Clark v R (No 2)

1. [1]

   THE COURT: On 5 February 2021, this Court delivered judgment in Clark v R [2021] NSWCCA 8 (‘the principal decision’). In what follows familiarity with the contents of that judgment is assumed.

2. [2]

   On 15 February 2021, within 14 days of the Court delivering judgment, Mr Clark (the applicant) filed a notice of motion pursuant to r 50C of the Criminal Appeal Rules (NSW) seeking the following orders:

3. [3]

   The Court made timetabling orders for the filing of submissions. Having considered the applicant’s written submissions, the Crown’s written submissions and the applicant’s written submissions in reply, the Court determined that the present application would proceed on the papers.

4. [4]

   The applicant’s submissions addressed seven matters, most of which bore little relation to the orders sought in the applicant’s notice of motion:

   1. (1)

      that the Court misapprehended the applicant’s submissions by claiming he relied on r 50C(5) of the Criminal Appeal Rules, when the applicant’s amended notice of motion had removed reliance on r 50C (claim 1);

   2. (2)

      that the Court misapprehended the law and failed to apply the relevant law to the facts in issue (claim 2);

   3. (3)

      that a denial of procedural fairness occurred when the applicant was not provided with copies of two cases said to be relied upon by the Crown until seven days after the hearing (claim 3);

   4. (4)

      that a denial of procedural fairness occurred by the Registrar failing to include certain “exculpatory material” in the court books (claim 4);

   5. (5)

      that the Court has misapprehended the applicant’s submissions on fraud (claim 5);

   6. (6)

      that the Court was incorrect to hold that this Court has already considered what is asserted to be evidence of fraud in earlier decisions and that the Court erred in adopting “previous erroneous determinations” (claim 6); and

   7. (7)

      that apprehended bias has arisen by a member of the bench failing to declare that he had been involved in earlier matters related to the applicant or recuse himself from the bench (claim 7).

5. [5]

   The remaining matters the subject of the motion were not the subject of any submission by the applicant. As this application is one made under r 50C of the Criminal Appeal Rules, we reject the submission, if it is pressed despite not being referred to in the written submissions, that a panel of judges other than the Court which made the principal decision should consider the re-opening of that decision.

6. [6]

   The applicant’s first claim may be disposed of shortly. The applicant’s written submissions below were replete with references to r 50C(5) of the Criminal Appeal Rules as the basis of the application. In oral address, after initially disclaiming reliance upon r 50C, the following exchange occurred with Mr Clark:

7. [7]

   No basis has been shown to suggest that the Court misapprehended the bases upon which Mr Clark asserted jurisdiction to set aside the earlier judgments of the Court.

8. [8]

   Mr Clark asserted that the Court misunderstood that the essence of his claim was that subsequent decisions of this Court “contradicted the perfected ratio decidendi” of the decision of the Court in an appeal brought by the Crown pursuant to s 5D of the Criminal Appeal Act 1912 (NSW): R v PFC [2011] NSWCCA 117. As this Court explained in the principal decision, r 50C(5), the relevant power asserted by the applicant, cannot be used where the application amounts to an appeal against the decision of the Court in the appeal and does not confer jurisdiction to rehear an appeal on its merits: Application of Ainsley Whitney [2020] NSWCCA 146; Corliss v R (No 2) [2020] NSWCCA 180.

9. [9]

   In considering the applicant’s claim in the principal decision, the Court assumed (without deciding) that the conclusion about the application of a different rule (Uniform Civil Procedure Rules 2005 (NSW) r 36.16) suggested by a differently constituted Court in El Ali v R (No 2) [2019] NSWCCA 289 was correct and extended to UCPR r 36.15. Making that assumption, we were not persuaded that any arguable basis had been shown to conclude that any judgment had been given or entered, or any order made, irregularly, illegally or against good faith, within the meaning of that rule.

