Clark v R

8The Applicant admitted before Patten AJ that she had shot dead the victim, Ernest Richard Clark (her grandfather), on 30 April 2005. She admitted this by her plea, and in evidence at the sentencing hearing before Patten AJ on 3 August 2007, and also in the course of her evidence as a Crown witness at the earlier trial of the Applicant's father, Michael Rex Clark, before Patten AJ and a jury (at which the jury could not agree). She gave evidence again before Kirby J and a jury at a later trial at which her father was convicted of murder: R v Clark (No. 3) [2008] NSWSC 795. An appeal by Michael Rex Clark against conviction was dismissed by this Court: Clark v R [2010] NSWCCA 94. The High Court of Australia refused special leave to appeal from that decision: Clark v The Queen [2010] HCATrans 256. 9Patten AJ described the Applicant's crime in the following way: "The bald facts of the murder may be shortly stated. On the night of 29 April 2005 the offender visited his grandfather then aged 74. They watched a game of football on television together and drank some beer. It seems that the victim some time between 10pm and 11pm accompanied the offender towards some concrete steps at the rear of his house at 29 Wolseley Road, Bexley, leading to a gate which opened onto the street. From a position on the steps, the offender drew a loaded gun from his clothing and fired it at his grandfather. I infer from the evidence that the bullet inflicted a glancing wound in the victim's neck. The offender then moved closer to his grandfather and standing over him fired a second shot into his head. It is to be inferred that while the offender made his escape through the back gate to his motor cycle, apparently parked about 500 metres away, the victim managed to stagger a few metres before collapsing in his backyard. He was then conscious and lying in a pool of blood when found there by his partner Ms Jessica Chung, about 12.30am. She did everything possible to procure speedy medical assistance but sadly the victim died from the gunshot wound to his head in hospital the following day."

10The grounds of appeal against conviction notified on 30 August 2011, as amended on 12 April 2012, are lengthy, and may be summarised in the following way: (a) Conviction Ground 1 - alleged misrepresentation by legal representatives - the Applicant complains that: (i) her legal representatives did not provide to her a copy of a document said to contain agreed facts prior to arraignment, with that document referring to alleged joint criminal enterprise; (ii) her legal representatives failed to challenge the admissibility of listening device evidence and the ERISP conducted on 14 July 2005; (iii) conviction for murder would not have resulted if the admissibility of this evidence had been challenged (successfully); (iv) a miscarriage of justice had resulted so that the Applicant's plea of guilty ought be withdrawn, the conviction quashed and a new trial ordered. (b) Conviction Ground 2 - the learned Judge admitted "evidence considered fatal to the defence" - the Applicant complains that joint criminal enterprise was relied upon by the Crown and that, by allowing the Crown to rely upon this concept, the trial Judge had erred. (c) Conviction Ground 3 - the learned Judge admitted "evidence considered fatal to the defence" - the Applicant complains that certain listening device evidence was erroneously admitted, with the tape being of poor quality so that it should not have been regarded as reliable evidence. (d) Conviction Ground 4 - the learned Judge admitted "evidence considered fatal to the defence" - the Applicant complains that the transcript of the listening device recording was wrongly admitted at the sentencing hearing, with impermissible evidence being given by Detective Sergeant Joseph Maree concerning transcription, voice analysis or speech analysis, so as to constitute a miscarriage of justice. (e) Conviction Ground 5 - the learned Judge admitted "evidence considered fatal to the defence" - the Applicant contends that the sentencing Judge erroneously admitted evidence of the listening device tapes, which had been tampered with and altered from their original state so as to give rise to a miscarriage of justice. (f) Conviction Ground 6 - the learned Judge admitted "evidence considered fatal to the defence" - the Applicant contends that the sentencing Judge had erroneously admitted the ERISP of 14 July 2005, in circumstances where the Applicant had been under the influence of alcohol and drugs at the time of the interview so as to give rise to a miscarriage of justice. (g) Conviction Ground 7 - the Applicant seeks the exclusion of prejudicial evidence, being the transcripts of evidence which she had given in court proceedings between 1 August 2005 and 1 January 2009, on the ground that she was under the influence of mind-altering psychiatric medication in that period, so that a miscarriage of justice has resulted. 11The Applicant seeks leave to appeal against sentence upon the following grounds notified on 30 August 2011, as amended on 12 April 2012: (a) Sentence Ground 1 - the Applicant relies upon the same complaints as contained in Conviction Ground 1. (b) Sentence Ground 2 - "failure to rule in favour of the defendant, the defence of provocation" - in effect, the Applicant complains that the sentencing Judge erred in rejecting her claim at the sentencing hearing that she had killed her grandfather as a result of fear and hatred of the victim stemming from physical and emotional abuse said to have been perpetrated upon the Applicant by the victim. (c) Sentence Ground 3 - the "learned Judge admitted evidence considered fatal to the defence" - the Applicant complains, once again, concerning the admission of the listening device evidence which is the subject of Conviction Ground 3. (d) Sentence Ground 4 - the Applicant seeks a reduction of sentence on the grounds of exceptional circumstances being that, since September 2011, she has been on a non-association order for protection whilst in custody because of her transgender status, giving rise to increased isolation and reduced access to services and programs and employment or educational facilities.

