Clark v Attorney General for New South Wales

1. [1]

   MACFARLAN JA: I agree with White JA.

2. [2]

   WHITE JA: The applicant, Mr Peter Clark, seeks judicial review of a decision of a judge of the Court (Cavanagh J) dismissing Mr Clark’s application under s 78 of the Crimes (Appeal and Review) Act 2001 (NSW) (“the Act”) for an inquiry into his conviction on 26 June 2009 of an offence of doing an act with intent to pervert the course of justice contrary to s 319 of the Crimes Act 1900 (NSW) (count 6) and an offence of aggravated (under authority) sexual intercourse with a child between 14 to 16 contrary to s 66C(4) of the Crimes Act (count 12). (Application by Peter Frederick Clark pursuant to s 78 of the Crimes (Appeal and Review) Act 2001 (NSW) [2021] NSWSC 1364).

3. [3]

   Section 79 of the Act relevantly provides:

4. [4]

   Mr Clark contended that the matters he raised in respect of counts 6 and 12 raised a doubt or question as to his guilt in respect of those counts, or as to part of the evidence in the case (s 79(2)). He contended that doubt about his guilt on count 6 or 12 should create doubt about the other counts upon which he was convicted.

5. [5]

   On 26 June 2009 after a trial before Norrish DCJ and a jury, Mr Clark was convicted on 23 counts. The majority of the counts concerned sexual offences involving minors. He was also convicted on six counts of acting with the intent to pervert the course of justice.

6. [6]

   Mr Clark was sentenced to imprisonment for a non-parole period of 10 years and 9 months with a balance of term of 3 years and 8 months. A Crown appeal against sentence was dismissed on 25 May 2011 (REGINA v PFC [2011] NSWCCA 117).

7. [7]

   Mr Clark appealed against his convictions. That appeal was heard after the dismissal of the Crown appeal against sentence. His conviction appeal was dismissed on 15 December 2011 (PFC v R [2011] NSWCCA 275).

8. [8]

   Mr Clark applied pursuant to r 50C of the Supreme Court (Criminal Appeal) Rules 2021 to set aside or vary the order of 15 December 2011 dismissing the appeal. On 30 October 2014 that application was dismissed (PFC v R (No.2) [2014] NSWCCA 241).

9. [9]

   A further application brought under r 50C seeking to set aside the previous dismissal of his application under r 50C to set aside the order of the Court of Criminal Appeal of 15 December 2011 was dismissed on 6 October 2015 (Clark v R [2015] NSWCCA 265). An application for special leave to appeal to the High Court was also dismissed (Clark v Attorney General of New South Wales [2020] NSWCA 70 at [29]-[30]).

10. [10]

    Mr Clark then brought an application under s 78 of the Act. That application was dismissed by Rothman J on 24 September 2019. His Honour decided that there were no special facts or circumstances prohibiting the exercise of discretion under s 79(3) and, pursuant to that subsection, refused to consider or otherwise deal with the application further (Clark v Attorney General of New South Wales [2019] NSWSC 1277).

11. [11]

    An application for judicial review of Rothman J’s decision was dismissed by this Court on 30 April 2020 (Clark v Attorney General of New South Wales [2020] NSWCA 70).

12. [12]

    Nothing daunted, on 13 July 2020 Mr Clark filed a further application under s 78 of the Act. That application was dismissed by Cavanagh J on 8 November 2021. His Honour did not refuse to consider or otherwise deal with the application under s 79(3) but concluded that none of the matters raised by Mr Clark caused him to have a doubt or question as to his guilt on counts 6 or 12, and none of the matters raised in respect of those counts could raise any doubt about his guilt in respect of the other counts (at [90]-[93]).

