Clark v R

Case [2008] NSWCCA 122


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…

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Clark v R [2008] NSWCCA 122
Case
[2008] NSWCCA 122
Decision Date

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

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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