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R v Clarke

R v Clarke

Case [2005] QCA 483 23 December 2005

Appeal

Misdirection and Non-direction

Unreasonable or Insupportable Verdict

Limitation Periods

Admissibility of Evidence

Misrepresentation

Criminal Law

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SUPREME COURT OF QUEENSLAND

CITATION:

R v Clarke [2005] QCA 483

PARTIES:

R
v
CLARKE, Suzanne Katherine
(appellant/applicant)

FILE NO/S:

CA No 240 of 2005
DC No 513 of 2005

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction & Sentence

ORIGINATING COURT:

District Court at Beenleigh

DELIVERED ON:

23 December 2005

DELIVERED AT:

Brisbane

HEARING DATE:

9 December 2005

JUDGES:

McMurdo P, Helman and Chesterman JJ
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER:

1.    Appeal against conviction dismissed
2.    Application for leave to appeal against sentence       refused
3.    A bench warrant is to issue for the arrest of the       appellant but to lie in the registry until 3 January       2006

CATCHWORDS:

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - UNREASONABLE OR INSUPPORTABLE VERDICT - WHERE EVIDENCE CIRCUMSTANTIAL - where the appellant was convicted after trial of one count of stealing as a servant, 19 counts of fraud as an employee and one count of uttering - where the appellant a bank clerk - where prosecution case was that the appellant had stolen a bankcard from a customer and used it to make withdrawals at ATMs and had also uttered a form authorising a transfer between customer's accounts - where prosecution case circumstantial - whether on the whole of the evidence the jury was entitled to exclude all reasonable hypotheses consistent with the appellant's innocence and be satisfied beyond reasonable doubt of the appellant's guilt on each offence

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - INTERFERENCE WITH DISCRETION OR FINDING OF JUDGE - where prosecution witness had a criminal history - where before any evidence was given defence counsel sought leave under s 15A Evidence Act 1977 (Qld) to cross-examine the witness about offences committed by him in respect of which the rehabilitation period under Criminal Law (Rehabilitation of Offenders) Act 1986 (Qld) had expired - where the trial judge refused the application on the basis of insufficient relevance - where the witness had also been convicted of an offence in respect of which the rehabilitation period had not expired - where defence counsel was not prevented from cross-examining the witness on that offence by the trial judge's ruling - where defence counsel did not cross‑examine the witness on any of the offences - whether the trial judge erred in refusing the application

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - MISDIRECTION AND NON-DIRECTION - where the appellant contends the trial judge's direction to the jury was flawed in that it expanded on the meaning of the words "reasonable doubt" without any jury request and did not comply with the model direction in the Benchbook - where both prosecution and defence counsel in their addresses to the jury discussed the standard of proof required - whether…

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 [2005] QCA 483
Case: [2005] QCA 483
Decision Date: 23 December 2005

CaseChat Overview and Summary

In the case of R v Clarke, the appellant was convicted of stealing as a servant, 19 counts of fraud as an employee and uttering. The appellant, a bank clerk, was alleged to have stolen a bankcard from a customer and used it to make withdrawals at ATMs and had also uttered a form authorising a transfer between customer's accounts. The prosecution case was circumstantial, and the appellant appealed against the conviction on several grounds, including the sufficiency of the evidence, alleged errors in the trial judge's directions to the jury, and the refusal to permit cross-examination of a prosecution witness about certain criminal offences. The appellant also sought to appeal against the sentence.

The central issues for the court were whether the jury was entitled to exclude all reasonable hypotheses consistent with the appellant's innocence and be satisfied beyond reasonable doubt of the appellant's guilt on each offence, given the circumstantial nature of the evidence. The court also considered whether the trial judge erred in refusing the application to cross-examine the witness about certain criminal offences, whether the trial judge's direction to the jury on the meaning of "reasonable doubt" amounted to a misdirection or non-direction, whether the trial judge's directions on parties to offences disadvantaged the appellant or constituted a miscarriage of justice, and whether the trial judge's direction as to the use to be made of the appellant's explanations complied with the requirements in Edwards v The Queen.

The court found that the jury was entitled to be satisfied beyond reasonable doubt of the appellant's guilt, as the evidence, when viewed as a whole, was sufficient to exclude all reasonable hypotheses consistent with the appellant's innocence. The court held that the trial judge did not err in refusing the application to cross-examine the witness about certain criminal offences, as the evidence was not relevant to the issues in the case. The court also held that the trial judge's direction to the jury on the meaning of "reasonable doubt" did not amount to a misdirection or non-direction, as it was a correct statement of the law. The court found that the trial judge's directions on parties to offences did not disadvantage the appellant or constitute a miscarriage of justice, as the jury was properly directed to consider the appellant's intent and involvement in the offences. Finally, the court held that the trial judge's direction as to the use to be made of the appellant's explanations complied with the requirements in Edwards v The Queen.