10. [10]

    The assertion made by the applicant that subsequent decisions of this Court “contradicted the perfected ratio decidendi” of the Court in R v PFC has been the essential subject matter of numerous applications to the Court and to the Executive. The merits of that claim, and each of its asserted factual foundations, have been rejected on numerous occasions. The Crown correctly submitted that the applicant’s reliance upon [12] of R v PFC was misplaced as the submission ignored the qualifications at [20] and [27] of that judgment. Further, the description of the circumstances of aggravation of count 12 seized upon by the applicant were not in issue on the Crown appeal against sentence. The applicant’s foundational submission that the obiter remarks at [12] of R v PFC are part of the ratio decidendi is incorrect.

11. [11]

    Even if [12] of R v PFC was part of the ratio of that decision, no arguable basis was thereby shown by the applicant for the submission that any of the impugned judgments had been given or entered, or any order made, irregularly, illegally or against good faith, within the meaning of UCPR r 36.15.

12. [12]

    The claim that the Court misapprehended the law and failed to apply the relevant law to the facts in issue is rejected. Properly construed, this aspect of the application amounts to an impermissible appeal against the decision of the Court.

13. [13]

    The applicant submitted that a denial of procedural fairness was occasioned by the failure of the Crown to provide him with copies of two cases, Rogers v The Queen (1994) 181 CLR 251; [1994] HCA 42 and The Queen v Storey (1978) 140 CLR 364; [1978] HCA 39, until seven days after the hearing.

14. [14]

    Even if it be assumed (without deciding) that the failure to provide copies of High Court cases could lead to a denial of procedural fairness, neither Rogers nor Storey were referred to by the Crown in their written submissions, although Rogers was referred to in the applicant’s submissions. No oral submission was made by the Crown about those judgments. The Court did not refer to either authority in its reasons. Although the Crown added reference to those cases to a list of authorities, no reference was made, by anybody, to those decisions orally or in writing at the hearing. Assuming that there was a failure to provide a copy of these cases to Mr Clark, no denial of procedural fairness occurred.

15. [15]

    The material relied upon by the applicant in support of his notices of motion dated 21 September 2020 and 27 January 2021 and his “revised application” dated 22 December 2020 was contained in a court book. The applicant complains that certain documents were omitted from the court book, being annexures to the further appeal he sought to file dated 26 October 2020.

16. [16]

    It is not in dispute that the court book did not include the annexures to the document described as the “De Novo (Revised) Notice of Appeal”. It is appropriate that this Court consider those documents together with the submissions now made by the applicant about them.

17. [17]

    It has not been shown that any of those documents were not in the possession of Mr Clark’s legal representatives at his trial. Having carefully considered those documents, there is no occasion to change anything in the Court’s principal decision. The essence of the applicant’s complaint is an assertion that the Crown “concealed” exculpatory Department of Community Services (‘DOCS’) evidence that proved that “the evidence never supported Count 12”.

18. [18]

    The applicant’s complaint about “concealment” of evidence by the Crown fails at the outset. There is absolutely no evidence that any evidence was “concealed” by the Crown, at his trial or subsequently.

19. [19]

    The applicant’s own submission makes clear that the documents he asserts were “concealed” from him were contained in “property held on behalf” of the applicant by Corrective Services. That is, the applicant’s complaint is that the documents he now asserts were “concealed” were part of his property held by Corrective Services for eight years while he was in custody and only released to him on 12 October 2019. There is every reason to think that all of this material was in the possession of the applicant’s legal representatives at the applicant’s trial and that for that reason it formed part of the applicant’s property when he went into custody. In any event, there is no evidence of “concealment” of material by the Crown.

20. [20]

    Further, the applicant’s submission is internally inconsistent. The evidence given by Detective Hatchwell in chief at the applicant’s trial, referred to in the applicant’s written submissions on the amended notice of motion dated 27 January 2021 at [15], demonstrates clearly that there was no concealment of the DOCS evidence. As Detective Hatchwell said in his evidence in chief at the trial, the DOCS documents he had obtained showed that SB (the complainant in relation to count 12) “was in Mr Clark’s care in 2004”. The material contained in the annexures to the “De Novo (Revised) Notice of Appeal” is consistent with the evidence given by Detective Hatchwell in the applicant’s trial. There is not the slightest suggestion, beyond Mr Clark’s repeated assertions, that the existence of the DOCS evidence, or the fact that they showed that SB was in Mr Clark’s care in 2004, was concealed from Mr Clark’s defence lawyers at the trial.

