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Clegg v R

Clegg v R

Case [2017] NSWCCA 125 9 June 2017

Appeal

Admissibility of Evidence

Miscarriage of Justice

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Clegg v R [2017] NSWCCA 125
Hearing dates: 11 April 2017
Decision date: 09 June 2017
Before: Payne JA at [1];
Schmidt J at [136];
Fagan J at [137]
Decision:
(1) Leave to appeal under 5(1)(b) Criminal Appeal Act 1912 (NSW) granted on grounds 2, 3 and 4;

(2) Leave to appeal on ground 5 refused under Rule 4 of the Criminal Appeal Rules;
(3) Appeal dismissed on grounds 2, 3, 4 and 9.
Catchwords:
CRIMINAL LAW – appeal against conviction – two complainants – four counts of sexual intercourse with a person under the age of 16 years – four counts of indecent assault of a person under the age of 16 years – three counts of acts of indecency with a person under the age of 16 years – admissibility of rebuttal character evidence previously ruled inadmissible tendency evidence at a pre-trial hearing – question of “fundamental principle” – discontinuance of prosecution by DPP – whether miscarriage of justice – leave granted – appeal dismissed

CRIMINAL PROCEDURE – appeal against conviction – whether inadequate directions to jury relating to expert witness – whether miscarriage of justice – leave refused – appeal dismissed
CRIMINAL LAW – appeal against conviction – tendency evidence – whether s 97 requires proof of “sufficient evidence of distinctive features in the manner in which the offences are committed” – appeal dismissed
Legislation Cited: Court Suppression and Non-Publication Orders Act 2010 (NSW)
Crimes Act 1900 (NSW)
Criminal Appeal Act 1912 (NSW)
Criminal Appeal Rules (NSW)
Evidence Act 1995 (NSW)
Cases Cited: ARS v R [2011] NSWCCA 266
Barton v The Queen (1980) 147 CLR 75; [1980] HCA 48
Chow v Director of Public Prosecutions (1992) 28 NSWLR 593
Elomar v R; Hasan v R; Cheikho v R; Cheikho v R; Jamal v R [2014] NSWCCA 303
Hughes v R [2015] NSWCCA 330
R v Johnston [2004] NSWCCA 58
R v McL (Court of Criminal Appeal (NSW), 7 July 1997, unrep)
R v OGD (No 2) (2000) 50 NSWLR 433; [2000] NSWCCA 404
R v Stalder (1981) 3 A Crim R 87; [1981] 2 NSWLR 9
Saoud v R (2014) 87 NSWLR 481; [2014] NSWCCA 136
TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46
Velkoski v The Queen (2014) 242 A Crim R 222; [2014] VSCA 121
Texts Cited: Australian Law Reform Commission, Uniform Evidence Law, Report No 102 (2005)
Neil Williams et al., Uniform Evidence in Australia (2015, LexisNexis Butterworths)
Category: Principal judgment
Parties: John Marshall Clegg (Appellant)
Crown (Respondent)
Representation:
Counsel:
P Tehan QC / P Skinner (Appellant)
N Adams (Crown)
Solicitors:
Longton Legal (Appellant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2012/369151
Publication restriction: Nothing may be published that would identify the complainants: s 578A Crimes Act 1900 (NSW).
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

09 June 2015

Before:

Huggett…

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 Clegg v R

Details

AGLC: Clegg v The Queen [2017] NSWCCA 125
Case: [2017] NSWCCA 125
Decision Date: 09 June 2017

CaseChat Overview and Summary

In the case of Clegg v R, the appellant was convicted by a jury in the Supreme Court of New South Wales of multiple counts of sexual intercourse and indecent assault of a person under the age of 16 years, and multiple counts of acts of indecency with a person under the age of 16 years. The appellant appealed against his conviction, raising multiple grounds for appeal. The first ground related to the admissibility of rebuttal character evidence, the second ground related to the adequacy of directions to the jury regarding expert witness evidence, and the third ground related to the sufficiency of evidence to prove the distinctive features of the offences.

The court considered the admissibility of rebuttal character evidence, which had previously been ruled inadmissible tendency evidence at a pre-trial hearing. The court held that the question of whether such evidence could be admitted as rebuttal evidence raised a fundamental principle of criminal law, and therefore leave to appeal should be granted. However, the appeal was ultimately dismissed, as the court found that the trial judge had not erred in his directions to the jury regarding the expert witness evidence. The court also found that there was sufficient evidence to prove the distinctive features of the offences, as required by s 97 of the Evidence Act 1995 (NSW).

The discontinuance of the prosecution by the Director of Public Prosecutions was considered, but the court found that there had not been a miscarriage of justice. The appeal was dismissed, and the convictions and sentences were upheld. The court did not consider it necessary to make any orders regarding the discontinuance of the prosecution. The appellant's appeal against his conviction was ultimately unsuccessful.

Orders