Legal Research
Cases
R v Clark; ex parte A-G

R v Clark; ex parte A-G

Case [1999] QCA 438 11 October 1999

Improper Admission or Rejection of Evidence

Type to search within this case.

FILE NO/S:

CA No 68 of 1999 CA No 82 of 1999
DIVISION: Court of Appeal
PROCEEDING: Appeal against conviction
Sentence appeal by Attorney-General
ORIGINATING Supreme Court, Brisbane
COURT:
DELIVERED ON: 22 October 1999
DELIVERED AT: Brisbane
HEARING DATE: 11 October 1999
JUDGES: de Jersey CJ; McPherson JA; Jones J
ORDER: Appeal against conviction dismissed.
Appeal by Attorney-General allowed and sentence
imposed varied to the extent of deleting the
recommendation with relation to parole.
CATCHWORDS: CRIMINAL LAW – APPEAL AND NEW TRIAL AND
INQUIRY AFTER CONVICTION – APPEAL AND NEW
TRIAL – PARTICULAR GROUNDS – IMPROPER
ADMISSION OR REJECTION OF EVIDENCE – appeal
against conviction of manslaughter – whether trial judge
erred in admitting evidence of conversations between
appellant and police officers – whether constituted a
confession induced by threat or promise

INQUIRY AFTER CONVICTION – APPEAL AND NEW

CRIMINAL LAW – APPEAL AND NEW TRIAL AND OR INSUPPORTABLE VERDICT – whether verdict of guilty of manslaughter unsafe and unsatisfactory – whether trial judge erred in ruling that appellant had a case to answer

CRIMINAL LAW – APPEAL AND NEW TRIAL AND TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY ATTORNEY-GENERAL OR OTHER CROWN LAW OFFICER – APPLICATION TO INCREASE SENTENCE – whether sentence failed to reflect gravity of offence – whether manifestly inadequate – whether recommendation with respect to parole placed undue weight on accused’s pre- trial offer to plead guilty to manslaughter
Attorney-General for New South Wales v Martin (1910) 9
CLR 713
Edwards v the Queen (1993) 178 CLR 193
Lam Chi-ming v the Queen [1991] 2 AC 212
M v R (1994) 181 CLR 487
Maddaford v Brown [1953] SASR 169
R v Beere [1965] QdR 370
R v Coats (1932) 51 NZLR 401
R v Doyle ex parte Attorney-General [1987] 2 QdR 732
R v Fellowes, Jackson, McGeough & Buttigeig [1987] 2 QdR
606
R v Foster (1993) 67 ALJR 550
R v Hanger [1928] AD 469
R v Lindsay [1963] QdR 386
R v McKay [1965] QdR 240
R v Smith (CA No 4 of 1997; 9 May 1997)
R v Sutherland (CA No 323 of 1990; 26 March 1991)
R v Swaffield (1997) 192 CLR 159
R v Weissensteiner (1993) 68 ACrimR 251
R v Whiting (CA No 321 of 1994; 24 October 1994)
Criminal Law Amendment Act 1984 s 10
COUNSEL: Mr PE Smith for the appellant Clark
Ms L Clare for the Crown
SOLICITORS: Terry Fisher & Co for the appellant Clark
Director of Public Prosecutions (Queensland) for the crown

SUPREME COURT OF QUEENSLAND

CITATION: R v Clark; ex parte A-G [1999] QCA 438
PARTIES: R
v
CLARK, Paul Charles
(appellant)

R v CLARK, Paul Charles
(respondent)
EX PARTE ATTORNEY-GENERAL OF
QUEENSLAND
(appellant)

[1]

[2]

[3]

[4]

de JERSEY CJ: The appellant was charged with having murdered Jenny Elizabeth Black at Brisbane on 6 January 1997. He pleaded not guilty. After a four week trial, he was found not guilty of murder and guilty of manslaughter. He was sentenced to eleven…

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; ex parte A-G

Details

AGLC: R v Clark; ex parte A-G [1999] QCA 438
Case: [1999] QCA 438
Decision Date: 11/10/1999

CaseChat Overview and Summary

The case of R v Clark; ex parte A-G involved a conviction for manslaughter, which was subsequently appealed. The Attorney-General sought to have the appeal heard and the conviction challenged on various grounds, including the improper admission or rejection of evidence during the trial. The court had to determine whether the trial judge had erred in a way that might have influenced the outcome of the trial.

