Clark v Attorney General for NSW

1. [1]

   By a document styled amended summons filed electronically on 26 November 2021, the plaintiff, Mr Clark, advanced six prayers for relief against the State of New South Wales and the State Parole Authority of New South Wales (“SPA”). By further amended summons dated 11 January 2022, prayers for relief expanded to nine and the defendants against whom relief was sought expanded to four to include the Commissioner for Corrective Services and the Attorney General for the State of New South Wales. The matters involving the SPA and the Commissioner were heard and determined by Fagan J on 13 September 2022. By then a further amended summons had been filed on 24 June 2022 expanding the prayers for relief to eleven. Prayers 3 and 4 in that version were somewhat different from the earlier further amended summons. However, those prayers were severed from the matters determined by Fagan J and came before me for hearing when I was sitting as duty judge on 2 November 2022.

2. [2]

   At the hearing before me, Mr Clark withdrew a yet further form of amended summons which he had notified the Attorney General he wished to propound at the hearing (3.5- .12T) (MFI-1).

3. [3]

   As expressed in the further amended summons filed in court before Fagan J on 13 September 2022, the relief sought but not dealt with by Fagan J was expressed as follows (Prayers 3 and 4):

4. [4]

   On 25 August 2022, the Attorney General filed a notice of motion seeking the summary dismissal of the severed part of Mr Clark’s proceedings. This was the matter referred to me. At the hearing an amended notice of motion by leave was filed in court making clear that the Attorney General was seeking summary dismissal of the proceedings encapsulated in prayers 3 and 4 of the further amended summons of 24 June 2022.

5. [5]

   It is quite clear from Mr Clark’s reference to the “fraud jurisdiction” in conjunction with references to orders in the nature of the former prerogative writs that Mr Clark is seeking to rely upon the supervisory jurisdiction of the Court. So much is also made clear by his reliance upon SZFDE, on the one hand and Mosely on the other. It is also quite clear from Mr Clark’s reliance upon Mosely, a unanimous decision of the Full Court of the Supreme Court of the Northern Territory, that he is attempting to invoke means of challenging and quashing convictions falling outside the scope and operation of the Criminal Appeal Act 1912 (NSW).

6. [6]

   The ratio decidendi of the decision of the Northern Territory Full Court in Moseley is that the Supreme Court exercising original equitable jurisdiction may set aside a judgment obtained by fraud, including a judgment of the Court of Criminal Appeal (at [38], [44]-[45]). The Court’s decision proceeded in part upon an understanding of the judgment of Dixon J (as the Chief Justice then was) in Grierson v The King (1938) 60 CLR 431; [1938] HCA 45 at 436.

7. [7]

   While Mr Clark is serving a sentence for a large number of offences which will expire on 7 March 2024, he seeks to impugn, by his allegation of fraud a single count of many being count 12 of which he was convicted on 29 June 2009 at the trial presided over by Norrish QC DCJ at Sydney. This was but 1 of 23 counts of which he was then convicted involving degrees of indecent assault or sexual intercourse with children and a number of counts of acting with intent to pervert the course of justice. Underpinning his case is the argument that if he were to establish fraud in respect of count 12, all of the counts of which he was convicted at three trials would also be called into question and quashed. He was convicted of three counts on 12 December 2006 at the Port Macquarie District Court. Garling DCJ was the trial judge. These counts also involved child sex offending and a count of attempting to pervert the course of justice. The conviction for the last-mentioned count was overturned on appeal. He was convicted on 31 January 2011 of a single count of doing an act that had a tendency to pervert the course of justice by a jury at a trial presided over by Freeman DCJ.

Gravamen of the claim

1. [8]

   The averment in count 12 was pleaded as follows:

2. [9]

   While his summons falls a long way short of what is required by way of precision when a litigant wishes to raise and plead a claim of fraud, the aforegoing summation arises tolerably clearly from the material relied upon before me.

