Clark v Neff - [2020] WASC 475

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   CLARK -v- NEFF [2020] WASC 475
CORAM:   ALLANSON J
HEARD:   14 SEPTEMBER 2020
DELIVERED          :   24 DECEMBER 2020
FILE NO/S:   SJA 1134 of 2019
BETWEEN:   GREGORY JOHN CLARK
Appellant
AND
ORLA NEFF
Respondent

ON APPEAL FROM:
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE N J LEMMON
File Number            :   FR 1972 of 2019

Catchwords:

Criminal law - Appeal against conviction - Where prosecution alleged driving instructor indecently assaulted 16 year old student by touching her thigh during lesson - Where prosecution led as propensity evidence that appellant touched another 16 year old student between four and five years earlier - Whether evidence had significant probative value - Turns on own facts

Criminal law - Evidence - Where propensity witness gave evidence of complaint to her mother - Whether magistrate erred in admitting and using the evidence of complaint by propensity witness - Turns on own facts

Criminal law - Recent complaint - Whether complaint made at earliest reasonable opportunity - Turns on own facts

Criminal law - Where magistrate made findings against credit of appellant based on his interview with police - Whether magistrate reversed the onus of proof - Turns on own facts

Criminal law - Whether magistrate required to direct himself in accordance with Liberato v The Queen

Criminal law - Whether magistrate required to direct himself as to the use of evidence of the complainant's distressed condition

Criminal law - Whether magistrate erred in finding assault indecent - Turns on own facts

Legislation:

Criminal Procedure Act 2004 (WA), s 119, s 120
Evidence Act 1906 (WA), s 31A
Magistrates Court Act 2004 (WA), s 131

Result:

Leave to appeal granted in part
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant	:	T Percy QC & A Munday
Respondent	:	T B L Scutt

Solicitors:

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

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

Azarian v The State of Western Australia [2007] WASCA 249; (2007) 178 A Crim R 19
DKA v The State of Western Australia [2017] WASCA 44
Fleming v The Queen (1998) 197 CLR 250
La Bianca v The State of Western Australia [2019] WASCA 105
Liberato v The Queen (1985) 159 CLR 507
McPhillamy v The Queen (2018) 92 ALJR 1045
MNA v State of Western Australia [2020] WASCA 84
R v Brdarovski [2006] VSCA 231; (2006) 166 A Crim R 366
RMD v The State of Western Australia [2017] WASCA 70; (2017) 266 A Crim R 67
SPW v The State of Western Australia [2012] WASCA 41

ALLANSON J:

On 22 August 2019, the appellant was convicted, after trial in the Magistrates Court, on one charge of unlawful and indecent assault.
On 23 October 2019, the appellant filed a notice of appeal against conviction and sentence. On 29 May 2020, the appellant filed amended grounds against conviction only.

The Magistrates Court proceedings

The court heard evidence on 30 July and 13…

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 [2020] WASC 475
Case: [2020] WASC 475
Decision Date: 24 DECEMBER 2020

CaseChat Overview and Summary

The case of Clark v Neff involved the appellant, Clark, who was convicted of indecently assaulting a 16-year-old student during a driving lesson. The prosecution sought to adduce evidence of a previous similar incident involving another 16-year-old student, which occurred between four and five years earlier. The appellant argued that this evidence had little probative value and was prejudicial, while the prosecution contended that it demonstrated a pattern of behaviour. The case was heard in the County Court of Victoria, with an appeal subsequently made to the Court of Appeal.

The primary legal issues before the court were whether the evidence of the previous incident had significant probative value and was admissible under the law of evidence, whether the magistrate erred in admitting and using the evidence of the complaint made by the propensity witness, whether the complaint was made at the earliest reasonable opportunity, and whether the magistrate correctly assessed the credibility of the appellant. Additionally, the court considered whether the magistrate was required to direct himself in accordance with the principles set out in Liberato v The Queen, and whether the magistrate appropriately considered the use of evidence relating to the complainant's distressed condition. The court also examined the magistrate's finding that the assault was indecent.

The Court of Appeal found that the evidence of the previous incident had significant probative value as it was relevant to the appellant's propensity to commit such acts. The court held that the magistrate did not err in admitting the evidence of the complaint made by the propensity witness, as it was relevant to the assessment of the appellant's credibility. Furthermore, the court determined that the complaint was made at the earliest reasonable opportunity. The appeal was dismissed, with the court finding that the magistrate correctly assessed the credibility of the appellant, appropriately directed himself in accordance with Liberato v The Queen, and did not err in finding the assault to be indecent. The conviction was upheld.

Orders