The court dismissed the appeal against conviction and refused the application for leave to appeal against sentence. A bench warrant is to issue for the arrest of the appellant but to lie in the registry until 3 January 2006.

Orders

Orders of the court

1. Appeal against conviction dismissed

2. Application for leave to appeal against sentence refused

3. A bench warrant is to issue for the arrest of the appellant but to lie in the registry until 3 January 2006

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

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Ratio Decidendi

Legal Principle Established

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Citations

R v Clarke [2005] QCA 483

Most Recent Citation

R v Clarke [2006] QCA 30

Cases Citing This Decision

R v Douglas [2019] QCA 215
Citation 1 (Para 11)

…, to ensure avoidance of a miscarriage of justice. [142] R v Robinson [2010] QCA 377 at [51]; R v Tahiraj [2014] QCA 353 at [87]. See also R v Clarke [2005] QCA 483 at [53].…
R v Lacey [2009] QCA 275
Citation 2 (Para 1)

…a half hour closing address to the jury commenced at 10:15am on Tuesday, 28 April. [1] R v Hytch [2000] QCA 315 per McMurdo P at [10]. [2] R v Clarke [2005] QCA 483 per McMurdo P at [66], Helman and Chesterman JJ agreeing. [3] Fingleton v The Queen (2005) 227 CLR 166 per McHugh J at [83]-[84].…
R v Clarke [2006] QCA 30
Citation 3

…ing 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.…

See all citing cases →

Cases Cited

R v Conway [2005] QCA 194
Citation 1 (Para 1)

…v Conway .[24] It follows that this ground of appeal and the appeal against conviction fails. [23][2004] QCA 175; CA No 336 of 2003, 28 May 2004. [24][2005] QCA 194; CA No 121 of 2005, 10 June 2005, [25] - [34].…
R v Booth [2005] QCA 30
Citation 2 (Para 1)

…the elements of each offence beyond reasonable doubt on the evidence but rather helped them focus on this task. This ground of appeal also fails. [13][2005] QCA 30; CA No 302 of 2004, 18 February 2005, [4] - [5]. [14][2003] QCA 95; CA No 439 of 2002, 11 March 2003, p 5 - p 6.…
R v Bird [2004] QCA 196
Citation 3 (Para 1)

…nce imposed here involving a period of actual custody was well within the appropriate range. [25][2004] QCA 113; CA No 45 of 2004, 14 April 2004. [26][2004] QCA 196; CA No 147 of 2004, 8 June 2004. [27][2002] QCA 11; CA No 297 of 2001, 4 February 2002.…
R v Kassulke [2004] QCA 175
Citation 4 (Para 1)

…before the jury the appellant's case at trial: cf R v Conway .[24] It follows that this ground of appeal and the appeal against conviction fails. [23][2004] QCA 175; CA No 336 of 2003, 28 May 2004. [24][2005] QCA 194; CA No 121 of 2005, 10 June 2005, [25] - [34].…
R v Harch [2004] QCA 113
Citation 5 (Para 1)

…] and R v Sigley ,[27] all demonstrate that the sentence imposed here involving a period of actual custody was well within the appropriate range. [25][2004] QCA 113; CA No 45 of 2004, 14 April 2004. [26][2004] QCA 196; CA No 147 of 2004, 8 June 2004. [27][2002] QCA 11; CA No 297 of 2001, 4 February 2002.…
R v Aboud; R v Stanley [2003] QCA 499
Citation 6 (Para 1)

…this Court of its responsibility to determine whether the direction was an error of law resulting in a miscarriage of justice: cf R v Aboud .[16] [16][2003] QCA 499; CA No 98 of 2003, 14 November 2003.…
R v Bain [2003] QCA 389
Citation 7 (Para 1)

…im R 595, [11]. [8][2002] QCA 235; CA No 157 of 2002, 28 June 2002, [53], [56], [58]. [9][2002] QCA 433; CA No 171 of 2002, 16 October 2002, p 4. [10][2003] QCA 389; CA No 185 of 2003, 9 September 2003, [18], [33]. [11]Footnote 6 at 32 - 33. [12](1960) 102 CLR 584, 587, 595.…
Dhanhoa v The Queen [2003] HCA 40
Citation 8

