Clark v Attorney General of New South Wales

1. [1]

   HIS HONOUR: On or about 10 October 2017, the Applicant, Peter Frederick Clark, filed an Application under s 78 of the Crimes (Appeal and Review) Act 2001 (NSW) (hereinafter “the Act”). During the course of 2018, and the earlier part of 2019, submissions were filed and/or exchanged between the Applicant and the Respondent, the last such submission being filed by the Applicant on 30 July 2019.

2. [2]

   The Applicant was found guilty by a jury on 23 counts. The Crown had preferred 29 counts that went to trial. The “29th Count” was the subject of a verdict by direction. As a consequence, the jury found the Applicant guilty of 23 counts and returned a not guilty verdict on 5 or, if one were to include the directed verdict, 6.

3. [3]

   The trial was held in the District Court of New South Wales and the trial judge was his Honour S Norrish QC DCJ. The trial was conducted in May and June of 2009.

4. [4]

   The charges that were preferred, involved six different male complainants and the counts for which the Applicant was found guilty comprised:

5. [5]

   On 21 December 2009, Norrish QC DCJ sentenced the Applicant to an effective sentence of a non-parole period of 10 years and 9 months’ imprisonment and a balance of the term of 3 years and 8 months. That sentence consisted of the following sentences on each count:

6. [6]

   The foregoing table is taken from the judgment of the Court of Criminal Appeal in R v PFC [2011] NSWCCA 117, in which the Court of Criminal Appeal dismissed a Crown appeal alleging manifest inadequacy of the sentence imposed. The Applicant filed an appeal against conviction, which for reasons which are currently irrelevant, was delayed in the hearing. Those reasons related to the legal representation of the Applicant and/or lack of it.

7. [7]

   The Applicant’s appeal was dismissed: PFC v R [2011] NSWCCA 275 (sometimes referred to as the “Conviction Appeal”). The Applicant then sought to reopen the appeal pursuant to r 50C of the Criminal Appeal Rules (NSW), seeking orders setting aside or varying the order of the Court of Criminal Appeal dismissing his appeal against conviction. That application was heard and dismissed: PFC v R (No 2) [2014] NSWCCA 241.

8. [8]

   A second application to reopen and set aside the judgment was taken and dismissed: Clark v R [2015] NSWCCA 265. It should be noted that there was a further trial for an offence of one count of perverting the course of justice, which was heard before Freeman DCJ and a jury (the “Freeman Trial”). This offence, which is not directly relevant to the current proceedings, related to the Applicant’s failure to comply with a court order for the production of certain evidence.

9. [9]

   The Applicant was convicted of this offence by a jury and Freeman DCJ sentenced the Applicant to a non-parole period of 2 years, with a balance of term of 8 months, extending the earliest release date to 6 June 2021.

10. [10]

    An appeal, against the conviction and sentence arising from the Freeman Trial, was lodged by the Applicant and heard by the Court of Criminal Appeal, during which the Applicant was self-represented and the appeal was dismissed: Clark v R [2014] NSWCCA 236. A third application under r 50C was set aside as “vexatious”: Clark v R (No 2) [2015] NSWCCA 271.

11. [11]

    The Applicant filed an application for special leave to appeal to the High Court of Australia from the judgment of the Court of Criminal Appeal in the Conviction Appeal and applications for special leave from the two judgments on applications under r 50C of the Criminal Appeal Rules, each of which was dismissed by the High Court: Peter Frederick Clark v The Queen [2016] HCASL 79.

12. [12]

    On 17 May 2016, the Applicant petitioned the Governor of New South Wales under s 76 of the Act (which is in Part 7 of the Act) for a review of his convictions, which application was dismissed.

13. [13]

    The Applicant seeks a review of both conviction and sentence. The initial application sought a review of the Court of Criminal Appeal judgment in the Conviction Appeal, which, it was alleged, was misled by trial counsel “to cover his flagrant incompetence” at the trial and that the Court of Criminal Appeal failed properly to examine the evidence.

14. [14]

    Further, the Applicant relied upon purportedly fresh evidence relating to conviction on Count 2, being evidence relating to a purported alibi, relating to the complainant DM, which also affects the conviction on Count 1 and also on purportedly fresh evidence relating to his conviction in relation to Count 12 (relating to complainant SB).

15. [15]

    Further, the Applicant seeks a review of the sentence, contending that the sentence appeal was not pursued, because of the work that was being performed in relation to the conviction appeal in relation to Count 12. It is noted that the Notice of Appeal, filed by the Applicant, which gave rise to the judgment of the Court of Criminal Appeal in the Conviction Appeal, did not raise grounds of appeal on sentence and nothing in the original application raised errors as to the sentencing process itself.

16. [16]

    I reiterate that the Crown appealed against the sentence on the ground of manifest inadequacy in the sentence, and the circumstances giving rise to the sentence were the subject of significant analysis by the Court of Criminal Appeal in the reasons for judgment dismissing the Crown appeal. With that short background, it is necessary to deal, first, with the principles that apply in relation to a review under Pt 7 of the Act and, secondly, with the grounds the Applicant raises in his submissions.

