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Clark v R

Clark v R

Case [2012] NSWCCA 158 1 August 2012

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Clark v R [2012] NSWCCA 158
Hearing dates: 27 April 2012
Decision date: 01 August 2012
Before: Basten JA at [1]
Johnson J at [2]
Garling J at [54]
Decision:
Leave to appeal against conviction refused.
Leave to appeal against sentence refused.

Catchwords: CRIMINAL LAW - appeal - murder - Applicant pleads guilty to shooting murder of grandfather - Applicant gives evidence for Crown at trial of Applicant's co-accused (father) - Applicant seeks leave to appeal against conviction - claim of miscarriage of justice arising from Applicant's legal representation - no merit in conviction grounds - Applicant given prudent and realistic advice to plead guilty - findings on sentence not unfavourable to Applicant - leave to appeal against conviction refused - appeal against sentence - challenge to findings of fact by sentencing Judge - reliance upon Applicant's post-sentence transgender status - no merit in sentence grounds - leave to appeal against sentence refused
Legislation Cited: Criminal Appeal Act 1912
Cases Cited: Rasic v R [2009] NSWCCA 202
R v Clark (No. 3) [2008] NSWSC 795
Clark v R [2010] NSWCCA 94
Clark v The Queen [2010] HCATrans 256
Thalari v R [2009] NSWCCA 170; 75 NSWLR 307
R v Birks (1990) 19 NSWLR 677
TKWJ v The Queen [2002] HCA 46; 212 CLR 124
Ali v The Queen [2005] HCA 8; 79 ALJR 662
Nudd v The Queen [2006] HCA 9; 80 ALJR 614
R v Cornwell [2003] NSWSC 97; 57 NSWLR 82
Aoun v R [2011] NSWCCA 284
Norrie v R [2008] NSWCCA 185
Springer v R [2007] NSWCCA 289; 177 A Crim R 13
Category: Principal judgment
Parties: Ben Richard Clark (now known as Stephanie Elizabeth Clark) (Applicant)
Regina (Respondent)
Representation: Counsel:
Applicant in Person
Mr RA Herps (Respondent)
Solicitors:
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2006/4313
Decision under appeal

Date of Decision:

2007-08-24 00:00:00

Before:

Patten AJ

File Number(s):

2006/2651

Judgment

BASTEN JA: I agree with Johnson J that leave to appeal against both conviction and sentence should be refused. I agree with his reasons for those orders.

JOHNSON J: By Notice of Appeal filed on 30 August 2011, the Applicant, Ben Richard Clark (now known as Stephanie Elizabeth Clark) seeks leave to appeal with respect to conviction and sentence passed by Patten AJ on 24 August 2007, following a plea of guilty to a charge of murder.

The Applicant was sentenced by Patten AJ to imprisonment comprising a non-parole period of 14 years commencing on 14 July 2005 and expiring on 13 July 2019, with a balance of term of six years commencing on 14 July 2019 and expiring on 13 July 2025.

The Applicant appeared unrepresented before this Court and has prepared the Notice of Appeal and Application for Extension of Time to Appeal, together with written submissions, for the purpose of these proceedings. The Registrar of the Court of Criminal Appeal extended time…

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 [2012] NSWCCA 158
Case: [2012] NSWCCA 158
Decision Date: 01 August 2012

CaseChat Overview and Summary

In Clark v R, the applicant appealed against both his conviction for murder and the sentence imposed. The applicant had pleaded guilty to the shooting murder of his grandfather and provided evidence for the Crown at the trial of his co-accused, his father. The applicant sought leave to appeal against his conviction, arguing a miscarriage of justice due to his legal representation. Additionally, he challenged the sentence imposed, arguing the sentencing judge's findings of fact were flawed, particularly in light of the applicant's transgender status post-sentence.

The court considered whether there were any legal issues that warranted an appeal against the conviction or sentence. Regarding the conviction, the court found no merit in the applicant's argument that his legal representation was deficient, and the advice to plead guilty was both prudent and realistic. The court also noted that the findings on sentence were not unfavourable to the applicant, further undermining the appeal grounds.

Consequently, the court refused leave to appeal against both the conviction and the sentence. The court determined that the applicant's legal representation was adequate, and the decision to plead guilty was made with sound legal advice. As for the sentence, the court found no merit in the applicant's challenge to the sentencing judge's findings of fact, and the applicant's transgender status post-sentence did not provide a basis for appeal. The court upheld the conviction and sentence, dismissing the appeal in its entirety.

Orders