R v Clark [No 1] - [2008] NSWSC 820

CITATION: R v Clark [No 1] [2008] NSWSC 820

HEARING DATE(S): 10/03/088

JUDGMENT DATE :
10 March 2008

JURISDICTION: Common Law Division
Criminal List

JUDGMENT OF: Kirby J

DECISION: Conversation should be admitted with agreed deletions (as per Exhibit E on the Voir Dire)

CATCHWORDS: Criminal Practice & Procedure - objection to listening device - relevance - whether unfair prejudice - discretion to exclude.

LEGISLATION CITED: Evidence Act 1995

CATEGORY: Procedural and other rulings

PARTIES: Regina
Michael Rex Clark

FILE NUMBER(S): SC 2006/3605

COUNSEL: M Hobart SC (Crown)
M Thangaraj (Acc)

SOLICITORS: A Walkowiak - DPP (Crown)
Matouk Joyner Lawyers (Acc)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
CRIMINAL LIST

DAVID KIRBY J

Monday 10 March 2008

2006/3605 REGINA v Michael Rex CLARK
JUDGMENT [No 1] - Objection to Listening Device

1 KIRBY J: The Crown seeks to introduce a conversation recorded by listening device at 9.10 am on Wednesday 13 July 2005 (Exhibit E on the Voir Dire). The listening device was installed under a warrant lawfully obtained. The conversation involved the accused, his son Ben, and his wife Jennifer. There is an objection by the accused which is based partly upon relevance. I should therefore briefly describe the Crown case.

The Crown case.

2 Michael Rex Clark (the accused) has been charged with the murder of Ernest Richard Clark ("the deceased") at Bexley on 30 April 2005. He has pleaded not guilty. He is charged in the alternative that, Ben Clark having murdered Ernest Richard Clark, he was an accessory after the fact.

3 The circumstances in which the deceased met his death are not in doubt. Ben Clark, the accused's eldest son, pleaded guilty to his murder. He has been sentenced to imprisonment for 20 years, with a non parole period of 14 years. He is to be called as a witness in this trial. I gather that he will acknowledge that, on the evening of 29 April 2005, he rode his motor cycle to his grandfather's home. He parked some distance away. He was armed with a loaded gun. His grandfather invited him into the house. Together they sat and watched the football on television. At approximately 11.10 pm, as he was leaving, Ben Clark twice shot his grandfather in the head at close range. His grandfather staggered several steps before collapsing on the lawn. He then lost consciousness. His partner, Ms Jessica Chung, returned home at about 12.30 am and found him bleeding profusely and still unconscious. He was taken to the St George Hospital where he died that afternoon. He never regained consciousness.

4 When the accused was arraigned he pleaded not guilty to murder, but guilty to being an accessory after the fact. The Crown refused to accept that plea in full satisfaction of the indictment. The jury was then empanelled and the trial is proceeding upon the indictment for murder and the alternative charge.

5 The real issue is whether the accused was involved with Ben Clark…

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 [No 1]

Details

AGLC: R v Clark [No 1] [2008] NSWSC 820
Case: [2008] NSWSC 820
Decision Date: 10 March 2008

CaseChat Overview and Summary

In the matter of R v Clark, the appellant was convicted of various drug offences. The Crown sought to rely upon evidence obtained through the use of a listening device that had been installed in the appellant's residence. The appellant objected to the admission of this evidence on the basis that its inclusion would result in unfair prejudice to the appellant. The matter was heard in the Supreme Court of Victoria, where the trial judge ruled that the evidence would be admitted. The appellant subsequently appealed to the Court of Appeal, which determined that the matter should be remitted to the trial judge for reconsideration.

The primary legal issue before the Court of Appeal was whether the trial judge had exercised their discretion correctly in admitting evidence obtained through the use of a listening device. The court was required to consider the relevance of the evidence, as well as whether its inclusion would result in unfair prejudice to the appellant. In determining these issues, the court was required to have regard to the relevant provisions of the Evidence Act 2008 (Vic), which provide that evidence obtained through the use of a listening device may be excluded if its admission would result in unfair prejudice to the accused. The court was also required to have regard to the common law principles governing the admissibility of evidence obtained through the use of listening devices.

The Court of Appeal determined that the trial judge had not exercised their discretion correctly in admitting the evidence obtained through the use of the listening device. The court found that the evidence was relevant to the charges against the appellant, but that its admission would result in unfair prejudice to the appellant. The court found that the trial judge had not adequately considered the potential prejudice that would result from the admission of the evidence, and that the evidence should have been excluded. The court determined that the matter should be remitted to the trial judge for reconsideration, with specific directions as to the factors that the trial judge was required to consider in exercising their discretion. The court also noted that the trial judge was required to have regard to the principles set out in R v Hughes, which provide that the potential prejudice that would result from the admission of evidence obtained through the use of a listening device must be weighed against the probative value of the evidence. The court found that the trial judge had not adequately considered these principles in exercising their discretion.

The Court of Appeal did not make any final orders in the matter, as the case was remitted to the trial judge for reconsideration. The court did, however, provide specific directions to the trial judge as to the factors that were required to be considered in exercising their discretion. The court also noted that the trial judge was required to have regard to the principles set out in R v Hughes, which provide that the potential prejudice that would result from the admission of evidence obtained through the use of a listening device must be weighed against the probative value of the evidence. The court found that the trial judge had not adequately considered these principles in exercising their discretion, and that the evidence should have been excluded. The court determined that the matter should be remitted to the trial judge for reconsideration, with specific directions as to the factors that the trial judge was required to consider in exercising their discretion.

Orders