R v Clarke [2023] NSWCCA 123

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)