R v Clarke - [2001] QCA 124

[2001] QCA 124

COURT OF APPEAL

McMURDO P
McPHERSON JA
DUTNEY J

CA No 23 of 2001

THE QUEEN

DAVID JOHN CLARKE Applicant

BRISBANE

..DATE 02/04/2001

JUDGMENT

McPHERSON JA: This is an application for extension of time within which to appeal against conviction and sentence. The applicant is a citizen of New Zealand. It is necessary to mention that in the light of some further facts that will be referred to. In 1996 he was charged with two counts of murder of men named Stainton and Josey, and also two counts of interfering with their bodies after death.

He pleaded guilty to the latter two charges and went to trial on the former. The jury found him not guilty of murder, but guilty of one count of manslaughter. At the trial the evidence for the prosecution consisted primarily of the applicant's confession or confessions which were taped. There was also forensic evidence, which I understand to have been unchallenged, that some strands of the applicant's hair were found at or near the scene of the crime.

He now says that the confessions were exacted from him under duress in that threats were made against his wife to the effect that she would be arrested and charged with being an accessory to the murder, and also that their daughter would be placed in the care of the State.

We have heard the applicant address us on the matters that he claims are of importance here, but the problem, it seems to me, comes back to this. At the trial he did not allege the matters that are now being put forward to us in relation to duress and so on. He did not do so, he told us, because he thought that the police would be believed rather than he.

It does not seem to me that that state of affairs has changed, if it be correct to express it as he does now. If there were an order for a new trial after setting aside the convictions, the probability is, it would seem to me, that the result would be the same. Indeed, the major problem in this instance is, to my mind, that no fresh or new evidence has been put before us that would raise a significant possibility that the applicant had been wrongly convicted of the offence of manslaughter for which he was sentenced.

His sentence has now been served, and it would appear that the purpose of this application is, as he says, "to get the records straight" with a view to persuading others in Federal Court proceedings that he ought not be deported back to New Zealand.

The time that has elapsed since the conviction and sentence is, obviously, very considerable. That might in itself not be a bar to giving leave to appeal, or extending time to do so, provided that evidence in proper form was now presented to this Court which, as I say, would need to raise a fresh or new…

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 [2001] QCA 124
Case: [2001] QCA 124
Decision Date: 02/04/2001

CaseChat Overview and Summary

In the case of R v Clarke, the applicant, David John Clarke, sought an extension of time to appeal against his conviction and sentence. Clarke, a New Zealand citizen, was convicted of manslaughter and interfering with bodies after death. He argued that his confessions were coerced by threats made against his family. The Court of Appeal considered whether Clarke's claims of duress and the absence of an allegation at trial warranted an extension of time for appeal. The court emphasised that Clarke had not presented fresh or new evidence to suggest he was wrongly convicted. Additionally, the document Clarke relied on was deemed hearsay and insufficient to warrant a retrial. The Court of Appeal, in agreement with the reasoning of McPherson JA and Dutney JA, dismissed the application for extension of time. The President of the Court added that the summing up indicated multiple lengthy interviews before Clarke's confession, partially supporting the prosecution's case. The final order was that the application for extension of time was refused.

Orders