R v Clarke[2006] QCA 30

[2006] QCA 30

COURT OF APPEAL

McPHERSON JA

CA No 240 of 2005

DC No 513 of 2005

THE QUEEN

v

CLARKE, Suzanne KatherineApplicant

BRISBANE

DATE 15/02/2006

JUDGMENT

MR A J DONALDSON (instructed by Burns Lawyers) for the applicant

MR C W HEATON (instructed by the Director of Public Prosecutions (Queensland)) for the respondent

McPHERSON JA:  The applicant before me, who is Mrs Suzanne Clarke, seeks an order varying paragraph 3 of an order of the Court of Appeal dated 23rd December 2005 that a bench warrant issue for the arrest of Mrs Clarke.  The order in paragraph 3 contains a proviso that the bench warrant is to lie in the Registry (or in other words, that it not be executed in) until 3rd January 2006.

The variation that is sought is that the bench warrant lie in the Registry until a date on which an application by Mrs Clarke to the Governor under s 672A of the Criminal Code is determined, or not proceeded with, or until further order.

The events giving rise to the issue of the bench warrant are as follows: Mrs Clarke was convicted on 15th September 2005, after a three-day trial in the District Court at Beenleigh, of 21 counts of stealing as a servant, fraud, and uttering.  She was sentenced to imprisonment for two years to be suspended after serving six months.  She appealed to the Court of Appeal, which heard her appeal on 9th December 2005 and dismissed it on 23rd of December.  See R v Clarke [2005] QCA 483.

In dismissing it, the Court ordered that the bench warrant issue with the proviso to which I have referred.  Deferring its execution for a limited time in that way accords with common practice in such matters unless for some good reason, the Crown opposes it.  Now the applicant asks that the suspension of the warrant for her arrest be continued to the date I have mentioned, which, on one version of it, could be indefinitely depending on whether steps were taken to proceed with the application or not.

The reason why she makes this application is that she has instructed solicitors to act for her in applying to the Governor for the exercise of the pardoning power in reference to Mrs Clarke's conviction at the trial in Beenleigh.  In the event of such an application being made for a pardon, the Crown Law officer may under s 672A of the Criminal Code refer, "the whole case" to the Court of Criminal Appeal to be heard and determined by that Court, as in the case of an appeal by a convicted person.  See Mallard v The Queen (2005) 80 ALJR 160.

Inquiries by the applicant's solicitors have elicited that it would probably be some five to eight months before this, "whole case" was heard and determined in that way.  The submission on behalf of Mrs Clarke is that, unless execution of a bench warrant is deferred, she would by then probably have served the custodial part of her sentence.  The proceedings under s 672A would therefore be futile, at least as far as the gaol sentence part of her punishment is concerned.

In support of the application I have been referred to R v P; ex parte Attorney-General [2002] QCA 436, in which the Court of Appeal made an order in terms similar to that sought here pending the hearing of an application which had, in fact, been instituted for leave to appeal to the High Court.  The applicant there had been sentenced to imprisonment for four months after a successful appeal to this Court by the Attorney-General complaining of the inadequacy of a non-custodial sentence imposed at first instance following a plea of guilty.

Those of us who included me, who constituted the Court on that occasion considered that it was a case in which the application should be granted.  Here the applicant was convicted by verdict of a jury after a trial at which she was represented by counsel.  An appeal, in which she was represented by senior counsel of great experience in criminal matters, was dismissed by the Court of Appeal.  In giving reasons dismissing the appeal, the President of the Court of Appeal said that the combination of evidence against Mrs Clarke was, "persuasive" and that her actions in the bank where she worked on the critical day led to the, "irresistible inference" that Mrs Clarke was the person responsible for facilitating the principal fraud in this case.

The applicant is now seeking not to take her case by special leave application to the High Court of Australia, but simply to avail herself of a procedure under the Code which, at the best for her, simply leads back to the Court of Appeal, which has as recently as 28th December 2005 already dismissed an appeal against her conviction.

