R v Clarke - [2006] QCA 30

[2006] QCA 30

COURT OF APPEAL

McPHERSON JA

CA No 240 of 2005
DC No 513 of 2005

THE QUEEN

CLARKE, Suzanne Katherine Applicant

BRISBANE

DATE 15/02/2006

JUDGMENT

MR A J DONALDSON (instructed by Burns Lawyers) for the applicant

MR C W HEATON (instructed by the Director of Public Prosecutions (Queensland)) for the respondent

McPHERSON JA: The applicant before me, who is Mrs Suzanne Clarke, seeks an order varying paragraph 3 of an order of the Court of Appeal dated 23rd December 2005 that a bench warrant issue for the arrest of Mrs Clarke. The order in paragraph 3 contains a proviso that the bench warrant is to lie in the Registry (or in other words, that it not be executed in) until 3rd January 2006.

The variation that is sought is that the bench warrant lie in the Registry until a date on which an application by Mrs Clarke to the Governor under s 672A of the CriminalCode is determined, or not proceeded with, or until further order.

The events giving rise to the issue of the bench warrant are as follows: Mrs Clarke was convicted on 15th September 2005, after a three-day trial in the District Court at Beenleigh, of 21 counts of stealing as a servant, fraud, and uttering. She was sentenced to imprisonment for two years to be suspended after serving six months. She appealed to the Court of Appeal, which heard her appeal on 9th December 2005 and dismissed it on 23rd of December. See R v Clarke [2005] QCA 483.

In dismissing it, the Court ordered that the bench warrant issue with the proviso to which I have referred. Deferring its execution for a limited time in that way accords with common practice in such matters unless for some good reason, the Crown opposes it. Now the applicant asks that the suspension of the warrant for her arrest be continued to the date I have mentioned, which, on one version of it, could be indefinitely depending on whether steps were taken to proceed with the application or not.

The reason why she makes this application is that she has instructed solicitors to act for her in applying to the Governor for the exercise of the pardoning power in reference to Mrs Clarke's conviction at the trial in Beenleigh. In the event of such an application being made for a pardon, the Crown Law officer may under s 672A of the Criminal Code refer, "the whole case" to the Court of Criminal Appeal to be heard and determined by that Court, as in the case of an appeal by a convicted person. See Mallard v The Queen (2005) 80 ALJR 160.

Inquiries by the applicant's solicitors have elicited that it would probably be some five to eight months before this, "whole case" was heard and determined in that way. The submission on behalf of Mrs Clarke is that, unless execution of a bench warrant is deferred, she would by then probably…

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 Clarke

Details

AGLC: R v Clarke [2006] QCA 30
Case: [2006] QCA 30
Decision Date: 15/02/2006

CaseChat Overview and Summary

The case of R v Clarke involved Suzanne Katherine Clarke, who sought a variation to a bench warrant issued for her arrest. The warrant had been issued following Clarke's conviction for 21 counts of stealing as a servant, fraud, and uttering, for which she was sentenced to two years imprisonment, suspended after six months. Clarke's appeal against her conviction and sentence was dismissed by the Court of Appeal, leading to the issuance of the bench warrant, which was to remain in the Registry until 3 January 2006. Clarke sought to vary the warrant's execution date until an application to the Governor under section 672A of the Criminal Code was determined or until further order. Clarke's application was based on the possibility that she might apply for a pardon, which could lead to a referral of her case to the Court of Criminal Appeal. Clarke argued that deferring the execution of the warrant was necessary to avoid serving her custodial sentence before the pardon application was heard.

The legal issues before the court involved the appropriate circumstances under which a bench warrant's execution could be deferred, particularly in relation to potential applications for pardons under the Criminal Code. The court also needed to consider the principle that staying an order of imprisonment pending an appeal is an exceptional remedy, and whether Clarke's situation presented any exceptional circumstances warranting such relief.

The Court of Appeal, presided over by McPherson JA, dismissed Clarke's application. The court reasoned that Clarke had already undergone due process, with her conviction and sentence being upheld by both the trial court and the Court of Appeal. The court found no exceptional circumstances that would warrant deferring the execution of the warrant. McPherson JA noted that Clarke's claims of inadequate legal representation were vague and lacked detail, and did not meet the threshold for establishing "flagrant incompetence." Furthermore, the court held that the serious nature of Clarke's crimes, and the consistent findings of guilt across multiple judicial processes, did not support a significant possibility of acquittal if further proceedings were to occur. Consequently, the application to vary the bench warrant's execution date was dismissed.

The court's final order was that the bench warrant remain in the Registry until 3 January 2006, as previously ordered, with no further deferrals granted.

Orders