…whether sentence manifestly excessive Criminal Law (Rehabilitation of Offenders) Act 1986 (Qld), s 3(1), s 8 Evidence Act 1977 (Qld), s 15A, s 16 Dhanhoa v The Queen (2003) 217 CLR 1, cited Edwards v The Queen (1993) 178 CLR 193, cited Green v The Queen (1971) 126 CLR 28, considered R v Bain [2003] QCA 389; CA No 185 of 2003…
R v Moffat [2003] QCA 95
Citation 9 (Para 1)

…e but rather helped them focus on this task. This ground of appeal also fails. [13][2005] QCA 30; CA No 302 of 2004, 18 February 2005, [4] - [5]. [14][2003] QCA 95; CA No 439 of 2002, 11 March 2003, p 5 - p 6.…
R v Kidd [2002] QCA 433
Citation 10 (Para 1)

…ook. [6](1971) 126 CLR 28. [7][2002] QCA 333; (2002) 132 A Crim R 595, [11]. [8][2002] QCA 235; CA No 157 of 2002, 28 June 2002, [53], [56], [58]. [9][2002] QCA 433; CA No 171 of 2002, 16 October 2002, p 4. [10][2003] QCA 389; CA No 185 of 2003, 9 September 2003, [18], [33]. [11]Footnote 6 at 32 - 33. [12](1960)…
R v Punj [2002] QCA 333
Citation 11 (Para 1)

…lanation as to the meaning of reasonable doubt without the jury requesting it because of what is contained in the Benchbook. [6](1971) 126 CLR 28. [7][2002] QCA 333; (2002) 132 A Crim R 595, [11]. [8][2002] QCA 235; CA No 157 of 2002, 28 June 2002, [53], [56], [58]. [9][2002] QCA 433; CA No 171 of 2002, 16 Octobe…
R v Irlam; ex parte A-G [2002] QCA 235
Citation 12 (Para 1)

…hout the jury requesting it because of what is contained in the Benchbook. [6](1971) 126 CLR 28. [7][2002] QCA 333; (2002) 132 A Crim R 595, [11]. [8][2002] QCA 235; CA No 157 of 2002, 28 June 2002, [53], [56], [58]. [9][2002] QCA 433; CA No 171 of 2002, 16 October 2002, p 4. [10][2003] QCA 389; CA No 185 of 2003…
R v Sigley [2002] QCA 11
Citation 13 (Para 1)

…y was well within the appropriate range. [25][2004] QCA 113; CA No 45 of 2004, 14 April 2004. [26][2004] QCA 196; CA No 147 of 2004, 8 June 2004. [27][2002] QCA 11; CA No 297 of 2001, 4 February 2002.…
R v Hytch [2000] QCA 315
Citation 14 (Para 1)

…person's case. See also R v Mogg [21] and R v Hytch .[22] [20](2000) 199 CLR 620, [41]. [21][2000] QCA 244; (2000) 112 A Crim R 417, [49], [54]. [22][2000] QCA 315; CA No 389 of 1999, 4 August 2000.…
R v Mogg [2000] QCA 244
Citation 15 (Para 1)

…jury as to the relevant law and to fairly put the accused person's case. See also R v Mogg [21] and R v Hytch .[22] [20](2000) 199 CLR 620, [41]. [21][2000] QCA 244; (2000) 112 A Crim R 417, [49], [54]. [22][2000] QCA 315; CA No 389 of 1999, 4 August 2000.…
Zoneff v The Queen [2000] HCA 28
Citation 16

…[2002] QCA 11; CA No 297 of 2001, 4 February 2002, cited RPS v The Queen (2000) 199 CLR 620, considered Wakeley v R (1990) 93 ALR 79, considered Zoneff v The Queen (2000) 200 CLR 234, considered COUNSEL: M J Byrne QC, with C F C Wilson, for appellant/applicant R G Martin SC, with S Farnden, for respondent SOLICITORS: Ryan…
R v Chatzidimitriou [2000] VSCA 91
Citation 17

…uld only be given where the jury indicates that it is struggling with the concept. It draws on Krasniqi (1993) 61 SASR 366; cf Chatzidimitriou [2000] 1 VR 493, 498, 503, 509. A reasonable doubt is such a doubt as you, the jury, consider to be reasonable on a consideration of the evidence. It is therefore fo…
RPS v The Queen [2000] HCA 3
Citation 18 (Para 1)

