R v Clark [No 1] [2008] NSWSC 820

New South Wales Supreme Court

CITATION : R v Clark [No 1] [2008] NSWSC 820

HEARING DATE(S) : 10/03/088

JUDGMENT DATE : 10 March 2008

JURISDICTION : Common Law Division Criminal List

JUDGMENT OF : Kirby J

DECISION : Conversation should be admitted with agreed deletions (as per Exhibit E on the Voir Dire)

CATCHWORDS : Criminal Practice & Procedure - objection to listening device - relevance - whether unfair prejudice - discretion to exclude.

LEGISLATION CITED : Evidence Act 1995

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 OF NEW SOUTH WALES COMMON LAW DIVISION CRIMINAL LIST

DAVID KIRBY J

Monday 10 March 2008

2006/3605 REGINA v Michael Rex CLARK

JUDGMENT [No 1] - Objection to Listening Device 1 KIRBY J: The Crown seeks to introduce a conversation recorded by listening device at 9.10 am on Wednesday 13 July 2005 (Exhibit E on the Voir Dire). The listening device was installed under a warrant lawfully obtained. The conversation involved the accused, his son Ben, and his wife Jennifer. There is an objection by the accused which is based partly upon relevance. I should therefore briefly describe the Crown case.

The Crown case. 2 Michael Rex Clark (the accused) has been charged with the murder of Ernest Richard Clark ("the deceased") at Bexley on 30 April 2005. He has pleaded not guilty. He is charged in the alternative that, Ben Clark having murdered Ernest Richard Clark, he was an accessory after the fact. 3 The circumstances in which the deceased met his death are not in doubt. Ben Clark, the accused's eldest son, pleaded guilty to his murder. He has been sentenced to imprisonment for 20 years, with a non parole period of 14 years. He is to be called as a witness in this trial. I gather that he will acknowledge that, on the evening of 29 April 2005, he rode his motor cycle to his grandfather's home. He parked some distance away. He was armed with a loaded gun. His grandfather invited him into the house. Together they sat and watched the football on television. At approximately 11.10 pm, as he was leaving, Ben Clark twice shot his grandfather in the head at close range. His grandfather staggered several steps before collapsing on the lawn. He then lost consciousness. His partner, Ms Jessica Chung, returned home at about 12.30 am and found him bleeding profusely and still unconscious. He was taken to the St George Hospital where he died that afternoon. He never regained consciousness. 4 When the accused was arraigned he pleaded not guilty to murder, but guilty to being an accessory after the fact. The Crown refused to accept that plea in full satisfaction of the indictment. The jury was then empanelled and the trial is proceeding upon the indictment for murder and the alternative charge. 5 The real issue is whether the accused was involved with Ben Clark in the murder before the shooting. It is clear and conceded that he was involved after the murder. The Crown alleges an agreement between father and son whereby Ben would commit the murder. He would do so at a time that Michael Clark had an alibi and was geographically remote from the area in which the murder took place. Ben, in return, would receive part of the inheritance Michael Clark expected from his father's Will. 6 On the Crown case there was, in respect of Michael Clark, motive and urgency. There was motive because he needed money. He was heavily in debt, without the prospects of being able to repay his debt. There was urgency, according to the Crown, arising from recent changes to his father's relationship with his partner, Ms Jessica Chung. His father was aged 74 years. His partner, Ms Chung, was a much younger woman, not yet 50 years. They had known each other for more than a decade. Although their relationship had involved intimacy, they had lived separately throughout that time. However, in September 2004 their relationship changed. The accused's father sold his business and the flat in which he lived. He was obliged to find another home. He and Ms Chung decided that they would live together in a house which she owned at Bexley. Renovations were undertaken, paid for by Ernest Richard Clark. The deceased had also made it known that first, he was contemplating the discharge of Ms Chung's mortgage in respect of the Bexley property and, secondly, the purchase of a business on her behalf. There is evidence that Michael Clark and his wife were unhappy with these developments, which involved the dissipation of a significant part of the father's cash assets. 7 The Crown principally relies upon recorded conversations after the murder, captured either by listening device or telephone interception. In one such conversation, the accused when speaking to Ben Clark, referred to a "pact", which he promised to keep. The "pact", according to the Crown, was that Ben, having carried out the murder, would receive a share of the money from the inheritance. 