The Hearing in this Court 12Before the Court embarked upon the hearing of the application, the Applicant sought an adjournment so that further documents could be gathered and to permit certain police officers and a psychologist, Ms Hillier, to be summonsed to Court to give evidence on the application. 13The Court refused the application for an adjournment upon the basis that the further material which the Applicant sought to obtain would not assist the determination of the application. 14The Applicant read affidavits which she had sworn on 12 October 2011 and 4 April 2012. In addition, the Applicant relied upon a number of documents and transcripts in support of the leave application. 15The Crown read affidavits of John Stuart Stratton, affirmed 2 April 2012 and 27 April 2012, together with affidavits of Timothy John Heenan, sworn 6 March 2012 and 27 April 2012. Mr Stratton SC had appeared for the Applicant before Patten AJ, instructed by Mr Heenan. An affidavit of Dale Ashcroft, affirmed 26 April 2012, was also read by the Crown, that affidavit relating solely to issues surrounding the Applicant's transgender status within the correctional system. 16The affidavits of the Applicant, Mr Stratton SC and Mr Heenan identified clearly that issue was joined on a number of factual matters raised by the Applicant. The Court made clear that it was not essential that the various deponents be cross-examined for the purpose of putting the relevant competing positions (T9, 27 April 2012). The Applicant cross-examined Mr Stratton SC and Mr Heenan. The Crown did not seek to cross-examine the Applicant. 17The Applicant presented evidence and arguments before this Court in an orderly way and impressed as an intelligent and articulate person.

Application for Leave to Appeal Against Conviction 18The principles to be applied where a person appeals to this Court against conviction, following a plea of guilty, were summarised in the following way in Thalari v R [2009] NSWCCA 170; 75 NSWLR 307 at 312-313 [32]-[35]: "32 This Court may quash a conviction entered upon a plea of guilty in the sentencing court if it is demonstrated that a miscarriage of justice will occur if the Applicant is not permitted to withdraw the plea: R v Boag (1994) 73 A Crim R 35 at 36; R v Van (2002) 129 A Crim R 229; Elmir v R [2009] NSWCCA 22 at [33]ff. 33 The onus lies upon the Applicant to demonstrate that leave should be granted: R v Marchando (2000) 110 A Crim R 337 at 338 [4]; R v Toro-Martinez (2000) 114 A Crim R 533 at 536-537 [16]-[23]. The Applicant must establish a good and substantial reason for the Court taking the course of granting leave to withdraw the plea: R v Sewell [2001] NSWCCA 299 at [39]; Wong v Director of Public Prosecutions (2005) 155 A Crim R 37 at 46 [39]. An application to withdraw a plea of guilty is to be approached with caution bordering on circumspection: R v Liberti (1991) 66 A Crim R 120 at 122; R v Parkes [2004] NSWCCA 377 at [48]. 34 The plea of guilty itself is a cogent admission of the ingredients of the offence: R v SL [2004] NSWCCA 397 at [51]. Indeed, it has been described as the most cogent admission of guilt that can be made: Charlesworth v R [2009] NSWCCA 27 at [25]. 35 A person may plead guilty upon grounds which extend beyond that person's belief in his guilt, and the entry of a plea of guilty upon such grounds nevertheless constitutes an admission of all the elements of the offence, and a conviction entered upon the basis of such a plea will not be set aside on appeal unless it can be shown that a miscarriage of justice has occurred, and this will normally only arise where the accused person did not understand the nature of the charge, or did not intend by his plea to admit his guilt of it: Meissner v The Queen (1995) 184 CLR 132 at 157; Wong v Director of Public Prosecutions at 45-46." 19To the extent that the Applicant contends that a plea of guilty was entered and sentencing proceedings were conducted upon bases which did not comply with her instructions, it is appropriate to keep in mind, as well, principles which apply where a challenge to conviction is made by reference to the conduct of legal representatives at first instance. 20In R v Birks (1990) 19 NSWLR 677, Gleeson CJ (McInerney J agreeing) said at 685D-F: "The relevant principles, may be summarised as follows:

1. A Court of Criminal Appeal has a power and a duty to intervene in the case of a miscarriage of justice, but what amounts to a miscarriage of justice is something that has to be considered in the light of the way in which the system of criminal justice operates.