…res the judge to instruct the jury as to the relevant law and to fairly put the accused person's case. See also R v Mogg [21] and R v Hytch .[22] [20](2000) 199 CLR 620, [41]. [21][2000] QCA 244; (2000) 112 A Crim R 417, [49], [54]. [22][2000] QCA 315; CA No 389 of 1999, 4 August 2000.…
R v Millar [1998] QCA 276
Citation 19 (Para 1)

…construed so as not to prejudice a provision of law or rule of legal practice or to relieve from a responsibility": see the Act s 4 and s 8. [3][1998] QCA 276; [2000] 1 Qd R 437, [14] - [18].…
Edwards v The Queen [1993] HCA 63
Citation 20

…e the appellant contends the trial judge's direction as to the use to be made of the lies should have but did not comply with the requirements in Edwards v The Queen (1993) 178 CLR 193 - whether there was any error of law in trial judge's direction CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND…
Green v The Queen [1971] HCA 55
Citation 21

…(Qld), s 3(1), s 8 Evidence Act 1977 (Qld), s 15A, s 16 Dhanhoa v The Queen (2003) 217 CLR 1, cited Edwards v The Queen (1993) 178 CLR 193, cited Green v The Queen (1971) 126 CLR 28, considered R v Bain [2003] QCA 389; CA No 185 of 2003, 9 September 2003, cited R v Bird [2004] QCA 196; CA No 147 of 2004, 8 June 2004, consi…
Thomas v The Queen [1960] HCA 2
Citation 22 (Para 1)

…QCA 433; CA No 171 of 2002, 16 October 2002, p 4. [10][2003] QCA 389; CA No 185 of 2003, 9 September 2003, [18], [33]. [11]Footnote 6 at 32 - 33. [12](1960) 102 CLR 584, 587, 595.…
Wakeley v The Queen; Bartling v The Queen [1990] HCATrans 76
Citation 23 (Para 1)

…ult to see what could have been gained when he was not precluded from cross-examining Mr Prasad about the 1996 assault conviction on indictment. [5](1990) 93 ALR 79.…

Legislation Cited

Criminal Law (Rehabilitation of Offenders) Act 1986 (Qld) 3(1)
2 mentions (from Para 1)
Evidence Act 1977 (Qld) 15A
2 mentions (from Para 1)

CITATION:	R v Clarke [2005] QCA 483
PARTIES:	R v CLARKE, Suzanne Katherine (appellant/applicant)
FILE NO/S:	CA No 240 of 2005 DC No 513 of 2005
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction & Sentence
ORIGINATING COURT:	District Court at Beenleigh
DELIVERED ON:	23 December 2005
DELIVERED AT:	Brisbane
HEARING DATE:	9 December 2005
JUDGES:	McMurdo P, Helman and Chesterman JJ Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDER:	1. Appeal against conviction dismissed 2. Application for leave to appeal against sentence refused 3. A bench warrant is to issue for the arrest of the appellant but to lie in the registry until 3 January 2006
CATCHWORDS:	CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - UNREASONABLE OR INSUPPORTABLE VERDICT - WHERE EVIDENCE CIRCUMSTANTIAL - where the appellant was convicted after trial of one count of stealing as a servant, 19 counts of fraud as an employee and one count of uttering - where the appellant a bank clerk - where prosecution case was that the appellant had stolen a bankcard from a customer and used it to make withdrawals at ATMs and had also uttered a form authorising a transfer between customer's accounts - where prosecution case circumstantial - whether on the whole of the evidence the jury was entitled to exclude all reasonable hypotheses consistent with the appellant's innocence and be satisfied beyond reasonable doubt of the appellant's guilt on each offence CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - INTERFERENCE WITH DISCRETION OR FINDING OF JUDGE - where prosecution witness had a criminal history - where before any evidence was given defence counsel sought leave under s 15A Evidence Act 1977 (Qld) to cross-examine the witness about offences committed by him in respect of which the rehabilitation period under Criminal Law (Rehabilitation of Offenders) Act 1986 (Qld) had expired - where the trial judge refused the application on the basis of insufficient relevance - where the witness had also been convicted of an offence in respect of which the rehabilitation period had not expired - where defence counsel was not prevented from cross-examining the witness on that offence by the trial judge's ruling - where defence counsel did not cross‑examine the witness on any of the offences - whether the trial judge erred in refusing the application CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - MISDIRECTION AND NON-DIRECTION - where the appellant contends the trial judge's direction to the jury was flawed in that it expanded on the meaning of the words "reasonable doubt" without any jury request and did not comply with the model direction in the Benchbook - where both prosecution and defence counsel in their addresses to the jury discussed the standard of proof required - whether…