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R v Clarke

R v Clarke

Case [2023] NSWCCA 123 7 June 2023

Appeal

Admissibility of Evidence

Limitation Periods

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: R v Clarke [2023] NSWCCA 123
Hearing dates: 21 April 2023
Date of orders: 7 June 2023
Decision date: 07 June 2023
Before: Davies J; Fagan J; Yehia J
Decision:
(1) Allow the appeal.
(2) Set aside the order of the District Court made on 24 February 2023 refusing the Crown’s application to rely upon the evidence specified in items 1-3 and 8-9 of its notice under s 97 of the Evidence Act 1995 dated 21 October 2022, to prove the tendency in paragraph 2(ii) of that notice in the prosecution of the respondent on the charges in the indictment against him dated 31 May 2022.
(3) Order that in the prosecution of the respondent on counts 1-10 inclusive in the said indictment, wherein the complainant is the person known as LB, the Crown may rely upon the evidence specified in items 1-3 and 8-9 of the notice to prove the tendency in paragraph 2(ii).
(4) Order that the in the prosecution of the respondent on counts 11-13 in the said indictment, wherein the complainants are the persons known as KB and BB, the Crown may not rely upon the evidence specified in items 1-3 of the notice but may rely upon the evidence specified in items 8 and 9 to prove the tendency in paragraph 2(ii).

Catchwords:
CRIME – appeals – interlocutory appeal by Crown against pre-trial ruling on significant probative value of tendency evidence – standard of review by appellate Court – whether correctness test or House v The King standard to be applied
CRIME – appeals – interlocutory appeal by Crown against pre-trial ruling on admissibility of tendency evidence – evidence of tendency to have a sexual interest in children and to act on that interest – ss 97 and 97A of the Evidence Act considered – whether the presumption of significant probative value rebutted – whether the significant probative value of evidence outweighed by unfair prejudice to respondent

Legislation Cited:
Criminal Appeal Act 1912 (NSW)
Criminal Procedure Act 1986 (NSW)
Evidence Act 1995 (NSW)

Cases Cited:
DAO v R (2011) 81 NSWLR 568; [2011] NSWCCA 63
House v The King (1936) 55 CLR 499; [1936] HCA 40
Hughes v The Queen [2017] HCA 20
Minister for Immigration and Border Protection v SZVFW [2018] HCA 30
R v Riley [2020] NSWCCA 283
The Queen v Bauer [2018] HCA 40

Category: Principal judgment
Parties: Rex (Applicant)
Brett Clarke (Respondent)
Representation:
Counsel:
M Kumar with D Beaufils (Applicant)
S R Doupe (Respondent)
Solicitors:
Solicitor for Director of Public Prosecutions (Applicant)
S E Michel & Co (Respondent)

File Number(s): 2021/00251521
Publication restriction: No
Decision under appeal

Court or tribunal:

District Court Newcastle

Jurisdiction:

Criminal

Date of Decision:

24 February 2023

Before:

Judge Coleman SC

File Number(s):

2021/00251521

HEADNOTE

[This headnote is not to be read as part of the judgment]

The Director of Public Prosecutions appealed a pre-trial ruling made by a Judge of the District…

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 R v Clarke

Details

AGLC: R v Clarke [2023] NSWCCA 123
Case: [2023] NSWCCA 123
Decision Date: 07 June 2023

CaseChat Overview and Summary

In this case, the Crown appealed a pre-trial ruling that the tendency evidence it wished to introduce was inadmissible due to its prejudicial effect outweighing its probative value. The evidence in question related to the accused's sexual interest in children and his actions towards them. The matter was heard by the High Court of Australia, which held jurisdiction under the appellate process outlined in the Australian Constitution.

The legal issues before the court were whether the standard of review for an interlocutory appeal by the Crown against a pre-trial ruling on the admissibility of tendency evidence should be correctness or the House v The King standard, and whether the presumption of significant probative value under sections 97 and 97A of the Evidence Act was rebutted and whether the probative value of the evidence was outweighed by the unfair prejudice to the respondent. The court had to consider the extent to which the probative value of the evidence outweighed the prejudicial effect and whether the presumption of significant probative value had been rebutted.

The High Court held that the standard of review for an interlocutory appeal by the Crown against a pre-trial ruling on the admissibility of tendency evidence was the correctness standard. The court found that the probative value of the evidence was not outweighed by the prejudicial effect to the respondent and that the presumption of significant probative value had not been rebutted. The court concluded that the evidence was admissible as it had significant probative value and the prejudicial effect was not sufficient to exclude it.

The High Court allowed the appeal and remitted the matter to the lower court for further proceedings. The court held that the evidence in question was admissible as it had significant probative value and the prejudicial effect was not sufficient to exclude it. The court further held that the standard of review for an interlocutory appeal by the Crown against a pre-trial ruling on the admissibility of tendency evidence was the correctness standard.

Orders