KLEWER v FLEMING LCM [2005] NSWSC 1318

New South Wales Supreme Court

KLEWER v FLEMING LCM [2005] NSWSC 1318 CITATION : This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S) : 18 April 2005, 21 April 2005

JUDGMENT DATE : 10 January 2006

JURISDICTION : Common Law

JUDGMENT OF : Adams J at 1

DECISION : Appeal dismissed with costs

CATCHWORDS : Appeal from Local Court - alleged errors of fact and law - no question of principle

Companion Animals Act 1998 s 22 Crimes Act 1900 ss 58, 61 LEGISLATION CITED : Crimes (Local Courts Appeal and Review) Act 2001 Evidence Act 1975 s138 Summary Offences Act 1988 s 11C(1)

CASES CITED : DPP v Carr (2002) 127 A Crim R 151

Lucy KLEWER (Plaintiff) PARTIES : Judith Mary FLEMING (Magistrate) First defendant DIRECTOR OF PUBLIC PROSECUTIONS (NSW) Second defendant

FILE NUMBER(S) : SC 12804/04

Plaintiff in person COUNSEL : Mr Richard Lancaster (2nd Defendant)

Plaintiff unrepresented SOLICITORS : I V Knight (1st Respondent) S C Kavanagh (2nd Respondent)

LOWER COURT JURISDICTION : Local Court

LOWER COURT JUDICIAL OFFICER : Fleming LCM

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

ADAMS J

Tuesday 10 January 2006

12804/04 Lucy KLEWER v Judith Mary FLEMING LCM & 1 ORS

JUDGMENT 1 HIS HONOUR: On 16 August 2004 the plaintiff appeared in the Local Court at Coffs Harbour charged with five offences. Having regard to their connection with a single set of circumstances, the charges were heard together. In short, it was alleged that at a public walkway in the Opal Cove Resort at Coffs Harbour the plaintiff carried a knife visibly in the presence of Mr and Mrs Gintowt in a manner that would be likely to cause a person or reasonable firmness present at the scene to fear for his or her personal safety, that when she did so by wielding the knife and using threatening language she assaulted Mr and Mrs Gintowt and that, when Senior Constable Murphy and Constable Brown attended at her home to arrest her she resisted them in the execution of this duty. These offences arose respectively under s 11C(1) of the Summary Offences Act 1988, and ss 61 and 58 of the Crimes Act 1900. 2 The plaintiff was unrepresented throughout the hearing which occurred on 16, 18 and 20 August 2004. On the last day of the hearing, the plaintiff was convicted of all five charges. The plaintiff has appealed to this Court under Part 5 of the Crimes (Local Courts Appeal and Review) Act 2001. Section 52(1) gives any person who has been convicted by a Local Court the right to appeal to the Supreme Court against the conviction, but only on the ground that involves a question of law alone. Section 53(1) allows an appeal to the Supreme Court on a ground involving a question of fact or question or mixed law and fact but only by leave of the Court. As will appear, many of the grounds relied on by the plaintiff are either questions of fact or questions of mixed law and fact. Although she has not, in terms, sought leave to appeal, the plaintiff filed and served written submissions stating her grounds of appeal and, in the circumstances, I am prepared to treat these submissions as an application for leave to appeal.