Clegg v The Queen - [2000] WASCA 326

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : COURT OF CRIMINAL APPEAL

CITATION: CLEGG -v- THE QUEEN [2000] WASCA 326

CORAM: IPP J
HEENAN J
MILLER J

HEARD: 10 AUGUST 2000

DELIVERED : 10 AUGUST 2000

PUBLISHED : 2 NOVEMBER 2000

FILE NO/S: CCA 256 of 1999
CCA 257 of 1999

BETWEEN: STEPHEN LOUIS CLEGG
Appellant
AND
THE QUEEN
Respondent

Catchwords:

Criminal law and procedure - Appeal against conviction - Application for leave to appeal against sentence - Sexual offences by father upon daughter aged between 6 and 13 years - Application by defence to adduce or elicit evidence relating to sexual experiences of daughter with other persons - Application refused - Proper exercise of discretion by trial Judge in refusing application - Effective sentence of 10 years and 6 months' imprisonment with eligibility for parole upheld

Legislation:

Evidence Act 1906, s 36BC

Result:

Appeal against conviction dismissed
Application for leave to appeal against sentence refused

Representation:

Counsel:

Appellant: Mr A E Monisse
Respondent: Mr K P Bates

Solicitors:

Appellant: Kott Gunning
Respondent: State Director of Public Prosecutions

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

Woods v The Queen (1994) 14 WAR 341

Case(s) also cited:

Dempsey v The Queen, unreported; CCA SCt of WA; Library No 960059; 9 February 1996
House v The King (1936) 55 CLR 499
R v Podirsky (1989) 43 A Crim R 404
Trescuri v The Queen [1999] WASCA 172
Woods v The Queen (1994) 14 WAR 341

JUDGMENT OF THE COURT: On 10 August 2000 the Court expressed its unanimous opinion that the appeal against conviction and the application for leave to appeal against sentence should be dismissed. These are the reasons upon which that opinion is based.
On 26 November 1999 in the District Court at Bunbury, at the end of a trial before his Honour Judge Groves which had begun the day before, a jury found the appellant guilty on all 11 counts in an indictment. The counts related to sexual offences by the appellant against the complainant, his daughter, while she was between the ages of 6 and 13 years. Six of the counts were for unlawfully and indecently assaulting her, three for sexually penetrating her without her consent and two for indecently dealing with her. Later that day his Honour sentenced the appellant to an effective total of 10 years and 6 months imprisonment with eligibility for parole.

Appeal against conviction

The appeal against conviction was based on one ground expressed in the amended notice of appeal in this way:
"The learned judge erred in law in declining to grant leave to elicit or adduce evidence of the sexual experiences of the complainant.
Particulars
The learned trial judge should have granted leave for such evidence to be elicited or adduced given the following:
1.The complainant before the trial had stated that when she was six years old she had sexual experiences with her step-brother, ...
'Right v Wrong' Counselling
2.As a result of these experiences the complainant,…

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 The Queen

Details

AGLC: Clegg v The Queen [2000] WASCA 326
Case: [2000] WASCA 326
Decision Date: 2 NOVEMBER 2000

CaseChat Overview and Summary

The case of Clegg v The Queen involved an appeal against conviction and sentence brought by the appellant, who was convicted in the District Court of Bunbury of multiple sexual offences against his daughter. The offences occurred when the daughter was between the ages of six and thirteen. The appellant was sentenced to an effective total of 10 years and 6 months imprisonment with eligibility for parole. The primary legal issue in this appeal was whether the trial judge erred in declining to grant leave for the defence to elicit or adduce evidence of the complainant's sexual experiences with other persons. The appellant argued that such evidence was relevant to the complainant's credibility and the timing of the alleged abuse.

The Court considered the grounds for the appeal and whether the trial judge's decision to refuse the evidence was a proper exercise of discretion. The appellant claimed that the evidence of the complainant's counselling sessions and sexual experiences with her step-brother and uncle was crucial to challenge her credibility and timeline of events. However, the Court found that the trial judge had acted within his discretion in refusing to admit this evidence. The Court determined that the evidence was not directly relevant to the timing of the alleged abuse and could potentially prejudice the complainant. Therefore, the Court upheld the trial judge's decision and dismissed the appeal against conviction and the application for leave to appeal against sentence.

In conclusion, the Court dismissed the appeal against conviction and the application for leave to appeal against sentence. The effective sentence of 10 years and 6 months' imprisonment with eligibility for parole was upheld. The Court found that the trial judge properly exercised his discretion in refusing to admit evidence of the complainant's sexual experiences with other persons.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

HEENAN J

JUDGMENT OF THE COURT: On 10 August 2000 the Court expressed its unanimous opinion that the appeal against conviction and the application for leave to appeal against sentence should be dismissed. These are the reasons upon which that opinion is based. On 26 November 1999 in the District Court at Bunbury, at the end of a trial before his Honour Judge Groves which had begun the day before, a jury found the appellant guilty on all 11 counts in an indictment. The counts related to sexual offences by the appellant against the complainant, his daughter, while she was between the ages of 6 and 13 years. Six of the counts were for unlawfully and indecently assaulting her, three for sexually penetrating her without her consent and two for indecently dealing with her. Later that day his Honour sentenced the appellant to an effective total of 10 years and 6 months imprisonment with eligibility for parole. The appeal against conviction was based on one ground expressed in the amended notice of appeal in this way:"The learned judge erred in law in declining to grant leave to elicit or adduce evidence of the sexual experiences of the complainant.ParticularsThe learned trial judge should have granted leave for such evidence to be elicited or adduced given the following:1.The complainant before the trial had stated that when she was six years old she had sexual experiences with her step-brother, ...'Right v Wrong' Counselling2.As a result of these experiences the complainant, shortly afterwards, underwent formal counselling as to what was 'right' and 'wrong' in terms of sexual conduct. However, the Complainant claimed that she did not become aware of this understanding until after all the offending had ended.3.This claim is inconsistent with the above counselling. However, the Appellant was refused leave by the learned trial Judge from eliciting or adducing evidence of this counselling.Appellant's Voluntary Action4.Further, it was at the Appellant's suggestion to the complainant's mother that their daughter participated in the above counselling.5.The voluntary action of the Appellant suggesting this type of counselling is consistent with his claim of innocence, and inconsistent with the Complainant's claim that the Appellant began to sexually abuse her from age six years. However, the Appellant was refused leave by the learned trial judge from eliciting or adducing evidence of this voluntary action." The complainant was born on 11 October 1980. On 2 November 1998 she made a written statement complaining of the conduct which later was made the subject of the indictment presented against the appellant. On 19 January 1999 she made a further written statement in which she said that when she was 6 years old their step-brother had sexually assaulted her and her younger sister Amy on several occasions. She went on to state that on one such occasion her mother saw the incident, told the appellant what she had seen and then took the two girls to "some sort of counselling place" conducted, it seems, by the Department of Social Services in Busselton. In the same statement the complainant described an occasion, when she was about 11 years old, when she and her uncle Bob, her mother's brother, touched each other in a sexual way. Her uncle died when she was 13 years old.

Ratio Decidendi

Legal Principle Established

Established by: HEENAN J

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