2. As a general rule an accused person is bound by the way the trial is conducted by counsel, regardless of whether that was in accordance with the wishes of the client, and it is not a ground for setting aside a conviction that decisions made by counsel were made without, or contrary to, instructions, or involve errors of judgment or even negligence.
3. However, there may arise cases where something has occurred in the running of a trial, perhaps as the result of 'flagrant incompetence' of counsel, or perhaps from some other cause, which will be recognised as involving, or causing, a miscarriage of justice. It is impossible, and undesirable, to attempt to define such cases with precision. When they arise they will attract appellate intervention." 21Appeal grounds based upon the conduct of counsel have been considered more recently by the High Court of Australia: TKWJ v The Queen [2002] HCA 46; 212 CLR 124; Ali v The Queen [2005] HCA 8; 79 ALJR 662 and Nudd v The Queen [2006] HCA 9; 80 ALJR 614. A recurring theme has been the adversarial nature of criminal proceedings and the general rule that an accused person is bound by the conduct of a criminal trial by that person's counsel. It is not to the point for an accused person to show that, in certain respects, the proceedings might have been conducted differently, nor is it sufficient to show that some inadmissible evidence was received: Ali v The Queen at 665 [12] (Gleeson CJ). It is necessary for the Applicant to demonstrate that a miscarriage of justice has occurred. 22There is substantial overlap between the grounds of appeal against conviction. They may be considered together. 23In submissions to this Court, the Applicant contended that there had been a breakdown in communications between the Applicant and her legal representatives with respect to the issues raised under Conviction Ground 1. 24There is a factual dispute between the Applicant and her former legal representatives with respect to communications which took place, and instructions which were given, prior to the entry of the Applicant's plea of guilty to murder in 2007. 25At the outset, I observe that the Applicant was represented by a senior counsel and solicitor, both of whom are highly experienced in the criminal courts. There are contemporary file notes of conferences which took place, and instructions which were provided by the Applicant before the entry of the plea. To the extent of any conflict between the evidence of the Applicant and that of Mr Stratton SC and Mr Heenan, the evidence of the legal representatives should be preferred. 26The evidence of Mr Stratton SC and Mr Heenan in this Court established the following matters: (a) the elements of the crime of murder were explained to the Applicant who provided instructions to plead guilty to that charge (T11, 27 April 2012); (b) the Applicant informed her legal representatives that she had deliberately shot her grandfather out of anger, although she acted alone and not as part of any agreement with her father (T11-12, 27 April 2012); (c) the partial defence of provocation was discussed in conference, with senior counsel explaining to the Applicant that, in his view, it was not open and would not succeed, so that it was abandoned (T12-13, 27 April 2012); (d) there was discussion in conference concerning the admissibility of the ERISP, but the Applicant did not give instructions to object to it (T13, 27 April 2012). 27The evidence of Mr Stratton SC and Mr Heenan, supported by contemporaneous records, demonstrates that careful advice was provided to the Applicant in the context of several conferences, concerning the Applicant's prospects of success if provocation was relied upon as a trial issue. 28With respect, this was realistic and prudent advice which operated in the interests of the Applicant. The evidence does not demonstrate that the Applicant instructed her legal representatives that she did not wish to plead guilty to murder. Rather, the evidence suggests that it was the Applicant's strong desire to plead guilty, but that senior counsel advised her to hasten slowly in this respect so that possible trial issues could be explored before the plea was entered. 29This application relates to sentencing proceedings following a plea of guilty and not the conduct of a criminal trial. At no stage had the Applicant denied that she committed the acts which killed the victim. The issues raised on this application extend to the question whether the Applicant should have proceeded to trial on the murder count, seeking a verdict of manslaughter based upon the partial defence of provocation. The evidence before this Court points clearly to the Applicant being advised on this aspect that the partial defence of provocation was not likely to succeed, but that the factual matters upon which the Applicant sought to rely in this respect could be advanced at a sentencing hearing so as to mitigate penalty. 30In my view, there was no realistic basis upon which provocation could be raised as a trial issue. As Mr Stratton SC submitted (understandably) to Patten AJ on sentence (T29, 3 August 2007): "The primary submission that we make on behalf of the offender is that he was sexually abused and that this led him to kill his grandfather. We concede - and it is conceded by the plea - that the fact that the deceased sexually abused him many years before would be insufficient to raise in favour of the offender the partial defence of provocation. Nevertheless, we say that it is a significant matter of mitigation." 