Clement v R [2020] NSWCCA 312

Clement v R [2020] NSWCCA 312

There was a miscarriage of justice because the trial judge failed to direct the jury about the use they could make of the applicant's alleged admissions and equivocal responses in the first pretext call, despite the Crown's closing address inviting them to treat the responses as admissions and, inferentially, as evidence of lying in court by the applicant. This created an unacceptable risk of jury confusion about the permissible use of the evidence, central to the issues at trial, warranting the conviction being set aside and a new trial ordered.

Parties
Applicant: Mark Clement; Respondent: Crown
Jurisdiction
Australia
Judgment Date
01 December 2020
Procedural Posture
Criminal Appeal / Appeal From Conviction and Sentence
Outcome
Appeal allowed. Conviction set aside. New trial ordered.
Legal Topics
Pretext Call Evidence, Jury Directions, Admissibility of Admissions, Consciousness of Guilt, Miscarriage of Justice
Criminal Law Evidence Criminal Procedure Pretext Call Evidence Jury Directions Admissibility of Admissions Consciousness of Guilt Miscarriage of Justice

Case Brief

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Parties

Mark Clement

Applicant

Crown

Respondent

Procedural Posture

Criminal Appeal / Appeal From Conviction and Sentence

Legal Issues

  1. 1 Whether the absence of a jury direction regarding the use of the first pretext call conversation evidence occasioned a miscarriage of justice
  2. 2 Whether the Crown's reliance on asserted admissions in the first pretext call warranted an Edwards or Zoneff direction
  3. 3 Whether the trial judge erred in allowing the jury to consider the applicant's credibility through the first pretext call

Ratio Decidendi

There was a miscarriage of justice because the trial judge failed to direct the jury about the use they could make of the applicant's alleged admissions and equivocal responses in the first pretext call, despite the Crown's closing address inviting them to treat the responses as admissions and, inferentially, as evidence of lying in court by the applicant. This created an unacceptable risk of jury confusion about the permissible use of the evidence, central to the issues at trial, warranting the conviction being set aside and a new trial ordered.

Court Disposition

Appeal allowed. Conviction set aside. New trial ordered.

Orders

  • Leave to appeal under r 4 of the Criminal Appeal Rules granted
  • Appeal allowed