Clark v Neff - [2021] WASCA 209

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   CLARK -v- NEFF [2021] WASCA 209
CORAM:   BUSS P
MITCHELL JA
BEECH JA

HEARD:   8 NOVEMBER 2021
DELIVERED          :   3 DECEMBER 2021
FILE NO/S:   CACR 31 of 2021
BETWEEN:   GREGORY JOHN CLARK
Appellant
AND
ORLA NEFF
Respondent

ON APPEAL FROM:
Jurisdiction              :   SUPREME COURT OF WESTERN AUSTRALIA
Coram:   ALLANSON J
Citation: CLARK -v- NEFF [2020] WASC 475
File Number            :   SJA 1134 of 2019

Catchwords:

Criminal law - Appeal against conviction - Appellant convicted after trial in the Magistrates Court of one count of unlawful and indecent assault - Where prosecution alleged appellant committed offence by touching complainant during a driving lesson - Whether evidence properly admitted at trial - Whether magistrate reversed onus of proof - Whether magistrate erred in finding complainant's distressed state admissible in support of prosecution case

Criminal law - Evidence - Propensity evidence - Where evidence led at trial of earlier uncharged acts where appellant was alleged to have touched other young females during driving lessons - Whether evidence of prior uncharged acts properly admitted as propensity evidence - Whether evidence had significant probative value

Criminal law - Evidence - Recent complaint - Whether recent complaint evidence properly admitted - Whether complaint made at first reasonable opportunity

Legislation:

Criminal Code (WA), s 323
Evidence Act 1906 (WA), s 31A

Result:

Leave to appeal refused
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant	:	F R Veltman
Respondent	:	T B L Scutt

Solicitors:

Appellant	:	Chambers Legal
Respondent	:	Director of Public Prosecutions (WA)

Case(s) referred to in decision(s):

Di Stefano v The State of Western Australia [2017] WASCA 187
Grubisic v The State of Western Australia [2011] WASCA 147; (2011) 41 WAR 524
McPhillamy v The Queen [2018] HCA 52; (2018) 92 ALJR 1045
MNA v The State of Western Australia [2020] WASCA 84
NDY v The State of Western Australia [2020] WASCA 172
Wark v The State of Western Australia [2020] WASCA 19

JUDGMENT OF THE COURT

Summary

On 22 August 2019, the appellant was convicted in the Magistrates Court on one count of unlawful and indecent assault, contrary to s 323 of the Criminal Code (WA).
The prosecution case was that, at about 9.00 am on 1 February 2019, the appellant, who at the time was a driving instructor, attended at the complainant's (Ms E's) home to take her for a driving lesson. During the lesson, the appellant touched Ms E's upper left thigh numerous times, with a facedown palm on her thigh. This touching was found by the magistrate to constitute an unlawful and indecent assault.
The appellant appealed against his conviction to the General Division of the Supreme Court on eight grounds. On 24 December 2020, the primary judge granted leave to appeal on ground 1, refused leave to appeal on grounds 2 - 8 and dismissed the appeal.
The appellant now appeals to this court against the orders made…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Clark v Neff

Details

AGLC: Clark v Neff [2021] WASCA 209
Case: [2021] WASCA 209
Decision Date

CaseChat Overview and Summary

The appeal by Gregory John Clark against his conviction for unlawful and indecent assault, contrary to s 323 of the Criminal Code (WA), was dismissed by the Court of Appeal. Clark was convicted in the Magistrates Court following a trial where the prosecution alleged that Clark, a driving instructor, committed an indecent assault by touching the complainant, Ms E, during a driving lesson. The appeal to the Supreme Court of Western Australia was dismissed on eight grounds, with leave to appeal being granted only on one ground. Clark now appeals to the Court of Appeal on four grounds, which reiterate the grounds and submissions previously advanced. The appeal court found that none of the grounds had any merit.

The grounds of appeal related to the admissibility of evidence, including evidence of propensity and recent complaint, and the magistrate's handling of the onus of proof and the complainant's distressed state. The Court of Appeal considered that the evidence of Ms C, a previous victim, was properly admitted as propensity evidence because it had significant probative value due to the similarities between the incidents. The court also found that the complainant's complaint to her mother was made at the first reasonable opportunity and was admissible as recent complaint evidence. Furthermore, the court determined that the magistrate did not reverse the onus of proof and that the evidence of the complainant's distress was admissible to support her credibility.

The Court of Appeal concluded that the appeal should be dismissed, and leave to appeal should be refused on all grounds. The decision was certified as the reasons for the Court of Appeal's decision.

Orders