Court of Criminal Appeal
Supreme Court
New South Wales
Medium Neutral Citation: Clarke v R [2012] NSWCCA 272 Hearing dates: 27 November 2012 Decision date: 14 December 2012 Before: Hoeben JA at [1]
Davies J at [93]
S Campbell J at [94]Decision: Leave to appeal be refused in respect of ground of appeal 1.
Grounds of appeal 2 and 3 dismissed.
The hearing of the application for leave to appeal against sentence is stood over to a date to the Registrar's next call over.
Catchwords: CRIMINAL LAW - conviction appeal - five counts of "break and enter premises and commit a serious indictable offence" - adequacy of "Black direction" - whether inappropriate pressure exerted on jury - whether Crown negatived the defence of duress - whether trial miscarried by reason of inappropriate remarks by Crown prosecutor - direction to jury appropriate in the circumstances - sufficient evidence to negative duress - minor errors by Crown prosecutor in address which did not "warrant interference" with the appellant's convictions - appeal dismissed. Legislation Cited: Criminal Appeal Rules - r 4 Cases Cited: Gonzales v Regina [2007] NSWCCA 321; 178 A Crim R 232
Ingham v R [2011] NSWCCA 88
McKey v R [2012] NSWCCA 1
Ngati v R [2008] NSWCCA 3; 180 A Crim R 384
SKA v The Queen [2011] HCA 13; 243 CLR 400
Whitehorn v R [1983] HCA 42; 152 CLR 657Category: Principal judgment Parties: Michael Clarke - Appellant
Regina - Respondent CrownRepresentation: Counsel:
Ms D Hawkins - Applicant
Ms M Cinque - Respondent Crown
Solicitors:
Australian Criminal Law Specialists - Applicant
Mr S Kavanagh, Solicitor for Public Prosecutions - Respondent Crown
File Number(s): 2009/210610 Decision under appeal
- Date of Decision:
- 2011-07-21 00:00:00
- Before:
- Williams DCJ
- File Number(s):
- 2009/210610
Judgment
HOEBEN JA:
Nature of proceedings
This is an appeal and an application for leave to appeal against conviction. The appellant made an application for leave to appeal against sentence but that application required amendment and did not proceed.
The appellant appeared for trial at the Sydney District Court before Judge Williams and a jury of twelve on 7 April 2011 and was arraigned on an indictment containing the following five counts:
Count 1 - On 30 June 2009 at Chatswood in the State of New South Wales, being in company with persons unknown, did break and enter premises of "Alto Group Motorcycles" at 734 Pacific Highway and did commit a serious indictable offence therein, namely larceny.
Count 2 - On 19 August 2009 at Taren Point in the State of New South Wales, being in company with persons unknown, did break and enter the premises of "Cycle City", at 92 Taren Point Road and did commit a serious indictable offence therein, namely larceny.
Count 3 - On 26 August 2009 at Jamisontown in the State of New South Wales, being in company with persons unknown, did break and enter the premises of "Sutto's Motorcycle Supply" at 1 Blaikie Road and did commit…
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- AGLC
- Clarke v The Queen [2012] NSWCCA 272
- Case
- [2012] NSWCCA 272
- Decision Date
CaseChat Overview and Summary
The primary legal issues before the court were whether the trial judge's direction to the jury was appropriate, whether the Crown had correctly negated the defence of duress, and if the trial had miscarried due to the Crown prosecutor's remarks. The court had to consider whether the trial judge's direction adequately protected the appellant's right to a fair trial and whether the Crown had discharged its burden to negate the defence of duress beyond reasonable doubt. Furthermore, the court examined whether any inappropriate remarks by the Crown prosecutor were so prejudicial as to necessitate a mistrial.
The court determined that the trial judge's direction to the jury was appropriate and that there was no undue pressure exerted on the jury. The court held that the Crown had sufficiently negated the defence of duress by presenting evidence that went beyond what was necessary to discharge the burden of proof. The court also found that the minor errors made by the Crown prosecutor in their address did not warrant interference with the appellant's convictions, as they did not prejudice the fairness of the trial. Consequently, the appeal was dismissed, and the appellant's convictions were upheld.
The final orders of the court were to dismiss the appeal and uphold the appellant's convictions on all five counts of breaking and entering premises and committing a serious indictable offence. The court found no merit in the appellant's arguments regarding the trial judge's direction, the Crown's handling of the defence of duress, or the alleged prejudicial remarks by the Crown prosecutor.
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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