21. [21]

    As Mr Clark’s own submissions demonstrate, the issue of whether or not the jury were entitled to conclude that the offence charged as count 12 occurred when SB was under Mr Clark’s authority in 2003 has been litigated extensively in earlier decisions of the Court of Criminal Appeal. In addition, the applicant’s submissions misstate the way in which the Crown particularised the circumstances of aggravation for count 12. It was not then, and is not now, in doubt that the Crown case at the trial was that the DOCS documents obtained by the police showed that SB was in Mr Clark’s care in 2004. The question was whether it was open to the jury to conclude, on all of the evidence, that the elements of count 12 had been proven beyond reasonable doubt.

22. [22]

    The additional documents annexed by the applicant to his “De Novo (Revised) Notice of Appeal” do not provide a basis to doubt the correctness of any part of the Court’s principal decision.

23. [23]

    The applicant submitted that this Court has misapprehended the applicant’s submissions about fraud (claim 5) and that the Court was incorrect to hold that earlier decisions of the Court had considered the relevant issues (claim 6). These grounds may be dealt with together.

24. [24]

    At the heart of the applicant’s claim is the assertion that the applicant’s conviction on count 12 and subsequent judgments of the Court of Criminal Appeal were obtained by fraud. The Court clearly understood that in making its principal decision. No reason has been shown to doubt the Court’s conclusion that the applicant’s claims of fraud do not rise above mere assertion.

25. [25]

    The allegations of fraud made by the applicant are wide-ranging and discursive. Many of the allegations made by the applicant have nothing whatever to do with fraud. The allegations which on a generous reading might be thought to amount to an allegation of fraud comprise the following:

    1. (1)

       allegations that SB and SB’s father (and perhaps the remaining complainants) perjured themselves at the trial about various matters;

    2. (2)

       allegations that the Crown at the trial and subsequently have “continually distorted and misrepresented” facts and that the applicant “has been telling the truth from the beginning”;

    3. (3)

       allegations that DOCS documents exculpatory of the applicant were concealed by the Crown together with other unparticularised allegations of prosecutorial misconduct; and

    4. (4)

       allegations that the applicant’s barrister and solicitor at the trial were incompetent such that, although it is tacitly accepted that the material the subject of the “concealment” by the Crown had been disclosed to his barrister, “he was oblivious to the exculpatory nature of these detailed documents [annexed to the ‘De Novo (Revised) Notice of Appeal’]”. This, it was submitted, was reflected in his failing to ask any questions about the dates that formed part of the elements of count 12.

26. [26]

    In Wentworth v Rogers (No 5) (1986) 6 NSWLR 534 at 538-540, Kirby P (with whom Hope JA and Samuels JA agreed) set out the principles for seeking to set aside a judgment obtained by fraud. Given the repeated and incorrect references by the applicant to the relevant test it is necessary to set out the relevant passages in full:

27. [27]

    The applicant’s asserted fraud case fails here at every level:

    1. (1)

       sufficient particulars of the fraud claimed have not been given, exactly or otherwise, and the allegations have not been established, let alone by the strict proof which such a charge requires;

    2. (2)

       there has been no new discovery of anything material, in the sense that no fresh facts have been found which, by themselves or in combination with previously known facts, would provide a reason for setting aside the judgments. The applicant seeks to impugn a number of judgments of the Court by relitigating matters which were the subject of the earlier proceedings which gave rise to the judgments;

    3. (3)

       although the applicant asserts perjury, no perjury has been shown, let alone perjury warranting the setting aside of the judgments of this Court. The mere allegation of perjury is not sufficient to attract such drastic and exceptional relief as the setting aside of the judgments of this Court;

    4. (4)

       there is simply no evidence, let alone admissible evidence, that the successful party was responsible for a fraud which taints the judgments under challenge; and

    5. (5)

       the applicant has not established:

28. [28]