The central legal issue before the court was whether the trial judge's handling of evidence was so flawed as to warrant a new trial or an appeal against the conviction. This included an assessment of whether the evidence presented was correctly admitted or excluded and whether such decisions were made in accordance with the applicable legal principles. The court also needed to consider whether the errors were substantial enough to affect the fairness and outcome of the trial.

In its reasoning, the court found that while there were errors in the admission and rejection of evidence, they did not reach the level of seriousness required to overturn the conviction. However, the court did find that the sentencing recommendation related to parole was inappropriate. Consequently, the appeal against the conviction was dismissed, but the appeal by the Attorney-General was allowed, and the sentence was varied to exclude the recommendation concerning parole. The final orders reflect these determinations, maintaining the conviction while adjusting the sentencing aspect.

Orders

Orders of the court

Appeal against conviction dismissed.

Appeal by Attorney-General allowed and sentence

imposed varied to the extent of deleting the

recommendation with relation to parole.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

R v Clark; ex parte A-G [1999] QCA 438

Most Recent Citation

R v Q [2003] QCA 421

Cases citing this decision · 13 of 13 shown

R v Bennetts
[2017] QSC 181 Para 3

…the appellant exercised “a free choice to speak or be silent” ( R v Foster (1993) 67 ALJR 550, 556 per Brennan J as he then was).” [15] [1999] QCA 438.…
R v Cobb
[2016] QCA 333 Para 11

…this offence was a relevant circumstance in that the applicant had thereby “sought to assist the course of justice”. [1][1999] QCA 438 at [41]. [2][2006] QCA 146. [3][1995] 1 Qd R 673, 673. [4][2003] QCA 367.…
R v Gamar Eldin
[2016] QDC 206 Para 1

…Law Amendment Act 1984 to other than truly confessional material, should be extended to the issue of voluntariness under common law principles. [49][1999] QCA 438. [50][2012] QSC 429.…
R v Philp
[2015] QDC 262 Para 1

…examined the decision of R v Doyle, ex parte Attorney‑General [1987] 2 Qd R 732. Q followed the decision of R v Clark, ex parte Attorney‑General [1999] QCA 438. So I will proceed on the basis that s 10 and the common law do apply here in terms of the voluntariness issue.…
Commissioner of Police v Thornberry
[2015] QDC 69 Para 1

…could lead to the inference of guilt or which would tend to prove it.”[5] [5] R v Clark; ex parte Attorney General (Qld) [1999] QCA 438 per de Jersey CJ at para 23 approving R v Lindsay [1963] Qd R 386, 393 (Per Mack J), adopting O’Connor J in Attorney General NSW v Martin (1910) 9 CLR 713, 732.…
R v Davy
[2010] QCA 118 Para 1

…s appeal. The means by which he had killed his young female victim, who was found floating in a river with a weight attached to her, were unknown. [9][1999] QCA 438.…
R v Matthews
[2007] QCA 144 Para 1

…remarked that the penalties imposed for manslaughter had become a little inadequate and that they should be, as a general rule, increased”[7]. [4][1999] QCA 438. [5][1999] QCA 117. [6][1996] QCA 321. [7]Appeal Record Book p 43.…
R v Huebner
[2006] QCA 406 Para 1

…imprisonment was upheld, but a recommendation for consideration for eligibility for parole after four and a half years imprisonment was removed. [2][1999] QCA 438; CA Nos 68 of 1999 and 82 of 1999, 22 October 1999.…
R v Lyon
[2006] QCA 146

