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Court of Criminal Appeal 14 December 2012

Clarke v R

[2012] NSWCCA 272

Theft & property
CRIMINAL LAW CONVICTION APPEAL ADEQUACY OF "BLACK DIRECTION" SUFFICIENT EVIDENCE TO NEGATIVE DURESS APPEAL DISMISSED.

Citation: Clarke v R [2012] NSWCCA 272
Court: Court of Criminal Appeal, NSW
Date: 14 December 2012
Judge(s): Hoeben JA, Davies J, S Campbell J

Background

The appellant was tried in the Sydney District Court before Judge Williams and a jury of twelve on five counts of breaking and entering premises and committing a serious indictable offence (larceny). The offences involved a series of overnight raids on motorcycle dealerships and suppliers across the Sydney region between June and September 2009, with the stolen bikes transported in a box trailer towed by a Nissan Patrol registered to the appellant's father.

The jury acquitted the appellant on the first three counts and convicted him on counts four and five, which related to break-ins at a Jamisontown motorcycle supplier and an Emu Plains dealership. On count five, the appellant and a co-offender were found after a police pursuit and arrested following a foot chase. The appellant was sentenced to an aggregate term of six years imprisonment with a non-parole period of three and a half years.

On appeal, the appellant challenged his convictions on three grounds: the adequacy of the trial judge's "Black direction" (a direction addressing concerns about jury deliberations), whether the Crown had sufficiently negatived a defence of duress, and whether remarks by the Crown prosecutor during closing address caused irreparable prejudice.

  • Whether the trial judge's "Black direction" to the jury was appropriate and sufficient in the circumstances, or whether it applied inappropriate pressure on the jury to reach a verdict
  • Whether the Crown had presented sufficient evidence to negative the defence of duress beyond reasonable doubt
  • Whether various remarks by the Crown prosecutor during closing address were improper, and whether any such errors, individually or cumulatively, warranted overturning the convictions

Decision

On the first ground, the Court refused leave to appeal. The appellant had not taken objection to the Black direction at trial, engaging the limitation in rule 4 of the Criminal Appeal Rules, which requires demonstrated substantial miscarriage of justice before an appellate court will intervene where no trial objection was made. The Court found the direction was appropriate in the circumstances and did not place undue pressure on the jury to abandon a genuinely held position.

On the second ground, the Court found the Crown had adduced sufficient evidence to negative duress. In particular, the conduct of the appellant on the night of count five, including fleeing a police pursuit and running from the vehicle before being arrested, was available to the jury as evidence inconsistent with a person acting under compulsion. The Court was satisfied the jury was entitled to reject the duress defence on the basis of the whole of the evidence.

On the third ground, the Court examined a series of specific complaints about the Crown prosecutor's closing address. Several complaints were dismissed on the merits; others were not pressed at trial and were therefore also subject to the rule 4 limitation. Two matters, including an inappropriate comment about defence counsel's conduct, were conceded by the Crown to be regrettable. However, applying the standard from Whitehorn v R, the Court found these errors did not warrant interference with the convictions. Notably, several of the alleged improprieties concerned counts one to three, on which the appellant had been acquitted, making it difficult to identify any resulting prejudice.

The appeal was dismissed in its entirety, with the sentence application stood over for separate listing.

Orders Made

  • Leave to appeal refused in respect of ground of appeal 1
  • Grounds of appeal 2 and 3 dismissed
  • The application for leave to appeal against sentence stood over to the Registrar's next call over

Key Takeaways

  • The Court of Criminal Appeal confirmed that where no objection is taken to a jury direction at trial, rule 4 of the Criminal Appeal Rules requires the appellant to demonstrate a substantial miscarriage of justice before the appellate court will intervene.
  • A "Black direction" (a direction addressing jury deadlock concerns) will not be found to exert inappropriate pressure on the jury simply because deliberations were ongoing; the direction must be assessed in the context of the whole trial.
  • Sufficient evidence to negative duress can arise from conduct during or immediately after the alleged offences, such as flight from police, which the jury is entitled to treat as inconsistent with a person acting under compulsion.
  • Where a Crown prosecutor makes improper remarks in closing address, the relevant question is whether those remarks, individually or cumulatively, rose to the level of warranting interference with the verdict, applying the standard in Whitehorn v R (1983) 152 CLR 657.
  • Acquittals on related counts can be relevant to whether any identified prosecutorial error caused actual prejudice to an appellant; where the impugned remarks relate to counts on which the accused was acquitted, the argument of resulting harm is significantly weakened.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Rules, r 4

Cases:
- Whitehorn v R [1983] HCA 42; 152 CLR 657
- SKA v The Queen [2011] HCA 13; 243 CLR 400
- Gonzales v Regina [2007] NSWCCA 321; 178 A Crim R 232
- Ingham v R [2011] NSWCCA 88
- McKey v R [2012] NSWCCA 1
- Ngati v R [2008] NSWCCA 3; 180 A Crim R 384