R v Clarke - [2006] VSCA 43

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 2 of 2005

THE QUEEN
	v.
MALCOLM JOSEPH THOMAS CLARKE

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JUDGES:	CALLAWAY, BUCHANAN and VINCENT, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	13 - 21 September 2005
DATE OF JUDGMENT:	21 April 2006
MEDIUM NEUTRAL CITATION:	[2006] VSCA 43

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Criminal law – Murder – Applications for leave to appeal against conviction and sentence – Applicant involved in purported criminal activity with undercover police operatives – “Scenario evidence” – Confession made to undercover operative – Whether confession voluntary – Whether made to person in authority – Whether properly admitted having regard to discretionary considerations – Sentence of life imprisonment with non-parole period of 25 years not manifestly excessive - Applications refused.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr J.D. McArdle, Q.C. with Ms S.E. Pullen, S.C. and Dr S.B. McNicol	Mr S. Carisbrooke, Acting Solicitor for Public Prosecutions
For the Applicant	Mr O.P. Holdenson, Q.C. with Mr L.C. Carter	Victoria Legal Aid

CALLAWAY, J.A.:

I agree with Vincent, J.A.

BUCHANAN, J.A.:

I also agree with Vincent, J.A.

VINCENT, J.A.:

This applicant was found guilty in the Trial Division of this Court of the murder, on 21 December 1982, of Bonnie Melissa Clarke. He was subsequently sentenced to life imprisonment with a non-parole period of 25 years.

He now seeks leave to appeal against his conviction and sentence. He relies upon the following grounds in support of the conviction application:

1.The learned trial judge erred in failing to exclude the admissions made by the applicant to Covert Operative “M” on 6 June 2002 as involuntary.
2.The learned trial judge erred in failing to exclude the admissions made by the applicant to Covert Operative “M” on 6 June 2002 as unreliable.
3.The learned trial judge erred in failing to exclude the admissions made by the applicant to Covert Operative “M” on 6 June 2002 as contrary to the general discretion.
4.The learned trial judge erred in failing to exclude the admissions made by the applicant to Detectives Day & Iddles in the evening of 6 June 2002 as involuntary.
5.The learned trial judge erred in failing to exclude the admissions made by the applicant to Detectives Day & Iddles in the evening of 6 June 2002 as unreliable.
6.The learned trial judge erred in failing to exclude the admissions made by the applicant to Covert Operative “M” on 6 June 2002 pursuant to the general discretion.

The Background

The deceased (born 12 January 1976) was aged six years at the time of her death. She was in the care of her mother, Marion Wishart, who was employed as a nurse. At the that time, they resided in a house in Westbourne Grove, Northcote.

Mrs Wishart had difficulty paying the rent on her own, so she contacted an Agency called “Flatmates” seeking a person to move in as a co-tenant. In January 1982, she was contacted through this source by the applicant, and he took up residence in the same month. He remained…

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] VSCA 43
Case: [2006] VSCA 43
Decision Date: 21 April 2006

CaseChat Overview and Summary

In the matter of R v Clarke, the applicant, Clarke, sought leave to appeal against his conviction for murder and the sentence imposed upon him. The case was heard in the High Court of Australia. Clarke was involved in a purported criminal activity with undercover police operatives, which resulted in a confession made to one of these operatives. The defence argued that the confession was not voluntary, was made to a person in authority, and should not have been admitted into evidence. The discretionary considerations regarding the admissibility of the confession were also brought into question.

The court was required to determine whether the confession was indeed voluntary and whether it was appropriately admitted, considering the discretionary factors that must be taken into account. Furthermore, the court needed to assess whether the sentence of life imprisonment with a non-parole period of 25 years was manifestly excessive. The court carefully reviewed the evidence presented and considered the legal principles applicable to the case, including the admissibility of confessions and the principles of sentencing for murder.

Upon examining the evidence and the legal principles involved, the court concluded that the confession was voluntary and was properly admitted. The court found that the discretionary considerations did not warrant exclusion of the confession. Additionally, the court held that the sentence imposed was not manifestly excessive, taking into account the gravity of the offence and the need for deterrence and protection of the community. Consequently, the applications for leave to appeal against the conviction and sentence were refused.

No further orders were made by the court.

Orders