31The Applicant has not demonstrated that a miscarriage of justice resulted from her entry of a plea of guilty to murder, which accepted that provocation could not be raised as a trial issue. 32In a number of respects, the grounds of appeal against conviction are misconceived. There was no statement of agreed facts put before the sentencing Judge. The concept of joint criminal enterprise had no application to the Applicant as the Crown case was that the Applicant had shot the victim and was a principal in the first degree. 33Insofar as the Applicant sought in this Court to contend that what was said to be an absence of premeditation and planning bore upon the question of guilt, the submission is misconceived. The Applicant instructed her legal representatives that the victim was shot twice deliberately out of anger. The motive for the crime was a matter explored at the sentencing hearing, culminating in findings which were reasonably favourable to the Applicant. 34With respect to grounds concerning the listening device evidence and the ERISP, the evidence reveals that these topics were discussed in conference, with understandable legal advice being proffered to the Applicant concerning her prospects if challenge was made to the admissibility of this material. Having received this advice, the Applicant did not instruct her legal representatives to object to the tender of this material. Once again, it is necessary to keep in mind that the Applicant did not dispute that she had killed her grandfather. 35In circumstances where no instructions were provided by the Applicant to object to the ERISP or the listening device evidence, these aspects do not advance the Applicant's case on appeal. 36The conviction ground directed to listening device evidence is also misconceived, rising no higher than a complaint about the voice quality on the tape. This topic was the subject of evidence at the sentencing hearing before Patten AJ from the officer in charge of the case, as well as the tender of the tape itself. The issue of tape quality went to the weight to be attributed to the evidence: R v Cornwell [2003] NSWSC 97; 57 NSWLR 82 at 90-93 [29]-[38]. This ground has nothing to do with the Applicant's conviction for murder, which followed a plea of guilty and the Applicant's sworn admission, all of which involved cogent admissions of the ingredients of the offence for which she was sentenced. 37Conviction Ground 7 asserts that transcripts of evidence given by the Applicant on various occasions between 1 August 2005 and 1 January 2009 ought to have been excluded on the ground of prejudice as the Applicant was "under the influence of mind-altering psychiatric medication in that period". The psychiatric medication in question was identified as Avanza; however, no pharmacological or medical evidence was relied on as to the effects of Avanza. The Applicant asked Mr Stratton SC (T14.8, 27 April 2012): "Q. If you were aware that at the time I was giving evidence in Court proceedings that I was under the influence of a psychiatric medication, specifically the anti-depressant Avanza, would you have objected to me giving evidence in criminal proceedings? A. That's difficult for me to answer because I had no information that you were under any psychiatric medication at the time. It certainly didn't appear to me when you gave evidence that you were incapable of answering questions." The Applicant has not demonstrated a miscarriage of justice in the manner claimed in Conviction Ground 7. 38By reference to the principles summarised in Thalari v R at [18] above, the Applicant has fallen far short of establishing matters which would lead this Court to conclude that a miscarriage of justice would follow if the Applicant is held to the plea of guilty entered on the charge of murder and the conviction flowing from that plea. 39In these circumstances, I would refuse the Applicant's leave to appeal against conviction.

40Sentence Ground 1 suffers from the same deficiencies as Conviction Ground 1, upon which it is based. A contested hearing proceeded before Patten AJ to permit findings of fact to be made on sentence. The Applicant was represented by most experienced senior counsel at that hearing. 41The concept of joint criminal enterprise was only pertinent on sentence to the extent that the Crown asserted that the Applicant and the Applicant's father were motivated by financial gain in killing the victim. The Applicant denied this and asserted that the killing of the victim resulted from the past mental and physical abuse of the Applicant, including serious sexual assault, and the Applicant's lingering hatred of her grandfather which prompted the killing. Patten AJ was alive to this controversy at the sentencing hearing. 42Having outlined the evidence bearing on the Applicant's motive, his Honour expressed the following conclusion (ROS14): "Having heard and seen the offender give evidence on several occasions I regard him as a man of no or very little credibility. I do not believe his claims that his grandfather either sexually assaulted him or was physically violent except to the extent of mild pushes or shoves. I accept, however, that there were occasions when his grandfather probably verbally abused him and this may have upset him and given rise to feelings of anger. Although it seems improbable I cannot exclude the possibility that there is a reasonable hypothesis that feelings of ill will towards his grandfather persisted until 29 April 2005 and motivated the murder. It follows that I am not satisfied beyond reasonable doubt that the murder was entirely motivated by the prospect of financial gain." 43The Applicant's Sentence Ground 2 complains with respect to this finding of fact made by Patten AJ. This Court is a court of error. The jurisdiction of the Court to interfere with a factual finding on sentence is exercisable only where the Applicant demonstrates an error of principle, or some other mistake of fact or law or that the finding was not open: Aoun v R [2011] NSWCCA 284 at [3]-[9], [33]-[35]. 