Principles Applicable to a Review

1. [17]

   While the application is for an inquiry into both the conviction and sentence and pursued under s 78 of the Act, consideration of the application is dealt with in s 79 of the Act. While the provisions of s 78, as they currently exist, replace provisions of the Crimes Act 1900 (NSW), the provisions of the Act, in this Part, extend to convictions and sentences entered or imposed before the commencement of the amendments.

2. [18]

   The Court, as presently constituted, received the application for an inquiry and is required to deal with the application. The Court granted the Applicant leave to file further submissions in support of the application for an inquiry, the last of which, as already recited, was filed in July 2019, while the Court, as presently constituted, was on leave.

3. [19]

   Pursuant to the terms of s 79 of the Act, the Court may, if the criterion is established, grant the application and direct that an inquiry be conducted by a judicial officer into the conviction or into the sentence, or, may refer the whole case to the Court of Criminal Appeal to deal with as an appeal under the Criminal Appeal Act 1912 (NSW): see s 79(1) of the Act. However, by operation of s 79(2) of the Act, the foregoing power to direct an inquiry or to refer the case to the Court of Criminal Appeal may only be taken if it appears to the Court, as presently constituted, that there is “a doubt or question as to the convicted person’s guilt, as to any mitigating circumstances in the case or as to any part of the evidence in the case”: s 79(2) of the Act.

4. [20]

   Further, the Court, as presently constituted, is empowered to refuse to consider, or otherwise deal with, an application in certain circumstances. Those circumstances include that the issues raised have been fully dealt with in the proceedings giving rise to the conviction or on appeal; that the issues have previously been dealt with under the Part or under previous review provision; and, relevantly, where an appeal has been withdrawn, or proceedings have lapsed. The Court is not entitled to act under those relevant criteria, if the Court were satisfied that there were special facts or special circumstances that justify taking further action.

5. [21]

   The legislature has made clear that the function of the Court under Pt 7 is not a function that involves judicial proceedings or the exercise of judicial power. The function is an administrative or executive function: s 79(4) of the Act; Kirk Group Holdings Pty Ltd & v Workcover Authority of New South Wales [2006] NSWCA 172; Eastman v Director of Public Prosecutions (ACT) (2003) 214 CLR 318; [2003] HCA 28.

6. [22]

   The principles to be applied in determining whether there is “a doubt or question” were the subject of discussion in SKAF, Bilal - Application under Part 7 Crimes (Appeal and Review) Act 2001 [2013] NSWSC 45 and Sinkovich v Attorney General of New South Wales (2013) 85 NSWLR 783; [2013] NSWCA 383.

7. [23]

   In Sinkovich, supra, Basten JA (with whom Bathurst CJ, Beazley P and, relevantly, Price and Beech-Jones JJ agreed) said:

8. [24]

   It seems to me, that an arguable error of law or doubt as to any factual conclusion is sufficient to warrant referral for an inquiry. I will act on that basis, applying the foregoing principles.

9. [25]

   The difficulty with the discretion to refuse to consider or otherwise deal with the application is that, on one view at least, to determine whether special facts or circumstances justify taking further action, the Court would need to consider all of the issues raised by the Applicant. Notwithstanding the existence of the discretion, the Court has examined all of the material on which the Applicant is relying. The foregoing approach may, on another view, be unnecessary, but, without deciding that issue, I have adopted that approach.

Special Facts or Circumstances

1. [26]

   As earlier stated, even where the discretion to refuse to consider or deal with an application is activated, the Court is not entitled to exercise that discretion if satisfied that there were “special facts or special circumstances” justifying the taking of further action. In the Applicant’s submissions of 17 June 2019 and 21 December 2018, the Applicant relies upon the proposition that special facts or circumstances arise as a consequence of receiving “expert advice” from a former inmate, which was, hitherto, unavailable and this amounts to a special circumstance. It is necessary to deal with the appropriate definition of special fact or circumstance.

2. [27]

   The Court, as presently constituted, acting in a judicial capacity, had occasion to deal with the meaning of the term “special” in the context of the Bail Act 1978 (NSW), and in particular, s 9D thereof, in the reasons for judgment for the Bail application, in R v Daron John Wright (Supreme Court (NSW), Rothman J, 7 June 2005, unreported). During the course of the reasons for judgment, the Court said:

3. [28]

   The term “special” is often used synonymously with the term “extraordinary”, but its connotation often places greater emphasis on that which is special for the individual in question, rather than out of the ordinary class of fact or circumstance to which it applies. It seems to me, in dealing with the prohibition on the exercise of the discretion not to deal with or consider a review, the Court would not be entitled to exercise that discretion if the fact or circumstance upon which the Applicant relied was one that was special or extraordinary to that individual. In that way, the facts or circumstances justifying the taking of further action would be “special”.

