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Court of Criminal Appeal 11 February 2002

R v. Clark

[2002] NSWCCA 16

Public order & justice offences
CRIMINAL LAW JUDGE DISQUALIFIES HIMSELF WHETHER NEW TRIAL SHOULD BE ORDERED.

Citation: R v Clark [2002] NSWCCA 16
Court: NSW Court of Criminal Appeal
Date: 11 February 2002
Judge(s): Hodgson JA, Levine J, Howie J

Background

The appellant was an unrepresented litigant with an appeal pending before the District Court at Taree. On 23 February 2000, before his appeal was heard, he requested a private meeting with the presiding judge, Christie DCJ. In that chambers meeting, attended also by a Crown solicitor, the appellant told the judge that a police constable who was a witness in the appeal had told him the judge was corrupt, accepted bribes, and that the judge's wife had laundered money for organised crime.

Christie DCJ disqualified himself from hearing the appeal shortly after, and the matter was adjourned to another judge. The Crown's case at trial was that the appellant had fabricated these allegations and made them to a judge who had recently refused one of his applications, deliberately placing the judge in an impossible position and thereby derailing the proceedings.

The appellant maintained throughout that he was simply passing on information he genuinely believed he had received from the constable, and that he had insisted on doing so privately and in the presence of the Crown solicitor precisely because he wanted to handle the matter appropriately. He was convicted by a jury of doing an act with intent to pervert the course of justice under s 319 of the Crimes Act 1900, and sentenced to 12 months' periodic detention.

  • Whether the truth or falsity of the statement made to the judge was relevant to the question of intent to pervert the course of justice
  • Whether the trial judge's summing-up adequately directed the jury on the appellant's defence
  • Whether, if errors in the summing-up were established, a new trial should be ordered or a verdict of acquittal entered

Decision

The Court of Criminal Appeal found that the trial judge had misdirected the jury by telling it that the truth or otherwise of the appellant's statement was irrelevant. On the contrary, the Court held that whether the appellant genuinely believed what he told Christie DCJ was directly relevant to whether he held the requisite intent to pervert the course of justice.

The Court noted that the appellant's own statement to the judge was admissible as some evidence of its truth under s 60 of the Evidence Act 1995, and also as some evidence that the appellant believed it to be true under s 72 of that Act. Additionally, evidence from the appellant's daughter was capable of contradicting aspects of the constable's account. The Crown's assertion that the constable's evidence was wholly uncontradicted was therefore not accurate.

The trial judge also failed to put the substance of the appellant's defence to the jury in the summing-up. These combined errors were found to have been likely to have affected the jury's verdict, and the appeal was upheld on that basis.

On the question of whether to order a new trial, the Court acknowledged that the Crown pressed for one, pointing to the seriousness of the offence and the fact that only a light sentence had been imposed. However, the Court was ultimately unpersuaded that the interests of justice required a further trial. The fact that the conduct had been carried out openly, together with the fact that nearly half the sentence had already been served, weighed against a retrial.

Orders Made

  • Appeal upheld
  • Conviction quashed
  • Verdict of acquittal entered

Key Takeaways

  • Under s 319 of the Crimes Act 1900, the Crown must establish that the accused acted with intent to pervert the course of justice. Where the accused's claimed belief in the truth of a statement is central to their defence, the truth or falsity of the statement is not irrelevant to that inquiry.
  • A failure to put the substance of an accused's defence to the jury in the summing-up constitutes a significant misdirection capable of affecting the verdict.
  • Statements made by an accused are admissible under ss 60 and 72 of the Evidence Act 1995 as some evidence, respectively, of their truth and of the accused's belief in their truth. These provisions can bear directly on whether the prosecution has proved the requisite intent.
  • The Court of Criminal Appeal confirmed it retains a wide discretion under s 8(1) of the Criminal Appeal Act 1912 on whether to order a new trial, even where a conviction is quashed for misdirection. Factors such as partial service of sentence and the open manner in which the conduct occurred can weigh against a retrial.
  • Seriousness of an offence alone does not automatically compel a new trial following a successful appeal; the interests of justice are assessed on the particular circumstances of each case.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 312, 319
- Evidence Act 1995 (NSW), ss 60, 72
- Criminal Appeal Act 1912 (NSW), s 8(1)

Cases:
- King v R (1986) 161 CLR 423