Clark v R

THE COURT: There are before the Court applications to reopen two judgments pursuant to the Criminal Appeal Rules, r 50C, being PFC v R (No 2) [2014] NSWCCA 241 (the first challenged judgment) and Clark v R [2014] NSWCCA 236 (the second challenged judgment).

The applicant was convicted after a trial before Norrish DCJ and a jury of a total of 23 counts of sexual offences against a number of juvenile complainants, child pornography offences and offences of acting with the intention to pervert the course of justice. The applicant was sentenced to an effective term of imprisonment comprising a non-parole period of 10 years and 9 months and a balance of term of 3 years and 8 months. An appeal against conviction was dismissed by a judgment of Giles JA, Hoeben and Hall JJ of 15 December 2011: PFC v R [2011] NSWCCA 275 (the Norrish DCJ appeal). An application to reopen that appeal pursuant to r 50C was dismissed by a judgment of Fullerton, R A Hulme and Garling JJ of 30 October 2014, being the first challenged judgment. The first application is therefore an application to reopen an application to reopen.

The applicant was also convicted of a charge of perverting the course of justice, following a trial before Freeman DCJ and a jury. Freeman DCJ sentenced the applicant to a term of imprisonment of 2 years and 8 months with a non-parole period of 2 years, to commence from the conclusion of the sentence already being served. An appeal against conviction was dismissed by a judgment of 30 October 2014 of Leeming JA, Price and McCallum JJ, being the second challenged judgment.

The applications to reopen the first and second challenged judgments pursuant to r 50C were made on 11 November 2014 and 7 November 2014 respectively. Both applications being made within 14 days of entry of the orders sought to be varied, this Court’s power to entertain them was enlivened: r 50C(2).

As the submissions relating to the two applications substantially overlap, it will be convenient to deal with them together.

Rule 50C provides as follows:

Rule 50C was introduced by the Criminal Appeal Rules (Amendment No 1) 2007, made on 30 August 2007 and gazetted on 7 September 2007. The background to the rule was explained by Hoeben CJ at CL in Bruce Edward Gall v R (No 2) [2015] NSWCCA 152, at [17]:

In Burrell, at [24], the High Court approved the description of the jurisdiction of the Court of Criminal Appeal given by Dixon J in Grierson v The King [1938] HCA 45; 60 CLR 431 at 435, as follows:

The explanatory note to the Government Gazette in which r 50C was published read as follows:

In Alramadan v DPP (NSW) (No 2) [2008] NSWCCA 69 at [3], the Court (Basten JA, Latham and Rothman JJ) declined, for the purposes of that case, to take the explanatory note into account. The Court held that the wide terms of the note had to be read in the context of the remark of Dixon J in Grierson at 436, that:

In the hearing of this matter, the applicant’s central contention appeared to be that the Court ought to set aside or vary the challenged judgments on the basis of r 50C(5). In written submissions, he submitted that, even though his application did not fall under r 50C(2), “that did not absolve the [Court considering the first r 50C application] from creating or setting a NEW precedent or under Rule 50C par (5)”.

This submission was misguided. Rule 50C(5) does not provide a free-standing power of the Court to set aside an order. Rather, its effect is that “any other power” of the Court to set aside or vary its orders remains following the enactment of r 50C. The applicant did not specify any other existing power upon which he relied and it goes without saying that the Court cannot create for itself a “new precedent” to suit the situation as the applicant sees it. It follows that this case falls to be determined pursuant to the decided principles relating to r 50C itself.

The application and extent of r 50C was first considered in Alramadan (No 2). In that case, the Court held, at [4], that r 50C was to be understood according to the powers the Court had always had in relation to orders which have not been entered. The Court, at [6], went on to cite the statement of Mason CJ in Autodesk Inc v Dyason (No 2) [1993] HCA 6; 176 CLR 300 at 303 that, in order to enliven the jurisdiction to vacate orders made, it must appear:

In Kauwenberghs v R [2009] NSWCCA 201, the Court (Beazley P, Hall and Fullerton JJ) held, at [10], that three questions needed to be answered affirmatively before the Court would be entitled to consider varying orders under r 50C. Those questions were:

Underlying the narrow scope of r 50C is the central importance to the rule of law that controversies, once resolved, are not to be reopened except in limited circumstances. As was held by French CJ, Crennan, Kiefel and Bell JJ in Achurch v The Queen [2014] HCA 10; 236 A Crim R 427, at [16]:

In Miller, Adams J, with whom Hoeben CJ at CL and Hidden J agreed, described the limited scope of r 50C as follows:

