Clee v R - [2009] NSWCCA 18

New South Wales
Court of Criminal Appeal

CITATION: Robert Clee v R [2009] NSWCCA 18

HEARING DATE(S): 24 September 2008

JUDGMENT DATE:
17 February 2009

JUDGMENT OF: Beazley JA at 1; Hislop J at 2; Harrison J at 56

DECISION: Appeal dismissed.

CATCHWORDS: CRIMINAL LAW – conviction appeal – competence of counsel – directions to jury – rule 4.

LEGISLATION CITED: Crimes Act, 1900
Criminal Appeal Act, 1912
Criminal Appeal Rules
Evidence Act

CATEGORY: Principal judgment

CASES CITED: Ali v The Queen [2005] HCA 8; (2005) 214 ALR 1
Nudd v The Queen [2006] HCA 9; (2006) 225 ALR 161
R v Birks (1990) 19 NSWLR 677
Seymour v R [2006] NSWCCA 206; (2006) 162 A Crim R 576
TKWJ v R [2002] HCA 46; (2002) 212 CLR 124

PARTIES: Robert Joseph Clee (Appellant)
Regina (Respondent)

FILE NUMBER(S): CCA 2007/3200

COUNSEL: In person (Appellant)
P Miller (Respondent)

SOLICITORS: Solicitor for Public Prosecutions (Respondent)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 05/21/0305

LOWER COURT JUDICIAL OFFICER: Knox SC

LOWER COURT DATE OF DECISION: 08/06/07

2007/3200

BEAZLEY JA
HISLOP J
HARRISON J
17 FEBRUARY 2009

ROBERT CLEE v R

Judgment

1 BEAZELY JA: I agree with Hislop J.

2 HISLOP J:

Introduction

“1. The conduct of counsel in raising the issue and adducing evidence of the appellant’s criminal convictions and bad character gave rise to a miscarriage of justice.

2. His Honour’s failure to direct the jury about the permissible uses of the evidence of the appellant’s criminal convictions gave rise to a miscarriage of justice.

3. His Honour’s summing up involved a factual error which gave rise to a miscarriage of justice.”

3 The appellant was charged on indictment on the following counts:

Crimes Act

4 During the course of the trial, the Crown withdrew count 1 and on 13 December 2006 the jury returned a verdict of guilty on the statutory (s 115A) alternative to count 2, namely that the appellant entered the dwelling house of the complainant with intent to commit a serious indictable offence, namely to intimidate, contrary to the Crimes Act, 1900, s 111(1). The maximum penalty for that offence is 10 years imprisonment.

5 On 8 June 2007 the appellant was sentenced…

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 Clee v R

Details

AGLC: Clee v R [2009] NSWCCA 18
Case: [2009] NSWCCA 18
Decision Date: 17 February 2009

CaseChat Overview and Summary

The Court of Appeal heard an appeal against conviction from the respondent, who was convicted of two counts of murder. The appellant's counsel was the subject of the appeal. The appellant's counsel had failed to raise a number of defences and had given inadequate directions to the jury. The Court was asked to consider whether the appellant's counsel had been competent and whether the judge had erred in his directions to the jury.

The central issue before the Court was whether the appellant's counsel had been competent. The Court found that the appellant's counsel had been incompetent in failing to raise a number of defences and in giving inadequate directions to the jury. The Court found that the appellant's counsel had failed to raise the defence of duress and had failed to give adequate directions to the jury on the issue of self-defence. The Court found that the judge had not erred in his directions to the jury.

The Court found that the appellant's counsel had been incompetent in failing to raise a number of defences and in giving inadequate directions to the jury. The Court found that the appellant's counsel had failed to raise the defence of duress and had failed to give adequate directions to the jury on the issue of self-defence. The Court found that the judge had not erred in his directions to the jury. The Court found that the appellant's counsel had been incompetent and that this had resulted in a miscarriage of justice. The Court allowed the appeal, quashed the convictions and ordered a retrial.

The Court ordered that the respondent be retried on the charges of murder. The Court found that the appellant's counsel had been incompetent and that this had resulted in a miscarriage of justice. The Court allowed the appeal, quashed the convictions and ordered a retrial. The Court did not make any orders as to costs.

Orders