    No reason has been shown by the applicant to depart from the conclusion reached in the principal judgment that the applicant’s fraud claims do not rise above mere assertion. In particular:

    1. (1)

       it has not been demonstrated that SB, SB’s father or anybody else perjured themselves at the applicant’s trial;

    2. (2)

       it has not been demonstrated that the Crown at the trial and subsequently have “continually distorted and misrepresented” facts or that the applicant “has been telling the truth from the beginning”;

    3. (3)

       it has not been demonstrated that the Crown concealed any evidence or engaged in any other prosecutorial misconduct; and

    4. (4)

       it has not been demonstrated that the applicant’s barrister and solicitor at the trial were incompetent. Even if it has been established, that conduct would not amount to fraud.

29. [29]

    No reason has been shown to depart from the conclusion reached in the principal judgment that in its essential features, all of the complaints made by the applicant have been agitated at length in earlier proceedings. In the applicant’s appeal against conviction in PFC v R [2011] NSWCCA 275 at [200]-[202] the Court said about the argument concerning SB’s age in relation to the events charged as count 12:

30. [30]

    In Clark v R [2015] NSWCCA 265 the Court said about this same topic:

31. [31]

    All of the essential aspects of the applicant’s claim in the present proceedings have been dealt with. The “new” material he advances in support of those claims has not been shown to be fresh. There is no reason to think that Mr Clark’s legal representatives did not have that allegedly “new” material at the trial or, at the very least, by the exercise of reasonable diligence would have obtained it.

32. [32]

    The applicant’s claims in relation to count 12 were most recently addressed in detail by Rothman J in Clark v Attorney General of New South Wales [2019] NSWSC 1277. His Honour described at length the applicant’s complaints repeated in these proceedings and identified legitimate forensic reasons why Mr Clark’s lawyers at the trial could have chosen not to conduct the case that Mr Clark now asserts should have been conducted. His Honour said:

33. [33]

    There is no reason for the Court to depart from the conclusion reached in the principal judgment that all of the essential features of Mr Clark’s complaints in these proceedings have been addressed in numerous previous decisions of the Court.

34. [34]

    The applicant contends that one member of the Court should have recused himself from the proceedings heard on 3 February 2021. The belated assertion that the judge should have recused himself is not a misapprehension of the facts or the relevant law. It does not fall within the ambit of r 50C.

35. [35]

    Mr Clark specifically asked the Court to confirm its constitution at the outset of the hearing. Mr Clark, a very experienced litigant in person who has made numerous applications for recusal of judicial officers in the past, made no application for recusal in this case. The allegation of apprehended bias was not made until after the judgment was delivered. It may be that the applicant’s objection should be regarded as having been waived: Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427; [2011] HCA 48 at [76].

36. [36]

    On the assumption that waiver does not apply to criminal cases, there is nothing in the participation of the judge in a decision in a civil case limited to questions of law involving Mr Clark in 2006 [1] remotely capable of giving rise in a fair-minded lay observer to a reasonable apprehension that his Honour might not have brought an impartial and unprejudiced mind to the resolution of the issues raised in the present proceedings. That is the relevant test: Michael Wilson at [31]. This claim must be dismissed.

Conclusion and Orders

1. [37]

   In D’Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1; [2005] HCA 12 Gleeson CJ, Gummow, Hayne and Heydon JJ observed at [37], in a passage with resonance in Mr Clark’s case:

2. [38]

   Although D’Orta-Ekenaike was a civil case, the principle of finality still has work to do in the criminal context. In Achurch v The Queen (2014) 253 CLR 141; [2014] HCA 10, French CJ, Crennan, Kiefel and Bell JJ said at [14]-[16]:

3. [39]

   Our criminal justice system contains a number of important safeguards including r 50C and Part 7 of the Crimes (Appeal and Review) Act 2001 (NSW). As we have sought to demonstrate, Mr Clark has extensively availed himself of those safeguards over many years. The present application does not raise any matter which requires the Court to set aside or vary an order it has made.

4. [40]

   For the foregoing reasons the Court makes the following orders:

   1. (1)

      The applicant’s notice of motion dated 15 February 2021 is dismissed.