8 The accused, one gathers, will acknowledge that indeed there was a pact. However, it was made after the murder, once his son had told him what he had done. He promised that he would not disclose that information to anyone. He thereafter assisted his son in various ways, with full knowledge of his crime. It was upon this basis that he had pleaded guilty to the alternative charge. He will assert that he had no knowledge or involvement before the murder. 9 I should deal with one aspect of the Crown case of particular relevance to the conversation which the Crown seeks to tender, namely the gun used by Ben Clark to shoot his grandfather. The gun has never been recovered. Neighbours reported hearing two shots at about 11.10 pm. The injuries to the deceased were consistent with his having been struck by two bullets. The first was a glancing blow to the left side of the head. The bullet appears to have then struck a tile at the rear of the premises near where the deceased was then standing. The second bullet was fired at close range, penetrating the left side of the forehead. It passed through the brain, fracturing the base of the skull and other facial bones, before exiting on the left side. It was plainly the second bullet that caused death. 10 A number of police officers have given ballistics evidence. One cartridge case was recovered. It was a .38 calibre Winchester cartridge case. It was examined microscopically, revealing extractor and ejector markings, consistent with use in a .38 self loading pistol. 11 Ben Clark was arrested on 14 July 2005 and later interviewed by the police. In the course of the interview he confessed to having shot his grandfather. He provided a description of the gun which he had used. He said that he bought the gun in a pub in Mt Druitt (Q122). His ERISP included the following: (p18) "Q123 Can you describe the gun to me? A I didn't look so much like a gun but more like a, like a little toy or like a, I don't know what you would call it, like a little tube with a spring on it, and you pull the spring back and let go." 12 He was asked to provide a diagram. He then produced a rudimentary drawing of a homemade gun with two barrels and springs. He later provided the police with a more sophisticated diagram which, according to the Crown, had the appearance of a reproduction from a gun manual. Neither diagram suggested that the homemade gun was fitted with either an extractor or an ejector. The interview also included the following: (p19) "Q137 Can you tell me where the gun is now? A. I don't know where it is, 'cause on the way home I threw it to the side of the road. Q138 Do you know whereabouts? A No, I wasn't thinking straight at that time, I was panicking, I was scared." 13 There were, according to the Crown, a number of difficulties with Ben Clark's explanation. First the description he provided was remarkably similar to that suggested by the accused (on the Crown case) in a conversation recorded by listening device that day before the interview: (9.55 am 13 July 2005) "MC Remember the story … [ind] … that's most important mate the story … [ind] … gun. It was about this long this thin … [ind] … the spring sprang back you know. BC Yeah. MC And if they say to ya 'well how did the shells come out' you say 'oh I don't know' … [ind] … 'where did you throw the gun' … [ind] … 'in the city somewhere down the drain' right? BC [sighs]." 14 Secondly, the homemade gun as described and drawn by Ben Clark, would not eject a cartridge once fired. Yet a cartridge case was found at the scene. Moreover, the case had ejector and extractor markings which you would not expect if the gun as drawn and described by Ben Clark had been used. On the other hand, there were two sets of extractor and injector markings, suggesting that the cartridge had previously been in a gun with an extractor and ejector, but had not been fired. 15 As mentioned, the gun has never been found. Its source has not been identified. The Crown suggests that one would infer that the account given by Ben Clark was false and that he had a self loading .38 handgun. If that is right, the question arises: "Why would the accused suggest that his son give a false account?" 16 In a conversation between the accused and Ben Clark, recorded by listening device at 11.00 pm on 11 July 2005, that is, a few days earlier, the accused said this: "MC [sighs] Fuck … [ind] … ever put you there if you didn't touch a fucking beer bottle. And if you got them fucking clips, they wouldn't a known what sort of a fucking gun. They wouldn't have known the weapon. You know?" (emphasis added) 17 Let me turn to the grounds of objection.