Clegg v R [2017] NSWCCA 125

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Clegg v R [2017] NSWCCA 125 Hearing dates: 11 April 2017 Decision date: 09 June 2017 Before: Payne JA at [1]; Schmidt J at [136]; Fagan J at [137] Decision: (1) Leave to appeal under 5(1)(b) Criminal Appeal Act 1912 (NSW) granted on grounds 2, 3 and 4;

(2) Leave to appeal on ground 5 refused under Rule 4 of the Criminal Appeal Rules;

(3) Appeal dismissed on grounds 2, 3, 4 and 9. Catchwords: CRIMINAL LAW – appeal against conviction – two complainants – four counts of sexual intercourse with a person under the age of 16 years – four counts of indecent assault of a person under the age of 16 years – three counts of acts of indecency with a person under the age of 16 years – admissibility of rebuttal character evidence previously ruled inadmissible tendency evidence at a pre-trial hearing – question of "fundamental principle" – discontinuance of prosecution by DPP – whether miscarriage of justice – leave granted – appeal dismissed

CRIMINAL PROCEDURE – appeal against conviction – whether inadequate directions to jury relating to expert witness – whether miscarriage of justice – leave refused – appeal dismissed

CRIMINAL LAW – appeal against conviction – tendency evidence – whether s 97 requires proof of "sufficient evidence of distinctive features in the manner in which the offences are committed" – appeal dismissed Legislation Cited: Court Suppression and Non-Publication Orders Act 2010 (NSW) Crimes Act 1900 (NSW) Criminal Appeal Act 1912 (NSW) Criminal Appeal Rules (NSW) Evidence Act 1995 (NSW) Cases Cited: ARS v R [2011] NSWCCA 266 Barton v The Queen (1980) 147 CLR 75; [1980] HCA 48 Chow v Director of Public Prosecutions (1992) 28 NSWLR 593 Elomar v R; Hasan v R; Cheikho v R; Cheikho v R; Jamal v R [2014] NSWCCA 303 Hughes v R [2015] NSWCCA 330 R v Johnston [2004] NSWCCA 58 R v McL (Court of Criminal Appeal (NSW), 7 July 1997, unrep) 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 Saoud v R (2014) 87 NSWLR 481; [2014] NSWCCA 136 TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46 Velkoski v The Queen (2014) 242 A Crim R 222; [2014] VSCA 121 Texts Cited: Australian Law Reform Commission, Uniform Evidence Law, Report No 102 (2005) Neil Williams et al., Uniform Evidence in Australia (2015, LexisNexis Butterworths) Category: Principal judgment Parties: John Marshall Clegg (Appellant) Crown (Respondent) Representation: Counsel: P Tehan QC / P Skinner (Appellant) N Adams (Crown)