Clarkson v Regina [2007] NSWCCA 70

Appeal Outcome: Special leave refused by the High Court - 11 December 2007

New South Wales Court of Criminal Appeal

CITATION: Clarkson v Regina [2007] NSWCCA 70 This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 12 February 2007

JUDGMENT DATE: 22 March 2007

JUDGMENT OF: Beazley JA at 1; Sully J at 252; Howie J at 253

DECISION: 1. Appeal against conviction dismissed;; 2. Application for leave to appeal against sentence allowed but appeal against sentence dismissed.

CATCHWORDS: Criminal law – criminal liability – defence – duress and necessity – whether trial judge erred in ruling defences unavailable – whether trial judge erred in not allowing evidence of defence - Criminal law – section 10(1)(b) Passports Act 1938 (Cth) – elements of offence – use of coincidence evidence - Criminal law – section 184 Crimes Act 1900 (NSW) – elements of offence – personation - whether trial judge erred in directing jury in respect of elements of offence - Criminal law – separate trial – whether raising defence would prejudice accused in joint trial – whether trial judge erred in failing to order separate trial - Criminal law – sentence – individual sentence – whether trial judge erred in accumulating offences for overall sentence - Criminal law – sleep apnoea – occasional sleep periods - whether fair trial - Criminal law – sentence – concurrent sentence – whether trial judge erred in failing to impose wholly concurrent sentence - Criminal law – sentence - remissions – whether trial judge erred in failing to take into account sentence to be served in State with no remissions - Criminal law – sentence – factors taken into account – whether trial judge erred in failing to account for time elapsed since offences committed - Criminal law – sentence – factors taken into account - conditions of imprisonment – whether trial judge erred in failing to take into account protective custody - Criminal law – unfitness to be tried – whether unfitness to be tried raised so as to engage Mental Health (Criminal Procedure) Act 1990 (NSW) - physical illness - unfitness to be tried raised before trial - Statutes – application of statute - whether same conduct may be charged under different Acts – irrelevant whether lesser offence exists