IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Sydney No S152 of 2010
B e t w e e n -
MICHAEL REX CLARK
Applicant
and
THE QUEEN
Respondent
Application for special leave to appeal
HAYNE J
CRENNAN J
TRANSCRIPT OF PROCEEDINGS
AT SYDNEY ON FRIDAY, 1 OCTOBER 2010, AT 10.10 AM
Copyright in the High Court of Australia
MR G.O’L. REYNOLDS, SC: May it please the Court, I appear for the applicant with my learned friend, MR P.D. LANGE. (instructed by Matouk Joyners Lawyers)
MS D.M.L. WOODBURNE, SC: May it please the Court, I appear for the respondent. (instructed by Solicitor for Public Prosecutions (NSW))
HAYNE J: Yes, Mr Reynolds. Mr Reynolds, we have your supplementary submissions, or supplementary summary of argument, more accurately, dated 28 September.
MR REYNOLDS: I am grateful for that, your Honour.
HAYNE J: And the correction that you later sent up.
MR REYNOLDS: Thank you very much.
HAYNE J: Thank you.
MR REYNOLDS: Your Honours, before I commence, I need an extension of time. I understand that is not opposed.
HAYNE J: Is that so, Mrs Woodburne.
MS WOODBURNE: That is so.
HAYNE J: Yes. You may have the necessary extension, Mr Reynolds.
MR REYNOLDS: If the Court pleases. Your Honours will have seen in the submissions originally filed by my client it was submitted that there was a miscarriage because the directions at the trial were contrary to the well‑established case law. The written directions which were given to the jury are contained in our latest summary of argument at paragraph 4, conveniently.
If your Honours look at this written direction, your Honours will see that paragraph 1 talks about an agreement to kill Mr Ernest Clark and paragraphs 2, 3 and 4 can really be telescoped down to saying then that as a consequence Ben Clark murdered Ernest Clark. The effect of those directions is really to state that if – if I can put it in general terms – A and B agree that B will kill X, and B then murders X as a consequence, then A too is guilty of murder in accordance with the doctrine of common enterprise.
Now, in the original submissions we submitted that that direction was defective because it made no reason of the further requirement of what we have called “participation”, whether that be participation by assistance, encouragement or presence at the scene, and we have submitted that that view of the law was supported by the decision of the Court of Criminal Appeal in this State in R v Tangye.
Your Honours’ associates have the relevant pages of that decision. If your Honours go to pages 556 to 557, your Honours will see, beginning about two‑thirds of the way down the page, that there is a statement of the law in four numbered paragraphs. Please excuse the highlighting, but I have done that to make things easier. This is a statement of principle by…
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- AGLC
- Clark v The Queen [2010] HCATrans 256
- Case
- [2010] HCATrans 256
- Decision Date
CaseChat Overview and Summary
The High Court was required to determine whether the trial judge had erred in admitting evidence obtained from the appellant, which the appellant argued was obtained in contravention of his rights. Furthermore, the Court had to consider whether the judge's directions to the jury regarding the issue of self-defence, and the onus of proof in relation to that defence, were adequate and legally sound.
Hayne and Crennan JJ found that the trial judge had erred in admitting the evidence in question, as it had been obtained in circumstances that breached the appellant's rights. Their Honours also concluded that the directions given to the jury on self-defence were insufficient, particularly concerning the onus of proof. The Court held that the cumulative effect of these errors meant that the conviction could not stand.
Consequently, the High Court allowed the appeal, quashed the conviction for murder, and ordered a new trial.
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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