Citation: Clark v R [2014] NSWCCA 236
Court: Court of Criminal Appeal, NSW
Date: 30 October 2014
Judge(s): Leeming JA (principal judgment); Price J and McCallum J (agreeing)
Background
The appellant had been arrested in 1997 and charged with a sexual assault offence. He was convicted at first instance but the conviction was overturned on appeal. He then brought civil proceedings against the State of New South Wales and a police officer, alleging (among other things) that the arresting officer had attempted to solicit a bribe from him. The appellant claimed to have made a secret recording of that alleged solicitation on a pocket recorder and later transferred it to a CD.
When the civil proceedings came on for hearing before Wood CJ at CL in October 2004, his counsel raised the tape recording as the central plank of the case. The trial judge directed the appellant to produce the original tape and any enhanced copies by affidavit within days. The recording was never produced. When the matter was relisted, the court was told the tape had been destroyed.
Letters written by the appellant on the afternoon of 11 October 2004 were central to the criminal case against him. In those letters, addressed to his legal team, he stated that on his way back to Taree he had destroyed the original tape and the CD, scattering them between Sydney and his home. The appellant was subsequently charged, tried over 14 days before a jury, and convicted of engaging in conduct with a tendency to pervert the course of justice. He was sentenced to two years and eight months imprisonment with a two-year non-parole period, to commence in 2020 given pre-existing sentences he was already serving.
Legal Issues
The Court of Criminal Appeal was asked to consider whether:
- The failure to call the police officer who was said to have been recorded led to a miscarriage of justice
- The Crown had breached its disclosure obligations in a manner that affected the fairness of the trial
- The admission into evidence of the appellant's criminal record before the jury constituted error
- Other alleged errors in the conduct of the trial resulted in a miscarriage of justice
- Leave should be granted to reopen the appeal to adduce further evidence about the appellant's state of mind at the time he wrote the letters
Decision
The Court rejected each of the substantive grounds of appeal. On the question of the failure to call the police officer, the Court found this did not give rise to a miscarriage of justice. The officer's presence was not required to establish the essential elements of the charge, which concerned the appellant's own conduct in making the recordings unavailable.
On the Crown disclosure ground, no breach was established that affected the outcome of the trial. The Court addressed each alleged disclosure failure and was not satisfied that any gap in disclosure had occasioned a substantial wrong or miscarriage.
Regarding the criminal record being placed before the jury, leave to challenge this ground was refused. The Court found that the course had been taken by the appellant himself in full knowledge of the risks involved. A ground that was undeveloped in both written and oral submissions was also refused leave.
The appellant sought at a late stage to reopen the appeal and tender a fresh affidavit explaining that his letters were written not to inform his lawyers of the destruction but to deceive police into believing the recordings were gone. The Court declined to permit this. It observed that the proposed evidence went to the appellant's own state of mind at trial, a matter on which he had already given evidence and been cross-examined, and that raising a radically different account on appeal was not permissible.
Orders Made
- Leave to appeal granted (the Court dealt with all substantive grounds on the merits)
- Appeal dismissed
- Leave refused on proposed ground 4.2 (admission of criminal record) and proposed ground 5 (undeveloped in submissions)
- Application to reopen the appeal and adduce further evidence dismissed
Key Takeaways
- In dismissing the appeal, the Court of Criminal Appeal confirmed that a charge of perverting the course of justice arising from the destruction of evidence can be established by reference to the accused's own conduct, without requiring the testimony of an opposing witness whose account was said to be implicated.
- A party who elects, with knowledge of the consequences, to place their own criminal record before a jury cannot readily seek to impugn that decision on appeal as a ground of error.
- Where an appellant has given evidence at trial and been cross-examined on their state of mind, the Court of Criminal Appeal will not permit the introduction on appeal of a fresh account of that same state of mind that was not advanced at trial.
- Applications to reopen after judgment is reserved will not be entertained without leave, even for unrepresented litigants who are experienced in litigation.
- No miscarriage of justice arises from an alleged Crown disclosure failure unless the failure is shown to have affected the fairness of the trial in a material way.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 61A(1), 61M
- Criminal Appeal Rules (NSW), r 4
- Listening Devices Act 1984 (NSW)
- Mental Health (Forensic Provisions) Act 1990 (NSW), s 8
Cases:
- Carney v R; Cambey v R [2011] NSWCCA 223; 217 A Crim R 201
- Clark v State of New South Wales [2006] NSWSC 673; 66 NSWLR 640
- Clark v State of New South Wales [2012] NSWCA 139
- Clark v State of New South Wales; Clark v Robards [2014] NSWSC 742
- Ekermawi v Harbour Radio Pty Ltd [2013] NSWCA 54
- R v Gidley (1984) 3 NSWLR 168