Clarke v Regina - [2008] NSWCCA 36

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION:
Clarke v Regina [2008] NSWCCA 36

FILE NUMBER(S):
2007/3530

HEARING DATE(S):
12 December 2007

JUDGMENT DATE:
27 February 2008

PARTIES:
Allan Clifford CLARKE (Applicant)
REGINA (Respondent/Crown)

JUDGMENT OF:
Grove J Hulme J Simpson J

LOWER COURT JURISDICTION:
Supreme Court

LOWER COURT FILE NUMBER(S):
70017/2004

LOWER COURT JUDICIAL OFFICER:
Barr J

LOWER COURT DATE OF DECISION:
26 November 2004

LOWER COURT MEDIUM NEUTRAL CITATION:
Regina v Clarke [2004] NSWSC 1125

COUNSEL:
W Dawe QC and M C Hay (Applicant)
J Girdham (Respondent/Crown)

SOLICITORS:
Simon Palmer (Applicant)
Solicitor for Public Prosecutions (Respondent)

CATCHWORDS:
CRIMINAL LAW AND PROCEDURE
Conviction by jury for manslaughter on indictment for murder
Sentence
Provocation as basis for conviction
Hearsay provocation not available
Correctness of R v Quartly (1986) 11 NSWLR 332 reserved for determination in suitable appeal
No lesser sentence than imposition appropriate

LEGISLATION CITED:
s 23 Crimes Act 1900

CATEGORY:
Principal judgment

CASES CITED:
Davis v The Queen (1998) 73 ALJR 139
R v Davis [1998] 100 A Crim R 573
R v Mohamad Ali [2005] NSWSC 334
R v Quartly (1986) 11 NSWLR 332
Savas v The Queen (1995) 183 CLR 1

TEXTS CITED:

DECISION:
Extension of time to appeal and leave to appeal against sentence granted.
Appeal dismissed.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

CCA 2007/3530
GROVE J
HULME J
SIMPSON J
27 February 2008

Allan Clifford CLARKE v REGINA

Judgment

GROVE J: This is an appeal against severity of sentence imposed by Barr J in the Supreme Court. The applicant was tried in October 2004 before his Honour and a jury upon an indictment charging murder and was found not guilty of murder but guilty of manslaughter. For that offence he was sentenced to imprisonment consisting of a non-parole period of six years dating from 12 April 2003 and expiring on 11 April 2009 with a balance term of two years.
The present application was filed on 2 August 2007. It was not accompanied by any requisite material in support of the necessary extension of time for its lodgement. Sentence had been imposed on 26 November 2004. However, on 10 November 2005 the applicant filed a formal notice seeking extension of time in which he confirmed that he sought only to challenge the severity of his sentence. He stated that he had anticipated that Legal Aid would attend to “administrative tasks” and it was not until 20 October 2005 that he was informed of the decision not to fund the appeal, hence the filing abovementioned. Ultimately the applicant was represented at the hearing by Mr Dawe QC and Mr Hay instructed by Mr Simon Palmer, solicitor, all of whom provided their services on a pro bono basis. In the circumstances I consider it appropriate to assess the merits of the arguments addressed on behalf of the applicant without any obstacle created by the substantial delay in the pursuit of the application.
In brief, the applicant, his daughter Narelle and the victim Mr Searle lived…

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 Clarke v Regina

Details

AGLC: Clarke v Regina [2008] NSWCCA 36
Case: [2008] NSWCCA 36
Decision Date: 27 February 2008

CaseChat Overview and Summary

The appellant, Clarke, was convicted of manslaughter by a jury for an indictment of murder. Clarke appealed against his conviction and sentence, arguing that the trial judge erred in excluding certain hearsay evidence of provocation. The High Court of Australia heard the appeal. The central legal issue was whether hearsay evidence could be used as a basis for a manslaughter conviction on the ground of provocation. The court had to determine if the exclusion of such evidence was appropriate and whether it affected the conviction. The High Court held that hearsay evidence could not be considered for provocation in such circumstances. The court reserved the correctness of the earlier case of R v Quartly for a later determination, considering it not suitable for resolution in this appeal. The court concluded that the appellant's conviction for manslaughter and the sentence imposed were correct and no lesser punishment was appropriate.

Orders