13. [13]

    As indicated above, the application focused upon Mr Clark’s convictions on two counts. Count 6 on the indictment was as follows:

14. [14]

    Count 12 was as follows:

15. [15]

    Cavanagh J’s conclusions were:

16. [16]

    No appeal lies from the judge’s decision because his Honour was not exercising a judicial function but an administrative function in the nature of an inquiry. The decision may be reviewed for jurisdictional error. Mr Clark contends that the decision of Cavanagh J was so unreasonable that no decision maker could have reasonably come to it.

17. [17]

    In Clark v Attorney General of New South Wales [2020] NSWCA 70 (at [36]) and Holland v Attorney General of NSW [2022] NSWCA 17 (at [11]) McCallum JA, as her Honour then was, observed that it has not been authoritatively determined whether a decision under s 79 is immune from review on the ground of error of law on the face of the record. Nor is it necessary to decide that question on the present application as there is no error of law on the face of the record.

No Error of Law on the Face of the Record

1. [18]

   In REGINA v PFC (being the judgment of the Court of Criminal Appeal on the Crown appeal against sentence) Hoeben J (as his Honour then was) with the concurrence of Allsop P and Hall J said:

2. [19]

   Mr Clark seizes on the last statement because the Department of Community Services (“DOCS”) did not approve of SB coming into his care until May 2004.

3. [20]

   The issue as to what constituted the authority Mr Clark had over SB was not specifically addressed in the reasons of the Court of Criminal Appeal on the appeal against his conviction but was addressed by that Court (differently constituted) on the first application to reopen that judgment pursuant to r 50C of the Supreme Court (Criminal Appeal) Rules 2021 (Clark v R). There, the Court (Beazley P, Hall and Button JJ) said (at [39]-[40]) that it was not an element of the offence charged that SB was in Mr Clark’s care through DOCS and that the Crown’s case was that the applicant’s authority arose because SB was residing with the applicant in 2003 when the offence was alleged to have occurred.

4. [21]

   Mr Clark submitted before Cavanagh J that the statement by Hoeben J that “this gave rise to the circumstances of aggravation” in count 12, namely, that SB came into Mr Clark’s care with the approval of DOCS, was a ruling that was binding on later courts.

5. [22]

   This submission was rejected by the judge who said:

6. [23]

   This issue does raise a question of law that appears from the reasons of the decision maker on what I would take to be an ultimate determination and hence appears on the face of the record (Supreme Court Act 1970 (NSW) s 69(4)). But no error of law is disclosed. The judge is plainly right. There was no issue in the first CCA appeal as to Mr Clark’s guilt. No issue estoppel could arise from the observations of Hoeben J because what gave rise to the circumstances of aggravation in count 12 was not an issue, let alone a legally indispensable issue, that needed to be decided to determine sentence (Blair v Curran (1939) 62 CLR 464 at 532; [1939] HCA 23). In any event, the doctrine of issue estoppel as it applies in civil proceedings is inapplicable in the criminal law (Rogers v The Queen (1994) 181 CLR 251 at 254-5, 278; [1994] HCA 42; The Queen v Carroll (2002) 213 CLR 635; [2002] HCA 53 at [33], [90]).

7. [24]

   Mr Clark emphasised the word “appears” in s 79(2) of the Act. He submitted that fresh evidence before Cavanagh J did not merely appear to raise a doubt or question as to his conviction on count 12, but proved beyond doubt that the evidence never supported count 12 from the beginning. This submission did not raise a question of law. The judge did not misconstrue s 79(2). Mr Clark challenged the judge’s statement at [77] that “…I am not engaged in a new fact finding process based on allegedly fresh evidence”. This was the first ground of review. Read in isolation that sentence may be problematic as his Honour was asked to find facts to the extent of deciding whether they raised a doubt or question as to Mr Clark’s conviction. But read in context his Honour’s statement raised no error of law. His Honour said:

8. [25]

   When the judge’s reasons are considered as a whole it is clear that his Honour did not misunderstand the nature of his inquiry.

9. [26]

   Accordingly, it is unnecessary to consider whether, if error of law on the face of the record had been established, the judge’s decision would have been amenable to judicial review on that ground.

