Clark, Michael Rex – Application for Inquiry into Conviction and Sentence pursuant to s 78 of the Crimes (Appeal & Review) Act 2001 [2015] NSWSC 1206

Clark, Michael Rex – Application for Inquiry into Conviction and Sentence pursuant to s 78 of the Crimes (Appeal & Review) Act 2001 [2015] NSWSC 1206

The application was dismissed because Dr Fraser's report did not identify fresh evidence showing or suggesting a miscarriage of justice. It raised the general possibility that an inaccurate transcript may influence a listener, but that risk is recognised and addressed by standard jury directions that the recording is the evidence and the transcript only an aide memoire. The applicant had not objected at trial to the relevant passage, the directions were adequate, the Crown case was otherwise strong, and the material did not cause any sense of unease or disquiet about the conviction.

Jurisdiction
Australia
Judgment Date
28 August 2015
Procedural Posture
Application Under S 78 of the Crimes (appeal and Review) Act 2001 for an Inquiry Into Conviction and Sentence / On the Papers
Outcome
Application dismissed
Legal Topics
['application for Review of Conviction' 'fresh Evidence' 'listening Device Recordings' 'transcripts as Aide Memoire' 'contextual Priming' 'jury Directions' 'joint Criminal Enterprise']
['criminal Law' 'criminal Procedure' 'evidence'] ['application for Review of Conviction' 'fresh Evidence' 'listening Device Recordings' 'transcripts as Aide Memoire' 'contextual Priming' 'jury Directions' 'joint Criminal Enterprise']

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Procedural Posture

Application Under S 78 of the Crimes (appeal and Review) Act 2001 for an Inquiry Into Conviction and Sentence / On the Papers

Legal Issues

  1. 1 ['Whether the report of phonetics consultant Dr Helen Fraser amounted to fresh evidence.' 'Whether the report cast doubt on the police transcript provided to the jury as an aide memoire for the 11 July 2005 listening device recording.' 'Whether the jury may have been misled by the transcript, including the reference to a pact.' 'Whether the standard directions given by the trial judge concerning recordings and transcripts were sufficient.' 'Whether the material caused a sense of unease or disquiet in allowing the conviction to stand.']

Ratio Decidendi

The application was dismissed because Dr Fraser's report did not identify fresh evidence showing or suggesting a miscarriage of justice. It raised the general possibility that an inaccurate transcript may influence a listener, but that risk is recognised and addressed by standard jury directions that the recording is the evidence and the transcript only an aide memoire. The applicant had not objected at trial to the relevant passage, the directions were adequate, the Crown case was otherwise strong, and the material did not cause any sense of unease or disquiet about the conviction.

Court Disposition

Application dismissed

Orders

  • ['Application dismissed']