…2000] 2 Qd R 183; [1999] QCA 206, CA No 4 1999, 8 June 1999, considered R v Clark; ex parte A-G [1999] QCA 438; CA Nos 68 of 1999 and 82 of 1999, 22 October, considered R v Dempsey [2001] QCA 141; CA No 356 of 2000, 17 April 2001, considered R v Marshall [1995] 1 Qd R 673, considered R v Melissant [2003] QCA 122;…
R v Q
[2003] QCA 421

…CLR 713, referred to MacPherson v. The Queen (1981) 147 CLR 512, referred to R v Clark, ex parte Attorney-General [1999] QCA 438; CA No 68 of 1999, 11 October 1999, referred to R v Doyle; ex parte Attorney-General [1987] 2 Qd R 732, discussed R v Hagan [1966] Qd R 219, referred to R v Press [1997] QCA 7; CA No 48…
Carr v R
[2002] TASSC 60 Para 1

…The question has also been considered in Queensland by the Court of Appeal in an unreported decision R v Clark; ex parte Attorney-General [1999] QCA 438 delivered on 22 October 1999. The section under consideration was the Criminal Law Amendment Act 1894, s10, which relevantly provides:…
R v Trinh
[2002] QSC 471

…ALJR 550 McDermott v The King (1948) 76 CLR 501 R v Adamic (2000) A Crim R 332 R v Anunga (1976) 11 ALR 412 R v Clark; ex parte A-G [1999] QCA 438, 22 October 1999 R v Contenanza [1958] Tas SR 3 R v Li [1993] 2 VR 80 R v Nguygen (1995) 78 A Crim R 582 R v Swaffield (1998) 192 CLR 159 R v Herbert CA No 267 of 1998…
R v Spathis
[2001] NSWCCA 476

…CLR 464 R v Cramp (1999) 110 A Crim R 198 R v Drummond and Domican (No 2) (1990) 46 A Crim R 408 R v Clarke; Ex parte Attorney-General of Queensland [1999] QCA 438 Edwards v The Queen (1993) 178 CLR 193 R v Foley (1998) 105 A Crim R 1 Gallagher v R (1986) 160 CLR 392 R v Giannetto [1997] 1 Cr App R 1 Gilbert v T…

View all 13 citing cases →

Cases cited in this decision · 7 of 7 shown

R v Swaffield
[1998] HCA 1 Para 26

…against exclusion. There was no question, on those findings which were reasonably open, but that the appellant freely chose to speak ( R v Swaffield (1997) 192 CLR 159, 202), in order deliberately to mislead the police who he believed suspected him. He said no more than he wanted to say, and when he believed he had…
M v the Queen
[1994] HCA 63 Para 2

…satisfactory, it follows from what I have already said that this ground also fails. I confirm that I have independently reviewed the evidence ( M v R (1994) 181 CLR 487). The jury could perfectly safely and reasonably have concluded that the appellant was guilty of manslaughter.…
Edwards v The Queen
[1993] HCA 63 Para 13

…an unusual case in which telling a lie constituted conduct amounting to a confession either under s10 or the general law. In Edwards v The Queen (1993) 178 CLR 193, 201, Brennan J said: “Whether the making of a statement proved to be false is capable of amounting to a confession depends on the terms of the statement…
Foster v The Queen
[1993] HCA 80 Para 25

…y incriminating material was provided voluntarily, in the sense that the appellant exercised “a free choice to speak or be silent” ( R v Foster (1993) 67 ALJR 550, 556 per Brennan J as he then was).…
Attorney-General (NSW) v Martin
[1909] HCA 74 Para 21

