Citation: Clark v R [2012] NSWCCA 158
Court: Court of Criminal Appeal
Date: 1 August 2012
Judge(s): Basten JA, Johnson J, Garling J
Background
The applicant pleaded guilty in 2007 to the murder of her grandfather, who was shot twice at his home in Bexley in April 2005. Patten AJ sentenced the applicant to a total term of 20 years' imprisonment, comprising a non-parole period of 14 years and a balance of term of 6 years. The applicant also gave evidence for the Crown at two subsequent trials of her father, who was ultimately convicted of the same murder.
The applicant appeared unrepresented before the Court of Criminal Appeal and filed both a notice of appeal and additional grounds of appeal. The Crown filed affidavits from the applicant's former senior counsel and solicitor in response to the conviction grounds.
The application raised seven grounds against conviction and four grounds against sentence. The central complaints concerned alleged failures by legal representatives, the admission of listening device and interview evidence, and the sentencing judge's factual findings on motive.
Legal Issues
- Whether a miscarriage of justice arose from the conduct of the applicant's legal representatives, warranting withdrawal of the guilty plea and a new trial
- Whether the sentencing judge erred in admitting listening device recordings and an electronically recorded interview
- Whether the partial defence of provocation should have been pursued at trial rather than treated as mitigation at sentence
- Whether the sentencing judge's factual findings on motive were open on the evidence
- Whether the applicant's post-sentence transgender status constituted an exceptional circumstance justifying resentencing
Decision
Conviction Ground 1 (Alleged misrepresentation by legal representatives): Johnson J preferred the evidence of senior counsel and the instructing solicitor over that of the applicant, noting the existence of contemporaneous file notes and the experience of the legal team. The evidence established that the elements of murder were explained, the partial defence of provocation was discussed and assessed as unlikely to succeed, and the applicant did not instruct her representatives to object to the interview evidence. Johnson J found the advice given was prudent and realistic, and that no miscarriage of justice resulted from the plea.
Conviction Ground 2 (Joint criminal enterprise): This ground was misconceived. The Crown case was that the applicant was the principal who shot the victim; no agreed statement of facts was placed before the sentencing judge, and the joint enterprise concept had no application to the applicant's own position.
Conviction Grounds 3, 4 and 5 (Listening device evidence): The applicant gave no instructions to object to the tender of this material. The complaint about voice quality went only to the weight of the evidence, not its admissibility. These grounds added nothing to the conviction appeal, which rested on a plea of guilty accompanied by sworn admissions.
Conviction Ground 6 (ERISP admissibility): Again, the applicant had not instructed her representatives to object to the interview. The ground could not advance the appeal in circumstances where the applicant had never denied killing the victim.
Conviction Ground 7 (Psychiatric medication affecting court evidence): No pharmacological or medical evidence was adduced about the effects of the medication in question (Avanza). Senior counsel gave evidence that the applicant had not appeared incapable of answering questions when giving evidence. No miscarriage of justice was demonstrated.
Sentence Ground 1: This ground replicated Conviction Ground 1 and failed for the same reasons.
Sentence Ground 2 (Provocation and factual findings on motive): Patten AJ declined to find that the murder was entirely motivated by financial gain, but also did not accept the applicant's account of serious sexual abuse. The finding was neither fully adverse nor fully favourable. Johnson J held the finding was reasonably open on the totality of the evidence, noting that Kirby J reached a similar view when later sentencing the applicant's father. No error of principle was established.
Sentence Ground 3 (Listening device evidence on sentence): For the reasons given under the conviction grounds, no error was demonstrated affecting the sentence.
Sentence Ground 4 (Transgender status): The applicant's transgender status arose in September 2011, well after sentencing in 2007. Because no error had been established, the Court was not proceeding to resentence, making the ground irrelevant. Johnson J also held that the post-sentence circumstances did not rise to the level of exceptional circumstances recognised in the authorities, and the ground was refused.
Orders Made
- Leave to appeal against conviction refused
- Leave to appeal against sentence refused
Key Takeaways
- A guilty plea constitutes the most cogent admission of guilt available, and an application to withdraw it must be approached with considerable caution; an applicant must demonstrate a genuine miscarriage of justice, not merely that proceedings might have been conducted differently.
- Where legal representatives give prudent and realistic advice that a partial defence is unlikely to succeed, and instead pursue those facts as mitigation at sentence, no miscarriage of justice arises from the resulting plea.
- Factual findings on sentence will only be disturbed on appeal where the applicant demonstrates an error of principle, a mistake of law or fact, or that the finding was not open on the evidence.
- Post-sentence events, including changes in an applicant's custodial circumstances, are not available as a ground of sentence appeal unless the court has first found error warranting resentencing, or exceptional circumstances are established.
- Complaints about the quality or weight of admitted evidence (such as poor audio on listening device recordings) do not raise admissibility errors and cannot ground a conviction appeal where the conviction itself rested on a plea of guilty and sworn admissions.
Legislation and Cases Referenced
Legislation
- Criminal Appeal Act 1912
Cases
- Rasic v R [2009] NSWCCA 202
- R v Clark (No. 3) [2008] NSWSC 795
- Clark v R [2010] NSWCCA 94
- Clark v The Queen [2010] HCATrans 256
- Thalari v R [2009] NSWCCA 170; 75 NSWLR 307
- R v Birks (1990) 19 NSWLR 677
- TKWJ v The Queen [2002] HCA 46; 212 CLR 124
- Ali v The Queen [2005] HCA 8; 79 ALJR 662
- Nudd v The Queen [2006] HCA 9; 80 ALJR 614
- R v Cornwell [2003] NSWSC 97; 57 NSWLR 82
- Aoun v R [2011] NSWCCA 284
- Norrie v R [2008] NSWCCA 185
- Springer v R [2007] NSWCCA 289; 177 A Crim R 13