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 in the murder before the shooting. It is clear and conceded that he was involved after the murder. The Crown alleges an agreement between father and son whereby Ben would commit the murder. He would do so at a time that Michael Clark had an alibi and was geographically remote from the area in which the murder took place. Ben, in return, would receive part of the inheritance Michael Clark expected from his father's Will.

6 On the Crown case there was, in respect of Michael Clark, motive and urgency. There was motive because he needed money. He was heavily in debt, without the prospects of being able to repay his debt. There was urgency, according to the Crown, arising from recent changes to his father's relationship with his partner, Ms Jessica Chung. His father was aged 74 years. His partner, Ms Chung, was a much younger woman, not yet 50 years. They had known each other for more than a decade. Although their relationship had involved intimacy, they had lived separately throughout that time. However, in September 2004 their relationship changed. The accused's father sold his business and the flat in which he lived. He was obliged to find another home. He and Ms Chung decided that they would live together in a house which she owned at Bexley. Renovations were undertaken, paid for by Ernest Richard Clark. The deceased had also made it known that first, he was contemplating the discharge of Ms Chung's mortgage in respect of the Bexley property and, secondly, the purchase of a business on her behalf. There is evidence that Michael Clark and his wife were unhappy with these developments, which involved the dissipation of a significant part of the father's cash assets.

7 The Crown principally relies upon recorded conversations after the murder, captured either by listening device or telephone interception. In one such conversation, the accused when speaking to Ben Clark, referred to a "pact", which he promised to keep. The "pact", according to the Crown, was that Ben, having carried out the murder, would receive a share of the money from the inheritance.

8 The accused, one gathers, will acknowledge that indeed there was a pact. However, it was made after the murder, once his son had told him what he had done. He promised that he would not disclose that information to anyone. He thereafter assisted his son in various ways, with full knowledge of his crime. It was upon this basis that he had pleaded guilty to the alternative charge. He will assert that he had no knowledge or involvement before the murder.

9 I should deal with one aspect of the Crown case of particular relevance to the conversation which the Crown seeks to tender, namely the gun used by Ben Clark to shoot his grandfather. The gun has never been recovered. Neighbours reported hearing two shots at about 11.10 pm. The injuries to the deceased were consistent with his having been struck by two bullets. The first was a glancing blow to the left side of the head. The bullet appears to have then struck a tile at the rear of the premises near where the deceased was then standing. The second bullet was fired at close range, penetrating the left side of the forehead. It passed through the brain, fracturing the base of the skull and other facial bones, before exiting on the left side. It was plainly the second bullet that caused death.

10 A number of police officers have given ballistics evidence. One cartridge case was recovered. It was a .38 calibre Winchester cartridge case. It was examined microscopically, revealing extractor and ejector markings, consistent with use in a .38 self loading pistol.

11 Ben Clark was arrested on 14 July 2005 and later interviewed by the police. In the course of the interview he confessed to having shot his grandfather. He provided a description of the gun which he had used. He said that he bought the gun in a pub in Mt Druitt (Q122). His ERISP included the following: (p18)

"Q123 Can you describe the gun to me?

A I didn't look so much like a gun but more like a, like a little toy or like a, I don't know what you would call it, like a little tube with a spring on it, and you pull the spring back and let go."

12 He was asked to provide a diagram. He then produced a rudimentary drawing of a homemade gun with two barrels and springs. He later provided the police with a more sophisticated diagram which, according to the Crown, had the appearance of a reproduction from a gun manual. Neither diagram suggested that the homemade gun was fitted with either an extractor or an ejector. The interview also included the following: (p19)

"Q137 Can you tell me where the gun is now?

A. I don't know where it is, 'cause on the way home I threw it to the side of the road.

Q138 Do you know whereabouts?

A No, I wasn't thinking straight at that time, I was panicking, I was scared."

13 There were, according to the Crown, a number of difficulties with Ben Clark's explanation. First the description he provided was remarkably similar to that suggested by the accused (on the Crown case) in a conversation recorded by listening device that day before the interview: (9.55 am 13 July 2005)

"MC Remember the story … [ind] … that's most important mate the story … [ind] … gun. It was about this long this thin … [ind] … the spring sprang back you know.

BC Yeah.

MC And if they say to ya 'well how did the shells come out' you say 'oh I don't know' … [ind] … 'where did you throw the gun' … [ind] … 'in the city somewhere down the drain' right?

BC [sighs]."

14 Secondly, the homemade gun as described and drawn by Ben Clark, would not eject a cartridge once fired. Yet a cartridge case was found at the scene. Moreover, the case had ejector and extractor markings which you would not expect if the gun as drawn and described by Ben Clark had been used. On the other hand, there were two sets of extractor and injector markings, suggesting that the cartridge had previously been in a gun with an extractor and ejector, but had not been fired.

