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Court of Criminal Appeal 27 March 2015

Clegg v R

[2015] NSWCCA 49

Sexual offences
CRIMINAL LAW APPEAL S 5F(3) CRIMINAL APPEAL ACT 1912 WHETHER LEAVE OUGHT TO BE GRANTED WHERE EVIDENCE SIGNIFICANTLY PROBATIVE WHETHER RISK OF CIRCULAR REASONING

Citation: Clegg v R [2015] NSWCCA 49
Court: Court of Criminal Appeal, NSW
Date: 27 March 2015
Judges: Hoeben CJ at CL, R A Hulme J, Davies J

Background

The applicant, a former member of a religious order, faced 17 child sexual assault charges alleged to have been committed in the 1980s against four boys who were boarders at a school operated by that order. The offences spanned two periods during which the applicant was stationed at the school, and the alleged victims were boys aged predominantly between 8 and 15 years.

The Crown proposed a joint trial of charges relating to three of the four complainants, relying on the cross-admissibility of tendency evidence (that is, evidence from one complainant offered to prove that the accused had a tendency to act in a particular way, relevant to the charges involving other complainants). The District Court, after six days of evidence and submissions, admitted the tendency evidence in relation to three complainants and ordered a joint trial. The fourth complainant's evidence was severed, though that complainant's evidence was held admissible in the separate trial of the remaining complainant.

The applicant sought leave to appeal to the Court of Criminal Appeal under s 5F(3) of the Criminal Appeal Act 1912 (NSW), which permits interlocutory appeals in criminal proceedings. He challenged both the admission of the tendency evidence and the order for a joint trial.

  • Whether the trial judge erred in law in admitting the tendency evidence under s 97 of the Evidence Act 1995 (NSW)
  • Whether the probative value of the tendency evidence substantially outweighed its prejudicial effect on the applicant, as required for admissibility
  • Whether a joint trial of the charges would constitute a fair trial according to law

Decision

On the first two grounds, the Court of Criminal Appeal reviewed the District Court's reasoning in detail. R A Hulme J noted that the trial judge had approached her task with considerable care, addressed each argument advanced by the applicant, and applied the correct statutory framework and principles. The applicant's submissions before the Court of Criminal Appeal were, in substance, a restatement of the same arguments made below.

On the prejudicial effect question, the applicant raised a concern about circular reasoning: he argued that once a jury used tendency evidence to find guilt on one set of charges, it would inevitably use that finding to shore up identification evidence on the remaining charges, amounting to use of tendency evidence for an impermissible purpose. The Court rejected this argument, emphasising that jury directions play an important role in reducing the risk of impermissible reasoning when assessing prejudicial effect, and that no error of the kind recognised in House v The King had been demonstrated.

The third ground, concerning the fairness of a joint trial, was entirely dependent on the success of the first two grounds. Because those grounds failed, the joint trial challenge also failed.

The Court granted a short extension of time for filing the application but refused leave to appeal on all grounds.

Orders Made

  • Time for filing the Notice of Application for Leave to Appeal extended to 29 September 2014
  • Leave to appeal refused

Key Takeaways

  • A tendency evidence ruling under s 97 of the Evidence Act 1995 (NSW) is a discretionary decision; an appellate court will only intervene if error of the kind recognised in House v The King is established.
  • In assessing whether the prejudicial effect of tendency evidence substantially outweighs its probative value, the availability of jury directions is a relevant consideration when weighing the risk of impermissible reasoning by a jury.
  • The concern that juries may engage in circular reasoning when tendency evidence is used across multiple complainants does not automatically render that evidence inadmissible; the trial judge must assess the risk carefully and in light of the directions that can be given.
  • No error was established where the trial judge had engaged thoroughly with the parties' submissions and correctly identified the applicable statutory provisions and principles.
  • A challenge to a joint trial order that depends entirely on a tendency evidence ground will fail if that underlying ground is rejected.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Act 1912 (NSW), s 5F(3)
- Evidence Act 1995 (NSW), s 97

Cases:
- House v The King [1936] HCA 40; 55 CLR 499
- DAO v R [2011] NSWCCA 63; 81 NSWLR 568
- DSJ v R; NS v R [2012] NSWCCA 9; 84 NSWLR 758
- R v XY [2013] NSWCCA 121; 84 NSWLR 363
- BJS v R [2013] NSWCCA 123; 231 A Crim R 537
- Doyle v R; R v Doyle [2014] NSWCCA 4
- Sokolowskyj v R [2014] NSWCCA 55
- R v Shamouil [2006] NSWCCA 112; 66 NSWLR 228
- DJV v The Queen [2008] NSWCCA 272; 200 A Crim R 206
- R v Cittadini [2008] NSWCCA 256; 189 A Crim R 492
- R v Markuleski [2001] NSWCCA 290; 52 NSWLR 82
- R v Fletcher [2005] NSWCCA 338; 156 A Crim R 308
- R v Ford [2009] NSWCCA 306; 201 A Crim R 451
- R v Ngatikaura [2006] NSWCCA 161; 161 A Crim R 329
- R v PWD [2010] NSWCCA 209; 205 A Crim R 75