3. [10]

   Mr Clark also argues that these facts were made good by fresh or new documentary evidence from the Department of Community Services that had been put before Cavanagh J for the purpose of an application under s 78 Crimes (Appeal and Review) Act 2001 (NSW) ([2021] NSWSC 1364). The documents tended to show, according to Mr Clark, that SB had been living at home for the whole of 2003 and did not commence to reside with Mr Clark until after his 15th birthday on 1 March 2004 when, consistently with his evidence, he was in Year 9. From these documents, SB commenced to live with Mr Clark on 4 May 2004.

4. [11]

   An application for judicial review of Cavanagh J’s decision rejecting Mr Clark’s application was decided by the Court of Appeal after the hearing before me: Clark v Attorney General (NSW) [2022] NSWCA 231. When that decision came to my attention, I asked for and received further written submissions from both parties: from the Attorney General on 21 November 2022; and from Mr Clark on 22 November 2022: Clark v Attorney General for NSW [2022] NSWCA 231 (Macfarlan, White and Mitchelmore JJA). Rejecting the ground of review that Cavanagh J’s decision was legally unreasonable, White JA (Macfarlan and Mitchelmore JJA agreeing), said, pertinently for the present application (at [54]):

History of allegations of fraud by Mr Clark

1. [12]

   This is not the first occasion upon which Mr Clark has sought to have his conviction overturned on the grounds of fraud. In PFC v The Queen (No 2) [2014] NSWCCA 241, Mr Clark sought to reopen his conviction appeal on the ground of fraud. The fraud on that occasion is said to be collusion amongst the various complainants. It was not said that the prosecutors were tainted by that allegation. However, Mr Clark relied upon Burrell v The Queen [2008] HCA 34; (2008) 238 CLR 218 at [15], where the power to set aside a final judgment procured by fraud by separate action was referred to in passing. The Court (Fullerton, Garling, and RA Hulme JJ) disposed of the argument in the following way at [43]-[47]:

2. [13]

   In Clark v R [2021] NSWCCA 8, the applicant again sought to reopen his conviction appeal on the ground of fraud (see [27]). The judgment does not specify Mr Clark’s argument in relation to fraud. But their Honours (Payne JA, Johnson and Wilson JJ) set out in a most succinct but pertinent manner the history of Mr Clark’s attempts to reopen his unsuccessful conviction appeal including by way of special leave applications in the High Court. Of Mr Clark’s attempt to raise his fraud case under r 36.15 Uniform Civil Procedure Rules 2005 (NSW) as that rule applies to criminal appeals, the Court said (at [28]):

3. [14]

   Taking up their Honours reference to the judgment of Kirby P (as his Honour then was) in Wentworth v Rogers (No 5) (1986) 6 NSWLR 534 at 539, assuming that principle to be applicable to criminal proceedings, it is worth setting it out in full:

4. [15]

   I interpolate that the present claim is not based upon newly discovered facts. Mr Clark has always asserted that SB did not reside with him, nor did he have any authority over him in 2003. He has always relied upon the circumstance that SB was not in Year 9 until 2004. These facts are not newly discovered. More significantly perhaps, other than Mr Clark’s assertion that “it must be so”, there is no suggestion of the availability of any admissible evidence that the prosecution or any individual lawyer involved in the prosecution took advantage of any perjury on the part of any witness such that it could be shown that the prosecution “was responsible for the fraud in such a way as to render it inequitable that conviction should stand”. There is absolutely no material from which it could be inferred that if this claim was permitted to go to trial in the ordinary way, evidence of actual fraud on the part of anyone responsible for the prosecution is likely to be available. I repeat that Mr Clark’s case does not rise above mere assertion.

5. [16]

   I should also say that in Clark v R [2015] NSWCCA 265, the question of the evidence supporting when SB came to live with the applicant was a central issue. The Court, Beazley P, Hall and Button JJ, pointed out (at [40]) that the applicant had misconceived or misapprehended the Crown case against him on count 12. It was not an element of the offence that SB “had been placed into [Mr Clark’s] care by DOCS”. Rather the Crown case was that SB had resided with Mr Clark at an earlier period in 2013, notwithstanding Mr Clark’s denials that he had resided with him before 2004. Their Honours pointed out that the case at hand was the fourth time Mr Clark had sought to relitigate that issue. There Honour’s said (at [39]-[43]):

6. [17]

   Mine is not an exhaustive review of all of Mr Clark’s attempts to challenge his conviction on count 12 whether on the basis of fraud in its various iterations or otherwise. It is sufficient, however, to amply demonstrate that it has been repeated propounded and consistently rejected. However, Mr Clark seeks to formulate his attack by reference to various legal categories, the fact remains that the Court of Criminal Appeal has steadfastly held that it was open to the jury on the evidence lead at trial to convict Mr Clark of count 12 as pleaded.

