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Court of Criminal Appeal 18 May 2016

Clarke v R

[2016] NSWCCA 88

Assault & violenceHomicide
CRIMINAL LAW CONVICTION APPEAL MURDER APPEAL DISMISSED.

Citation: Clarke v R [2016] NSWCCA 88
Court: Court of Criminal Appeal, NSW
Date: 18 May 2016
Judge(s): Hoeben CJ at CL, Campbell J, Natalie Adams J

Background

The applicant was convicted of murder following a jury trial before RA Hulme J in October 2014. The victim, a 55-year-old woman, had visited the applicant's Housing Commission unit in Hamilton South, Newcastle, on the evening of 18 September 2013. The two spent the night drinking heavily, and she was found dead the following afternoon, her body concealed between the bed and wall, wrapped in a blanket.

The applicant told police that he had woken during the night to find someone standing over him, a situation he associated with sexual abuse he had suffered as a teenager. He said he grabbed the person by the throat and punched them repeatedly. A post-mortem examination revealed the victim had suffered multiple blows to the face, consistent with four to six punches delivered with significant force. Blunt force trauma contributed to her death through the accumulation of blood and mucus in her airway.

The applicant was sentenced to imprisonment with a non-parole period of 16 years and 6 months. He appealed against conviction on the single ground that the jury's verdict was unreasonable or could not be supported by the evidence.

  • Whether the verdict of murder was unreasonable or unsupported by the evidence, specifically whether the evidence established beyond reasonable doubt that the applicant intended to inflict grievous bodily harm (really serious bodily injury) on the victim.
  • Whether the applicant's extreme intoxication was inconsistent with the formation of the requisite specific intent for murder.
  • Whether the evidence, taken as a whole, could rationally support the jury's rejection of the self-defence case.

Decision

The Court of Criminal Appeal unanimously dismissed the appeal, holding that the jury's verdict was reasonably open on the evidence. Hoeben CJ at CL, with whom Campbell J and Adams J agreed, examined four categories of evidence relied on by the applicant: the pathologist's findings, the applicant's own accounts in police interviews, his account to a friend (Mr Little), and witness observations of his intoxication.

On the pathology evidence, the Court noted that Dr Beer described the force of the blows as "severe," meaning a fist pulled back and delivered with speed and force, not a simple tap. The number of blows was estimated at four to six. This evidence was strongly suggestive of an intent to inflict serious harm rather than a reflexive or uncontrolled reaction.

The applicant's own accounts in police interviews were internally inconsistent. Critically, the pathologist found no injury to the victim's neck despite the applicant's claim to have grabbed her by the throat. The Court noted the jury was entitled to treat this as undermining the reliability of the applicant's self-described memory. The accounts, taken as a whole, were described by Hoeben CJ at CL as "strongly suggestive of an intent to inflict incapacitating, really serious harm."

Campbell J placed particular weight on the evidence of Mr Christopher Little, to whom the applicant had spoken the following morning. The applicant told Mr Little he had "snapped" and hit the victim. This account was corroborated by Mr Little's father, who gave unchallenged evidence to the same effect. The Court found that, notwithstanding Mr Little's credibility being tested in cross-examination, the jury was entitled to accept the substance of his account. Taken together, the evidence provided a sufficient basis for the jury to be satisfied beyond reasonable doubt that the applicant had acted with the specific intent required for murder.

Orders Made

  • Leave to appeal granted.
  • The appeal dismissed.

Key Takeaways

  • A conviction for murder requires proof beyond reasonable doubt of the specific intent to cause grievous bodily harm (really serious bodily injury); the Court of Criminal Appeal confirmed this standard was met on the evidence here, notwithstanding the applicant's significant intoxication.
  • In dismissing the appeal, the Court applied the well-established principle that an appellate court will uphold a jury verdict unless, having considered the whole of the evidence, the court concludes the jury must have entertained a reasonable doubt.
  • Pathological evidence of the number and force of blows struck can bear directly on the question of specific intent, even where the accused claims to have acted reflexively or without conscious purpose.
  • Inconsistencies between an accused's account and objective forensic findings can properly be used by a jury to assess the reliability of that account, and by extension to reject a self-defence claim.
  • Statements made by an accused to associates in the immediate aftermath of an alleged offence, particularly where corroborated, can constitute significant evidence going to intent.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 4, 428B, 428C(1)
- Criminal Appeal Act 1912 (NSW), ss 5(1), 6(1)
- Evidence Act 1995 (NSW), s 108

Cases:
- DPP v Smith [1961] AC 290
- Elwood v R [2016] NSWCCA 18
- Knight v The Queen [1992] HCA 56; 175 CLR 495
- R v Cao [2004] NSWCCA 61
- R v Cutter [1997] HCA 7; 94 A Crim R 152
- R v Perks (1986) 41 SASR 335
- SKA v The Queen [2011] HCA 13; 242 CLR 400