In Gall (No 2), Hoeben CJ at CL (R A Hulme and Davies JJ agreeing), at [27], listed by way of illustration the situations in which r 50C has been applied:

These illustrations may be contrasted with the situation in Alramadan (No 2), which the Crown contends is analogous to the present case. In Alramadan (No 2), an application pursuant to r 50C was made on the basis of the availability of two witness statements additional to those presented at trial. The Court held, at [8], that “the sole reason [the evidence was] not considered by the Court at the hearing of the appeal was that [the applicant] did not put it before the Court”. At [12], their Honours held:

The applicant claimed that the proceedings resulting in the first challenged judgment should not have been heard by Garling J. The applicant had, at the commencement of those proceedings, objected to Garling J sitting. He contended that an apprehension of bias (or perhaps actual bias) arose out of the circumstance that his Honour had previously sat on another of the applicant’s matters and additionally as a result of comments made by Garling J in the course of a case management hearing.

It is convenient at this point to record that, at the commencement of the hearing of this matter, the applicant also made an application that Hall J not sit, on the basis that his Honour was on the bench that decided the Norrish DCJ appeal. Hall J declined to recuse himself.

The principles relating to apprehension of bias on the basis of a judicial officer’s involvement in prior related proceedings were considered by Mason J in Re J.R.L; Ex parte C.J.L [1986] HCA 39; 161 CLR 342 at 351. His Honour considered that there had been an increase in the frequency of bias claims on that basis, and held that:

The first challenged judgment dealt with the bias claim in some detail at [7]-[23]. At [11], their Honours noted that that aspect of the application which related to Garling J sitting on a previous matter had been abandoned in oral argument before them. The applicant now denies that that was the case. This denial cannot be sustained, having regard to following exchange recorded in transcript:

The applicant further contended that, as a result of a head injury, he omitted, in the hearing of the first challenged judgment, to mention or reinforce additional aspects of his bias claim, including that Garling J had threatened that his sentence might be increased if he persisted with his r 50C application. This allegation was not supported by any reference to transcript. It did not rise above a bare assertion and should be rejected. The applicant also contended that the court should have put a particular letter to him so as to assist his memory. This is not the role of the Court.

In any case, having regard to the principles in Re J.R.L., it is clear that it was open and indeed proper for Garling J not to recuse himself from hearing the first r 50C proceeding. The same may be said about Hall J in relation to the present case.

There was no misapprehension of law or fact in relation to the bias claim in the first challenged judgment such as would enliven r 50C.

The applicant submitted that he was denied procedural fairness by the Court’s refusal of his application that a five judge bench be sat to hear the proceedings subject to the first challenged judgment. The power to sit a bench of more than three judges rests in the Chief Justice of New South Wales: Criminal Appeal Act 1912 (NSW), s 3. His Honour’s decision not to sit an enlarged bench was not, and could not have been, in issue in the proceedings subject to the challenged judgments and it is not a decision amenable to review pursuant to r 50C.

More substantially, the applicant contended that the conditions of his custody prevented him from being fully able to argue his case, and that this resulted in miscarriages of justice in the proceedings subject of both the first and second challenged judgments. This claim related, in particular, to access to documents which the applicant contended were in the custody of Corrective Services and had not been provided to him or returned to his son, with the result that he had no access to them at all. It was contended that those documents contained evidence favourable to the applicant which he was unable to put to the jury or to this Court on appeal or reopening. As was put in oral argument:

The applicant made a further and related submission that he had not been served, prior to the hearing that resulted in the first challenged judgment, with an affidavit of Superintendent Quarrie sworn on 21 October 2014. That affidavit related to the conditions of the applicant’s custody with respect to his access to computers and documents for the purposes of preparing for his legal matters.

The Crown submits that the affidavit was in fact served. An affidavit of Anna Ilardo, solicitor in the employ of the Director of Public Prosecutions, was in evidence. In that affidavit, Ms Ilardo deposed to having organised on 21 October 2014 the service on the applicant of the affidavit of Superintendent Quarrie. She attached an acknowledgement of service appearing to be signed by the applicant and dated the following day.

There is a further question about whether, once served, the applicant had access to the affidavit while in custody.

The question of access to materials was dealt with in the first challenged judgment at [53], in which the Court held that:

At [69]-[71] in the first challenged judgment, the Court made the following comments:

In submissions before this Court, the applicant contended that, contrary to the findings contained in the first challenged judgment at [53], he had raised these matters before the Registrar of the Court of Criminal Appeal, as well in hearings of civil proceedings he brought against the State of New South Wales. This may be accepted. As the Crown submitted, however, no relevant complaints were made until after the relevant hearing.