Grierson v The King

1. [18]

   As I have said, the underpinning of the reasoning of the Full Court of the Supreme Court of the Northern Territory in Mosely was based upon the analysis of Dixon J in Grierson v The King. Central to Dixon J’s reasoning was the statement (p 435) that the jurisdiction of the Court of Criminal Appeal “is statutory, and the Court has no further authority to set aside the conviction upon indictment than the statute confers”. In emphasising the finality of the Court of Criminal Appeal’s determination of an appeal, his Honour stated (p 436):

2. [19]

   It was in the context of that reference to civil proceedings that Dixon J went on to discuss the power of a court of Chancery to reopen or set aside a judgment obtained by fraud even after the introduction of the Judicature system and the institution of a court of appeal of general jurisdiction. His Honour said that the Chancery jurisdiction “is an independent proceeding equitable in origin and nature”. As I read his Honour’s statement it is no more than an obiter dictum exposition of an available civil procedure for setting aside a civil judgment. As his Honour said, such analogies do not derogate from the finality of an appeal to the Court of Criminal Appeal. One might add, they do not derogate from the Court of Criminal Appeal’s power to quash a conviction obtained by fraud.

3. [20]

   I appreciate that I am presumptively bound by a considered decision of an interstate court of appeal or full court where there is no contrary decision of the Court of Appeal binding on me. However, in this regard there is at least contrary obiter from one judge in the Queensland Court of Appeal in the matter of R v Stanley [2015] 1 Qd R118; [2014] QCA160; (2014) 241 A Crim R 73 (“Stanley”). While Fraser JA and Mullins J (as the President then was) found it appropriate to reserve their position on the correctness of Mosley, I accept the correctness of the Attorney General’s analysis of the judgment of Morrison JA. This is as follows:

4. [21]

   So far as point (c) in this analysis is concerned, there are, of course, very detailed provisions contained within Part 7 Crimes (Appeal and Review) Act for reconsidering a conviction the subject of a final determination by the Court of Criminal Appeal extending to a ground of fraud, including, but not limited to, s 78, which procedure Mr Clark has availed himself of on several occasions. I am of the view that given that statutory framework, the considered dicta of Morrison JA in Stanley is more apposite to the statutory regime concerning criminal appeals in New South Wales than the decision in Mosley. I am of the view that the Supreme Court, as opposed to the Court of Criminal Appeal, has no power to set aside a conviction entered by the verdict of a jury, or for that matter its confirmation on appeal to the Court of Criminal Appeal under s 6 Criminal Appeal Act 1922 (NSW), by way of any fraud exception.

5. [22]

   SZFDE is authority for the completely unsurprising proposition that fraud is a ground of judicial review of the decisions of inferior courts and tribunals. The jurisdiction may extend to at least summary criminal cases where no further right of appeal lies to a higher court. In my judgment that principle does not avail Mr Clark.

Conclusion

1. [23]

   For these reasons and bearing in mind the large number of occasions on which Mr Clark has sought to argue his case of fraud in the Court of Criminal Appeal in various iterations, I am satisfied that his current summons is an abuse of process. I will accede to the orders sought by the Attorney General in the amended notice of motion filed in court on 2 November 2022.

2. [24]

   My orders are:

   1. (1)

      Prayer 3 of the plaintiff’s further amended summons filed 13 September 2022 be dismissed pursuant to r 13.4 Uniform Civil Procedure Rules 2005 (NSW).

   2. (2)

      Prayer 4 of the plaintiff’s further amended summons filed 13 September 2022 be dismissed pursuant to r 13.4 Uniform Civil Procedure Rules 2005 (NSW).

   3. (3)

      Proceedings otherwise dismissed.

   4. (4)

      Liberty to apply in respect of costs.