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Court of Criminal Appeal 13 December 2001

R v Clark

[2001] NSWCCA 494

Also reported as (2001) 123 A Crim R 506
Homicide
CRIMINAL LAW MURDER APPEAL AGAINST CONVICTION EVIDENCE UNRELIABLE EVIDENCE JUDICIAL DIRECTIONS TO JURY

Citation: R v Clark [2001] NSWCCA 494
Court: NSW Court of Criminal Appeal
Date: 13 December 2001
Judge(s): Heydon JA; Dowd J; Bell J

Background

The appellant was convicted by a jury of murdering Lynette Kay Lock and sentenced to 16 years' imprisonment with a non-parole period of 12 years. The prosecution's most significant witness was a man referred to as Mr Brown, who testified that the appellant had confessed the murder to him. Mr Brown gave his evidence under an indemnity from prosecution, meaning he was protected from being charged in connection with the events.

The appellant challenged both his conviction and his sentence. On conviction, he argued that the trial judge erred by failing to warn the jury about the reliability of Mr Brown's evidence, and by admitting "relationship evidence": statements made by the deceased to various witnesses that expressed her fear of the appellant and her negative state of mind about their relationship. On sentence, the appellant contended that his intellectual and physical difficulties amounted to "special circumstances" justifying a non-parole period shorter than the statutory default of three-quarters of the head sentence.

  • Whether the trial judge was required, under s 165 of the Evidence Act 1995 (NSW), to give the jury an unreliable evidence warning about Mr Brown's testimony, given that he testified under a prosecution indemnity
  • Whether leave should be granted under r 4 of the Criminal Appeal Rules to argue grounds not raised at trial
  • Whether Mr Brown was a witness "criminally concerned in the events giving rise to the proceeding" within the meaning of s 165(1)(d)
  • Whether the "relationship evidence" (contemporaneous statements by the deceased expressing fear of the appellant) was admissible under the Evidence Act 1995, including under the hearsay exception in s 72, and whether it should have been excluded under ss 135 to 137 as unfairly prejudicial
  • Whether the appellant's intellectual and physical difficulties constituted "special circumstances" under s 44(2) of the Crimes (Sentencing Procedure) Act 1999 warranting a reduced non-parole period

Decision

Unreliable evidence warning (Grounds 1 and 2, unanimous)

The Court held that no error was established in the trial judge's failure to give a warning about Mr Brown's evidence. Because trial counsel had not requested such a warning, the appellant required leave under r 4 of the Criminal Appeal Rules to raise the point on appeal. The Court refused leave, finding no miscarriage of justice or unfairness resulted from the absence of a warning.

On the question of s 165 of the Evidence Act 1995, the Court confirmed that the section does not impose a duty on a judge to give an unreliable evidence warning of his or her own motion: the duty arises only when a party requests one under s 165(2). No such request was made here. The Court further held that Mr Brown did not qualify as a witness who might reasonably be supposed to have been "criminally concerned in the events giving rise to the proceeding" under s 165(1)(d). Trial counsel had not suggested during cross-examination that Mr Brown was so involved, and it was not established that he was an accessory after the fact. Even setting that aside, the Court found the indemnity was not of sufficient significance to render Mr Brown's evidence a "kind" that may be unreliable within the section's meaning.

Relationship evidence (Ground 3, majority)

Heydon JA and Bell J held that most of the relationship evidence was admissible. The statements were relevant under s 55(1) because, in the context of all the evidence, they could rationally affect the probability of facts in issue. They fell within the s 72 hearsay exception for contemporaneous representations of a person's state of mind or emotions, and the probative value was not outweighed by the danger of unfair prejudice under ss 135 to 137. Even where the majority found some passages were erroneously admitted, the proviso applied and no substantial miscarriage of justice resulted.

Dowd J agreed on grounds 1 and 2 but dissented in part on the relationship evidence. He considered several specific passages to be significantly more prejudicial than probative: in particular, statements in which the deceased expressed, without explanation or context, that she was afraid the appellant would kill her. Dowd J was of the view that the untested nature of those statements, combined with the highly prejudicial language used, meant the danger of unfair prejudice outweighed their limited evidentiary value. However, Dowd J agreed that, even on that view, the proviso applied and the appeal against conviction should be dismissed.

Sentence appeal

The Court dismissed the application for leave to appeal against sentence. The appellant's intellectual and physical difficulties were not found to constitute "special circumstances" under s 44(2) of the Crimes (Sentencing Procedure) Act 1999 that would warrant a non-parole period of less than three-quarters of the 16-year head sentence.

Orders Made

  • The appeal against conviction is dismissed.
  • The application for leave to appeal against sentence is dismissed.

Key Takeaways

  • Under s 165 of the Evidence Act 1995 (NSW), a trial judge has no duty to give an unreliable evidence warning of his or her own motion: the obligation is triggered only by a party's request under s 165(2), and the absence of such a request at trial is a significant obstacle to raising the issue on appeal.
  • A witness who testifies under a prosecution indemnity does not automatically qualify as a person "criminally concerned in the events giving rise to the proceeding" under s 165(1)(d): the connection must be established by evidence, and the mere existence of an indemnity is insufficient to bring the section into operation.
  • Where trial counsel has not sought a particular direction or ruling, the Court of Criminal Appeal will require leave under r 4 of the Criminal Appeal Rules to argue the omission on appeal, and leave will be refused where no miscarriage of justice is demonstrated.
  • Contemporaneous statements by a deceased person expressing fear of or a negative state of mind about a defendant may be admissible as relationship evidence under ss 55(1) and 72 of the Evidence Act 1995, though the Court was divided on the outer boundaries of admissibility for highly prejudicial statements made without any stated reason or context.
  • In dismissing the sentence appeal, the Court of Criminal Appeal confirmed that intellectual and physical difficulties do not automatically constitute "special circumstances" sufficient to reduce a non-parole period below the three-quarters default under s 44(2) of the Crimes (Sentencing Procedure) Act 1999.

Legislation and Cases Referenced

Legislation
- Evidence Act 1995 (NSW), ss 55(1), 72, 135, 136, 137, 165
- Criminal Appeal Rules, r 4
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 44(2)
- Crimes Act 1900 (NSW)
- Criminal Appeal Act 1912 (NSW)

Key Cases
- R v Chai (1992) 27 NSWLR 153
- R v Frawley (1993) 69 A Crim R 208
- Papakosmas v R (1999) 196 CLR 297
- Gipp v R (1998) 194 CLR 106
- KRM v R (2001) 178 ALR 385
- Glennon v R (1994) 119 ALR 706
- Plomp v R (1963) 110 CLR 234
- O'Leary v R (1946) 73 CLR 566
- Davies v Director of Public Prosecutions [1954] AC 378
- R v Fulcher [1995] 2 Cr App R 251
- R v Bedingfield (1879) 14 Cox CC 431