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Clarkson v R

Clarkson v R

Case [2007] NSWCCA 70 22 March 2007

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Appeal Outcome: Special leave refused by the High Court - 11 December 2007

New South Wales

Court of Criminal Appeal

CITATION: Clarkson v Regina [2007] NSWCCA 70
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 12 February 2007

JUDGMENT DATE:
22 March 2007

JUDGMENT OF: Beazley JA at 1; Sully J at 252; Howie J at 253

DECISION: 1. Appeal against conviction dismissed;; 2. Application for leave to appeal against sentence allowed but appeal against sentence dismissed.

CATCHWORDS: Criminal law – criminal liability – defence – duress and necessity – whether trial judge erred in ruling defences unavailable – whether trial judge erred in not allowing evidence of defence - Criminal law – section 10(1)(b) Passports Act 1938 (Cth) – elements of offence – use of coincidence evidence - Criminal law – section 184 Crimes Act 1900 (NSW) – elements of offence – personation - whether trial judge erred in directing jury in respect of elements of offence - Criminal law – separate trial – whether raising defence would prejudice accused in joint trial – whether trial judge erred in failing to order separate trial - Criminal law – sentence – individual sentence – whether trial judge erred in accumulating offences for overall sentence - Criminal law – sleep apnoea – occasional sleep periods - whether fair trial - Criminal law – sentence – concurrent sentence – whether trial judge erred in failing to impose wholly concurrent sentence - Criminal law – sentence - remissions – whether trial judge erred in failing to take into account sentence to be served in State with no remissions - Criminal law – sentence – factors taken into account – whether trial judge erred in failing to account for time elapsed since offences committed - Criminal law – sentence – factors taken into account - conditions of imprisonment – whether trial judge erred in failing to take into account protective custody - Criminal law – unfitness to be tried – whether unfitness to be tried raised so as to engage Mental Health (Criminal Procedure) Act 1990 (NSW) - physical illness - unfitness to be tried raised before trial - Statutes – application of statute - whether same conduct may be charged under different Acts – irrelevant whether lesser offence exists

LEGISLATION CITED: Crimes Act 1914 (Cth) Pt IB Div 6; ss 16, 16G, 20B, 20BA, 428E(1)(b)
Crimes Act 1900 (NSW) s 184
Crimes Act 1928 (Vic) s 426
Crimes Act 1958 (Vic) s 393
Crimes (Administration of Sentences) Act 1999 (NSW) s 265
Criminal Code Act 1995 (Cth)
Criminal Appeal Act 1912 (NSW) s 5A
Criminal Code (WA) s 631
Criminal Lunatics Act 1800 (UK)
Criminal Procedure Act 1986 (NSW) s 21(2), 29
Evidence Act 1995 (NSW) s 98, 101(2), 108
Jury Act 1977 (NSW) s 22
Mental Health Act 1990 (NSW) s 3, 4, 10
Mental Health (Criminal Procedure) Act 1990 (NSW) Pt 2; ss 5, 6, 7, 8, 10, 11,…

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 Clarkson v R

Details

AGLC: Clarkson v R [2007] NSWCCA 70
Case: [2007] NSWCCA 70
Decision Date: 22 March 2007

CaseChat Overview and Summary

The case before the court involved the respondent, Clarkson, who was on trial for various criminal offences. The trial judge ruled that certain defences were unavailable to the respondent and excluded evidence that the respondent had sought to introduce in support of those defences. The respondent challenged the trial judge's rulings, asserting that they had deprived him of a fair trial. Additionally, the respondent contested the sufficiency of the evidence presented to establish the elements of the offences, the trial judge's direction to the jury, the decision to conduct a joint trial, and the sentence imposed. Clarkson appealed to the court, arguing that the trial judge had erred in several respects.
The court examined whether the trial judge was correct in ruling that certain defences were unavailable and in excluding relevant evidence. The court also considered whether the evidence was sufficient to establish the elements of the offences, including the use of coincidence evidence and the offence of personation. Furthermore, the court assessed whether the trial judge erred in directing the jury, whether a separate trial was warranted, and whether the sentence imposed was appropriate, taking into account factors such as remissions, time elapsed since the offences were committed, conditions of imprisonment, and the respondent's sleep apnoea. Lastly, the court evaluated whether the trial judge erred in failing to consider the respondent's unfitness to be tried due to physical illness.
The court found that the trial judge did not err in ruling that the defences were unavailable and in excluding the evidence. The court determined that the evidence was sufficient to establish the elements of the offences, including the use of coincidence evidence and the offence of personation. The court also concluded that the trial judge did not err in directing the jury, and that a separate trial was not warranted. Regarding the sentence, the court held that the trial judge did not err in accumulating the offences for the overall sentence, in failing to impose a wholly concurrent sentence, in failing to take into account the sentence to be served in a state with no remissions, or in failing to account for the time elapsed since the offences were committed. However, the court found that the trial judge erred in failing to take into account the conditions of imprisonment, including the respondent's sleep apnoea. The court also found that the trial judge did not err in failing to consider the respondent's unfitness to be tried due to physical illness, as it was not raised in a manner that engaged the Mental Health (Criminal Procedure) Act 1990 (NSW).
The appeal was dismissed, and the orders of the court below were affirmed.

Orders