Clarke v R [2012] NSWCCA 272

Clarke v R [2012] NSWCCA 272

The Black direction and reference to majority verdicts did not pressure the jury or undermine the need for unanimity, and rule 4 also applied because no objection was taken and defence counsel endorsed the direction. The jury's rejection of duress on count 5 was open on the evidence, including the improbabilities identified by the Crown, and the absence of DNA testing of the axe was not decisive because any DNA would also have been consistent with use of the axe to enter the premises. The Crown prosecutor's challenged conduct did not, individually or cumulatively, cause a miscarriage of justice; the only established improprieties were minor and did not warrant interference with the...

Jurisdiction
Australia
Judgment Date
14 December 2012
Procedural Posture
Criminal Conviction Appeal and Application for Leave to Appeal Against Conviction; Application for Leave to Appeal Against Sentence Stood Over / Court of Criminal Appeal From Convictions and Sentence in the Sydney District Court Before Williams DCJ
Outcome
Leave to appeal refused on ground 1; grounds 2 and 3 dismissed; application for leave to appeal against sentence stood over.
Legal Topics
['break and Enter Premises and Commit a Serious Indictable Offence' 'larceny' 'conviction Appeal' 'black Direction' 'majority Verdict Direction' 'duress' "prosecutor's Address" 'unsafe Verdict' 'criminal Appeal Rules R 4']
['criminal Law' 'criminal Procedure' 'evidence'] ['break and Enter Premises and Commit a Serious Indictable Offence' 'larceny' 'conviction Appeal' 'black Direction' 'majority Verdict Direction' 'duress' "prosecutor's Address" 'unsafe Verdict' 'criminal Appeal Rules R 4']

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Procedural Posture

Criminal Conviction Appeal and Application for Leave to Appeal Against Conviction; Application for Leave to Appeal Against Sentence Stood Over / Court of Criminal Appeal From Convictions and Sentence in the Sydney District Court Before Williams DCJ

Legal Issues

  1. 1 ['Whether the trial judge erred by giving a Black direction and referring to majority verdicts in a manner that placed inappropriate pressure on the jury.' 'Whether the verdict on count 5 was unsafe because the Crown failed to negative the defence of duress.' "Whether the trial miscarried because of prejudice occasioned by the Crown prosecutor's cross-examination and closing address in relation to counts 4 and 5."]

Ratio Decidendi

The Black direction and reference to majority verdicts did not pressure the jury or undermine the need for unanimity, and rule 4 also applied because no objection was taken and defence counsel endorsed the direction. The jury's rejection of duress on count 5 was open on the evidence, including the improbabilities identified by the Crown, and the absence of DNA testing of the axe was not decisive because any DNA would also have been consistent with use of the axe to enter the premises. The Crown prosecutor's challenged conduct did not, individually or cumulatively, cause a miscarriage of justice; the only established improprieties were minor and did not warrant interference with the...

Court Disposition

Leave to appeal refused on ground 1; grounds 2 and 3 dismissed; application for leave to appeal against sentence stood over.

Orders

  • ['Leave to appeal be refused in respect of ground of appeal 1.' 'Grounds of appeal 2 and 3 be dismissed.' "The hearing of the application for leave to appeal against sentence is stood over to the Registrar's next call over."]