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Court of Criminal Appeal 9 June 2017

Clegg v R

[2017] NSWCCA 125

Sexual offences
CRIMINAL LAW APPEAL AGAINST CONVICTION TWO COMPLAINANTS TRIAL HEARING QUESTION OF “FUNDAMENTAL PRINCIPLE” DISCONTINUANCE OF PROSECUTION BY DPP

Citation: Clegg v R [2017] NSWCCA 125
Court: Court of Criminal Appeal, New South Wales
Date: 9 June 2017
Judges: Payne JA (leading judgment); Schmidt J and Fagan J (both agreeing)

Background

The appellant was a former brother of the St John of God Order who worked at a Catholic boarding school for boys. He was convicted following a jury trial in June 2015 of 11 historical sexual offences committed in the 1980s against two complainants, referred to as JJ and JF, who were both under 16 at the time. The offences included four counts of sexual intercourse with a person under the age of 16, four counts of indecent assault, and three counts of acts of indecency.

The prosecution had originally sought a joint trial involving four complainants, intending to use each complainant's evidence as tendency evidence in the cases concerning the others. After a pre-trial hearing, the trial judge ruled that the evidence of one complainant, DJ, was not admissible as tendency evidence in the trial involving the other complainants. A separate trial for the DJ allegations was later derailed by juror and reliability issues, and the Crown ultimately discontinued those proceedings in August 2016.

The appellant was sentenced to an aggregate non-parole period of seven years, commencing June 2015. He appealed his conviction on multiple grounds relating to the conduct of the trial.

  • Whether the trial judge erred in ruling that the Crown could adduce rebuttal character evidence from DJ, despite DJ's evidence having been ruled inadmissible as tendency evidence at the pre-trial hearing, and whether that ruling breached a "fundamental principle"
  • Whether the DPP's subsequent discontinuance of the DJ prosecution gave rise to a miscarriage of justice in the completed trial
  • Whether the trial judge was required to give the jury a specific direction about the evidence of JJ's treating psychologist, Dr Grocott
  • Whether s 97 of the Evidence Act 1995 (NSW) requires proof of "sufficient evidence of distinctive features in the manner in which the offences are committed" before tendency evidence is admissible, as held by the Victorian Court of Appeal in Velkoski v The Queen (2014)

Decision

Rebuttal character evidence and "fundamental principle": Payne JA held that the trial judge's advance ruling permitting the Crown to call DJ as rebuttal character evidence did not breach any "fundamental principle." Sections 110(2) and (3) of the Evidence Act expressly provide that the tendency rule does not apply to evidence led to rebut good character evidence adduced by a defendant. Those provisions are inconsistent with the broad principle the appellant sought to invoke. The High Court's reasoning in TKWJ v The Queen (2002) 212 CLR 124 was applied.

Discontinuance of the DJ prosecution: The Court declined to speculate about why the DPP chose to discontinue the DJ proceedings. That decision fell within the prosecutorial discretion of the DPP, and the Court was not in a position to second-guess it. The appellant sought to rely on R v McL (1997), but the Court drew a clear distinction between a complainant who withdraws allegations and a prosecution that is discontinued by the DPP. The latter raised no miscarriage of justice in the completed trial.

Expert witness direction: Leave to appeal on this ground was refused under Rule 4 of the Criminal Appeal Rules. The direction now sought had not been requested at trial, and the Court found no arguable miscarriage of justice in the trial judge's failure to give a more extensive direction regarding Dr Grocott's evidence.

Tendency evidence and the Velkoski test: The Court confirmed that s 97 of the Evidence Act does not require proof of "sufficient evidence of distinctive features in the manner in which the offences are committed." Senior counsel for the appellant properly acknowledged that this submission was inconsistent with established NSW Court of Criminal Appeal authority, including Hughes v R (2015), Elomar v R (2014), and Saoud v R (2014). The ground was maintained formally only to preserve the appellant's position pending the High Court's reserved decision in Hughes. The Victorian approach in Velkoski was distinguished.

Orders Made

  • Leave to appeal under s 5(1)(b) of the Criminal Appeal Act 1912 (NSW) granted on grounds 2, 3 and 4
  • Leave to appeal on ground 5 refused under Rule 4 of the Criminal Appeal Rules
  • Appeal dismissed on grounds 2, 3, 4 and 9

Key Takeaways

  • Under ss 110(2) and (3) of the Evidence Act 1995 (NSW), the tendency rule does not apply to evidence adduced to rebut a defendant's good character evidence. A prior ruling that particular evidence is inadmissible as tendency evidence does not automatically preclude that same evidence from being used as rebuttal character evidence.
  • A distinction exists between a complainant who withdraws allegations before or during trial and a prosecution that is discontinued by the DPP after verdict. The Court of Criminal Appeal confirmed that the DPP's post-trial discontinuance of separate proceedings involving a different complainant does not, without more, establish a miscarriage of justice in an already-completed conviction.
  • Prosecutorial decisions to discontinue proceedings fall within the DPP's discretion. Courts will not speculate about the reasons for such decisions, consistent with the principles affirmed in Barton v The Queen (1980) and Chow v Director of Public Prosecutions (1992).
  • In NSW, the admissibility test for tendency evidence under s 97 of the Evidence Act does not require identification of "sufficient evidence of distinctive features in the manner in which the offences are committed." The Court of Criminal Appeal declined to follow the Victorian Court of Appeal's approach in Velkoski and applied established NSW authority.
  • Grounds of appeal concerning jury directions that were not raised at trial face a high threshold. The Court refused leave on the expert witness direction ground, finding no arguable miscarriage of justice from the absence of a direction that had never been sought during the trial.

Legislation and Cases Referenced

Legislation
- Evidence Act 1995 (NSW), ss 97, 101, 110(2), (3), 192A
- Criminal Appeal Act 1912 (NSW), s 5(1)(b)
- Criminal Appeal Rules (NSW), Rule 4
- Crimes Act 1900 (NSW)
- Court Suppression and Non-Publication Orders Act 2010 (NSW), s 7

Cases
- TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46
- Barton v The Queen (1980) 147 CLR 75; [1980] HCA 48
- Chow v Director of Public Prosecutions (1992) 28 NSWLR 593
- Hughes v R [2015] NSWCCA 330
- Elomar v R; Hasan v R; Cheikho v R; Jamal v R [2014] NSWCCA 303
- Saoud v R (2014) 87 NSWLR 481; [2014] NSWCCA 136
- Velkoski v The Queen (2014) 242 A Crim R 222; [2014] VSCA 121
- ARS v R [2011] NSWCCA 266
- R v McL (Court of Criminal Appeal (NSW), 7 July 1997, unreported)
- 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
- R v Johnston [2004] NSWCCA 58