R v Clark - [2009] QCA 2

SUPREME COURT OF QUEENSLAND

CITATION: R v Clark [2009] QCA 2
PARTIES: R
v
CLARK, Steven John
(appellant/applicant)
FILE NO/S: CA No 374 of 2007 SC No 891 of 2007
DIVISION: Court of Appeal
PROCEEDING: Appeal against Conviction
Application for Extension (Sentence)
ORIGINATING
COURT: Supreme Court at Brisbane
DELIVERED ON: 6 February 2009
DELIVERED AT: Brisbane
HEARING DATE: 17 October 2008
JUDGES: McMurdo P, White AJA and McMeekin J
Separate reasons for judgment of each member of the Court,
each concurring as to the orders made
ORDERS: 1. The appeal against conviction is dismissed

2. The application for an extension of time to apply for leave to appeal against sentence is refused
CATCHWORDS: CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION – OTHER MATTERS – appellant found guilty after trial of attempted murder of ex-wife by procuring an unknown male to shoot her at her house – evidence given by many witnesses that appellant had offered them money to kill the complainant, or had told them that he was organising a "hit" on the complainant – judge directed jury that the case was circumstantial and they could not find the appellant guilty unless the only rational inference to be drawn from the evidence was of guilt – appellant argued on appeal that a Shepherd direction should have been given to the effect that the statements made to the witnesses must have been proved beyond reasonable doubt – whether the judge misdirected the jury
CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION – OTHER MATTERS – evidence given of the relationship between the appellant and the complainant – evidence given of a "bug" allegedly placed on the complainant's phone line, the appellant slashing a waterbed and other matters – judge directed jury that the evidence did not directly relate to the shooting – appellant argued that judge should have directed the jury that the relationship evidence could not be used to infer a propensity in the appellant to commit the offence – whether such a direction should have been given
CRIMINAL LAW – APPEAL AND NEW TRIAL – PROCEDURE – NOTICES OF APPEAL – TIME FOR APPEAL AND EXTENSION THEREOF – appellant did not apply for leave to appeal against sentence in his notice of appeal against conviction orally – appellant's pro bono counsel applied for an extension of time to apply for leave to appeal against sentence – appellant sentenced to 16 years imprisonment – offence was pre-meditated and calculated – complainant suffered serious physical and emotional injuries – whether extension of time should be granted
Corrective Services Act 2006 (Qld), s 182(2)(a)

[1984] HCA 7, considered
R v Laing [2008] QCA 317, cited
R v Reeves [2001] QCA 91, cited
R v Saad (2005) 156 A Crim R 533; [2005] VSCA 249, cited
R v Witchard [2005] 1 Qd R 428; [2004] QCA 429, cited
Chamberlain v The…

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 Clark

Details

AGLC: R v Clark [2009] QCA 2
Case: [2009] QCA 2
Decision Date: 6/02/2009

CaseChat Overview and Summary

The appeal in R v Clark was brought by the appellant, Clark, who was found guilty of attempted murder of his ex-wife by procuring an unknown male to shoot her at her house. The evidence presented at trial included testimony from several witnesses who stated that Clark had offered them money to kill the complainant, or had told them that he was organising a "hit" on her. The judge directed the jury that the case was circumstantial and they could not find Clark guilty unless the only rational inference to be drawn from the evidence was of guilt. Clark argued on appeal that a Shepherd direction should have been given to the effect that the statements made to the witnesses must have been proved beyond reasonable doubt.

The court was required to decide whether the judge misdirected the jury by not providing a Shepherd direction and whether Clark's contentions were valid grounds for an appeal against his conviction. The court considered the evidence presented at trial and concluded that the judge's direction to the jury was appropriate. The court found that Clark had not made out either of the contentions in his ground of appeal against conviction. The appeal against conviction must therefore be dismissed.

The court also considered Clark's application for an extension of time for leave to appeal against his sentence. Clark had not provided any explanation as to why he did not apply for leave to appeal against his sentence within time. However, the court noted that Clark was 33 years old at the time of the offence and had no previous convictions. The court found that the appropriate range for Clark's sentence was 12 to 14 years imprisonment and that a sentence of 16 years imprisonment was so far outside the proper range that it was manifestly excessive. However, the court concluded that the interests of justice did not favour an extension of time to appeal.

In summary, the appeal against conviction in R v Clark was dismissed. The application for an extension of time for leave to appeal against sentence was also dismissed. The court found that the sentence imposed on Clark was within the appropriate range and that the interests of justice did not favour an extension of time to appeal.