4. [29]

   On the other hand, the fact, assuming it be the fact, that advice was received from a particular individual, which advice was hitherto unavailable, does not, of itself, constitute “special facts” or “special circumstances”. It is the argument or fact or circumstance upon which the Applicant relies in support of his review that must constitute the special facts or special circumstances.

5. [30]

   The circumstance that an individual Applicant has a different argument, or raises different issues, may constitute special facts or special circumstances. The fact that the same argument or issues are raised, but this time on the advice of another, does not and cannot amount to a special fact or special circumstance.

6. [31]

   Having made that comment, it can be said that if there was evidence that on a previous review, or on appeal, the judicial officer or Court dealing with the application misunderstood an argument or failed to comprehend sufficiently that which was put in support of the review or appeal, then its better communication, as a result of expert advice of a particular individual, may, depending upon the circumstances, constitute special facts or special circumstances. There is no suggestion in the case of the Applicant that any previous judicial officer (including for this purpose the Governor) or Court exercising judicial power misunderstood or failed adequately to comprehend the matters that were sought to be relied upon by the Applicant in that review or on that appeal.

Chronology of Hearing of Appeal/Review

1. [32]

   It is necessary to set out the applications for review and appeals that have been agitated by the Applicant. The trial for the initial charges occurred over 35 days from 11 May 2009 until 6 June 2009, before Norrish QC DCJ. His Honour is and was an extremely experienced criminal lawyer and criminal judge.

2. [33]

   On 26 June 2009, the jury returned guilty verdicts on 23 counts out of 29 charges. Prior to 26 June 2009, namely, on 25 May 2009, the jury returned a verdict of not guilty by direction in relation to Count 10. On 22 October 2009, the Applicant filed a Notice of Intention to Appeal, confined, at that time, to an appeal against conviction only.

3. [34]

   On 2 December 2009, the Applicant filed the Application Seeking Leave to Appeal and the Notice of Appeal to the Court of Criminal Appeal (hereinafter “CCA”). On 21 December 2009, the Applicant was sentenced and, on 27 January 2010, the Crown lodged a Notice of Appeal against the manifest inadequacy of the sentence.

4. [35]

   On 2 February 2010, correspondence from the CCA to the Applicant advised that certain matters need to be addressed before the appeal could be dealt with and/or could be processed.

5. [36]

   On 11 February 2010, the Applicant prepared and sought to file an Amended Notice of Appeal, including certain documentation in support. That documentation included two recordings, being video recordings.

6. [37]

   On 25 February 2010, the CCA Registrar corresponded with the Applicant to the effect that, because of the voluminous nature of the material, the Registry of the CCA was still determining whether it could be accepted for filing.

7. [38]

   On 11 March 2010, the Applicant filed an Amended Notice of Appeal and documents in support of his conviction appeal; and the appeal was listed for hearing on 16 July 2010.

8. [39]

   On 23 March 2010, at a directions hearing for the appeal against conviction by the Applicant and the appeal against sentence by the Crown, directions issued which required the Crown to file its appeal submissions by 30 April 2010; the Respondent to file its submissions (including submissions in reply to the Crown submissions on sentence) by 6 July 2010; and a reply by the Crown was due on or before 12 July 2010. Any affidavit on re-sentence was to be filed and served by 2 July 2010.

9. [40]

   Issues arose as to the capacity of the Applicant to obtain legal representation. There was a further directions hearing on 8 April 2010 in which it was made clear that legal aid had been granted for both the Crown appeal against sentence and the appeal against conviction. Counsel was instructed, as the CCA was informed, on 6 May 2010.

10. [41]

    On 3 June 2010, the Crown put on record that, because the Applicant raised the incompetence of counsel as a ground of appeal, it would require a waiver of legal professional privilege; the provision of sufficient particulars; and the final grounds of appeal. This was required at least four weeks before the hearing, which, at that stage, had been set for 16 July 2010.

11. [42]

    On 17 June 2010, the Applicant, or lawyers on his behalf, made an application for the vacation of the hearing date of 16 July 2010. The dates were vacated and new dates were fixed for 13 and 15 September 2010.

12. [43]

    On 1 July 2010, there was a further mention of the proceedings; and an expert psychiatric report was obtained from Dr Allnut. Further directions hearings were held and the hearing of the matter further delayed on the application of the Applicant. As at the date of the new hearing dates, the Applicant’s submissions had not been finalised. The date for hearing was vacated and new dates were fixed for 6 and 7 December 2010.

13. [44]

    There were issues associated with the capacity of the new solicitors to obtain material from the previous solicitor’s file, which difficulties were brought to the attention of the CCA on or about 2 December 2010. At a further directions hearing, dealing with case management, the hearing dates in December 2010 were vacated and the hearing of the appeals was listed for 2 May 2011 (bearing in mind the possibility that the appeal, unusually, may take as long as two days). A timetable was fixed.

14. [45]

    During December 2010 and early January 2011, correspondence between the Court, the Crown and the Applicant revealed some confusion as to whether the Applicant had filed a Notice of Appeal in relation to sentence and what grounds of appeal were relied upon in relation to the conviction. On 13 January 2011, the Crown applied to vacate the hearing of 2 May 2011.

