Clark v The Queen - [2010] HCATrans 256

[2010] HCATrans 256

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

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…

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 The Queen

Details

AGLC: Clark v The Queen [2010] HCATrans 256
Case: [2010] HCATrans 256
Decision Date

CaseChat Overview and Summary

In *Clark v The Queen*, the High Court of Australia considered an appeal against a conviction for murder. The appellant, Clark, had been found guilty of murder by a jury in the Supreme Court of Victoria. The central dispute revolved around the admissibility of certain evidence and the directions given by the trial judge to the jury.

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