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Clark v R

Clark v R

Case [2010] NSWCCA 94 11 May 2010

Appeal

Admissibility of Evidence

Jury Conduct

Criminal Law

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Appeal Outcome: Special leave refused by the High Court (s152/2010) 1 October 2010

New South Wales

Court of Criminal Appeal

CITATION: Clark v R [2010] NSWCCA 94

HEARING DATE(S): 7 December 2009

JUDGMENT DATE:
11 May 2010

JUDGMENT OF: Hodgson JA; Howie J; Johnson J

DECISION: Leave to appeal granted. Appeal against conviction dismissed.

CATCHWORDS: CRIMINAL LAW – Appeal against conviction – Whether evidence should have been rejected as unfairly prejudicial – Whether juror should have been discharged – Whether summing-up unfair by reason of inclusion of matters not relied on in Crown’s address.

LEGISLATION CITED: Criminal Appeal Act 1912 s.5(1)
Evidence Act 1995 s.135, s.137

CATEGORY: Principal judgment

CASES CITED: Crofts v R [1996] HCA 22; (1996) 186 CLR 427
Maric v The Queen (1978) 52 ALJR 631
Qoro v R [2008] NSWCCA 220
Rasic v R [2009] NSWCCA 202
R v Clark (No. 1) [2008] NSWSC 820
R v Clark (No. 2) [2008] NSWSC 821
R v Meher [2004] NSWCCA 355
Robinson v R [2006] NSWCCA 192; (2006) 162 A Crim R 88
Sieders v R [2008] NSWCCA 187; (2008) 72 NSWLR 417
Smale v R [2007] NSWCCA 328

PARTIES: Michael Rex CLARK (applicant)
Regina (respondent)

FILE NUMBER(S): CCA 2006/3605

COUNSEL: M THANGARAJ (applicant)
M GROGAN (respondent)

SOLICITORS: Matouk Joyner Lawyers (applicant)
S Kavanagh (Solicitor for Public Prosecutions)

LOWER COURT JURISDICTION: Supreme Court

LOWER COURT FILE NUMBER(S): 2006/3065

LOWER COURT JUDICIAL OFFICER: Kirby J

LOWER COURT DATE OF DECISION: 10 March 2008, 27 March 2008

LOWER COURT MEDIUM NEUTRAL CITATION: R v Clark [no 1] [2008] NSWSC 820,
R v Clark [no 2] [2008] NSWSC 821

- 1 -

2006/3605

HODGSON JA
HOWIE J
JOHNSON J

11 May 2010

CLARK, Michael Rex v R

Judgment

1 THE COURT: Between 10 March 2008 and 2 May 2008, the appellant was tried in the Supreme Court of New South Wales before Kirby J and a jury on an indictment containing two charges. The first charge was that the appellant on 30 April 2005 at Bexley in the State of New South Wales did murder Ernest Richard Clark (the appellant’s father, who will be referred to as “the deceased”). The second charge, brought in the alternative, was that on 30 April 2005 Ben Richard Clark (the appellant’s son, who will be referred to as “Ben”) did murder the deceased and that the appellant, knowing that Ben had murdered the deceased, did “assist, maintain, harbour or receive” Ben.

2 There was no dispute that Ben had murdered the deceased, and that the appellant was not present at the time; and the appellant also accepted guilt in relation to the second count. The Crown case was that the appellant agreed with Ben to murder the deceased.

3 At the commencement of the trial, the appellant pleaded not guilty to murder and guilty to the alternative count of accessory after the fact to murder. The Crown did not accept the plea of guilty to the alternative count, and the matter…

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 [2010] NSWCCA 94
Case: [2010] NSWCCA 94
Decision Date: 11 May 2010

CaseChat Overview and Summary

Clark appealed against his conviction for murder, arguing that the evidence presented during the trial was unfairly prejudicial, warranting the exclusion of such evidence. Additionally, he contended that a juror should have been discharged due to potential bias, and that the summing-up by the trial judge was unfair as it included matters not argued by the prosecution. The case was heard in the High Court of Australia.

The primary legal issues for the court to determine were whether the trial judge erred in admitting evidence that was potentially prejudicial, whether the juror should have been discharged due to potential bias, and if the summing-up by the trial judge included matters not relied upon by the prosecution, thereby being unfair. Each of these issues had significant implications for the fairness and integrity of the trial.

The court examined the nature of the evidence and concluded that, while it was prejudicial, it was not so unfairly prejudicial as to warrant exclusion. Regarding the juror, the court found no basis for discharging the juror, as the potential bias did not meet the required threshold. The court also considered the summing-up and determined that, although some points included were not explicitly argued by the prosecution, they were not critical to the overall fairness of the summing-up. Consequently, the court dismissed the appeal and upheld the conviction.

The final orders of the court were to dismiss the appeal, thereby affirming Clark’s conviction for murder. The judgment emphasised the importance of maintaining the integrity of the trial process while also ensuring that the rights of the accused are protected.

Orders