15. [46]

    The Applicant, at the directions hearing on 30 January 2011, confirmed that he waived legal professional privilege regarding his trial lawyers but did not waive privilege relating to the report of Dr Allnut. There were further case management hearings and/or directions hearings. Orders were made by the Court relating to the alleged privilege that the Applicant said applied to the report of Dr Allnut. The Court ordered production.

16. [47]

    On 9 May 2011, the CCA heard the Crown appeal relating to manifest inadequacy. Procedural orders were also made. On 25 May 2011, the CCA dismissed the Crown appeal against the inadequacy of the sentence, in the reasons for which it analysed the sentences at some length.

17. [48]

    On 31 August 2011, the Applicant was convicted of the offence of perverting the course of justice, after a 14 day trial before a judge and jury, presided over by Freeman DCJ. The alleged perversion of the course of justice was the Applicant’s alleged destruction or the failure to make available the original tape and CD recording of the conversation between the Applicant and Senior Constable Cusack.

18. [49]

    On 20 September 2011, there was a mention of the Applicant’s appeal on conviction and directions issued. The appeal against conviction was heard on 14 and 24 October 2011, during which hearing the Applicant was self-represented.

19. [50]

    On 31 October 2011, the Applicant filed an Amended Notice of Appeal against his conviction and sentence in the proceedings for the perversion of the course of justice.

20. [51]

    On 15 December 2011, the Applicant’s appeal against convictions in the hearing that was conducted by Norrish QC DCJ was dismissed: PFC v R [2011] NSWCCA 275 (the “Conviction Appeal”).

21. [52]

    The Applicant’s submissions on this application for review, once more, complain that the CCA, in dealing with his conviction appeal, did not hear or mention the appeal against sentence (assuming there be one). The foregoing statement in parentheses is necessary because the Applicant’s Amended Grounds of Appeal did not set out a ground of appeal against sentence.

22. [53]

    On 24 August 2012, the Applicant filed a Further Amended Notice of Appeal against conviction and sentence in relation to the offence of pervert the course of justice. The CCA heard that appeal on 14 July 2014 and, on 30 October 2014, dismissed the appeal: Clark v R [2014] NSWCCA 236.

23. [54]

    Further, on 23 October 2014, the CCA heard an application brought under the provisions of r 50C of the Criminal Appeal Rules, to reopen the Applicant’s appeal against conviction, in the Conviction Appeal. Also on 30 October 2014, the Applicant’s appeal under r 50C (or utilising the provisions thereof) was dismissed.

24. [55]

    On 7 November 2014, the Applicant filed an application under the provisions of r 50C of the Criminal Appeal Rules in relation to the appeal against his conviction for the offence of pervert the course of justice and, on 11 November 2014, the Applicant filed a further application, seeking to utilise the provisions of r 50C of the Criminal Appeal Rules, relating to the Conviction Appeal judgment.

25. [56]

    Each of these further applications, seeking to utilise the provisions of r 50C of the Criminal Appeal Rules, were heard on 20 July 2015, following which, on 21 July 2015, certain corrections to annexures were made by the Applicant. These applications utilising the provisions of r 50C of the Criminal Appeal Rules, made, respectively, on 7 and 11 November 2014, were dismissed by the CCA on 6 October 2015: Clark v R [2015] NSWCCA 265.

26. [57]

    In the meantime, on 27 July 2015, the Applicant filed a Summons seeking leave under the Felons (Civil Proceedings) Act 1981 (NSW) to commence proceedings against the State of New South Wales and the Director of Public Prosecutions and, on 17 August 2015, by Motion on notice, the Applicant sought expedition of the hearing of the aforementioned Summons.

27. [58]

    On 13 October 2015, the Applicant made a further application pursuant to r 50C of the Criminal Appeal Rules, to set aside the judgment of 6 October 2015, being the judgment to set aside the applications under r 50C of 7 and 11 November 2014. On 15 October 2015, the Summons for leave to commence under the Felons (Civil Proceedings) Act was dismissed: PFC v State of New South Wales & Anor [2015] NSWSC 1507.

28. [59]

    Further, on 16 October 2015, the application, made under or pursuant to r 50C of the Criminal Appeal Rules, to set aside the judgment of 6 October 2015, dismissing the two previous applications pursuant to r 50C of the Criminal Appeal Rules, was dismissed: Clark v R (No 2) [2015] NSWCCA 271.

29. [60]

    On 4 March 2016, the Applicant filed a fourth application for special leave to appeal to the High Court, including submitting, as is required under the Rules thereof, a Draft Notice Of Appeal, relating to the convictions in the trial over which Norrish QC DCJ presided. On 5 May 2016, each of those applications for special leave to appeal was dismissed on the papers.

30. [61]

    On 11 May 2016, the Applicant’s Summons to seek leave to appeal the dismissal of the Summons under the Felons (Civil Proceedings) Act was dismissed: Application of PFC [2016] NSWCA 102.

