Mr G E Smith (Crown) Mr C P Heazlewood (Appellant)
SOLICITORS:
S E O'Connor (Crown) Baker Ryrie Rickards Titmarsh (Appellant)
CATCHWORDS:
Criminal Law - Murder - Appeal against conviction - Evidence - Unreliable evidence - Judicial directions to jury - Whether necessity for unreliable evidence warning - Where Crown's major witness testified under indemnity from prosecution - Where no such warning sought at trial - Whether leave should be granted to argue point - Whether witness was "criminally concerned in the events giving rise to the proceeding" - Criminal Appeal Rules, r 4 - Evidence Act 1995 (NSW) s 165 - Criminal Law - Murder - Appeal against conviction - Evidence - "Relationship evidence" - Admissibility - Evidence of contemporaneous representations by deceased demonstrating deceased's negative state of mind about relationship with appellant - Exception to hearsay rule - Whether unfairly prejudicial justifying exclusion - Evidence Act 1995 (NSW), ss 55(1), 72 and 135-137 - Criminal Law - Murder - Appeal against sentence - Whether non-parole period of less than three-quarters of head sentence warranted - Whether appellant's intellectual/physical difficulties amounted to "special circumstances" - Crimes (Sentencing Procedure) Act 1999, s 44(2) - D
Albrighton v Royal Prince Alfred Hospital [1980] 2 NSWLR 542 B v R (1992) 175 CLR 599 R v Bedingfield (1879) 14 Cox CC 431 R v Blick [2000] NSWCCA 61 R v Booth [1982] 2 NSWLR 847 R v Carranceja (1989) 42 A Crim R 402 R v Chai (1992) 27 NSWLR 153 R v Checconi (1988) 34 A Crim R 160 Davies v Director of Public Prosecutions [1954] AC 378 R v Fahda [1999] NSWCCA 267 R v Farler (1837) 8 C & P 106 R v Fraser (NSWCCA, 10 August 1998) R v Frawley (1993) 69 A Crim R 208 R v Fulcher [1995] 2 Cr App R 251 R v Garner (1963) 81 WN (Pt 1) (NSW) 120 Gipp v R (1998) 194 CLR 106 Glennon v R (1994) 119 ALR 706 R v Gratton (1971) 4 NBR (2d) 14 R v Heath [1991] 2 Qd R 182 R v Hissey (1973) 6 SASR 280 R v Iuliano [1971] VR 412 Kailis v R (1999) 21 WAR 100 Khan v R [1971] WAR 44 R v Letteri (unreported, Court of Criminal Appeal, 18 March 1992) R v Lewis (1906) 8 WALR 83 R v Ling (1982) 6 A Crim R 429 McNee v…
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.
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Details
AGLC
R v Clark [2001] NSWCCA 494
Case
[2001] NSWCCA 494
Decision Date
CaseChat Overview and Summary
The case of R v Clark involved an appeal against both the conviction and sentence of the appellant. The appellant was convicted of the murder of his de facto partner. The primary issue in the appeal was whether the trial judge should have warned the jury about the unreliability of evidence given by the Crown's major witness, who had testified under an indemnity from prosecution. The court also needed to consider whether this was a case where the witness was "criminally concerned in the events giving rise to the proceeding," thus requiring such a warning under section 165 of the Evidence Act 1995 (NSW). Additionally, the appellant challenged the admissibility of certain "relationship evidence," arguing it was unfairly prejudicial under sections 55(1), 72 and 135-137 of the same Act.
The court examined the necessity of a warning to the jury regarding the unreliability of the indemnity witness's evidence. The appellant argued that the witness was criminally concerned in the events, which would necessitate such a warning. However, the court found that the witness was not criminally involved in the events, thus no such warning was required. Furthermore, the court held that even in the absence of such a warning, the evidence was not so unreliable as to potentially affect the safety of the conviction. The court also addressed the admissibility of the relationship evidence, finding that while it was prejudicial, it was not unfairly so as to warrant exclusion under the Evidence Act. The court concluded that the evidence was relevant to the appellant's state of mind and was properly admitted.
The final orders of the court were to dismiss the appeal against conviction and to affirm the conviction and sentence imposed by the trial court. The court found that the trial judge had correctly assessed the reliability of the evidence and the necessity of any warnings. Additionally, the court found that the sentence was appropriate, taking into account the appellant's intellectual and physical difficulties, though they did not constitute "special circumstances" warranting a reduced non-parole period. The appeal was dismissed in its entirety.