Clark v R [2010] NSWCCA 94

Clark v R [2010] NSWCCA 94

The trial judge did not err in admitting the South Australian tapes because, when considered in the context of the issue whether the murder weapon was a homemade gun or a commercially manufactured pistol, the evidence had significant probative value which outweighed the danger of unfair prejudice. It was open to the trial judge to accept the juror's ultimate account and refuse discharge, and that refusal did not occasion the risk of a substantial miscarriage of justice. The summing up referred to evidence relevant to live Crown contentions and did not advance a new adverse case that the applicant lacked a fair opportunity to meet. No individual or cumulative miscarriage of justice was...

Jurisdiction
Australia
Judgment Date
11 May 2010
Procedural Posture
Criminal Appeal Against Conviction / Application for Leave to Appeal and Appeal Against Conviction in the New South Wales Court of Criminal Appeal
Outcome
Leave to appeal granted; appeal against conviction dismissed.
Legal Topics
['appeal Against Conviction' 'unfair Prejudice' 'admissibility of Listening Device Evidence' 'juror Discharge' 'jury Discharge' 'summing Up' 'miscarriage of Justice']
['criminal Law' 'evidence' 'criminal Procedure'] ['appeal Against Conviction' 'unfair Prejudice' 'admissibility of Listening Device Evidence' 'juror Discharge' 'jury Discharge' 'summing Up' 'miscarriage of Justice']

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Procedural Posture

Criminal Appeal Against Conviction / Application for Leave to Appeal and Appeal Against Conviction in the New South Wales Court of Criminal Appeal

Legal Issues

  1. 1 ['Whether the trial judge erred in admitting evidence of the South Australian tapes instead of excluding it under s.135 or s.137 Evidence Act 1995 as unfairly prejudicial.' 'Whether the trial judge erred in refusing to discharge a juror who had learned information concerning a previous trial.' "Whether the trial judge's summing up unfairly included matters not relied on in the Crown's address or not put in cross-examination." 'Whether the cumulative effect of the matters complained of in grounds 1 to 4 resulted in a miscarriage of justice.']

Ratio Decidendi

The trial judge did not err in admitting the South Australian tapes because, when considered in the context of the issue whether the murder weapon was a homemade gun or a commercially manufactured pistol, the evidence had significant probative value which outweighed the danger of unfair prejudice. It was open to the trial judge to accept the juror's ultimate account and refuse discharge, and that refusal did not occasion the risk of a substantial miscarriage of justice. The summing up referred to evidence relevant to live Crown contentions and did not advance a new adverse case that the applicant lacked a fair opportunity to meet. No individual or cumulative miscarriage of justice was...

Court Disposition

Leave to appeal granted; appeal against conviction dismissed.

Orders

  • ['Leave to appeal granted.' 'Appeal against conviction dismissed.']