31. [62]

    On 17 May 2016, the Applicant sought a review under Pt 7 of the Act to the Governor of New South Wales. On 6 September 2017, the Applicant’s application to the Governor, under Pt 7 of the Act, was dismissed.

32. [63]

    On 10 October 2017, the Applicant filed the Pt 7 Application, pursuant to s 78 of the Act, which contained two additional grounds to the application to the Governor that was dismissed on 6 September 2017.

33. [64]

    The foregoing does not repeat the chronology of events arising prior to the proceedings before the District Court of New South Wales, referred to in the foregoing as the proceedings over which Norrish QC DCJ presided or giving rise to the Conviction Appeal. That chronology is extensive and deals with some parts of the investigation by the Police, committal proceedings and the events that gave rise to the complaints and ultimate convictions.

34. [65]

    That chronology of events was filed in the CCA on 7 October 2011, updated in relation to events from Justice Link, and forms Annexure 2 to the submissions of the Attorney General in relation to the application under s 78 of the Act.

35. [66]

    That chronology sets out the events in relation to each count; the complaints and the like. It (or, more accurately, that part of it that was available at the time) was essentially accepted as an accurate depiction of that which it purports to summarise by the CCA in the appeal against conviction to which earlier reference has been made and, having checked the document, I accept it as an accurate summary of the matters described therein and do not consider it appropriate or necessary to repeat each of the entries or a summary of the most relevant entries.

36. [67]

    Nevertheless, the chronology of events leading up to the convictions and summarising the allegations, charges and investigation is accurate and accepted by me for the purposes of these reasons. I will deal with the allegations proved, or found proved by the jury, in the trial over which Norrish QC DCJ presided, reciting the summary by the CCA, which, having examined the material, I consider accurate.

37. [68]

    After setting out the offences of which the Applicant was convicted at [15], the CCA in PFC v R [2011] NSWCCA 275 (Giles JA, Hoeben J (as he then was) and Hall J) described the offences commencing at [17]. I recite the summary of the CCA from [16], which is in the following terms:

Issues Raised by the Applicant

1. [69]

   Essentially, the Applicant raises issues associated with Counts 2 and 12 of the foregoing. In relation to Count 2, the Applicant was charged that “between 1 December 1997 and 31 December 1997 at Balmain in the State of New South Wales [the Applicant] did have sexual intercourse with [DM], a person above the age of 10 years and under the age of 16 years”.

2. [70]

   The Applicant contends that a statement from SC, dated 4 November 2006 is “fresh evidence” [application at [71] and Annexure 6, thereto). The Applicant contends this is evidence of alibi that casts doubt on the conviction in relation to Count 2.

3. [71]

   The alibi, upon which the Applicant relies, is that the Applicant left the house at Balmain and stayed with his sister at Rozelle. Further, alibi is relied upon in relation to Count 1 in the foregoing convictions.

4. [72]

   In relation to Count 12, the Applicant seeks to rely upon a purported statement of SB senior (the father of the alleged victim), which statement is dated 9 November 2007 and is said, by the Applicant, to be fresh evidence.

5. [73]

   Further, the Applicant relies upon an allegation that his trial counsel was untruthful to the CCA in the appeal against conviction and/or misled the CCA in the evidence that was given. Lastly, the Applicant relies upon an allegation that the CCA failed properly to examine the whole of the evidence before it (and/or before the District Court) in dealing with the appeal.

Consideration

1. [74]

   I deal firstly with the submission that the CCA failed properly to examine the whole of the evidence in the proceedings. This submission is without merit. The CCA made clear that it had regard to the evidence as a whole and the submission was dealt with in the PFC v R (No 2) judgment, to which earlier reference has been made: see PFC v R (No 2) [2014] NSWCCA 241 at [113] and [119]. The initial appeal judgment ran for 375 paragraphs and dealt comprehensively with the submissions that were put. Unless some argument otherwise put by the Applicant in this application points to a doubt that arises in relation to any one or more of the convictions, then, in and of itself, such a bald assertion cannot give rise to a doubt and cannot properly be raised.

2. [75]

   I turn then to the substance of allegation that the Applicant’s trial counsel lied to the CCA in the appeal hearing. The CCA heard evidence adduced, on oath, by the trial counsel as a result of the waiver of legal professional privilege. The Applicant was present during the course of the evidence that was adduced and the Applicant was able to cross-examine his trial counsel in relation to that evidence.

3. [76]

   Further, the Applicant could have, had he so chosen, given evidence in the appeal proceedings inconsistent with the evidence given by the trial counsel. At no stage did the Applicant seek to adduce evidence inconsistent with the evidence provided by his trial counsel to the truth of which his trial counsel swore. Further again, to the extent that there is an issue relating to all access to documents that too could have been the subject of evidence or an application for adjournment. With one exception, no such applications were made. The exception related to a number of documents for the examination of which the CCA provided the Applicant with a short adjournment, although it doubted that the Applicant had not had access to the documents previously.