Further, it is not the role of this Court, on an application pursuant to r 50C, to determine whether the applicant might have been able to put on additional evidence had he been in different circumstances or whether such evidence might have affected the verdict or the outcome on appeal. Such arguments may in some circumstances be raised on appeal. The misapprehension of fact and law which the applicant contends has occurred is a failure of the Court of Appeal, in the proceedings in which this issue has been raised, to accept the applicant’s arguments. This contention fundamentally involved an attempt to “reopen the appeal so as to remedy a deficiency in the material presented at the hearing”: Alramadan (No 2) at [12]. As was pointed out in the first challenged judgment at [71], complaints of this type do not fall within the ambit of r 50C.

The applicant made the following claim in relation to count 12 on the indictment before Norrish DCJ:

The applicant contended that his conviction on this count amounted to a miscarriage of justice and resulted from a number of misapprehensions of law and fact.

By count 12, the applicant was indicted as follows:

The applicant contended that the offence the subject of count 12 could not have occurred because SB was not under his authority until 2004. In his written submissions, he reproduced count 12 in different terms, as follows:

Were it an element of the offence charged that SB was in the applicant’s care through DOCS, the applicant might have been on slightly firmer ground. However, the applicant’s version of count 12 is not accurate.

The Crown case was that, at the time relevant to count 12, SB was under the applicant’s authority not because he had been placed into his care by DOCS but because he had been residing with the applicant in an earlier period in 2003. At trial, the applicant contended, unsuccessfully, that this was not the case and that SB had first come to live with him in 2004. The issue was re-examined on appeal and again reconsidered in the first challenged judgment. The applicant now attempts to relitigate it for a fourth time.

In the Norrish DCJ appeal, the Court held, at [201]-[202]:

The relevant finding in the first challenged judgment, at [125], was as follows:

In his submissions, the applicant emphasised evidence before Norrish DCJ to the effect that SB did not live with him in 2003. The existence of this evidence is not sufficient to prove that the offence could not have occurred. As was noted in the first challenged judgment, it was clear from [200]-[201] and [359] of the Norrish DCJ appeal that the evidence on this issue was disputed. It was open for the jury to accept those aspects of the evidence which were consistent with SB being in the applicant’s care at the relevant time and to reject those which were not. There was no error in the finding to that effect in the Norrish DCJ appeal. More pertinently, as the Crown submitted, there was no identification of any material error of fact or law asserted to have arisen from first challenged judgment such as would enliven r 50C other than the fact that the Court did not accept the applicant’s contentions.

The applicant made a related submission that his conviction, in particular in relation to count 12, was contrary to the authority of SKA v The Queen [2011] HCA 13; 243 CLR 400. The main contention appeared to be as follows:

The circumstance that a similar factual issue arose in the applicant’s case to a factual issue in SKA is not relevant to the application before the Court. The issue to be determined is whether the test from SKA was correctly applied to the different circumstances of the applicant’s case and, if not, whether the default amounted to a material misapprehension of law. The applicant has raised no argument such as to raise any question about the correctness of the application of SKA. Again, this question was fully dealt with in the first challenged judgment as follows:

The applicant has raised no issue with respect to the SB counts to which r 50C could apply.

The applicant made further submissions relating to complaints about his counsel and instructing solicitor at trial. He contended that counsel had acted contrary to his instructions in cross-examination of witnesses, that there had been a failure to raise alibi evidence in the trial before Norrish DCJ, and that his lawyers had failed to prepare a draft proof of evidence. The applicant’s major contention appears to be that further evidence relating to the SB counts should have been either adduced by his lawyers or extracted from witnesses in cross-examination by counsel in the trial before Norrish DCJ, although a contention was also made relating to incompetence of counsel with regard to the trial before Freeman DCJ.

These issues, as they related to the Norrish DCJ trial, were dealt with in the appeal from those convictions at [62]-[82]. Both trial counsel and his instructing solicitor were called in that proceeding and cross-examined by the applicant.

The issues regarding representation were then reconsidered in the first challenged judgment at, inter alia, [99]-[102]:

It is difficult to distil from the applicant’s lengthy submissions on this topic any specific misapprehension of fact or law he contends were made in the challenged judgments, except that the Court did not accept that the applicant’s convictions should be overturned on this ground. Again, if the major strand of this complaint is that the actions of the applicant’s lawyers at trial resulted in deficiencies in the evidence presented in his cases, Alramadan (No 2) stands as authority that it is not open to him, on an application pursuant to r 50C, to attempt to remedy those deficiencies.

The Court makes the following orders: