R v Clare - [2022] NSWDC 21

District Court

New South Wales

Medium Neutral Citation: R v Clare [2022] NSWDC 21
Hearing dates: 24 January 2022
Date of orders: 24 January 2022
Decision date: 24 January 2022
Jurisdiction: Criminal
Before: Haesler SC DCJ
Decision:
Evidence of extract from co-accused police interview previously excluded not to be admitted at trial of Clare. For orders - see [57]

Catchwords:
CRIME — Violent offences — Aggravated detain for advantage — In company – actual bodily harm inflicted
CRIMINAL PROCEDURE — Trial — in-trial application to re-visit earlier ruling –admissions of co-accused previously excluded sought to be led in another accused case only-
EVIDENCE — Admissions — Criminal proceedings — improperly obtained- illegality- impropriety- unreliability - unfair prejudice – probative value of evidence
EVIDENCE — Admissions by co-accused whether they can be led in evidence in another co-accused trials- fairness in context of individual trial being tried together- whether evidence can be limited- possible jury directions

Legislation Cited:
Crimes Act 1900
Evidence Act 1995
Law Enforcement (Powers and Responsibilities) Act 2000

Cases Cited:
Hague v R [2019] VSCA 218
IMM v The Queen [2016] 257 CLR 300; [2016] HCA 14
R v Davis (no 6) [2020] NSWSC 1888
R v Morley [2021] NSWDC 681
R v O’Connor [2003] NSWCCA 335
R v Rahme [2001] NSWCCA 414
Sio v The Queen (2016) 259 CLR 47; [2016] HCA 32

Texts Cited:
Australian Law Reform Commission, Interim Report ALRC 26 Vol 1 at [692]; S Odgers Uniform Evidence Law 15 ed. Thompson Rueters

Category: Principal judgment
Parties: Tara Clare (the offender)
Director of Public Prosecutions
Representation:
Counsel:
Ms R Mitchell (for the accused)
Mr M Fox, Crown Prosecutor
Solicitors:
Morrisons Law f/w (for the accused)

File Number(s): 2020/0142023

JUDGMENT - ADmission of Morley’s interview Notes

Introduction

The trials of Cheyne Morley, Tara Clare, Benjamin Walker and Ilo Ilievski commenced at Wollongong District Court on 17 January 2022 before a jury. Each accused face two counts of specially aggravated detain for advantage: s 86 Crimes Act 1900. Mr Ilievski faces an additional related count of deal with the proceeds of crime.
In summary: it is alleged that Mr Morley and Ms Clare were the victims of a drug supply “rip off,” where $9,000 was lost because bath salts rather than the expected methylamphetamine was bought. It is said they and the others held the two alleged victims responsible for the rip off, assaulted and detained them at their residence in the hope, partially successful, that the victims would compensate them for the money lost. It is alleged that the other co-accused joined them in this criminal enterprise.
It is not in dispute that while the alleged victims were at her home one of them transferred $4,000 into Ms Clare’s bank. Later that day Ms Clare withdrew $4,000. Mr Ilievski was arrested later that day with $4,500 on him.
At pre-trial readiness hearings one issue was raised, and only by Mr Morley. On 16 December 2021 I ruled that no evidence relating to…

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 R v Clare

Details

AGLC: R v Clare [2022] NSWDC 21
Case: [2022] NSWDC 21
Decision Date: 24 January 2022

CaseChat Overview and Summary

The case of R v Clare arose in the context of an aggravated detention with intent to obtain an advantage, where actual bodily harm was inflicted upon a victim. The court had to determine the admissibility of certain evidence during the trial, specifically admissions made by a co-accused which had previously been excluded from the proceedings. The trial court was tasked with navigating the complexities surrounding the fairness of admitting this evidence in the context of the individual trial of Clare, while also considering the implications for the co-accused who had already been tried.

The legal issues central to this case involved the admissibility of improperly obtained admissions by a co-accused, which were deemed illegal, improper, unreliable, and potentially unfairly prejudicial. The court needed to balance the probative value of this evidence against the risk it posed to the fairness of the trial. Another critical issue was whether the evidence could be limited in scope, or if specific jury directions could mitigate any prejudicial effects. The court also had to consider the implications for the fairness of the trial when evidence from a co-accused was admitted in another co-accused's trial.

The court concluded that the previously excluded evidence from the co-accused's police interview should not be admitted during the trial of Clare. The reasoning was based on the unreliability of the evidence and the potential for it to unfairly prejudice the defendant. The court found that the probative value of the evidence did not outweigh the risk of unfairness. The court held that such evidence, when improperly obtained, could not be relied upon in the context of another co-accused's trial, particularly when the fairness of the individual trial was at stake. The court further noted that any attempt to limit the evidence or provide jury directions would not sufficiently mitigate the prejudicial impact on Clare's trial.

The court's final order was that the evidence of the extract from the co-accused police interview, which had previously been excluded, was not to be admitted at the trial of Clare. This decision was made to uphold the integrity and fairness of the trial process, ensuring that any evidence admitted would not unfairly prejudice the defendant.

Orders

Orders of the court

Evidence of extract from co-accused police interview previously excluded not to be admitted at trial of Clare. For orders - see [57]

Background

Background to the litigation

Full text does not contain this section.

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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Medium Neutral Citation:	R v Clare [2022] NSWDC 21
Hearing dates:	24 January 2022
Date of orders:	24 January 2022
Decision date:	24 January 2022
Jurisdiction:	Criminal
Before:	Haesler SC DCJ
Decision:	Evidence of extract from co-accused police interview previously excluded not to be admitted at trial of Clare. For orders - see [57]
Catchwords:	CRIME — Violent offences — Aggravated detain for advantage — In company – actual bodily harm inflicted CRIMINAL PROCEDURE — Trial — in-trial application to re-visit earlier ruling –admissions of co-accused previously excluded sought to be led in another accused case only- EVIDENCE — Admissions — Criminal proceedings — improperly obtained- illegality- impropriety- unreliability - unfair prejudice – probative value of evidence EVIDENCE — Admissions by co-accused whether they can be led in evidence in another co-accused trials- fairness in context of individual trial being tried together- whether evidence can be limited- possible jury directions
Legislation Cited:	Crimes Act 1900 Evidence Act 1995 Law Enforcement (Powers and Responsibilities) Act 2000
Cases Cited:	Hague v R [2019] VSCA 218 IMM v The Queen [2016] 257 CLR 300; [2016] HCA 14 R v Davis (no 6) [2020] NSWSC 1888 R v Morley [2021] NSWDC 681 R v O’Connor [2003] NSWCCA 335 R v Rahme [2001] NSWCCA 414 Sio v The Queen (2016) 259 CLR 47; [2016] HCA 32
Texts Cited:	Australian Law Reform Commission, Interim Report ALRC 26 Vol 1 at [692]; S Odgers Uniform Evidence Law 15 ed. Thompson Rueters
Category:	Principal judgment
Parties:	Tara Clare (the offender) Director of Public Prosecutions
Representation:	Counsel: Ms R Mitchell (for the accused) Mr M Fox, Crown Prosecutor Solicitors: Morrisons Law f/w (for the accused)
File Number(s):	2020/0142023