…of guilt or which would tend to prove it”. He adopted the view of O’Connor J expressed in Attorney-General for New South Wales v Martin (1910) 9 CLR 713, 732 that for there to be a confession, there “must be either a direct admission of guilt, or of some fact or facts which may tend to prove the prisoner’s guilt at…
[1991] 2 AC 212
[1991] 2 AC 212 Para 13

…n law principle excluding confessions that are not voluntary. See R v Beere [1965] Qd R 370, 372, cited with approval in Lam Chi-ming v The Queen [1991] 2 AC 212, both of which are instances of that kind. It would, however, be an unusual case in which telling a lie constituted conduct amounting to a confession eit…
(1932) 51 NZLR 401
(1932) 51 NZLR 401 Para 23

…tends to prove the guilt of the prisoner.” See also p 732 per O’Connor J; R v McKay [1965] QdR 240, 242 per Mack J as he then was; R v Coats (1932) 51 NZLR 401, 405, 407; and Maddaford v Brown [1953] SASR 169, 172.…

Legislation cited in this decision · 1

Criminal Law Amendment Act 1894 (Qld)
1 mention (from Para 17)

FILE NO/S:	CA No 68 of 1999 CA No 82 of 1999
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against conviction Sentence appeal by Attorney-General
ORIGINATING	Supreme Court, Brisbane
COURT:
DELIVERED ON:	22 October 1999
DELIVERED AT:	Brisbane
HEARING DATE:	11 October 1999
JUDGES:	de Jersey CJ; McPherson JA; Jones J
ORDER:	Appeal against conviction dismissed. Appeal by Attorney-General allowed and sentence imposed varied to the extent of deleting the recommendation with relation to parole.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – IMPROPER ADMISSION OR REJECTION OF EVIDENCE – appeal against conviction of manslaughter – whether trial judge erred in admitting evidence of conversations between appellant and police officers – whether constituted a confession induced by threat or promise
INQUIRY AFTER CONVICTION – APPEAL AND NEW
CRIMINAL LAW – APPEAL AND NEW TRIAL AND OR INSUPPORTABLE VERDICT – whether verdict of guilty of manslaughter unsafe and unsatisfactory – whether trial judge erred in ruling that appellant had a case to answer
CRIMINAL LAW – APPEAL AND NEW TRIAL AND TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY ATTORNEY-GENERAL OR OTHER CROWN LAW OFFICER – APPLICATION TO INCREASE SENTENCE – whether sentence failed to reflect gravity of offence – whether manifestly inadequate – whether recommendation with respect to parole placed undue weight on accused’s pre- trial offer to plead guilty to manslaughter
Attorney-General for New South Wales v Martin (1910) 9 CLR 713 Edwards v the Queen (1993) 178 CLR 193 Lam Chi-ming v the Queen [1991] 2 AC 212 M v R (1994) 181 CLR 487 Maddaford v Brown [1953] SASR 169 R v Beere [1965] QdR 370 R v Coats (1932) 51 NZLR 401 R v Doyle ex parte Attorney-General [1987] 2 QdR 732 R v Fellowes, Jackson, McGeough & Buttigeig [1987] 2 QdR 606 R v Foster (1993) 67 ALJR 550 R v Hanger [1928] AD 469 R v Lindsay [1963] QdR 386 R v McKay [1965] QdR 240 R v Smith (CA No 4 of 1997; 9 May 1997) R v Sutherland (CA No 323 of 1990; 26 March 1991) R v Swaffield (1997) 192 CLR 159 R v Weissensteiner (1993) 68 ACrimR 251 R v Whiting (CA No 321 of 1994; 24 October 1994)
Criminal Law Amendment Act 1984 s 10
COUNSEL:	Mr PE Smith for the appellant Clark Ms L Clare for the Crown
SOLICITORS:	Terry Fisher & Co for the appellant Clark Director of Public Prosecutions (Queensland) for the crown

CITATION:	R v Clark; ex parte A-G [1999] QCA 438
PARTIES:	R v CLARK, Paul Charles (appellant)
R v CLARK, Paul Charles