Clarke v The Queen [2000] FCA 807

FEDERAL COURT OF AUSTRALIA

Clarke v The Queen [2000] FCA 807

Fox v General Medical Council [1960] 3 All E R 225 CDJ v VAJ (1998) 197 CLR 172 PETER SURYA CLARKE v THE QUEEN A 101 of 1999 GALLOP, RYAN and WHITLAM JJ CANBERRA 26 JUNE 2000

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY A 101 of 1999

DISTRICT REGISTRY

ON APPEAL FROM THE SUPREME COURT

OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN: PETER SURYA CLARKE

Appellant

AND: THE QUEEN

Respondent

JUDGES: GALLOP, RYAN and WHITLAM JJ

DATE OF ORDER: 26 JUNE 2000

WHERE MADE: CANBERRA

THE COURT ORDERS THAT: 1. The appeal against convictions be dismissed. 2. The appeal against sentence be allowed to the extent that the sentence imposed for the offence of assault occasioning actual bodily harm is set aside. 3. In substitution therefor the appellant be sentenced to three years imprisonment to be served concurrently with the sentence for armed robbery. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY A 101 of 1999

DISTRICT REGISTRY

ON APPEAL FROM THE SUPREME COURT

OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN: PETER SURYA CLARKE

Appellant

AND: THE QUEEN

Respondent

JUDGES: GALLOP, RYAN and WHITLAM JJ

DATE: 26 JUNE 2000

PLACE: CANBERRA

REASONS FOR JUDGMENT

THE COURT 1 This is an appeal against convictions and sentence on one count of armed robbery and one count of assault occasioning actual bodily harm. On the first count, the appellant was sentenced to seven years imprisonment and on the second count to five years to be served concurrently with the first sentence. The learned trial Judge fixed a non-parole period of two years to date from 26 December 1998. 2 It is not disputed that the appellant entered the premises of the Westpac Bank at Petrie Plaza, Civic in the Australian Capital Territory at approximately 2.30 pm on the afternoon of 23 November 1998. He there wrote on the back of a withdrawal slip the words "listen, give me $10,000, cash or this person's life is your responsibility". He then approached from behind a female customer, Ms Amie Fitzgibbon, who was depositing on behalf of her employer money in cash and cheques. As Ms Fitzgibbon was dealing with the teller, the appellant grabbed her from behind, extending his right arm over her shoulder and held a knife to her throat. As Ms Fitzgibbon turned to obtain a view of her assailant, the knife scratched or cut the left side of her neck. A further scratch or cut was inflicted when the appellant reached forward to place on the teller's counter the withdrawal slip containing the demand to which we have already referred. The appellant had earlier made an oral demand of the teller to "give me the money" which had been reinforced by Ms Fitzgibbon's saying, "he's serious". The teller, Ms Wilson, noticed blood coming from a wound on Ms Fitzgibbon's neck and moved from her teller's station to activate the hold-up alarm. Ms Wilson then walked to the desk occupied by her supervisor, Ms Jeffrey, and advised her of what was happening. Ms Jeffrey then moved to Ms Wilson's teller's station. As she arrived there, she noticed the written demand and heard the appellant say to Ms Fitzgibbon words to the effect "I'm sorry, I didn't mean to hurt you". The appellant then said to Ms Jeffrey "just give me the money". Ms Jeffrey started to count out money which prompted the appellant to say, "just give me what you've got". Ms Jeffrey then passed to the appellant some loose notes and "flats" of ten notes each of various denominations. She estimated that she passed over about $200 in $5 notes, $200 in $10 notes, $400 in $20 notes and about $1,000 in $50 notes. The appellant then put the knife into a bag which he was carrying and left the Bank premises taking the money which had been passed to him by Ms Jeffrey. He was followed at a "respectful distance" by a male employee of the Bank, Mr Southwell, who observed him get into a taxi on London Circuit. The taxi then left the area and, after first directing the driver to proceed to Belconnen, the appellant changed his instructions and asked to be taken to Canberra University where he left the taxi. 3 On the next day, police executed a search warrant at premises at Hawker where the appellant was then living and found a green bag containing a knife in a plastic container and a cardboard backing on which the knife had apparently been mounted when originally purchased. About $1,800 in cash was found in a briefcase and the police also found in a suitcase, amongst a large collection of other documents, a Commonwealth Bank passbook which recorded that a cash deposit to the credit of the relevant account had been made on that day, 24 November 1998. 4 The appellant did not dispute the occurrence of the events which we have just recounted. His defence was that he had committed the actions attributed to him as a result of duress applied by four men whom he encountered in the vicinity of the Bank. The appellant gave evidence that, in November 1998, a charge against him of assault on two girls near Hornsby in New South Wales in about July 1998 had been dismissed by a Magistrate on the basis that he had no case to answer. Before the dismissal of those charges, the appellant said, an unidentified man had accused him in August 1998 at the Belconnen Interchange of having assaulted a 15 year old girl and had struck him on the jaw. On two earlier occasions, the appellant said, the same man had insulted him in crude sexual terms. 