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Clark v R

Clark v R

Case [2014] NSWCCA 236 30 October 2014

Appeal

Perverting the Course of Justice

Breach of Contract

Admissibility of Evidence

Judicial Review

Criminal Law

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Court of Criminal Appeal

New South Wales

Case Title: Clark v R

Medium Neutral Citation: [2014] NSWCCA 236

Hearing Date(s): 14 July 2014

Decision Date: 30 October 2014

Before: Leeming JA at [1];
Price J at [93];
McCallum J at [94]

Decision:
1. Leave to raise proposed grounds 4.2 and 5 refused.
2. Otherwise grant leave to appeal.
3. Appeal dismissed.
4. Application to reopen dismissed.

Catchwords: CRIMINAL LAW - appeal against conviction - perverting the course of justice - appellant claimed to have sound recordings of police officers soliciting a bribe - in civil proceedings the appellant was directed to produce the sound records, but failed to do so, leading to his being charged - whether failure to call officer said to have been recorded led to a miscarriage of justice - whether failure to comply with Crown's duty of disclosure - whether error in appellant's criminal record being placed before the jury - whether other alleged errors led to miscarriage of justice - appeal dismissed

Legislation Cited: Crimes Act 1900 (NSW), ss 61A(1), 61M
Criminal Appeal Rules (NSW), r 4
Listening Devices Act 1984 (NSW)
Mental Health (Forensic Provisions) Act 1990 (NSW), s 8

Cases Cited: Carney v R; Cambey v R [2011] NSWCCA 223; 217 A Crim R 201
Clark v State of New South Wales [2006] NSWSC 673; 66 NSWLR 640
Clark v State of New South Wales [2012] NSWCA 139
Clark v State of New South Wales; Clark v Robards [2014] NSWSC 742
Ekermawi v Harbour Radio Pty Ltd [2013] NSWCA 54
R v Gidley (1984) 3 NSWLR 168

Category: Principal judgment

Parties: Peter Frederick Clark (Applicant)
Crown (Respondent)

Representation

- Counsel: Counsel:
Self-represented (Applicant)
J Girdham SC (Crown)

- Solicitors: Solicitors:
Self-represented (Applicant)
Solicitor for Public Prosecutions (Crown)

File Number(s): 2008/62317

Decision Under Appeal

- Before: Freeman DCJ

- Date of Decision: 31 August 2011

- Court File Number(s): 2008/62317

JUDGMENT

LEEMING JA: The appellant, Mr Peter Frederick Clark, applies for leave to appeal from his conviction on 31 August 2011 following a trial over 14 days before a judge and jury of twelve of the single charge on which he was indicted:
"Between the 11th and the 13th day of October 2004 at Sydney and other places in the State of New South Wales, did engage in conduct that had a tendency to pervert the course of justice, namely, being required to present a mini-cassette recording and a CD that were in his possession for such examination as may be directed by Court, did take steps to make such documents unavailable for suitable directions by the Court, with the intention that engaging in such conduct would pervert the course of justice."
On 15 September 2011, Freeman DCJ imposed a sentence of imprisonment for 2 years and 8 months, with a non-parole period of 2 years. That sentence was to commence from 7 June 2020, in consequence of the fact that Mr Clark was already serving sentences imposed following his convictions…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Clark v R

Details

AGLC: Clark v R [2014] NSWCCA 236
Case: [2014] NSWCCA 236
Decision Date: 30 October 2014

CaseChat Overview and Summary

The case of Clark v R was heard by the High Court of Australia. The appellant, Clark, was convicted of perverting the course of justice. Clark claimed to possess sound recordings of police officers soliciting a bribe. Despite being ordered to produce these recordings in civil proceedings, Clark failed to do so, resulting in a charge against him. Clark appealed his conviction, arguing that his failure to call a specific officer he claimed to have recorded constituted a miscarriage of justice. Additionally, he contended that there was a failure by the Crown to discharge its duty of disclosure, an error in the appellant's criminal record being presented to the jury, and other alleged errors contributing to a miscarriage of justice.

The court was required to decide several legal issues, including whether the failure to call a specific officer led to a miscarriage of justice, whether there was a failure on the part of the Crown to comply with its duty of disclosure, whether the error in the appellant's criminal record being presented to the jury was significant, and whether other alleged procedural errors contributed to a miscarriage of justice. The court considered the implications of these issues on the fairness and integrity of the trial process.

In examining the appeal, the court concluded that the failure to call the officer did not result in a miscarriage of justice as the evidence presented was sufficient to uphold the conviction. The court found no evidence of a failure by the Crown to comply with its duty of disclosure. It also determined that the error in the appellant's criminal record did not affect the outcome of the trial. Finally, the court found that the other alleged procedural errors did not contribute to a miscarriage of justice. Consequently, the appeal was dismissed.

The High Court upheld the conviction, finding no basis for the appeal. The court's decision was final, and the conviction remained intact. The appellant's arguments regarding the failure to call a specific officer, the Crown's duty of disclosure, the error in the criminal record, and other procedural errors were not sufficient to overturn the conviction.

Orders