R v Clarke [2023] NSWCCA 123

R v Clarke [2023] NSWCCA 123

The trial judge erred in his interpretation and application of s 97A by considering factors prohibited except in exceptional circumstances, which were not present; accordingly, the Crown's tendency evidence specified in items 1-3 and 8-9 retained significant probative value for counts 1-10, but for counts 11-13, evidence from LB would unfairly prejudice the respondent and was excluded under s 101(2); the appeal was allowed, and evidentiary rulings adjusted in accordance with this reasoning.

Jurisdiction
Australia
Judgment Date
07 June 2023
Procedural Posture
Criminal Appeal / Interlocutory Appeal Against Pre Trial Evidentiary Ruling
Outcome
Appeal allowed
Legal Topics
['tendency Evidence' 'child Sexual Offences' 'admissibility of Evidence' 'significant Probative Value' 'unfair Prejudice' 'appeal Standards']
['criminal Law' 'evidence'] ['tendency Evidence' 'child Sexual Offences' 'admissibility of Evidence' 'significant Probative Value' 'unfair Prejudice' 'appeal Standards']

Case Brief

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Procedural Posture

Criminal Appeal / Interlocutory Appeal Against Pre Trial Evidentiary Ruling

Legal Issues

  1. 1 ['Whether tendency evidence alleged by the Crown had significant probative value for charges involving three complainants under ss 97 and 97A of the Evidence Act 1995 (NSW)' "Whether the primary judge's decision rebutting the statutory presumption of probative value was correct under s 97A" 'Whether evidence should be excluded under s 101(2) of the Evidence Act due to unfair prejudice' 'Which appellate standard applies to review of a pre-trial evidentiary ruling: correctness or House v The King']

Ratio Decidendi

The trial judge erred in his interpretation and application of s 97A by considering factors prohibited except in exceptional circumstances, which were not present; accordingly, the Crown's tendency evidence specified in items 1-3 and 8-9 retained significant probative value for counts 1-10, but for counts 11-13, evidence from LB would unfairly prejudice the respondent and was excluded under s 101(2); the appeal was allowed, and evidentiary rulings adjusted in accordance with this reasoning.

Court Disposition

Appeal allowed

Orders

  • ["Set aside the District Court order of 24 February 2023 refusing the Crown's application to rely on evidence specified in items 1-3 and 8-9 under s 97 of the Evidence Act 1995 dated 21 October 2022 for tendency in paragraph 2(ii) in prosecution on charges in the indictment dated 31 May 2022." 'Order that in...