5 As well, the appellant claimed to have been punched and injured at the Private Bin nightclub on 25 October 1998. He reported that incident to the police and considered that his complaint had been insufficiently investigated. The police, he said, explained their inaction by saying that his assailants were the same people "who shot up the police station at Lakemba". Constable Whitaker and Detective Constable Johnsen denied any knowledge of a statement to that effect having been made to the appellant. 6 The appellant's recollection of 23 November 1998 was that he was accosted by four men all significantly larger than himself and wearing predominantly sporting clothing. They surrounded him and reminded him of the incident at the Private Bin by asking "Peter, how did it feel being beaten up?" They also said, the appellant claimed, that he was well known to them and pointing in the direction of the Westpac Bank, that they wanted him to go to a bank and do an armed robbery. According to the appellant, when he adverted to the possible presence of security guards, he was told if he saw them to "ask for permission ..... Tell them you're going to do this." Then, the appellant claims, the men gave him the knife in a plastic scabbard and mounted in a cardboard carton and instructed him to put it in his bag. It was the same knife, he says, which he later used in the robbery. On the appellant's version, one of his assailants then hit him on the back of his head as "an indication that they're quite serious" and he was told that they knew his family was in Tasmania and threatened that "next time", he would not just be beaten up, but "they'll use a weapon - I'll be stabbed." Finally, in this context, the appellant testified that the men told him to go and pushed him gently into the Bank. 7 The appellant then said that, after entering the Bank, he followed two security guards and said to them "I'm going to do a robbery", to which one of them replied "okay". As he acknowledged, the appellant then carried out the robbery as described by the Crown's witnesses. 8 By his Notice of Appeal as amended by leave on the first day of the hearing of his appeal, the appellant, who appeared in person, relied on the following grounds: "(a) Appeal on convictions/verdict by jury (i) the jury's verdict was unsatisfactory, unsafe and unsound. (ii) the conduct of the trial perceived objectively in its totality has caused a serious miscarriage of justice or a substantial wrong has occurred. (iii) evidence consistent with the testimony of the appellant which if accepted is corroborative of the appellant's defence and/or testimony at the trial, also affecting the veracity of certain Crown witnesses was not presented at the trial and/or unfairly or unlawfully suppressed at the trial and sentencing. (iv) the trial judge erred in failing to give proper directions to the jury. (v) the trial judge failed to highlight the inconsistencies of certain Crown witnesses evidence to the jury. (vi) the verdict of the jury and judgment of convictions entered into on that verdict was unsafe, unsatisfactory and unjust because of the negligence or impropriety of the Australian Capital Territory Director of Public Prosecution in failing to produce to the Court or jury all the relevant evidence and/or obtain all the relevant evidence and/or disclose all the relevant evidence to the defence. (vii) the verdict of the jury and judgment of convictions entered into on that verdict was unsafe, unsatisfactory unjust because of the negligence or impropriety of the Australian Federal Police to conduct proper investigations to obtain all the relevant evidence and/or disclose all the relevant evidence particularly when these matters were raised by the defendant in various Court proceedings. (viii) the verdict of the jury and judgment of convictions entered into on that verdict was unsafe, unsatisfactory and unjust due to ineffective legal representations. (b) Appeal on sentence (i) the sentences imposed by the trial judge was and is manifestly excessive so as to manifest errors of law/fact/principle. (ii) the trial judge failed to properly exercise his discretion in the imposition of the said sentences in accordance with law. (iii) the sentences imposed by the trial judge was and is against the evidence and the weight of evidence." 9 In his attack on the jury's verdict the appellant concentrated essentially on matters which he said had been improperly introduced into evidence or had been wrongly withheld as a result either of breaches by his own legal representatives of their professional duty or some misfeasance on the part of the police or the prosecuting authorities. Some of these matters can be disregarded without further examination because, as explained by the appellant, they went to the credibility of the testimony of Crown witnesses whose evidence he ultimately accepted as truthful.