R v Clarke[2001] QCA 124

COURT OF APPEAL

McMURDO P

McPHERSON JA

DUTNEY J

CA No 23 of 2001

THE QUEEN

v.

DAVID JOHN CLARKE Applicant

BRISBANE

DATE 02/04/2001

JUDGMENT

McPHERSON JA:  This is an application for extension of time within which to appeal against conviction and sentence.  The applicant is a citizen of New Zealand.  It is necessary to mention that in the light of some further facts that will be referred to.  In 1996 he was charged with two counts of murder of men named Stainton and Josey, and also two counts of interfering with their bodies after death.

He pleaded guilty to the latter two charges and went to trial on the former.  The jury found him not guilty of murder, but guilty of one count of manslaughter.  At the trial the evidence for the prosecution consisted primarily of the applicant's confession or confessions which were taped.  There was also forensic evidence, which I understand to have been unchallenged, that some strands of the applicant's hair were found at or near the scene of the crime. 

He now says that the confessions were exacted from him under duress in that threats were made against his wife to the effect that she would be arrested and charged with being an accessory to the murder, and also that their daughter would be placed in the care of the State.

We have heard the applicant address us on the matters that he claims are of importance here, but the problem, it seems to me, comes back to this.  At the trial he did not allege the matters that are now being put forward to us in relation to duress and so on.  He did not do so, he told us, because he thought that the police would be believed rather than he.

It does not seem to me that that state of affairs has changed, if it be correct to express it as he does now.  If there were an order for a new trial after setting aside the convictions, the probability is, it would seem to me, that the result would be the same.  Indeed, the major problem in this instance is, to my mind, that no fresh or new evidence has been put before us that would raise a significant possibility that the applicant had been wrongly convicted of the offence of manslaughter for which he was sentenced. 

His sentence has now been served, and it would appear that the purpose of this application is, as he says, "to get the records straight" with a view to persuading others in Federal Court proceedings that he ought not be deported back to New Zealand. 

The time that has elapsed since the conviction and sentence is, obviously, very considerable.  That might in itself not be a bar to giving leave to appeal, or extending time to do so, provided that evidence in proper form was now presented to this Court which, as I say, would need to raise a fresh or new case that created a significant possibility that the applicant was wrongly convicted.

There is no such evidence before us, and there is not even a sworn or written statement to the effect that the applicant had no involvement in any of the offences of which he was convicted.  I would therefore dismiss the application for extension of time.

DUTNEY J:  I agree that the application should be refused for the reasons given by Justice McPherson.  At its highest, the document upon which the applicant seeks to rely, which is a document headed "Report of Conviction of Noncitizen" and which appears to be dated 5 December 1996, does not support the case the applicant wishes to advance. 

The case the applicant seeks to advance is that his confession which was relied on by the prosecution at trial was induced by threats.  All the applicant can say is that the document is consistent with his confessing after being confronted with the forensic evidence, rather than before, as was suggested in the case run by the prosecution at trial.

In any case, the author of the document was not involved in the relevant interview and the document is thus hearsay.  For those reasons I do not consider the evidence is fresh in the sense required in order to obtain a retrial.

THE PRESIDENT:  I agree with what has been said by Justice of Appeal McPherson and Justice Dutney.  I would only add that perusal of the judge's summing up makes it clear that there were a number of long interviews between the police officer and this applicant before he made any confession which, in part, supports Ms Eckersly's statement.

In the end, for the reasons given by Justices McPherson and Dutney, no new evidence raises a significant possibility or makes it likely that the applicant was wrongly convicted.  The order is the application is refused.