15 As mentioned, the gun has never been found. Its source has not been identified. The Crown suggests that one would infer that the account given by Ben Clark was false and that he had a self loading .38 handgun. If that is right, the question arises: "Why would the accused suggest that his son give a false account?"

16 In a conversation between the accused and Ben Clark, recorded by listening device at 11.00 pm on 11 July 2005, that is, a few days earlier, the accused said this:

"MC [sighs] Fuck … [ind] … ever put you there if you didn't touch a fucking beer bottle. And if you got them fucking clips, they wouldn't a known what sort of a fucking gun. They wouldn't have known the weapon. You know?"
(emphasis added)

17 Let me turn to the grounds of objection.

Relevance.

18 It was submitted on behalf of the accused that the conversation was irrelevant. The discussion was about the trip to South Australia, which had nothing to do with this trial. When the argument began, counsel for Mr Clark asked the Crown to identify the particular relevance relied upon. The Crown did so (T362). In the debate that followed, other issues were canvassed. The suggested relevance of the material can be broadly stated as follows:

· First, the reaction of Michael Clark to the recounting to the police of the visit to the shooting gallery by Ben was said to be so extreme that it betrayed that Michael Clark had "far more knowledge than he will let on at any stage during this trial" (T362), specifically about the gun.

· Secondly, the reference by Ben Clark to having previously fired a "handgun", and the reaction of Michael Clark to that disclosure, suggested an awareness of the actual weapon used, and perhaps its source.

· Thirdly, the conversation is relevant to the alternative charge, although it should be acknowledged that the Crown has a deal of other evidence to prove that charge. In the conversation objected to, comments are made by Michael Clark which are open to the construction that he was aware of the essential nature of Ben's crime and thereafter counselled and instructed him as to the way in which he should respond to the police, and thereby avoid arrest. His instructions, arguably, included coaching in a false story.

· Fourthly, and perhaps most importantly, the tape is capable of providing real insight into the relationship between the accused and his son, Ben. It is one of a series of conversations between father and son relevant, according to the Crown, to the primary issue in this trial, that is, whether the accused's involvement began before or after the murder.

· Finally, there are individual answers which are relevant to a number of subsidiary issues. The accused was also interviewed by the police. His instructions to his son as to the way in which he should deal with questions by the police seeking information is relevant to the answers which he ultimately provided when interviewed (Exhibit E on the Voir Dire: p4, 6). Similarly, the comment by the accused concerning mobile phone contact between himself and Ben on the night of the murder is relevant in the context of evidence concerning such contact (Exhibit E on the Voir Dire: p21). There are other illustrations.

19 In my view, the proposed transcript is relevant in the various ways suggested. As the debate progressed, I understood counsel for the accused to ultimately accept that, in at least some of these ways, the Crown could satisfy the requirements of relevance (T423 (21.2.08)).

Exclusion because of unfair prejudice.

20 The real issue was the exclusion of the conversation under s 135 or s 137 of the Evidence Act 1995. Since the evidence was not misleading or confusing (s 135(b)) and would not result in an undue waste of time (s 135(c)), the real question concerns unfair prejudice. Should the evidence be excluded, as a matter of discretion, under s 135(a), or must it be excluded under s 137 because its probative value is outweighed by the danger of unfair prejudice to the accused?

21 Before dealing with counsels' submissions, I should briefly refer to what was said in the conversation. When Ben Clark was interviewed by the police on 12 July 2005, he was asked whether he had ever fired a gun. He acknowledged that he had. He described an episode when he was about ten years old. His family was in Adelaide visiting his father's relatives. His father and uncle took him to a commercial indoor shooting gallery. He fired a handgun and found the experience frightening, much to the amusement of the owner of the gallery. On the day following the interview, in the conversation the subject of objection, the accused asked Ben Clark about his police interrogation. Their conversation included the following: (Exhibit E on the Voir Dire: p2, the initials referring, respectively, to Michael, Ben and Jennifer Clark.)

"MC Did they ask, have they asked you have you ever shot a gun?

BC Yeah.

MC What did you say?

BC Um, years ago when I was about ten or something over in Adelaide.

JC Oh fuck.

BC At a firing range.

JC Oh fuck.

MC Oh no. Fuck Ben.

BC What?

JC Oh, we're done.

BC What?

MC Fuckin' mate, that involved Robert that involved Hells Angels, it involves everyone. Fuck mate.

BC I didn't know that.

MC Oh no. That's why they're comin' back mate. That's why they're comin' back at ya."