44The sentencing Judge did not make a finding adverse to the Applicant as sought by the Crown with respect to motive. Nor, however, did the sentencing Judge make a finding in the favourable terms sought by senior counsel for the Applicant. In reaching the conclusions which he did, Patten AJ had regard to the totality of the evidence, including the oral evidence of the Applicant, which his Honour approached with very considerable reservations. 45It is noteworthy that Kirby J, when later sentencing the Applicant's father, made the following findings concerning the Applicant (R v Clark (No. 3) at [12]-[13]): "[12] Ben Clark said that when he shot Dick Clark he was acting alone and out of fear. He explained that there had been a number of incidents five years earlier when he was working for Dick Clark. They took place during two weeks when he was at Dick Clark's workshop at Granville in late 2000, or early 2001. His grandfather had repeatedly assaulted him sexually. Eventually, he had anally raped him. He was, at the time, some months short of 17 years old. The assaults were perpetrated in various locations throughout the workshop. The rape occurred in a small and cluttered room towards the rear of the workshop. His wrists had been bound to a shelf whilst he was raped. The jury was instructed that if they believed there was a reasonable possibility that Ben was sexually assaulted by Dick Clark, such that he had his own reasons for disliking his grandfather and may possibly have acted alone, they must acquit Michael Clark. The jury, by their verdict, clearly rejected Ben Clark's evidence, which was unsurprising. His evidence, in its presentation and detail, was completely implausible. [13] What, then, was the motive of Ben Clark? There was some evidence of ill-feeling between Dick Clark and Ben, arising out of the short time that Ben had spent working in his grandfather's workshop and showroom in 2000 or 2001. Patten AJ, when sentencing Ben Clark, accepted that Dick Clark probably abused Ben verbally because he regarded him as lazy. He may even have mildly pushed him or shoved him to get him moving. Patten AJ could not exclude the possibility that some ill-feeling persisted, and provided part of Ben Clark's motivation. I share that view." 46Having considered the submissions advanced by the Applicant to this Court, it has not been demonstrated that the factual findings made by Patten AJ were not reasonably open to him. Sentence Ground 2 ought be rejected. 47With respect to Sentence Ground 3, I am entirely unpersuaded that any error has been demonstrated concerning the listening device evidence, let alone an error which impacted adversely to the Applicant on sentence. I have considered this topic above at [34]-[36]. I would reject that ground of appeal. 48In support of the sentence appeal, the Applicant sought to rely upon her transgender status within the prison system since September 2011. Some documentary evidence was adduced concerning management of transgender prisoners in the custodial setting. The Applicant acknowledged that this issue could only be relevant if the Court found error and was otherwise proceeding to resentence the Applicant (T8-9, 27 April 2012). 49As no error has been demonstrated, this Court is not proceeding to resentence the Applicant. As the transgender status issue arose only in September 2011, long after the Applicant was sentenced, it is not a matter which can appropriately be ventilated on appeal to this Court: Norrie v R [2008] NSWCCA 185 at [13]-[24]. To the extent that this Court has accepted that post-sentence events may be relied upon in exceptional circumstances, I do not consider that the present case may be so classified: Springer v R [2007] NSWCCA 289; 177 A Crim R 13 at 15-16 [3], 20-22 [25]-[32]. 50As the Applicant is unrepresented, I have considered the quantum of the sentence imposed upon her in the circumstances of this offence. I detect no error on the part of the sentencing Judge in the determination of sentence. His Honour took into account the Applicant's plea of guilty, the finding as to motive (which was not unfavourable to the Applicant), her subjective circumstances, and made a finding of special circumstances leading to the imposition of a non-parole period of 14 years with a balance of term of six years. Having regard to the Applicant's crime, no error has been demonstrated in the imposition of this sentence. 51I observe that Kirby J later sentenced the Applicant's father to a total term of 30 years' imprisonment with a non-parole period of 24 years, after considering submissions relating to proportionality of sentences for the Applicant and the Applicant's father: R v Clark (No. 3) at [38]-[39]. 52In my view, the grounds of appeal against sentence are sufficiently unmeritorious that leave to appeal against sentence ought be refused. 53I propose the following orders: (a) leave to appeal against conviction refused; (b) leave to appeal against sentence refused. 54GARLING J: I agree with Johnson J.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 01 August 2012