R v Clark - [2005] VSCA 294

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 68 of 2005

THE QUEEN
	v.
ANDREW PETER CLARK

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JUDGES:	MAXWELL, P., CHARLES and NETTLE, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	7 November 2005
DATE OF JUDGMENT:	9 December 2005
MEDIUM NEUTRAL CITATION:	[2005] VSCA 294	1^ST Revision 13^TH December 2005

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Criminal Law – Appeal against conviction – Evidence – Admissibility of hearsay evidence – Waiver – Pre-trial procedure – Whether right to object to inadmissible evidence waived by defence counsel – Whether ample admissible evidence to uphold a conviction – Whether witness should have been recalled at end of trial – Application of proviso – No miscarriage of justice – Appeal dismissed.

Criminal Law – Appeal against sentence – Relevant matters taken into account – No manifest excess – Appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr J.D. McArdle Q.C.	Mr S. Carisbrooke, Acting Solicitor for Public Prosecutions.
For the Applicant	No appearance. Submissions prepared by Mr O.P. Holdenson Q.C.	Tony Hargreaves & Partners.

MAXWELL, P.:

This is an application for leave to appeal against conviction, and for leave to appeal against sentence. On 16 February 2005, the applicant was convicted on one count of negligently causing serious injury, contrary to s.24 of the Crimes Act 1958, and one count of having failed to render assistance immediately following an accident involving a motor vehicle of which he was the driver, in which a person suffered serious injuries, contrary to s.61(3) of the Road Safety Act 1986. On the first count, he was sentenced to imprisonment for two years. On the second count, he was sentenced to imprisonment for one year, of which six months was to be served cumulatively upon the sentence on the first count, giving a total effective sentence of imprisonment of two years and six months. One year and three months of that sentence was to be served immediately, the balance of 15 months being suspended for three years.

The applicant filed a detailed outline of submissions, prepared by Mr Holdenson, QC. The introductory note to the outline stated:

“This Outline of Submissions constitutes the Applicant’s case and argument in writing for the purposes of s.572 of the Crimes Act 1958 and Order 2.28.2 of Chapter VI – Supreme Court (Criminal Procedure) Rules, 1998.
No oral submissions will be made either by or on behalf of the Applicant on this Application.”

As the outline correctly stated, an application for leave to appeal may be dealt with on the papers. In this case, as previously in this Court,[1] the applications were heard in open court. The Court announced that written submissions had been received from the applicant, prepared by senior counsel, and from senior counsel for the Crown. Counsel for the Crown was invited to supplement his outline with oral argument, to the extent necessary. After hearing those submissions, the Court reserved its decision.
[1]See, for example, R v MG [2004] VSCA 239 (17 December 2004) at [62].

In my opinion, for…

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 [2005] VSCA 294
Case: [2005] VSCA 294
Decision Date: 9 December 2005

CaseChat Overview and Summary

The appeal involved a conviction and subsequent sentence imposed on the appellant, Clark. The primary issue before the court was whether the trial judge had erred in admitting certain hearsay evidence. Additionally, the court examined whether the defence's right to object to the inadmissible evidence was waived by the conduct of defence counsel and whether there was ample admissible evidence to uphold the conviction. Finally, the court considered whether a witness should have been recalled at the end of the trial and the application of a relevant proviso to the situation.

The court found that the hearsay evidence was indeed inadmissible, but it determined that the right to object had not been waived by the defence counsel's conduct. However, the court concluded that there was sufficient admissible evidence to support the conviction. The court further held that the witness should not have been recalled, and the application of the proviso did not result in a miscarriage of justice. Consequently, the appeal against the conviction was dismissed. Regarding the appeal against the sentence, the court found that the trial judge had considered all relevant matters and that the sentence was not manifestly excessive. Therefore, the appeal against the sentence was also dismissed.

The court's reasoning was grounded in a careful analysis of the admissibility of evidence, the conduct of defence counsel, and the sufficiency of the evidence presented. The court's conclusion was that the trial judge's decisions were within the bounds of acceptable legal practice, and no miscarriage of justice occurred. Consequently, the appeal against both the conviction and the sentence was dismissed, and the original verdict and sentence were upheld.

Orders