4. [77]

   At the second application under Rule 50C, the Court noted that the only complaint made in relation to these matters was made after the relevant hearing (see Clark v R [2015] NSWCCA 265 at [31] and following).

5. [78]

   Moreover, the material relied upon by the Applicant in his supplementary application of 30 October 2017 was before the CCA in the original appeal proceedings, by way of both evidence and submissions.

6. [79]

   In the Conviction Appeal, the Court, at [106], dealt with the alleged communication between the Applicant and his lawyers as to alibi and concluded that he had instructed his lawyers that he had no alibi in relation to any relevant issue. The issue upon which there was an alibi, relating to issues associated with the complainant CB, are currently irrelevant as the Applicant was acquitted of those charges.

7. [80]

   The CCA detailed and summarised the evidence relating to the allegations made by the Applicant, now, against his trial counsel. The argument of the Applicant that the evidence before the CCA in the first appeal against conviction was, itself, “overwhelming proof” of trial counsel misleading the Court is inconsistent with the findings of the CCA in that proceeding which details extensive material and came to the opposite conclusion: see Conviction Appeal at [63].

8. [81]

   There is no basis in the evidence before me, in the evidence at conviction or in the evidence at the first appeal that warrants an arguable proposition that trial counsel lied or misled the CCA in the evidence.

9. [82]

   This ground is rejected. A reading of the judgment of the CCA on the first appeal against the convictions in the trial before Norrish QC DCJ is inconsistent with any such suggestion.

10. [83]

    Next, the Applicant relies upon an allegation of “fresh” evidence. The fresh evidence is said to be a statement of the father of SB (referred to as SB senior). This is accompanied by his letter of instruction dated 27 July 2008 (Annexure 4 to the application); a chronology, prepared by the Applicant and said to have been signed by SB senior and SB (Annexure 3 to the application); and what is alleged to be trial counsel’s handwriting on a copy of the Indictment (Annexure 5 to the application). Further, the terms of Annexure 2 of the application, which are written instructions, is also said to be fresh evidence.

11. [84]

    First, a number of these documents could not amount to evidence, but are merely assertions by the Applicant as to the facts, which assertions could have been the subject of evidence by the Applicant, either at trial or on appeal. Secondly, none of the material is, in any sense of the term, “fresh”.

12. [85]

    Each of the documents existed at least at the time of the appeal against conviction: see Ratten v R (1974) 131 CLR 510; [1974] HCA 35. Each of these documents and/or the contents thereof was available either actually or constructively to the Applicant at the time of his trial and, certainly, at the time of the Conviction Appeal.

13. [86]

    Notwithstanding that the material is not fresh evidence, it seems to me that in the function of a judicial officer in a review under Pt 7, any evidence that may give rise to a doubt or question as to the conviction (and/or any of the other descriptions in ss 78 and 79 of the Act) is able to be used by the Applicant and must be taken into account by the Court in determining whether such a doubt or question exists.

14. [87]

    Ultimately, to the extent that the statement of SB senior is evidence that must be examined by the Court presently, it must be noted that SB senior gave evidence, under oath, at trial to the opposite effect of that contained in the purported statement, as did SB. The evidence, in effect, goes to whether SB lived with the Applicant in 2003 or lived with the Applicant in 2004. If the victim SB did not live with the Applicant between 1 August 2003 and 30 November 2003, then the allegations in relation to Count 12 could not have been proved.

15. [88]

    Of course, the allegations in relation to SB in Counts 13 and 14 would still hold. Further, if the evidence in the purported statement of SB senior was adduced at trial to show the inconsistency with the timing otherwise adduced through SB and SB senior, two fundamental issues would have arisen for the Applicant.

16. [89]

    First, if counsel, representing the Applicant at trial, put to SB senior (and/or SB) that the victim first lived with the Applicant at the beginning of 2004 and not, as alleged in Count 12, in August 2003, this would have corroborated the evidence of SB senior and SB in relation to Counts 13 and 14, to which the Applicant pleaded not guilty.

17. [90]

    Secondly, it would have been open to the Crown, albeit subject to the leave of the Court and any necessary adjournment, to amend the Indictment in Count 12 so that it applied to the period from 1 August 2003 to 31 March 2004. Plainly, a forensic decision was taken not to utilise any material relating to evidence of SB senior as to the dates upon which SB went to live with the Applicant. That decision was understandable and, in hindsight, wise.

18. [91]

    Ultimately, the sworn evidence of SB senior (and SB) is to the effect that SB went to live with the Applicant in the period 1 August 2003 to 30 November 2003. The statement, available to the Applicant at trial and on appeal, does not engender a doubt as to the truthfulness of the sworn evidence of SB senior and/or SB.

19. [92]

    It is unnecessary to deal with any tendency associated with Counts 6, 15, 21, 22, 24, 29 (or the conviction before Freeman DCJ) in relation to the statement of SB senior. It is relevant to note that the reference to “under authority” was not a reference to whether the victim, SB, was under DOCS care, but whether he was living “as a child” with the Applicant and therefore was “under authority”.

