R v CLARK [2003] NSWCCA 308

New South Wales Court of Criminal Appeal

CITATION : R v CLARK [2003] NSWCCA 308 HEARING DATE(S) : 25/09/03 JUDGMENT DATE : 27 October 2003

JUDGMENT OF : O'Keefe J at 1; Hidden J at 2; Barr J at 3 DECISION : Refuse leave to withdraw notice of abandonment; refuse to extend the time within which to appeal against conviction.

CATCHWORDS : Criminal law - appeal - new evidence - whether cogent LEGISLATION CITED : Criminal Appeal Act R v Young [1999] NSWCCA 275 R v Jeffrey Court of Criminal Appeal, New South Wales, 16 December 1993 unreported CASES CITED : Gallagher v The Queen (1985) 160 CLR 392 Ratten v The Queen (1974) 131 CLR 510 Mickelberg v The Queen (1989) 167 CLR 259 R v Bikic [2002] NSWCCA 227 PARTIES : REGINA v Wayne Scott CLARK FILE NUMBER(S) : CCA 60147/03 COUNSEL : Appellant: G Nicholson QC Crown: P Miller SOLICITORS : Appellant: P White Crown: S E O'Connor

LOWER COURT District Court JURISDICTION : LOWER COURT 97/21/2023 FILE NUMBER(S) : LOWER COURT O'Reilly DCJ JUDICIAL OFFICER :

IN THE COURT OF CRIMINAL APPEAL 60147/03

O'Keefe J Hidden J Barr J

Monday, 27 October 2003 R v Wayne Scott CLARK Judgment 1 O'KEEFE J: I have read the draft judgment of Barr J and agree with his conclusions and the reasons for such conclusions. 2 HIDDEN J: I agree with Barr J. 3 BARR J: On 12 March 1998 the applicant Wayne Scott Clark was found guilty by a jury of certain offences, namely- (a) On 25 February 1996 at Smithfield stealing a certain motor vehicle; (b) On the same day at Parramatta stealing a certain motor vehicle; (c) On 5 March 1996 at Casula robbing Leonie Catherine Pettiford of about $510,000; and (d) At the same time and place maliciously wounding Edward Emerson with intent to prevent his lawful apprehension. 4 On 3 April 1998 concurrent sentences were imposed, the longest of which had a total term of 16 years with a minimum term due to expire on 2 April 2010. The applicant signed a notice appealing against the convictions and seeking leave to appeal against the sentences. The notice was dated 4 April 1998 but not filed until 5 May 1998, after the expiry of the period of 28 days then allowed for the filing of an appeal. According to the notice, the grounds of appeal were to be advised. No grounds of appeal were ever filed in spite of many mentions of the matter before the Registrar. On 25 July 2000 a notice of abandonment was filed, dated 23 July 2000. On 31 July 2000 the Court dismissed the appeal. On 30 April 2003 the applicant filed a second notice of appeal against the convictions. 5 It seems to me in the circumstances that the purported second appeal must be dealt with in the first place as an application for leave to withdraw the notice of abandonment and for an extension of time within which to file a notice of appeal. 6 On 5 March 1996 two men broke into a bank at Casula. They wore balaclavas. They were armed with loaded pistols. They threatened staff and took the bank's money. During the robbery the alarm was raised and Mr Edward Emerson, an off-duty police officer, ran from nearby premises to the bank in an attempt to stop the robbery. One of the robbers shot and wounded him. They got away, using first one stolen car and then another. They were the two cars dealt with in the first two counts. It was the Crown case that the applicant was the robber who shot Mr Emerson. 7 On 8 May 1996 police from the Tactical Operations Unit arrested the applicant and took him to Picton police station. They had made no prior arrangement to take him there and had not alerted local police about their intention to arrest the applicant because they wanted their investigation to be secret. At the police station the audio-visual recording equipment was broken but there was an audio tape recorder. The arresting officers decided to use that equipment to record the interview which they hoped to have with the applicant. So it turned out. 8 Before the interview began, however, there was a significant conversation between the arresting police and the applicant during which he told them that he had been involved in the robbery with a man called Robert Charles Wood, that each had been armed with a revolver, that he, the applicant, had shot Mr Emerson, that Wood had received $180,000 and that the applicant had received the rest of the proceeds of the robbery. He also told the officers where they would find the sum of approximately $100,000 hidden in his house. 9 When the interview was recorded these matters were confirmed and the applicant went on to make a full confession of the part he played. 10 Police searched the applicant's house and found about $100,000 in the place nominated by the applicant. 11 Police arrested Wood, who confessed, pleaded guilty and promised to give evidence for the Crown at the applicant's trial. He fulfilled that promise. 12 There were three bodies of evidence against the applicant, namely the admissions recorded at the police station, the evidence of Wood and a body of circumstantial evidence. That evidence included the applicant's having spent $125,000 in cash between 7 March and 8 May 1996 on a car, a motorcycle, a lounge suite, a large-screen television set, a billiard table, a holiday and jewellery, the finding of the $100,000, a significant part of which was in sequentially numbered notes, in the place nominated by the applicant, the finding of other substantial sums of money among the property of the applicant and his wife and at their house, evidence of telephone contact between the applicant and Wood on the morning of the robbery and afterwards and the finding of a number of firearms at the applicant's house as well as .357 calibre ammunition. The bullet that shot Mr Emerson was of that calibre. 13 The applicant objected to the tender of the evidence of what he had told the police in the recorded interview. He had been tried in the previous November but the jury had been unable to agree. At that trial O'Reilly QC, DCJ had, after a lengthy voir dire, admitted the evidence following an objection on identical grounds. His Honour presided at the second trial as well, so at the commencement of that trial the voir dire evidence from the first trial was formally tendered and received and his Honour's decision to admit the evidence formally repeated. 14 Six grounds of appeal were filed with the second notice of appeal, namely- 1. His Honour erred in allowing evidence to be given indicating that the appellant had not complained to the Magistrate at Campbelltown Local Court of misconduct by police officers who interrogated him. 2. His Honour erred in directions he gave concerning the fact that no complaint was made to the Magistrate at Campbelltown by the Appellant about improper police conduct. 3. His Honour erred in failing to direct the jury in relation to the appellant's right to silence. 4. His Honour erred in admitting over objection disputed confessional material. 5. The trial miscarried by reason of the absence of evidence now available as to sounds encoded on tape recordings containing alleged confessional material obtained from the appellant during his interview by police officers. 6. The conviction of the appellant was unsafe and involved a miscarriage of justice. 15 Although written submissions were filed in support of all grounds counsel for the applicant took the view at the hearing that the first three grounds would fail and did not press them. Counsel acknowledged that the sixth ground depended on the success of the fourth and fifth grounds. Accordingly, submissions on the merits were confined to those two grounds.