R v Clark [No 2] [2008] NSWSC 821

New South Wales Supreme Court

CITATION : R v Clark [No 2] [2008] NSWSC 821

10/03/08 - 14/03/08 HEARING DATE(S) : 17/03/08 - 20/03/08 27/03/08 JURISDICTION : Common Law Division Criminal List

JUDGMENT OF : Kirby J

EX TEMPORE JUDGMENT DATE : 27 March 2008

DECISION : Application for discharge refused.

CATCHWORDS : Criminal Practice & Procedure - application to discharge juror and jury - previous trial - hung jury - juror conversation at church with wife of juror in previous trial - whether juror or panel should be discharged.

CATEGORY : Procedural and other rulings

PARTIES : Regina Michael Rex Clark

FILE NUMBER(S) : SC 2006/3605

COUNSEL : M Hobart SC (Crown) M Thangaraj (Acc)

SOLICITORS : A Walkowiak - DPP (Crown) Matouk Joyner Lawyers (Acc)

IN THE SUPREME COURT Extempore - Checked OF NEW SOUTH WALES COMMON LAW DIVISION CRIMINAL LIST

JUSTICE DAVID KIRBY

27 MARCH 2008

2006/3065 Regina v Michael Rex CLARK

JUDGMENT [No 2] – on application to discharge jury; see p466 of transcript

1 HIS HONOUR: Michael Rex Clark has been charged with the murder of Ernest Richard Clark. The murder is said to have been carried out as a result of an agreement between Michael Rex Clark and his son Ben whereby Ben shot the deceased on 29 April 2005 causing injuries which led to his death the following day. 2 The matter has a long history. Michael Clark, the present accused, and his son, Ben, were jointly indicted before Patten AJ in 2007, at which time Ben Clark pleaded guilty to murder. He was later sentenced to 20 years imprisonment with a non-parole period of 14 years. 3 The trial then proceeded before Patten AJ and a jury in respect of the indictment concerning Michael Clark, he being charged with murder. Ultimately, the jury was discharged when it was unable to agree. 4 The matter was listed before me on 11 February 2008 for a retrial. It proceeded for 17 days before it became necessary to discharge the jury. A further jury panel was summoned on 10 March 2008 and the present trial began. 5 That trial is now in its tenth day and most of the oral evidence has been called. There remains a significant number of listening device taped material and telephone intercept material before the completion of the Crown case, together with a handful of witnesses. That being the context, the trial was adjourned on Thursday 20 March 2008 for the Easter break. Because of the commitments of counsel, the trial was to resume on Thursday 27 March 2008. 6 Yesterday, that is 26 March 2008, I received a memorandum from the Senior Deputy Registrar of the Supreme Court setting out a conversation which she had had the previous Saturday evening with a person who identified himself as a juror in this trial. That memorandum has been marked for identification 16 and is in these terms: "Memorandum