Orders

Orders of the court

1. The appeal against conviction is dismissed

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

She commenced divorce proceedings on 17 November 2003. On 16 April 2004, she heard a knock on the door. A man said he was Bruce Willis in a voice she did not recognise. When she answered the door the man shot her in the stomach. The evidence of events involving Clark prior to the shooting Mark Kyle gave the following evidence. He operated an electronics store at Lutwyche. Clark, whom he knew, attended his shop in 2002 or 2003. He said he was having marital problems and was separated from his wife. He enquired about a "bug" the size of a matchbox with two pieces of wire with alligator clips that could be used to listen into telephone calls. He thought "his missus might have been playing up". Kyle showed him such a device, showed him how it worked and explained that it was readily available. Clark told Kyle he wanted one to check up on his wife. The complainant's cousin, Shaun Mathewson, remembered visiting the complainant at her home after her separation from Clark. She showed him a piece of wire with a small round piece about two inches long. Jason Fairweather gave evidence that Clark stayed with him after Clark separated from his wife. Between February or March and June 2003, Clark told Fairweather that he had a wire tap and a bug to listen in on phone lines. Clark showed Fairweather the device: it had two alligator clips. He said he was going to put it on the phone pole, or where the phone connected, in front of his place. He asked Fairweather to follow his wife but Fairweather refused. Andrew Shard, an old school friend of the complainant's, had an intimate relationship with her at about the time of the break-up of her marriage. Around Christmas 2002 she showed him a small green plastic circuit board with two wires coming from it about half the size of a credit card with alligator clips and the words "phone in" on the board. Denley Strange, a neighbour of Clark and the complainant when they lived at Glenmorganvale, gave the following evidence. Clark came to his home on two or three occasions. Clark said that he and the complainant were not getting on and he thought she was having an affair. From the Stranges' house, Clark could walk up over a ridge and look back on the Clarks' house. He asked Strange if he could borrow a soldering iron to fix a phone device he was listening in on. Strange did not lend him the equipment. Kim Mogg, a radio technician, gave the following evidence. He met Clark about 12 years ago through their mutual interest in CB radios. In about 2004, Clark first told him that he wanted his wife killed. Clark complained that she would not let him see their children. Mogg suggested that he see a solicitor. Clark responded that he would just have her killed. Clark had several other conversations with Mogg over a two month period in which he said he wanted the complainant killed. Mogg did not believe Clark's statements. On one occasion, Clark arrived with $10,000 in a Bendigo Bank bag. He said it was the proceeds from the sale of his four wheel drive. He asked Mogg to hold on to the money for him. A couple of days later he said it was the money to have the complainant killed. Clark sat down at Mogg's computer and produced a document with a 10 point plan setting out how he intended to arrange the killing of his wife. It had the complainant's name, her car registration number and her address in Ipswich on it. The first point was that he did not want the children to be present when it happened. Clark had previously pointed out the complainant's home to Mogg. Clark told him that he had four copies of a photograph of the complainant made for whoever was going to do "the job" on her. Mogg identified a tendered photograph of the complainant[1] as very like the photograph which Clark showed him. [1] Exhibit 6.

Decision

Reasons for decision

The contention that the judge erred in failing to direct the jury against the use of propensity reasoning in respect of this evidence is also without merit. Appeal against conviction – conclusion Clark has not made out either of the contentions in his ground of appeal against conviction. The appeal against conviction must be dismissed. The application for an extension of time for leave to appeal against sentence In the notice of appeal, which was filed within time, Clark has struck out both the option to appeal against conviction and sentence, and the option to appeal against sentence, leaving only the option to appeal against conviction. He stated in that notice of appeal that he was sentenced to 16 years imprisonment and that he was representing himself. The notice of appeal set out three clear grounds of appeal, all of which were subsequently abandoned. He has not provided any explanation as to why he did not apply for leave to appeal against his sentence within time. That lack of explanation would not be fatal to his application if he demonstrated that the interests of justice favoured an extension of time to appeal. Mr Smith, in an effort to persuade the Court that the interests of justice warrant the granting of the application, emphasises the following matters. Clark was 33 years old at the time of the offence and 35 years old at sentence. He had no previous convictions. He had a good work history. Whilst the offence was serious, it was "with the backdrop of a marital breakdown" and his "primary motivation for the offending was the children". He submitted that the appropriate range was 12 to 14 years imprisonment and that a sentence of 16 years imprisonment is so far outside the proper range that it is manifestly excessive. Clark was convicted of one of the most serious offences against the criminal law short of actual murder. Over a lengthy period, he planned the murder of his former childhood sweetheart, wife and mother of his children. If, as Mr Smith submits, Clark was concerned for his young children, it is impossible to see how their interests would be furthered by murdering their mother with whom they lived and who apparently took good care of them. Clark did not have the benefit of the mitigating factors of co-operation with the authorities or an early plea of guilty. His conduct of the trial and, indeed, of this appeal, demonstrates that he still has no remorse or insight into the seriousness of his offending. The primary judge, after sitting through an eight day trial, formed the view that this was "within the worst category of cases of attempted murder because of the premeditation, planning and enrolment of other people to assist in its execution". That observation seems entirely apposite. His Honour also noted the calculating way in which Clark planned the offence which suggested that he may continue to be a danger to the complainant when released from prison. It is only good fortune, and not through any actions or intentions of Clark, that she was not killed. The effects on her and the children have been devastating. The complainant has undergone major surgery; she will be on medication for the rest of her life; she still carries nine to 12 shotgun pellets in her body; she has lost part of her left breast and has suffered other traumatic consequences which will permanently affect her health and her ability to work. The psychological effects of the crime on her young son, in particular, presently appear to be severe.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.