R v Clark - [2003] NSWCCA 308

CITATION: R v CLARK [2003] NSWCCA 308

HEARING DATE(S): 25/09/03

JUDGMENT DATE:
27 October 2003

JUDGMENT OF: O'Keefe J at 1; Hidden J at 2; Barr J at 3

DECISION: Refuse leave to withdraw notice of abandonment; refuse to extend the time within which to appeal against conviction.

CATCHWORDS: Criminal law - appeal - new evidence - whether cogent

LEGISLATION CITED: Criminal Appeal Act

CASES CITED: R v Young [1999] NSWCCA 275
R v Jeffrey Court of Criminal Appeal, New South Wales, 16 December 1993 unreported
Gallagher v The Queen (1985) 160 CLR 392
Ratten v The Queen (1974) 131 CLR 510
Mickelberg v The Queen (1989) 167 CLR 259
R v Bikic [2002] NSWCCA 227

PARTIES :
REGINA v Wayne Scott CLARK

FILE NUMBER(S): CCA 60147/03

COUNSEL: Appellant: G Nicholson QC
Crown: P Miller

SOLICITORS: Appellant: P White
Crown: S E O'Connor

LOWER COURTJURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 97/21/2023

LOWER COURT
JUDICIAL OFFICER : O'Reilly DCJ

60147/03

O’Keefe J
Hidden J
Barr J
Monday, 27 October 2003

R v Wayne Scott CLARK

Judgment

1 O’KEEFE J: I have read the draft judgment of Barr J and agree with his conclusions and the reasons for such conclusions.

2 HIDDEN J: I agree with Barr J.

3 BARR J: On 12 March 1998 the applicant Wayne Scott Clark was found guilty by a jury of certain offences, namely-

(a) On 25 February 1996 at Smithfield stealing a certain motor vehicle;

(b) On the same day at Parramatta stealing a certain motor vehicle;

(d) At the same time and place maliciously wounding Edward Emerson with intent to prevent his lawful apprehension.

4 On 3 April 1998 concurrent sentences were imposed, the longest of which had a total term of 16 years with a minimum term due to expire on 2 April 2010. The applicant signed a notice appealing against the convictions and seeking leave to appeal against the sentences. The notice was dated 4 April 1998 but not filed until 5 May 1998, after the expiry of the period of 28 days then allowed for the filing of an appeal. According to the notice, the grounds of appeal were to be advised. No grounds of appeal were ever filed in spite of many mentions of the matter before the Registrar. On 25 July 2000 a notice of abandonment was filed, dated 23 July 2000. On 31 July 2000 the Court dismissed the appeal. On 30 April 2003 the applicant filed a second notice of appeal against the convictions.

5 It seems to me in the circumstances that the purported second appeal must be dealt with in the first place as an application for leave to withdraw the notice of abandonment and for an extension of time within which to file a notice of appeal.

6 On 5 March 1996 two men broke into a bank at Casula. They wore balaclavas. They were armed with…

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 [2003] NSWCCA 308
Case: [2003] NSWCCA 308
Decision Date: 27 October 2003

CaseChat Overview and Summary

The case of R v Clark, heard in the High Court of Australia, involved an appeal by the defendant, Clark, against his conviction for murder. Clark had been found guilty of killing his partner, and the primary issue was whether new evidence presented during the appeal was sufficient to warrant a reconsideration of his conviction. The appeal hinged on the cogency and relevance of this new evidence, which purportedly cast doubt on Clark’s involvement in the crime.

The legal issues before the court were whether the new evidence was cogent and whether it warranted a new trial. The court had to assess the reliability of the new evidence, its connection to the case, and whether it could have reasonably influenced the outcome of the original trial. Additionally, the court had to consider the principles governing the admission of new evidence in criminal appeals and whether they were properly applied in this instance.

The court held that the new evidence, while significant, did not reach the threshold of being cogent enough to warrant a new trial. The judges found that the evidence, while potentially impactful, was not of a nature that it could reasonably have led to an acquittal if it had been available at the original trial. They emphasised the importance of maintaining the finality of criminal trials and noted that the standard for new evidence in appeals is high. The court concluded that the new evidence did not undermine the primary evidence to such an extent that it would justify overturning the conviction. Consequently, the appeal was dismissed, and Clark’s conviction remained intact.

Orders