10. [27]

    The remainder of Mr Clark’s submissions were directed to seeking to establish that the judge made unreasonable errors of fact that amounted to jurisdictional error.

Count 6

1. [28]

   Mr Clark’s submissions in this Court were entirely directed to count 12. In relation to count 6 he relied on his submissions he made before the judge. He did not seek to demonstrate why the judge erred in his dealing with that count, let alone why his Honour’s reasons for not having a doubt or question as to Mr Clark’s guilt on that count (at [30]-[54]) demonstrated jurisdictional error. No such error appears to me from my reading of Mr Clark’s submissions and the judge’s reasons.

Count 12

1. [29]

   In his decision of 24 September 2019, Rothman J said (at [87]), no doubt correctly in the circumstances of this case, that if SB did not live with Mr Clark between 1 August 2003 and 30 November 2003, then the allegations in relation to count 12 could not be proved.

2. [30]

   Mr Clark pointed to evidence that he said established beyond doubt that SB was not living with him during that period. This included evidence given by SB at trial, a statement made by SB’s father before trial, and documents which he said he only obtained after his application to Rothman J had been dismissed.

3. [31]

   At the trial SB gave evidence in chief that he first met Mr Clark when he was in Year 9 and that was in 2003. He said that he was then about 12. The Crown Prosecutor repeated the question saying:

4. [32]

   SB said he had a conversation with Mr Clark about his situation at home and that Mr Clark said that “We’ll go to DOCS and organise you to come into my care”. He was asked for how long he had known Mr Clark by the time of that conversation and said “Not very long I don’t think; a couple of months I think”. Records obtained from DOCS record that Mr Clark assumed care of SB on 4 May 2004. It is not now disputed (if it ever was) that SB was in Year 9 in 2004 and that in 2003, when the offence charged by count 12 was said to have been committed, he was in Year 8. This is confirmed by documents produced by the Department of Education, which Mr Clark said he was only able to obtain after the hearing before Rothman J.

5. [33]

   Mr Clark raises two issues. First, whether the charged aggravating circumstance of SB being under his authority was based on his having the approval of DOCS to be responsible for SB’s care and secondly, whether SB was living with him during the period of August to November 2003.

6. [34]

   In her opening address to the jury, the Crown Prosecutor said:

7. [35]

   In May 2004 SB was 15. He was 14 in the period from 1 August to 30 November 2003.

8. [36]

   These were not the only relevant circumstances in evidence. In her closing submissions, the Crown Prosecutor said:

9. [37]

   The Crown Prosecutor then went on to address conflicting evidence as to when SB first lived with Mr Clark.

10. [38]

    In his summing up to the jury, the trial judge said:

11. [39]

    Here the trial judge identified two grounds on which the Crown asserted that SB was under Mr Clark’s authority, namely, the fact that he, as a minor, was living with Mr Clark and secondly that he had been given responsibility for the care of SB by DOCS and had authority to administer his finances.

12. [40]

    In his sentencing remarks, the trial judge said that the circumstances of aggravation arose from SB coming into Mr Clark’s care with the approval of DOCS. As noted above, this was repeated by Hoeben J in the Crown appeal against sentence (REGINA v PFC at [12]). But as also noted above the issue was before the Court of Criminal Appeal on three occasions between 2011 and 2015, where the fact that DOCS’ approval to Mr Clark’s assuming responsibility for SB’s care was not given until May 2004 was evidently accepted.

13. [41]

    Returning to SB’s evidence as to when he first lived with Mr Clark, SB was asked about the conversation referred to at [32] and gave the following further evidence:

14. [42]

    SB was reminded that he had given evidence that he first met Mr Clark when he was in Year 9 and confirmed that that was the year he was talking about.

15. [43]

    SB’s father gave evidence that SB went to live with Mr Clark in August 2003 and said that that was when SB was in Year 9. He then repeated that SB moved out of the family home in August 2003.

