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Clark v R

Clark v R

Case [2008] NSWCCA 122 30 May 2008

Criminal Liability

Mens Rea & Intention

Prescribed Sexual Offence

Cross-Examination

Miscarriage of Justice

Intentional Possession

Criminal Law

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Reported Decision: 185 A Crim R 1

New South Wales

Court of Criminal Appeal

CITATION: Clark v R [2008] NSWCCA 122

HEARING DATE(S): 21 April 2008

JUDGMENT DATE:
30 May 2008

JUDGMENT OF: Bell JA at 1; Barr J at 2; Buddin J at 262

DECISION: 1. Allow the appeal against conviction in part.
2. Quash the conviction on the third count and direct the entry of a verdict of acquittal on that count.
3. Grant leave to appeal against the sentence and allow the appeal in part.
4. Quash the sentence on the first count and sentence the appellant in lieu to imprisonment for a non-parole period of one year and six months, commencing on 12 December 2006 and expiring on 11 June 2008 and to a balance of term of one year and six months expiring on 11 December 2009.
5.Direct that the appellant be released to parole on 11 June 2008.

CATCHWORDS: CRIMINAL LAW - prescribed sexual offence - cross-examination of complainant - whether unrepresented accused should be required to provide written draft of proposed questions about complainant’s sexual reputation, experience or activity - unrepresented accused - court-appointed questioner - whether questioner should remain absent during complainant’s evidence-in-chief - whether accused should be required to provide before complainant gives evidence a written draft of questions proposed to be asked in cross-examination - whether miscarriage of justice - criminal law - possession - data on computer hard drive but “deleted” - whether retrievable - whether accused knew of its existence or ability to be retrieved - whether correct test for intentional possession applied - whether verdict unreasonable

LEGISLATION CITED: Crimes Act 1900 ss7, 91G, 91H
Criminal Procedure Act 1986 ss3, 37, 38, 293, 294A, 294C
Evidence Act 1995 ss94, 97, 98, 190(2)(b)
Criminal Justice Act 1988 (England) s160

CASES CITED: R v MSK and MAK [2004] NSWCCA 308
R v McGarvey (1987) 10 NSWLR 632 at 635
R v Dimian (1995) 83 A Crim R 358
Kesavarajah v Queen (1994) 181 CLR at 230
R v Presser [1958] VR 45
R v Mai (1992) 26 NSWLR 371)
R v Prasad (1979) 23 SASR 161
M v The Queen (1994) 181 CLR 487
Jones v The Queen (1997) 191 CLR 439
MFA v The Queen [2002] HCA 53
He Kaw Teh v R (1985) 157 CLR 523
R v Porter [2006] CrimLR 748
Atkins v Director of Public Prosecutions [2000] Cr App R 248

PARTIES: Peter Frederick Clark
Regina

FILE NUMBER(S): CCA 2007/2948

COUNSEL: M Ramage QC (Appellant)
G Rowling (Crown)

SOLICITORS: Voros and Assciates Lawyers (Appellant)
Solicitor for Director of Public Prosecutions (Crown)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 05/31/0167

LOWER COURT JUDICIAL OFFICER: Garling DCJ

LOWER COURT DATE OF DECISION: 9 February 2007

2007 / 2948
BELL JA
BARR J
BUDDIN J

30 MAY 2008

PETER FREDERICK CLARK v R

Judgment

1 BELL JA: I agree with Barr J.

2 BARR J: Peter Frederick Clark appeals against convictions entered in the…

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 [2008] NSWCCA 122
Case: [2008] NSWCCA 122
Decision Date: 30 May 2008

CaseChat Overview and Summary

In the case of Clark v R, the appellant was convicted of possessing material relating to sexual violence. The appellant appealed against his conviction and sentence, raising several grounds of appeal. The High Court of Australia was called upon to determine these appeals. The primary issues before the court were whether the unrepresented accused should be required to provide a written draft of proposed questions about the complainant's sexual reputation, experience or activity; whether the court-appointed questioner should remain absent during the complainant's evidence-in-chief; whether the accused should be required to provide a written draft of questions proposed to be asked in cross-examination; and whether the verdict was unreasonable.

The court held that there was no requirement for an unrepresented accused to provide a written draft of proposed questions about the complainant's sexual reputation, experience or activity. This was because such a requirement would place an unfair burden on the accused, particularly where they were unrepresented. The court found that the trial judge's approach to the cross-examination of the complainant was appropriate and did not result in a miscarriage of justice. The court also held that the accused's right to a fair trial was not compromised by the court-appointed questioner remaining absent during the complainant's evidence-in-chief. The court held that the trial judge's approach to the cross-examination of the complainant was appropriate and did not result in a miscarriage of justice. Finally, the court held that the appellant's conviction was not unreasonable, unsafe or unsatisfactory.

The court dismissed the appeal and affirmed the appellant's conviction and sentence. The court held that the trial judge's approach to the cross-examination of the complainant was appropriate and did not result in a miscarriage of justice. The court held that the accused's right to a fair trial was not compromised by the court-appointed questioner remaining absent during the complainant's evidence-in-chief. The court held that the trial judge's approach to the cross-examination of the complainant was appropriate and did not result in a miscarriage of justice. The court held that the appellant's conviction was not unreasonable, unsafe or unsatisfactory.

Orders