Clarke v The Queen - [2012] NSWCCA 272

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 657
Category: Principal judgment
Parties: Michael Clarke - Appellant
Regina - Respondent Crown
Representation: 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…

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 The Queen

Details

AGLC: Clarke v The Queen [2012] NSWCCA 272
Case: [2012] NSWCCA 272
Decision Date: 14 December 2012

CaseChat Overview and Summary

Clarke v The Queen involved the appellant who was convicted on five counts of breaking and entering premises and committing a serious indictable offence. The appeal centred on the adequacy of the trial judge's direction to the jury, commonly referred to as the "Black direction", and whether there was inappropriate pressure exerted on the jury. Additionally, the appeal questioned whether the Crown had properly negatived the defence of duress and if the trial had miscarried due to inappropriate remarks made by the Crown prosecutor. The High Court of Australia was the court in which this appeal was heard.

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