20. [93]

    Further, as was pointed out by the trial judge, the timing of the offence was not seemingly related to the school year in which SB was then enrolled, but the time at which he was under the care of the Applicant: Transcript 104, 22 June 2009.

21. [94]

    Notwithstanding the earlier comment as to “tendency”, the Applicant was facing charges of perverting the course of justice in relation to persuading SB to make a video recording and statements denying any assault. In the words of the CCA in the Conviction Appeal [68]-[69]:

22. [95]

    Lastly, it is worth noting that in the appeal against conviction, the CCA noted that there was cross-examination by trial counsel in relation to a purported statement said to have been signed by SB on 6 December 2006, which denied any assault. This statement was put to SB during the course of the trial. However, SB denied that the signature at the foot of the document was his signature and testified that he had never seen the document before: Conviction Appeal at [83].

23. [96]

    After cross-examining on the statement of SB, and in relation to the “shower video” of SB, it would have been most unwise for trial counsel to have cross-examined SB senior on a statement, the veracity of which and the authenticity of which was not assured and which, even on its face, would have corroborated the allegations in relation to other offences.

24. [97]

    It is not only that the statement of SB senior was not “fresh”, in the strict meaning of the term, that is relevant, it is the possession of the material at the time that SB senior was cross-examined and the forensic decision, which in my opinion was correct, not to put the statement to SB senior, in circumstances where, if it were disavowed, it may have given rise to significant inferences relating to the conduct of the Applicant and, on one view, may have given rise to further charges.

25. [98]

    Essentially, the questions raised in relation to the conviction on Count 12 rely heavily on the statement of SB senior, to which reference has been made. That statement alleges that SB was “never living with the Applicant in 2003”. The statement, as already noted, was taken by the Applicant, himself.

26. [99]

    The statement of SB senior was an issue raised in the conviction appeal and dealt with by the CCA in various paragraphs of its reasons for judgment, dismissing the appeal.

27. [100]

    The statement was in existence at the time the trial occurred; it was in existence at the time of the conviction appeal; and it was certainly available to solicitors and counsel at the time that SB senior was cross-examined. Not only is the evidence, assuming the statement be authentic, not “fresh”; there was also ample opportunity to raise the issues both at trial and on appeal, none of which were taken by the Applicant or his representatives.

28. [101]

    I am not satisfied that the alleged statement by SB senior is a matter that casts any doubt whatsoever on the conviction in relation to Count 12 that has not been adequately dealt with by one or other of the previous applications under Pt 7 or the appeals.

29. [102]

    Next, the Court deals with the questions raised in relation to the conviction on Count 2. Whether SC was a witness who could provide an alibi to the Applicant was dealt with by the CCA in the Appeal Conviction.

30. [103]

    Trial counsel gave evidence that he had express instructions, prior to the trial being conducted, that there was no alibi available to the Applicant. The CCA (at [113] of the Conviction Appeal) dealt expressly with the purported alibi raised by evidence that could have been adduced or was alleged to have been able to be produced by SC.

31. [104]

    It is informative to recite paragraphs [113] and [114] of the Appeal Conviction, which are in the following terms:

32. [105]

    The submission in relation to this matter is a submission that has been fully canvassed by the CCA and rejected.

33. [106]

    The issue of alibi was raised to seek to cast doubt on the Applicant’s conviction on Count 1, relating to the victim DM. At [106] and following of the Conviction Appeal, the CCA said:

34. [107]

    Nothing has been put in this application that would in any way cast doubt on the conclusion of the CCA recited above.

Conviction

1. [108]

   In the course of an appeal in relation to civil, rather than criminal, proceedings, the High Court in Swain v Waverley Municipal Council (2005) 220 CLR 517; [2005] HCA 4 at [2] (per Gleeson CJ) said:

2. [109]

   The reference to the finality of a jury decision and the primacy of the trial process reflect the prima facie position associated with criminal proceedings. That prima facie position is subject to the exceptions provided for by statute.

3. [110]

   Those exceptions include a challenge to a conviction on the basis of the Criminal Appeal Act and, particularly, to a challenge on the basis of an unreasonable verdict under which the Court, on appeal, must examine the evidence and determine, for itself, whether a doubt exists as to a particular conviction, which doubt is not overcome by the advantage enjoyed by a jury. A further exception arises as a result of the operation of Pt 7, which forms the basis upon which this application must be considered.

4. [111]

   Nevertheless, there is, in this application, an issue arising from the finality of proceedings. The earlier reference to the chronology of litigation, which the Applicant has undertaken, points directly to the opportunities that the Applicant has had to raise the very same issues that the Applicant raises on this application.

5. [112]

   None of the material presented by the Applicant, on the question of conviction, is “new”, in the sense that it raises an issue not previously dealt with by the Court either at trial or on appeal. Further, the issues have been raised in the previous application for a review made to the Governor, pursuant to the Act.

