Lewis v Spencer [2007] NSWSC 1383

Reported Decision : 179 A Crim R 48

New South Wales Supreme Court

CITATION : Lewis v Spencer [2007] NSWSC 1383

HEARING DATE(S) : 24 October 2007

JUDGMENT DATE : 5 December 2007

JURISDICTION : Common Law

JUDGMENT OF : Rothman J

1. Leave to appeal be granted.

2. Time to file appeal be extended to 27 August 2007, which was the date of the filing.

3. The decision and order of the learned Magistrate his Honour James Garbett LCM refusing to adjourn the prosecution of Martin Dean Lewis made on or about 13 June 2007 be quashed. DECISION : 4. The conviction and sentence of the aforesaid Martin Dean Lewis thereafter imposed be quashed and set aside.

5. The matter be remitted to the Local Court for redetermination without reference to the exchange between the learned Magistrate and the accused made in transcript.

6. Any other issue of evidence is a matter for the Magistrate then hearing the matter.

CATCHWORDS : PRACTICE AND PROCEDURE – refusal of adjournment – appeal against refusal of legal aid – principles for lack of bona fides – unreasonable and vexatious – improper delay – no basis for refusal of adjournment – error by magistrate – appeal granted - CRIMINAL LAW – goods in custody – reasonable suspicion – authorities examined – hearsay evidence.

Crimes Act 1900 LEGISLATION CITED : Crimes (Appeal and Review) Act 2001 Legal Aid Commission Act 1979

Ex Parte Patmoy; Re Jack [1944] 44 SR (NSW) 351 Fibre-Tek (Gold Coast) Pty Ltd v Sky Bennett [2006] NSWSC 1100 Krishna v DPP (NSW) [2007] NSWCCA 318 Manley v Tucs (1985) 40 SASR 1 CASES CITED : Morris v Russell (1990) 100 FLR 386 (ACT Supreme Court) Parker v Todhunter (1987) 89 FLR 294 Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 Public Service Association v Federated Clerks Union (1991) 173 CLR 132 Shaaban Bin Hussein v Chong Fook Cam [1970] AC 942 Williams v Keelty [2001] FCA 1301; (2001) 111 FCR 175