R v Clarke II - [2001] ACTSC 39

R v PETER DANIELS CLARKE II [2001] ACTSC 39 (7 May 2001)

CATCHWORDS

CRIMINAL LAW – bail – review of bail decisions – balancing process between risk of flight and need for applicant to be at liberty to instruct legal advisers – onus on Crown to prove likelihood of flight – bail granted.

Bail Act1992 ss 3, 8, 9, 10, 12, 19, 22, 33, 43, 45

Clarke v R [2000] FCA 518
Dunstan v DPP (ACT) (1999) 92 FCR 168
Niemann v Electronic Industries Ltd [1978] VR 431
Johnsen v Dunstan (1999) 150 FLR 158

No. SCC 146 of 1999

Judges: Higgins, Crispin & Ryan JJ
Supreme Court of the ACT
Date: 7 May 2001

IN THE SUPREME COURT OF THE     )
   )           No. SCC 146 of 1999
AUSTRALIAN CAPITAL TERRITORY            )

THE QUEEN

v

PETER DANIELS CLARKE II

REASONS FOR RULING

Judges:   Higgins, Crispin & Ryan JJ
Date:   7 May 2001
Place:   Canberra

The applicant, Peter Daniels Clarke II, was on 8 July 1997 charged with a number of offences under the Corporations Law. In essence, he was alleged to have abused his position as a director of Burns Philp Trustee Company (Canberra) Ltd (“Burns Philp”) so as to defraud clients of that Company of a large sum of money, in excess of $4,000,000.

He was apprehended in the United States of America in August 1997 pursuant to a warrant alleging the above offences and to a request to the US government for extradition. The maximum penalty for each of those offences is 10 years imprisonment.

The applicant was held in custody pending completion of those proceedings. He was extradited in March 1998. He was refused bail in the Canberra Magistrates Court. The applicant was, on 14 September 1998, granted bail by this Court. As at 24 September 1998, when Miles CJ refused an application for a temporary stay of proceedings, he had not obtained the necessary sureties to meet the conditions imposed.

Shortly thereafter, however, such sureties were provided and the applicant was then conditionally at liberty.

Bail continued thereafter, with some variations to the conditions thereof, until 2 March 2000.

Prior to that date, on 27 January 2000, the applicant had, following negotiations with the Crown, been charged on a fresh indictment containing five counts alleging fraudulent conduct contrary to the Corporations Law. The maximum penalty for each of those offences is 5 years imprisonment. The sums involved, however, still exceeded $4,000,000. On 27 January 2000, the applicant was arraigned on that indictment before Gallop J, and entered pleas of guilty to the five counts contained therein.

Although an agreed statement of facts had yet to be settled, his Honour promptly accepted those pleas and recorded convictions thereon. At that stage a solicitor, Mr Theakston of Saunders & Company Solicitors, appeared for the applicant. Mr Theakston raised no objection to the course his Honour took. The matter was then adjourned to 2 March 2000 for the sentencing proceedings to continue.

Mr Theakston advised the Court that…

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 II

Details

AGLC: R v Clarke II [2001] ACTSC 39
Case: [2001] ACTSC 39
Decision Date

CaseChat Overview and Summary

This case involved an appeal against the refusal of bail by the Supreme Court of the Australian Capital Territory. The applicant, Peter Daniels Clarke II, was convicted of serious offences and had been on bail for a significant period. The Crown opposed bail, citing a flight risk due to the settlement of a civil action and the applicant's alleged intent to defraud. The Full Court of the Supreme Court reviewed the decision, acknowledging the risk of flight but finding that the Crown had failed to establish a significant change in circumstances since the previous grant of bail. The Full Court granted bail on stringent conditions, emphasizing the need for the applicant to be at liberty to properly prepare for sentencing. The decision highlighted the importance of the balancing process under the Bail Act, considering factors such as the flight risk, the applicant's background, and the need for the applicant to be at liberty to instruct legal advisers.

Orders