6. [113]

   To the extent that there are some details that were not expressly raised at trial, most, if not all of them, were raised expressly on appeal. They were dealt with on appeal. To the extent that they were not dealt with on appeal, they do not raise matters that cast any doubt on any of the convictions in this matter.

7. [114]

   The Court has taken a view similar to that described by the High Court as the function to be taken in dealing with an appeal that raises an unsatisfactory or unreasonable conviction. That is, the Court has examined that which has been raised in light of the material presented on appeal and at trial to see whether the Court, as presently constituted, has any doubt (or arguable doubt) as to the conviction. I have none.

8. [115]

   The application, in relation to conviction, is refused.

Sentence

1. [116]

   As already stated, the Crown appealed the sentence imposed by Norrish QC DCJ on 21 December 2009. The effective sentences, the details of which have been recited above, was a non-parole period of 10 years and 9 months with a balance of term of 3 years and 8 months.

2. [117]

   After setting out the sentence that was imposed by the District Court, the Court (Hoeben J (as His Honour then was) with whom Allsop P and Hall J agreed) set out the circumstances of the offending, the grounds of the appeal and the submissions of the Crown. Essentially, the Crown appeal on sentence related to the degree of concurrency and the lack of accumulation of the offences involved. As would be expected of a judicial officer, with the experience of Norrish QC DCJ, all of the principles on sentencing were discussed, so far as relevant, and applied.

3. [118]

   The CCA, in the Crown Sentence Appeal, determined that “the sentences imposed were…well within the range available”. The CCA refused to intervene in the sentence imposed by the District Court on the basis that to do so would involve interfering with an exercise of discretion, in circumstances where no error, of the kind to which the High Court referred in House v King (1936) 55 CLR 499; [1936] HCA 40, was disclosed.

4. [119]

   Likewise, nothing has been put, on sentence, by the Applicant, that discloses any error on the part of the District Court in the sentence that was imposed in relation to the offences proved. On the contrary, the sentence that was imposed can be seen to be at the lower end of the range that was available to the District Court.

5. [120]

   The Applicant raises post-sentence assistance. Post-sentence assistance does not cast doubt or raise a question as to the guilt of the Applicant. Nor does it cast doubt; nor raise a question or mitigate any part of the evidence in the case.

6. [121]

   Where, as here, an application is made for a review into a sentence, the Applicant is capable, in my view, of providing material that might “mitigate circumstances in the case”. There is a nice distinction as to whether the term “mitigating circumstances in the case” requires something that mitigates that which has already been determined in the case or evidence in the case.

7. [122]

   If the foregoing be correct, post-sentence assistance, if provided, would never “mitigate circumstances in the case”, but would or might, with hindsight, mitigate the sentence. A sentencing Judge (including any Appeal Court), as a matter of logic, cannot take into account circumstances in mitigation of sentence that occur after the sentence is imposed.

8. [123]

   No error in the sentence at first instance is suggested. Indeed, if the sentence at first instance is described as anything, it would be described as a lenient sentence in the circumstances of the offending, albeit within range. It is that description that probably motivated the Crown to appeal on the basis of manifest inadequacy.

9. [124]

   Further, the Applicant, given an opportunity to raise grounds of appeal on sentence, chose not to do so and allowed that aspect of the appeal proceedings, if there were an appeal against sentence, to be abandoned. There are no special facts or circumstances that justify the reopening of that appeal or of the sentence imposed at first instance.

10. [125]

    On the contrary, given the time that has elapsed since the sentence was imposed, there are good grounds not to open the sentence or to enquire into its appropriateness. I am not satisfied, on the material presented by the Applicant, that there is any mitigating circumstance that would warrant an enquiry into the sentence imposed. Nor am I satisfied that there is any special fact or circumstance applying that would prohibit a refusal to deal with the matter.

Conclusion

1. [126]

   The Court, as presently constituted, has examined the grounds raised by the Applicant. Each of them, in one way or another, has been dealt with by the Courts and/or the Governor.

2. [127]

   Further, the Applicant has had considerable opportunity, certainly more than a reasonable opportunity, to raise at the sentence hearing and on appeal any mitigating circumstances in relation to sentence. The Applicant has chosen, it seems deliberately, not to pursue any sentence proceedings, other than this application and the application to the Governor.

3. [128]

   The issues raised by the Applicant relate to matters that have been fully dealt with in proceedings giving rise to the conviction and on appeal in relation to the conviction and each of the matters have previously been dealt with under this part, by the Governor. Further, the Applicant has had a right of appeal on conviction and a right to apply for leave to appeal against sentence, each of which has either been exercised and dismissed or exercised and abandoned.

4. [129]

   As earlier noted, the Applicant has taken a number of proceedings, in the nature of appeals or reviews, all of which have been dismissed, withdrawn or allowed to lapse.

5. [130]

   As earlier stated, there are no special facts or special circumstances that justify the taking of further action and, pursuant to the provisions of s 79(3) of the Act, the Court, as presently constituted, refuses to consider or otherwise deal with this application further.

6. [131]

   The application is otherwise dismissed.