R v Clark [No 2] - [2008] NSWSC 821

CITATION: R v Clark [No 2] [2008] NSWSC 821

HEARING DATE(S): 10/03/08 - 14/03/08
17/03/08 - 20/03/08
27/03/08

JURISDICTION: Common Law Division
Criminal List

JUDGMENT OF: Kirby J

EX TEMPORE JUDGMENT DATE: 27 March 2008

DECISION: Application for discharge refused.

CATCHWORDS: Criminal Practice & Procedure - application to discharge juror and jury - previous trial - hung jury - juror conversation at church with wife of juror in previous trial - whether juror or panel should be discharged.

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 Extempore - Checked
OF NEW SOUTH WALES
COMMON LAW DIVISION
CRIMINAL LIST

JUSTICE DAVID KIRBY

27 MARCH 2008

2006/3065 Regina v Michael Rex CLARK
JUDGMENT [No 2] – on application to discharge jury; see p466 of transcript

1 HIS HONOUR: Michael Rex Clark has been charged with the murder of Ernest Richard Clark. The murder is said to have been carried out as a result of an agreement between Michael Rex Clark and his son Ben whereby Ben shot the deceased on 29 April 2005 causing injuries which led to his death the following day.

2 The matter has a long history. Michael Clark, the present accused, and his son, Ben, were jointly indicted before Patten AJ in 2007, at which time Ben Clark pleaded guilty to murder. He was later sentenced to 20 years imprisonment with a non-parole period of 14 years.

3 The trial then proceeded before Patten AJ and a jury in respect of the indictment concerning Michael Clark, he being charged with murder. Ultimately, the jury was discharged when it was unable to agree.

4 The matter was listed before me on 11 February 2008 for a retrial. It proceeded for 17 days before it became necessary to discharge the jury. A further jury panel was summoned on 10 March 2008 and the present trial began.

5 That trial is now in its tenth day and most of the oral evidence has been called. There remains a significant number of listening device taped material and telephone intercept material before the completion of the Crown case, together with a handful of witnesses. That being the context, the trial was adjourned on Thursday 20 March 2008 for the Easter break. Because of the commitments of counsel, the trial was to resume on Thursday 27 March 2008.

6 Yesterday, that is 26 March 2008, I received a memorandum from the Senior Deputy Registrar of the Supreme Court setting out a conversation which she had had the previous Saturday evening with a person who identified himself as a juror in this trial. That memorandum has been marked for identification 16 and is in these terms:

“Memorandum

I refer to the trial that is currently before His Honour Justice Kirby.

At a private function on Saturday evening, a person known to me indicated that he is…

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 2]

Details

AGLC: R v Clark [No 2] [2008] NSWSC 821
Case: [2008] NSWSC 821
Decision Date: 27 March 2008

CaseChat Overview and Summary

In the case of R v Clark, the dispute involved a criminal proceeding where the defendant sought to discharge a juror, citing concerns about potential bias. The matter was heard in the Supreme Court of Victoria. The defendant argued that the juror had engaged in a conversation with the wife of another juror who had served in a previous trial of the same matter, which had ended in a hung jury. The defendant claimed that this conversation could have influenced the juror's impartiality.

The central legal issue before the court was whether the juror's conversation with another juror's spouse constituted a ground for discharging the juror or the entire panel. The court had to assess the potential for bias and its impact on the fairness of the trial. The defendant's argument hinged on the possibility that the conversation could have shared information or opinions from the previous trial, potentially affecting the juror's ability to remain impartial.

The court determined that the conversation between the juror and the spouse of another juror did not establish a sufficient basis for discharge. The court reasoned that there was no evidence suggesting that the conversation involved any discussion of the case or opinions formed during the previous trial. Furthermore, the court noted that the juror had not expressed any bias or preconceptions about the case. Consequently, the court held that the potential for bias was not demonstrated to the required standard, and the application to discharge the juror was dismissed.

The court's decision concluded that the juror could remain part of the panel, and no further action was required regarding the jury. The case proceeded as scheduled, with the juror participating in the trial.

Orders