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Court of Criminal Appeal 27 October 2003

R v CLARK

[2003] NSWCCA 308

Assault & violenceTheft & property
CRIMINAL LAW APPEAL NEW EVIDENCE WHETHER COGENT

Citation: R v Clark [2003] NSWCCA 308
Court: New South Wales Court of Criminal Appeal
Date: 27 October 2003
Judges: O'Keefe J, Hidden J, Barr J

Background

The applicant was convicted by a jury in March 1998 of stealing two motor vehicles, robbing a bank at Casula of approximately $510,000, and maliciously wounding an off-duty police officer who had attempted to intervene during the robbery. The Crown's case rested on three pillars: admissions made during a recorded police interview, the evidence of a co-offender who pleaded guilty and gave evidence for the Crown, and a substantial body of circumstantial evidence including large cash expenditures and the discovery of approximately $100,000 hidden in the applicant's home.

Following his conviction, the applicant filed a notice of appeal but never supplied grounds, despite numerous mentions before the Registrar. In July 2000, a notice of abandonment was filed and the appeal was formally dismissed. Nearly three years later, in April 2003, the applicant filed a second notice of appeal, effectively seeking to revive the proceedings after a delay of five and a half years from conviction.

The Court treated the second notice of appeal as an application for leave to withdraw the notice of abandonment and for an extension of time to file a new appeal.

  • Whether leave should be granted to withdraw the notice of abandonment filed in July 2000
  • Whether an extension of time should be granted to appeal against conviction, given the five-and-a-half-year delay since trial
  • Whether the proposed new expert evidence (relating to sounds on the police interview tape) was sufficiently cogent to constitute a basis for receiving fresh evidence on appeal
  • Whether, if the new evidence were admitted, it disclosed a miscarriage of justice at trial

Decision

The Court unanimously refused both applications. Barr J (with whom O'Keefe J and Hidden J agreed) treated the application as requiring the applicant to first demonstrate sufficient cause to withdraw the abandonment and then to justify the extended delay. The Court made clear that such an application is not a formality, particularly where the conviction was five and a half years old and the original appeal had been deliberately abandoned.

The proposed new evidence came from Dr Garwoli, who analysed sounds on the audio tape of the police interview. He identified sounds consistent with tapping on a table, paper being moved, and writing. The applicant sought to use this to support his contention that the confessional material had been fabricated or manipulated. The Court received the evidence on a provisional basis but ultimately rejected it.

Barr J held the evidence was equivocal. The presence of sounds consistent with tapping, paper movement, and writing during an interview conducted across a table over more than an hour was entirely unsurprising. The evidence did not favour the applicant's account and was equally consistent with the version given by the police officers, whom the trial judge had believed.

Applying the principles from Gallagher v The Queen, Ratten v The Queen, and Mickelberg v The Queen, the Court confirmed that where proposed evidence is not fresh, it will only justify intervention if it establishes that the applicant's guilt was not proved beyond reasonable doubt or that he was innocent. The proposed expert evidence fell far short of that standard and was rejected accordingly.

Orders Made

  • Leave to withdraw the notice of abandonment filed on 25 July 2000 was refused
  • The application to extend time to file an appeal against conviction was refused

Key Takeaways

  • An application to withdraw a notice of abandonment and file a fresh appeal after years of delay is treated as substantive, not procedural, and attracts close scrutiny from the Court of Criminal Appeal.
  • Where proposed new evidence is not fresh, the test is demanding: the applicant must satisfy the court that the evidence, taken with the evidence at trial, shows the verdict cannot stand because guilt was not established beyond reasonable doubt or the applicant was innocent.
  • Equivocal expert evidence that is equally consistent with the version accepted at trial does not meet the cogency threshold required for reception on appeal.
  • In refusing the applications, the court applied a line of High Court authority, including Gallagher v The Queen (1985) 160 CLR 392, Ratten v The Queen (1974) 131 CLR 510, and Mickelberg v The Queen (1989) 167 CLR 259, confirming those principles remain the applicable standard in NSW.
  • The combination of a lengthy delay, a deliberate prior abandonment, and weak proposed evidence operated together to defeat the application at every level.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Act (NSW), s 10

Cases:
- R v Young [1999] NSWCCA 275
- R v Jeffrey, Court of Criminal Appeal, New South Wales, 16 December 1993 (unreported)
- Gallagher v The Queen (1985) 160 CLR 392
- Ratten v The Queen (1974) 131 CLR 510
- Mickelberg v The Queen (1989) 167 CLR 259
- R v Bikic [2002] NSWCCA 227