Citation: Clark, Michael Rex [2015] NSWSC 1206
Court: Supreme Court of New South Wales
Date: 28 August 2015
Judge: Harrison J
Background
The applicant was convicted in May 2008 of the murder of his father, following two earlier trials that did not result in a verdict. The Crown's case was that the applicant had entered a joint criminal enterprise with his son, under which the son would carry out the killing while the applicant remained at a distance, with part of the expected inheritance to be shared as reward. The son pleaded guilty separately and was sentenced to 20 years imprisonment.
Central to the Crown's circumstantial case was listening device product recorded at the applicant's home after the murder. One recording from 11 July 2005 was transcribed by a detective and provided to the jury as an aide memoire. The transcription included the words "At the start we made a pact … in it until the end," which the Crown relied upon as evidence of the criminal agreement. The original recordings were also in evidence before the jury as exhibits.
The applicant had already appealed his conviction unsuccessfully to the Court of Criminal Appeal in 2010, and the High Court refused special leave to appeal later that year. He then applied under s 78 of the Crimes (Appeal and Review) Act 2001 for a further judicial inquiry, relying on a 2014 report from a phonetics expert, Dr Helen Fraser.
Legal Issues
- Whether Dr Fraser's phonetics report constituted "fresh evidence" sufficient to warrant an inquiry into the conviction under s 78 of the Crimes (Appeal and Review) Act 2001
- Whether the police transcription of the 11 July 2005 recording was inaccurate in a way that may have misled the jury
- Whether the jury directions given by Kirby J regarding the aide memoire were adequate
- Whether there was any sense of unease or disquiet that the applicant may have been wrongly convicted
Decision
Dr Fraser's report argued that the relevant portion of the recording was not "At the start we made a pact" but rather "At the start … fuckin' payback," and that the jury may have been led into error by the inaccurate transcription. Harrison J acknowledged that her analysis raised genuinely important concerns about the risks of "contextual priming," a phenomenon by which a written transcription can unconsciously steer a listener toward hearing a particular version of an unclear recording.
However, Harrison J found that the report did not amount to fresh evidence. Dr Fraser did not positively or confidently identify what words were actually spoken; she could only express doubt about the accuracy of the transcription. This placed her in no better position than the detective who originally prepared the transcript, and who was already accepted at trial as an ad hoc expert having listened to the recording repeatedly.
The directions given to the jury by Kirby J were standard directions that distinguished between the recordings as evidence and the transcriptions as aids to understanding. Those directions had already survived scrutiny on the previous appeal to the Court of Criminal Appeal. Harrison J found that Dr Fraser's concerns, while intellectually interesting, did not raise anything beyond the general and ever-present risk that jurors may not apply a judge's directions, which is a separate issue from the one advanced by the applicant.
Harrison J also noted that the Crown case was otherwise strong. The same recording contained additional incriminating material, including the applicant coaching his son on how to deflect police questioning and references to inheritance money that would be held for the son if he went to gaol. No sense of unease or disquiet arose that the applicant had been improperly convicted, and the application was dismissed.
Orders Made
- The application for an inquiry into conviction and sentence was dismissed.
Key Takeaways
- Under s 78 of the Crimes (Appeal and Review) Act 2001, an application for a further inquiry will be refused where the material relied upon does not constitute fresh evidence and generates no sense of unease or disquiet about the conviction.
- A phonetics expert report that expresses uncertainty about a transcript, but does not positively identify different words, does not necessarily qualify as fresh evidence capable of casting doubt on a conviction.
- Standard jury directions distinguishing between audio recordings as evidence and transcriptions as aids to listening can be sufficient to address concerns about transcription accuracy, particularly where those directions have already been upheld on appeal.
- The strength of the remaining Crown case is a relevant consideration: where a contested portion of a recording is accompanied by separately incriminating material in the same recording, the overall evidentiary foundation of the conviction is less easily disturbed.
- Concerns about "contextual priming" and the influence of transcripts on jurors' perception of audio evidence are recognised as legitimate, but such concerns must be grounded in specific fresh evidence rather than generalised expert commentary to support a review application.
Legislation and Cases Referenced
Legislation
- Crimes (Appeal and Review) Act 2001 (NSW), s 78
- Evidence Act 1995 (NSW)
Cases
- Butera v DPP (Vic) [1984] HCA 58; (1984) 164 CLR 180
- Clark v R [2010] NSWCCA 94
- Honeysett v R [2014] HCA 29; (2014) 253 CLR 122
- Irani v R [2008] NSWCCA 217; 188 A Crim R 125
- Li v R [2003] NSWCCA 290; 139 A Crim R 281
- R v Clark (No 3) [2008] NSWSC 795
- R v Drollett [2005] NSWCCA 356
- R v Leung [1999] NSWCCA 287; (1999) 47 NSWLR 405
- R v Marsh [2005] NSWCCA 331
- R v Menzies [1982] 1 NZLR 40
- R v NZ [2005] NSWCCA 278; 63 NSWLR 628
- R v Tang [2006] NSWCCA 167; 65 NSWLR 681