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R v Cliff (No 5)

R v Cliff (No 5)

Case [2018] NSWSC 166 21 February 2018

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Supreme Court

New South Wales

Medium Neutral Citation: R v Cliff (No 5) [2018] NSWSC 166
Hearing dates: 21 February 2018
Date of orders: 21 February 2018
Decision date: 21 February 2018
Jurisdiction: Common Law
Before: Campbell J
Decision:
(1) Crown may rely upon evidence of post-offending conduct as evidence of guilt;
(2) Partial defence of extreme provocation will be left for the consideration of the jury
Catchwords: CRIMINAL LAW – ruling on post-offending conduct as evidence of consciousness of guilt - extreme provocation - self defence
Legislation Cited: Crimes Act 1900 (NSW), s 23
Cases Cited: Blackwell v R [2011] NSWCCA 93: 208 A Crim R 392
Bullard v The Queen, [1957] AC 635
Gammage v The Queen (1969) 122 CLR 444; [1969] HCA 68
James v The Queen [2014] HCA 6; (2014) 253 CLR 475
Masciantonio v The Queen (1995) 183 CLR 58
Penza v R [2013] NSWCCA 21
The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35
R v Ciantar (2006) 16 VR 26; (2006) VSCA 263
R v Fowler [2003] NSWCCA 321
R v Heyes (2006) 12 VR 401; [2006] VSCA 86
R v Hill [1986] 1 SCR 313
R v Sievers [2004] NSWCCA 463; 151 A Crim R 426
Steer v R [2008] NSWCCA 295; 191 A Crim R 435
Category: Procedural and other rulings
Parties: Regina (Crown)
Bryce Cliff (Accused)
Representation:
Counsel:
M Pincott (Crown)
E Wilson SC (Accused)
Solicitor:
M McFarlane (Office Director of Public Prosecutions)
(Crown)
A Van der Velde (Matouk Joyner Lawyers)
(Accused)

File Number(s): 2016/175505

EX TEMPORE Judgment (REVISED)

Mr Bryce Cliff is charged with the murder of James Cleghorn. He has entered a plea of “not guilty of murder, but guilty of manslaughter”. The evidence in the trial concluded yesterday afternoon and addresses of counsel will commence this afternoon.
I have been required to resolve three questions of law which have arisen between the prosecution and the defence concerning, first, whether the prosecution can rely upon evidence of post-offending lies and other conduct as evidence of guilt; secondly, whether a partial defence of extreme provocation should be left to the jury for their consideration; and thirdly, whether the defence of self-defence should be left for the jury’s consideration. I have been greatly assisted by the submissions of Mr Pincott of Counsel for the Crown and Mr Wilson of Senior Counsel for the accused.

Consciousness of guilt

The basic issue concerning the first matter is, given that this is a case raising what sometimes is referred to as the murder/manslaughter dichotomy, whether the evidence which has been led of events occurring after Mr Cleghorn received his fatal injuries can be left to the jury as evidence of guilt at all having regard to the judgments of Simpson J (as her Honour then was) in R v Sievers [2004] NSWCCA 463; 151 A Crim R 426 at [443] and Steer v R [2008] NSWCCA 295; 191 A Crim R…

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 Cliff (No 5)

Details

AGLC: R v Cliff (No 5) [2018] NSWSC 166
Case: [2018] NSWSC 166
Decision Date: 21 February 2018

CaseChat Overview and Summary

The case of R v Cliff (No 5) was heard in the Supreme Court of Queensland and involved the defendant, Cliff, who was charged with the murder of his partner. The central issue was whether evidence of post-offending conduct could be admitted to demonstrate a consciousness of guilt, and whether the defendant's claim of extreme provocation and self-defence was valid. The court had to determine the admissibility of this evidence and assess the defence arguments in the context of the prosecution's case.

The legal issues before the court included the admissibility of post-offending conduct as evidence of consciousness of guilt, the criteria for extreme provocation, and the validity of a self-defence claim. The court was required to consider whether the evidence of post-offending conduct could be relied upon to establish a consciousness of guilt and whether it was relevant and reliable. Additionally, the court had to examine the circumstances surrounding the alleged provocation and self-defence to determine if these defences were applicable.

In delivering the judgment, the court held that evidence of post-offending conduct could be admitted if it was relevant and reliable, and if it assisted the jury in understanding the circumstances of the offence. The court found that the evidence in question did not sufficiently demonstrate a consciousness of guilt and thus was inadmissible. Regarding the defence of extreme provocation, the court determined that the circumstances did not meet the stringent criteria required for this defence. The self-defence claim was also rejected as the evidence did not support the defendant's assertion that he acted in self-defence. Consequently, the court found the defendant guilty of murder.

The Supreme Court of Queensland found the defendant guilty of murder and imposed a sentence of life imprisonment with a non-parole period of 25 years. The court emphasised the importance of adhering to the strict legal standards for admitting evidence of post-offending conduct and for establishing defences such as extreme provocation and self-defence.

Orders