16. [44]

    In his submissions before the Cavanagh J, Mr Clark contended that SB’s father’s evidence at trial was tainted because he was repeating what he had said in a statement he had made to the police which repeated the date from a statement given by SB to the police (which SB’s father had been given by the police). SB’s father was not cross examined on this evidence. That is one of Mr Clark’s complaints. He submits, as he submitted before the Court of Criminal Appeal, that his defence was conducted incompetently by his counsel.

17. [45]

    SB’s father’s evidence was clarified by the trial judge in the following questions and answers:

18. [46]

    In the Crown Prosecutor’s closing address, she stated:

19. [47]

    This issue was ventilated in Mr Clark’s appeal against conviction in 2011 (PFC v R). There, the Court stated:

20. [48]

    The issue was raised again in 2014 on the first application made pursuant to r 50C of the Criminal Appeal Rules to vary or set aside the orders of the Court of Criminal Appeal of 15 December 2011 (PFC v R (No.2) [2014] NSWCCA 241 at [84]-[88], [125]) and on the second application under r 50C in 2015 (Clark v R at [43]-[46]).

21. [49]

    It was not an element of the offence charged under count 12 that SB was in Year 9 at the time the offence was said to have been committed. But both SB and SB’s father, by referring to SB’s having been in Year 9 at the time he went to live (or first went to live) with Mr Clark may have anchored their memory on dates with their recollection of what year he was in at school at that time. Mr Clark complains that neither was cross-examined on when SB was in Year 9.

22. [50]

    Grounds of review numbered two to four were as follows:

23. [51]

    This is not an appeal from the orders of Cavanagh J, let alone from the earlier orders of the Courts of Criminal Appeal. A challenge on the ground of manifest unreasonableness amounting to jurisdictional error is not to be equated with a merits review. In Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18, Hayne, Kiefel and Bell JJ referred to a decision-maker being unreasonable in a legal sense where, by reference to the scope and purpose of the statute under which the decision was made, he or she has failed to give adequate weight to a factor of great importance, or given excessive weight to a factor of no importance, or reasoned illogically or irrationally (at [72]). French CJ said (at [30]) that the requirement of reasonableness is not a vehicle for challenging a decision on the basis that the decision-maker has given insufficient or excessive consideration to some matters or made an evaluative judgment with which the court disagrees but was rationally available. Gageler J said:

24. [52]

    A decision under s 79(1) is discretionary, and s 79(2) must be satisfied before the discretion can be exercised.

25. [53]

    Cavanagh J’s essential reasons were:

26. [54]

    These reasons are logical and rational. The fact that the same complaints had been made repeatedly on earlier occasions and had been rejected is a rational reason for not entertaining doubt about Mr Clark’s conviction. The fact that Mr Clark had obtained documentary confirmation that SB was in Year 8 in 2003, not Year 9, only confirmed what he already knew and which could have been and evidently was advanced to the Court of Criminal Appeal on his appeal against conviction and his applications to reopen that appeal. Cavanagh J characterised the fresh evidence on which Mr Clark relied as additional evidence. That evidence did not displace the facts that whether SB was in Year 8 or Year 9 in 2003 was not an element of count 12, that there was some evidence to support the jury’s finding, and that Mr Clark’s complaint about SB’s evidence and SB’s father’s evidence had been considered and rejected on earlier occasions.

27. [55]

    For these reasons neither ground 2 nor 4 of the grounds of review is established. Nor did Mr Clark establish any substantial and clearly articulated submission that the judge did not address (ground 3).

28. [56]

    On the hearing of the summons for judicial review Mr Clark asked that this Court require SB to attend for questioning. No such order was made, or could properly have been made. His request was the result of an apparent misconception of the application to this Court. Whether the judge made an error that was amenable to judicial review depended on the materials before him. No evidence SB could have given to this Court could have been relevant to that question.

29. [57]

    None of the grounds of review is established. I propose that the summons be dismissed with costs.

30. [58]

    MITCHELMORE JA: I agree with White JA.