AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
3
Court of Criminal Appeal 7 June 2023

R v Clarke

[2023] NSWCCA 123

Sexual offences
CRIME APPEALS STANDARD OF REVIEW BY APPELLATE COURT APPEALS

Citation: Clarke v R [2023] NSWCCA 123
Court: NSW Court of Criminal Appeal
Date: 7 June 2023
Judge(s): Davies J; Fagan J; Yehia J

Background

The respondent faced 13 counts of sexual offending against three child complainants, all siblings. Ten counts related to a complainant identified as LB, covering conduct alleged when LB was aged 7 and later between 14 and 16. The remaining three counts involved LB's younger siblings, KB and BB, relating to sexual touching when each was aged 11 and 13 respectively.

Before trial, the Crown served a notice under s 97 of the Evidence Act 1995 (NSW) seeking to adduce evidence of two tendencies. The second tendency, which is the subject of this appeal, was a tendency to have a sexual interest in children aged 6 to 15 years and to act on that interest by seeking to sexually touch or have sexual intercourse with children in that age range opportunistically, when given access through close personal friendship with their parents. The practical effect of admitting this evidence would have been to make each complainant's evidence cross-admissible in the trials concerning the other complainants.

The District Court judge ruled against admissibility of this second tendency. He found that the evidence lacked significant probative value, that the statutory presumption in s 97A(2) of the Evidence Act had been rebutted, that s 97A(5) was not engaged, and that even if it were, exceptional circumstances existed warranting consideration of factors the subsection would otherwise exclude. The Director of Public Prosecutions appealed that ruling to the Court of Criminal Appeal under s 5F of the Criminal Appeal Act 1912 (NSW).

  • Whether the pre-trial ruling "eliminated or substantially weakened the prosecution's case" so as to satisfy the threshold for a Crown interlocutory appeal under s 5F(3A) of the Criminal Appeal Act 1912.
  • Whether the primary judge erred in his interpretation and application of s 97A of the Evidence Act, particularly regarding when s 97A(5) is engaged and what constitutes "exceptional circumstances" for the purposes of that subsection.
  • Whether the tendency evidence had "significant probative value" within the meaning of s 97(1)(b), assessed in accordance with s 97A.
  • Whether the tendency evidence should nonetheless be excluded under s 101(2) of the Evidence Act on the basis that its probative value was outweighed by a danger of unfair prejudice to the respondent.
  • Whether the standard of appellate review was the "correctness test" or the more deferential House v The King standard.

Decision

Threshold for Crown appeal: The Court held that the admissibility ruling substantially weakened the prosecution's case in relation to the counts concerning LB. The only evidence capable of independently supporting LB's testimony was the tendency evidence from KB and BB. The threshold under s 5F(3A) was therefore satisfied for those counts.

Interpretation of s 97A: The Court found that the primary judge erred in two related ways. First, he wrongly held that s 97A(5) was not engaged and then impermissibly considered factors listed in that subsection when assessing whether sufficient grounds existed to rebut the presumption. Second, in his alternative reasoning, he wrongly treated the bare existence of three factors from s 97A(5)(a)-(f) as constituting "exceptional circumstances." The Court clarified that exceptional circumstances require one or more of those factors to be present in an exceptional degree, or some other circumstance outside the range of factors listed, not merely sufficient to enliven a comparison between the tendency acts and the alleged acts.

Significant probative value and the presumption: Because the primary judge had erred in principle, the Court redetermined admissibility itself, finding it unnecessary to resolve whether the correctness test or the House v The King standard governed the appeal. No exceptional circumstances could be identified on the facts. By operation of s 97A(5), the Court could not take into account the comparative criteria that would ordinarily inform a reasoned assessment of significant probative value. With those criteria excluded from consideration, the presumption of significant probative value under s 97A(2) was not rebutted, and the tendency evidence was taken to have significant probative value.

Unfair prejudice under s 101(2): The Court drew a careful distinction between different groupings of counts. The tendency evidence from KB and BB in support of the 10 counts concerning LB would not give rise to a danger of unfair prejudice, and could be admitted in a separate trial on those counts. However, LB's evidence, if led as tendency evidence in the trial on the three counts concerning KB and BB, would create a substantial danger of unfair prejudice. The gravity of LB's counts, involving serious and repeated sexual offending, was so much greater than the charges concerning KB and BB that a fair trial on those lesser counts could not be guaranteed. The probative value of LB's tendency evidence did not outweigh that danger in the context of counts 11 to 13. The evidence of KB and BB remained cross-admissible as between themselves on those counts without raising unfair prejudice concerns.

Orders Made

  • The appeal was allowed.
  • The District Court's order refusing the Crown's application to rely on the specified tendency evidence was set aside.
  • In the prosecution on counts 1 to 10 (complainant LB), the Crown may rely on the evidence specified in items 1 to 3 and 8 to 9 of the s 97 notice to prove the tendency in paragraph 2(ii).
  • In the prosecution on counts 11 to 13 (complainants KB and BB), the Crown may not rely on the evidence in items 1 to 3 of the notice but may rely on items 8 and 9 to prove the tendency in paragraph 2(ii).

Key Takeaways

  • Section 97A of the Evidence Act creates a presumption that tendency evidence about a defendant's sexual interest in children, or about acting on such an interest, has significant probative value in child sexual offence prosecutions. That presumption is not rebutted simply because some of the comparison factors in s 97A(5)(a)-(f) are present.
  • "Exceptional circumstances" for the purposes of s 97A(5) requires more than the bare existence of one or more comparison factors between the tendency acts and the alleged acts. The circumstances must involve those factors in an exceptional degree, or must involve something outside the listed range entirely.
  • Where a primary judge errs in principle in applying s 97A, the Court of Criminal Appeal will redetermine admissibility itself, rendering the question of whether the correctness test or the House v The King standard applies to such interlocutory appeals unnecessary to resolve in this case.
  • The s 101(2) unfair prejudice analysis is sensitive to the relative gravity of different counts on the same indictment. Tendency evidence from a complainant describing highly serious offending may be admissible on counts concerning that complainant, while remaining inadmissible on separate counts concerning other complainants where the disparity in gravity creates a substantial risk of an unfair trial.
  • Suppression obligations attach to this judgment, and any person using the material is responsible for ensuring compliance with any applicable suppression orders or statutory publication restrictions.

Legislation and Cases Referenced

Legislation
- Criminal Appeal Act 1912 (NSW), s 5F
- Criminal Procedure Act 1986 (NSW)
- Evidence Act 1995 (NSW), ss 97, 97A, 101

Cases
- 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