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8
Court of Criminal Appeal 11 May 2010

Clark v R

[2010] NSWCCA 94

Homicide
CRIMINAL LAW APPEAL AGAINST CONVICTION WHETHER SUMMING

Citation: Clark v R [2010] NSWCCA 94
Court: NSW Court of Criminal Appeal
Date: 11 May 2010
Judges: Hodgson JA, Howie J, Johnson J

Background

The appellant was the son of the deceased and stood trial in the Supreme Court of New South Wales before Kirby J and a jury on a charge of murder. The Crown alleged that the appellant had agreed with his own son, Ben, to murder the deceased. It was not disputed that Ben carried out the shooting at the deceased's Bexley home in the early hours of 30 April 2005, and the appellant accepted he was not present at the time.

At the commencement of the third trial (the first having produced a hung jury and the second having aborted), the appellant pleaded not guilty to murder but guilty to an alternative charge of being an accessory after the fact. The Crown did not accept that plea, and the murder charge proceeded. The jury returned a guilty verdict on 2 May 2008, and the appellant was sentenced to a non-parole period of 24 years.

The appeal challenged the conviction only. The Crown's case rested substantially on evidence of financial motive: the appellant had sought significant loans from the deceased and stood to benefit from his estate, while the deceased was spending money on his partner Jessica and her property.

  • Whether evidence of prior recorded interviews (including material from Ben's recorded interview) should have been excluded under ss 135 and 137 of the Evidence Act 1995 as unfairly prejudicial
  • Whether a juror who had made contact with a Crown witness should have been discharged
  • Whether the trial judge's summing-up was unfair by including matters that the Crown had not relied upon in its closing address
  • Whether the cumulative effect of all grounds of complaint resulted in a miscarriage of justice

Decision

Exclusion of evidence: The Court rejected the argument that certain evidence, including references to Ben's recorded interview and ballistic evidence derived from it, should have been excluded as unfairly prejudicial. The Court found that the trial judge had properly weighed the probative value of the evidence against the risk of unfair prejudice under ss 135 and 137 of the Evidence Act 1995, and that no error in the exercise of that discretion had been demonstrated.

Juror discharge: A juror had made contact with a Crown witness during the trial, raising a question about whether the jury's impartiality had been compromised. The Court applied the principle that a juror should be discharged only where there is a real danger that the juror would not bring an impartial mind to the verdict. Having regard to the circumstances, the Court concluded that the trial judge's refusal to discharge the juror did not occasion any risk of a substantial miscarriage of justice.

Summing-up: The appellant complained that the trial judge, in the summing-up, had drawn the jury's attention to certain pieces of evidence that the Crown had not highlighted in its closing address, including a statement by the appellant's wife Jennifer about concern over the deceased's spending, and the appellant's statement that "no one wanted dad to move in there." The Court held that a trial judge's obligation to put the evidence fairly to the jury is not confined to matters raised by counsel in closing addresses. The impugned references were not unfairly adverse to the appellant, and the judge's inclusion of them did not produce procedural or substantive unfairness.

Cumulative grounds: Having found no individual ground established, the Court also rejected the contention that the combined effect of all grounds demonstrated a miscarriage of justice.

Orders Made

  • Leave to appeal granted
  • Appeal against conviction dismissed

Key Takeaways

  • A trial judge's duty to sum up fairly is not limited to evidence or arguments raised by counsel in their closing addresses; the Court of Criminal Appeal confirmed that a summing-up may properly refer to evidence not specifically relied upon by the Crown, provided it does not create unfairness to the accused.
  • Under ss 135 and 137 of the Evidence Act 1995, the exclusion of prejudicial evidence requires a demonstrated error in the exercise of the trial judge's discretion; the mere fact that evidence is damaging to the accused does not suffice.
  • In dismissing the ground concerning the juror, the Court reaffirmed that discharge is warranted only where there is a real and identifiable risk of partiality, not merely as a precautionary measure whenever contact between a juror and a witness occurs.
  • No individual error, nor the combination of all complained errors, was sufficient to establish a miscarriage of justice where the trial judge had addressed the relevant considerations at each stage.
  • Special leave to appeal to the High Court was subsequently refused on 1 October 2010, leaving the Court of Criminal Appeal's conclusions undisturbed.

Legislation and Cases Referenced

Legislation
- Criminal Appeal Act 1912 (NSW), s 5(1)
- Evidence Act 1995 (NSW), ss 135, 137

Cases
- Crofts v R [1996] HCA 22; (1996) 186 CLR 427
- Maric v The Queen (1978) 52 ALJR 631
- Qoro v R [2008] NSWCCA 220
- Rasic v R [2009] NSWCCA 202
- R v Clark (No. 1) [2008] NSWSC 820
- R v Clark (No. 2) [2008] NSWSC 821
- R v Meher [2004] NSWCCA 355
- Robinson v R [2006] NSWCCA 192; (2006) 162 A Crim R 88
- Sieders v R [2008] NSWCCA 187; (2008) 72 NSWLR 417
- Smale v R [2007] NSWCCA 328