R v Clark

Case [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

1ST Revision 13TH 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.:

  1. 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.

  1. 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.”

  1. 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].

  1. In my opinion, for…

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R v Clark [2005] VSCA 294
Case
[2005] VSCA 294
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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

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Background

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Evidence

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Decision

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