22 In the conversation that followed, the accused expressed concern for himself. He said this: (p4)

"MC How many kids that are ten years old get to go to a firing range and fire guns Ben? That means I'm involved in that. Fuck. (BREAK IN RECORDING) It's disappointing, fuckin' come and sit down."

23 Shortly after the accused said this: (p5)

"MC They're gunna pin it on me. Guaranteed.

BC How can they?

MC Well, they will mate. There's too much fuckin', too much loose evidence now.

BC But you couldn't have because youse were all out that night.

MC Yeah, but that means they're gunna say that I paid someone to fuckin' do it Ben."

24 Immediately after this conversation, the accused said this: (p5/6)

"BC Oh.

MC They're gunna say it and we're gonna lose everything mate. That's what they're gunna bring up in court. Because it fits me, it fits me to a situation where I've had past things see all they needed, right, was a situation where they could say, 'Yes well you've had experience in guns before.' See? I had one experience in guns prior to, prior to fuckin' them knowing that, that was my offence.

BC Mmm Mmm.

MC And I was a stupid kid when I did that offence."

(emphasis added)

25 I will return to the words in bold. In the version of the conversation which the Crown proposes to put before the jury, the words in bold will be excluded. However, they remain relevant to one aspect of the submissions by the accused on unfair prejudice, which I will return to shortly.

26 The transcript of the conversation continued: (p6)

"MC What did you fire, what type of gun?

BC A handgun.

MC Oh. Fuck."

27 Shortly after these words, the accused added: (p7)

"MC Who knows? See? … anyone that has been, I mean how do, how do they know it was a handgun? See, what, that's what I mean. Of fuck. (BREAK IN RECORDING) I'll be the next one they drag in."

28 The conversation continued: (p8/9)

"MC … and the direction they were heading can't you, can't you figure out what they're trying to do?

BC Well, tryin' to find someone to put it on.

MC Well, and which way are they directing it now?

BC Us. So for me at the moment, because of my story.

MC I don't think they're tryin' to direct it onto you Ben. I think they're tryin' to get to me.

BC Oh.

MC I think they think that I wasn't where I've said I was.

BC Well, you've got three people witnessing.

MC They're family mate.

JC Simon's not.

MC Yeah."

29 The accused then returned to the implication of any involvement on his part, he being a beneficiary under his father's Will: (p9)

"MC You know even if they suspect me ---

BC Mmm Mmm.

MC --- I can't even go ahead with the will or anything, you know if, if, if they fuckin suspect, suspect.

BC Mmm Mmm.

MC I lose all rights, all fuckin' everything. Fuck."

30 In the conversation that followed, there are a number of references to the Hell's Angels and Rob, including the following: (p18)

"MC Well mate, I can't bring him into it in any way, shape or form. Any way. Mate, if he comes into it that means the Hell's Angels come into it. You know, that's, you know, and, and then I'm fucked anyway. Every, everyone basically. They'll move in an fuckin' you know, (VOCALLY DEMONSTRATES). You know. (LAUGHS) 'Cause you don't, just, just don't give people up, it's as simple as that."

31 Counsel for the accused identified a number of aspects which he suggested gave rise to unfair prejudice. First, taking a ten year old child to a shooting gallery was discreditable and should be excluded. Indeed, it should also be excluded from Ben's interview. However, many children under the supervision of adults, and especially in the country, have been to a shooting gallery and fired a gun at fairgrounds and otherwise. I believe the prejudice, if any, is so mild as to be swamped by the probative value of this material (cf accused's ERISP 19.7.05 p39 Q396-414).

32 Secondly, it was submitted that one did not need to guess at the prejudice which would flow from the admission of this material. The present trial is a retrial. The conversation was admitted in the previous trial without objection. Michael Clark gave evidence and was cross examined upon it. It was suggested that his reaction was such a gross over-reaction that it betrayed that he knew much more than he was letting on. Michael Clark, in these circumstances, had been obliged to explain his reaction and concern. In the process, he was forced to reveal discreditable material about himself which was highly prejudicial. This was the unfair prejudice. The person "Rob" was a good friend, Robert Attenborough. Robert Attenborough was a person to whom he had been introduced by his brother, Andrew. He had a hydroponic business in Adelaide and secretly supplied hydroponic equipment to members of the Hell's Angels motor cycle club for use in the cultivation of drugs. One assumes that he had been charged and convicted for having done so, which was known to Mr Clark, who nonetheless maintained his friendship with him (Transcript previous trial pp831-834). It was not proposed that Robert Attenborough would be called in the Crown case.