It is, in my opinion, one thing, by refusing bail, to frustrate an application seeking leave to appeal to the High Court who, under the Constitution exercise appellate jurisdiction over this Court.  See, on the relationship between this Court and the High Court, Bayne v Blake (1908) 5 CLR 497, at 505 to 506.  It is, in my view, quite another matter to refrain from intervening in an application, not yet in existence, not to the High Court but to procedures under the State system which in form provide at most in effect only for another appeal to the Court of Appeal against a decision already regularly given by this Court; and to do so by means of a procedure which, on the material now before me, can be expected simply to produce the same result as it did earlier in R v Clarke [2005] QCA 483 in December last year.

In saying this, I am aware that the affidavit of the applicant's solicitor which was filed last Friday says that a review of the file indicates, in his opinion:

"A general failure on the part of the solicitors and counsel who previously acted for the applicant to obtain and follow instructions which were vital to the conduct of her trial and appeal."

I would not be prepared to accept a statement in this general form that is so lacking in particularity as to amount to an unsupported opinion.  It is difficult or impossible, without more, for me to act upon it judicially.

As the High Court said in United Mexican States v. Cabal, (2001) 209 CLR 165, at 181:

"To stay an order of imprisonment before deciding an appeal is a serious interference with the due administration of criminal justice."

It is self-evidently an even more serious interference with due administration of criminal justice to do so after an appeal has been decided, and after full argument has been heard, as it was in the Court of Appeal in this matter.

The present application, to my mind, attempts to circumvent the rules and safeguards applicable to bail being granted pending appeal; which decisions of this Court and of the High Court, including Cabal's case, at p 181, show is something that is exceptional for the Court to grant.  It cannot be said that there is anything exceptional about the present case, it being one in which, after due process of law, the applicant was convicted and sentenced.

Shortly before the hearing commenced at 2 pm today, I was provided with an affidavit from Mrs Clarke that deposes in more detail to various matters that she claims amount to serious shortcomings in the quality of her representation at and before the trial.  A number of her complaints against her former solicitors and counsel impress me as being simply advice about matters that one would expect legal practitioners to have given to her, for example, whether or not she should give evidence at the trial.

In para 18 of her affidavit, she begins by saying that her biggest concern was whether she would be sentenced to imprisonment.  She deposes that the Director of Public Prosecutions had, or so she was informed by her counsel or solicitors, "made an offer providing that I would not face imprisonment if I pleaded guilty to the charges."

She goes on to say that,

"Had I been told by lawyers that by going to trial I would have been exposed to a gaol term, I would have accepted the offer made by the DPP."

Instead, at the beginning of the trial, she signed a formal instruction to enter a plea of not guilty.

In para 31 of her affidavit, she says that at the end of the trial, after she was sentenced, she told Mr Coburn, who was one of those acting for her, that,

"If I knew I was going to gaol, I would have pleaded guilty."

Nowhere in the whole of the affidavit is there any statement or assertion by Mrs Clarke that she did not commit the offences of which she was convicted, or do the acts on which the prosecution evidence was based at her trial.  Nor is there any attempt on her part to explain the most damaging evidence given against her at her trial on which the verdict and conviction was based.  The material she relies on falls well short of establishing the requirements for showing "flagrant incompetence" in terms of the decision of this Court in R v. Paddon [1999] 2 Qd R 387 in relation to cases in which counsel or legal representatives are charged with having failed their client in the conduct of her case at trial.

The charges against Mrs Clarke have, it is pertinent to point out, now been investigated by a bank inspector, the police, the committing magistrate, the Director of Public Prosecutions before the indictment issued, by a judge and jury at her trial and by the Court of Appeal.  All of them have been of one mind about her guilt.

On the material now before me, I am not prepared to defer the execution of the warrant for any further time.  There is, in my view, no significant possibility on the material that the applicant would be acquitted if a further appeal, or even as I see it at present a further trial of her guilt, were to take place.

The application is accordingly dismissed.