWCCA 290 HEARING DATE(S) : 17 August 2004 JUDGMENT DATE : 17 August 2004

JUDGMENT OF : Wood CJ at CL at 1; Hulme J at 2; Bell J at 20 DECISION : The Court refuse an extension of time for filing the stated case and refuse to answer the questions of law submitted as they were submitted out of time

PARTIES : Regina Peter William Walsh FILE NUMBER(S) : CCA 60186/04 COUNSEL : Crown: BR McClintock SC Applicant: SV Kerrigan SOLICITORS : Crown: S Kavanagh Applicant: Robert Dunn & Co

LOWER COURT District Court JURISDICTION : LOWER COURT 03/12/0212 FILE NUMBER(S) : LOWER COURT Christie DCJ JUDICIAL OFFICER :

- 1 - IN THE COURT OF CRIMINAL APPEAL 60186/04

WOOD CJ AT CL HULME J BELL J

Tuesday 17 August 2004 R v Peter William WALSH Judgment 1 WOOD CJ AT CL: I agree with Hulme J. 2 HULME J: On or about 11 August 2003 there was filed in this Court a Notice of Intention to Apply for Leave to Appeal wherein the abovenamed Peter Walsh, to whom I shall hereafter refer as "the Appellant" indicated an intention to appeal against his conviction on a charge of larceny as a bailee. The conviction occurred on 23 July 2003. On 15 April 2004 there was filed in the Court a document entitled "Request for Submission of Stated Case to Court of Criminal Appeal" which took the following form:- "Pursuant to Section 5B of the Criminal Appeal Act 1912 subsection (2), the appellant hereby requests that the following questions of law be submitted to the Court of Criminal Appeal for determination:" 1. Is an appeal to the District Court under section 11 of the Crimes (Local Courts Appeal and Review) Act 2001, by reason of section 18 of that Act, an appeal by way of rehearing or by way of hearing de novo? 2. If such an appeal is by way of hearing de novo, did I err in failing to require the Appellant and Mrs Hermida to give evidence – Berendse v Comptroller-General of Customs (1996) 93 A Crim R 210? 3. Did I err in failing to direct the Appellant and Mrs Hermida to attend and give evidence in the appeal pursuant to section 19(1)(b) of the Crimes (Local Courts Appeal and Review) Act 2001? 4. If such an appeal is by way of rehearing, did I err in failing to read the reasons for decision of the learned Local Court Magistrate? 5. Did I err in deciding independently of the reason given in the learned Local Court Magistrate and without reading those reasons, that the evidence of Mr and Mrs Hermida was credible (judgment page 8 "the strength of the evidence given by Mrs Hermida and her husband") and to be preferred that of the Appellant?