33 No doubt some prejudice attaches to the disclosure of an association with Mr Attenborough and Hells' Angels. Hells' Angels is notoriously an organisation involved in drug distribution and crime. However, it is not suggested that Michael Clark was a member of the Hell's Angels gang, or was associated with Mr Attenborough's crime. Rather, Michael Clark knew someone in another state who, at some point, had done business with the Hell's Angels to his discredit, committing a crime. I believe the conversation has significant probative value in respect of the various issues identified, which is not outweighed by the danger of unfair prejudice to the accused.

34 The third submission related, amongst other things, to the passage set out above in bold which, for convenience, I repeat: (p5/6)

"BC Oh.

MC They're gunna say it and we're gonna lose everything mate. That's what they're gunna bring up in court. Because it fits me, it fits me to a situation where I've had past things see all they needed, right, was a situation where they could say, 'Yes well you've had experience in guns before.' See? I had one experience in guns prior to, prior to fuckin' them knowing that, that was my offence.

BC Mmm Mmm.

MC And I was a stupid kid when I did that offence."

(emphasis added)

35 Counsel for Michael Clark drew attention to the accused's significant criminal record. He had been convicted of armed robbery, shooting to avoid apprehension and various drug offences. His criminal record explained his reference to "past things". His state of mind and his reaction to Ben's account of his interview with the police therefore involved, according to counsel, a separate matter of concern (additional to the Hell's Angels and Robert Attenborough), namely, his own past which he dare not reveal to the jury. The unfair prejudice to him therefore, arising from the admission of this material, is that in explaining his reaction, and answering the suggestion that it was an over-reaction, he is only able to give part of the explanation.

36 Dealing with that argument, a number of things should be said. First, when cross examined in the previous trial, Michael Clark limited his explanation to the aspect concerning the Hell's Angels and the discreditable past of his friend, Robert Attenborough. Obviously that is not determinative because he may have confined himself to that aspect precisely because it was prejudicial to mention his criminal record in front of the jury. Secondly, and more to the point, the conversation the subject of objection began with these words: (Exhibit E on the Voir Dire - p1)

"MC They can't, they got nothing to prove anything.

JC Oh.

MC So all they're doing is fishing at the moment.

BC Yeah. Just lookin' for ---

MC (TELEVISION IN BACKGROUND) 'cause they're obviously, my, my history ---

BC Yeah.

MC --- they're trying to say, Well fuck me. I could have quite easily fuckin' you know?

BC Yeah."

37 The reference to "my history", one would infer, was a reference to the accused's assumption that the police would be well aware of his criminal record. The jury, of course, will not be aware of that record, so that the passage is anodyne. The accused's concern is not that the revelation by Ben will cause the police to uncover his own past. It is that Ben's account to the police may expose Ben to the charge of murder. The comments immediately following the reference to the Hells' Angels and Robert (Attenborough) are instructive. The conversation was in these terms: (Exhibit E on the Voir Dire - p2/3)

"MC Fuckin' mate, that involved Robert that involved Hells Angels, it involves everyone. Fuck mate.

BC I didn’t know thast.

MC Oh no. That's why they're comin' back mate. That's why they're comin' back at ya.

BC No, I told them that last night.

MC Oh fuck.

BC Well, I didn't know, I ---

JC What were you thinking?

MC Well mate why would you say you've ever fired a gun if, if you, it's, it's a fuckin', it's a murder mate."
(emphasis added)

38 On the Crown case, Ben was the insulation that the accused required from the accusation of murder. If there was no proof against Ben then, because of his alibi and his presence in Richmond (corroborated by mobile phone records), there could be no involvement of the accused. If, on the other hand, there was proof against Ben, then the accused recognised that he may be vulnerable, notwithstanding his alibi. It may be alleged that he and Ben were acting in concert. It is not unreasonable to suppose, in these circumstances, that in his own mind his vulnerability was the greater because of his criminal record and that may explain, in part, his reaction.

39 Assuming that the accused gives evidence (as has been foreshadowed), and the Crown asks the same question concerning his reaction to Ben's account of the interview, the issue is whether, in giving one aspect of the explanation (concerning Robert Attenborough and the Hells' Angels), his explanation is emasculated to the point that there is unfair prejudice?

40 I accept that there is some unfair prejudice to Michael Clark in being obliged to leave out one aspect of his state of mind when called upon to explain that state of mind. However, I also believe that his main preoccupation was with the vulnerability of Ben, such that he was only indirectly preoccupied with himself. Balancing the probative value of this material against the danger of unfair prejudice to the accused, I believe the conversation should be admitted. To my mind, its probative value significantly outweighs the danger of unfair prejudice to Mr Clark. In making that judgment, I am assuming the significant deletions foreshadowed by the Crown (as set out in Exhibit E on the Voir Dire), where references to Michael Clark's criminal history have been removed.

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