Armand-Iskak v Attorney-General of New South Wales

Supreme Court of NSW|2021-11-08|Before: Cavanagh J

Judgment

The applicant, Peter Frederick Clark, applies pursuant to s 78 of the Crimes (Appeal and Review) Act 2001 (NSW) ("Review Act") seeking an inquiry into his conviction on 26 June 2009 in respect of: 1. one count of doing an act with intent to pervert the course of justice contrary to s 319 of the Crimes Act 1900 (NSW) ("Count 6"); and 2. one count of aggravated (under authority) sexual intercourse with a child between 14 to 16, contrary to s 66C(4) of the Crimes Act ("Count 12").

Background of the application

As I will detail, this is the latest in a number of appeals and applications pursued by the applicant following his conviction and sentence in 2009 in respect of 23 counts of sexual offending against children and doing acts with the intent of perverting the course of justice. The offending involved six different male complainants.

The nature of the application

The applicant applies for an inquiry into his conviction pursuant to s 78(1) of the Review Act. Section 79 sets out the options available to the Court on considering the application as follows: 79 Consideration of applications (1) After considering an application under section 78 or on its own motion - (a) the Supreme Court may direct that an inquiry be conducted by a judicial officer into the conviction or sentence, or (b) the Supreme Court may refer the whole case to the Court of Criminal Appeal, to be dealt with as an appeal under the Criminal Appeal Act 1912. (2) Action under subsection (1) may only be taken if it appears 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. (3) The Supreme Court may refuse to consider or otherwise deal with an application. Without limiting the foregoing, the Supreme Court may refuse to consider or otherwise deal with an application if - (a) it appears that the matter - (i) has been fully dealt with in the proceedings giving rise to the conviction or sentence (or in any proceedings on appeal from the conviction or sentence), or (ii) has previously been dealt with under this Part or under the previous review provisions, or (iii) has been the subject of a right of appeal (or a right to apply for leave to appeal) by the convicted person but no such appeal or application has been made, or (iv) has been the subject of appeal proceedings commenced by or on behalf of the convicted person (including proceedings on an application for leave to appeal) where the appeal or application has been withdrawn or the proceedings have been allowed to lapse, and (b) the Supreme Court is not satisfied that there are special facts or special circumstances that justify the taking of further action….
The legislation is remedial legislation designed to overcome injustices that sometimes arise in the course of the administration of criminal justice. The legislation has a beneficial purpose. [15]
An application under s 78 does not involve a judicial proceeding: s 79(4). In determining the application, the Court is exercising an administrative power. [16] The Court is not hearing an appeal against the applicant's conviction.
The Court may either direct that an inquiry be conducted or refer the case to the CCA as set out in s 79(1) if it appears 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.
This view may be formed where the material leads to a sense of unease or disquiet in allowing the conviction to stand. [17] If there is a doubt as to a part of the evidence, it is necessary to also consider whether a doubt about the evidence leads to a doubt about the person's guilt. [18]
Section 79(3) sets out the circumstances (not exhaustively) on which the Court may refuse to consider or otherwise deal with an application. It provides a basis for a form of summary dismissal of the application. [19]
As was observed by the Court on the applicant's appeal following the dismissal of his last review application [20] the purpose of s 79(3) is to ensure that the Court has the power to dispose summarily of applications which might otherwise be described as frivolous, vexatious, misconceived or lacking in substance. Satisfaction of such matters is sufficient to warrant a refusal to refer an application for an inquiry under s 79(1).
The Court may dispose of the application summarily for a number of reasons. For example, if it appears that the matter has been fully dealt with in the proceedings giving rise to the conviction (or any proceedings on appeal from the conviction: s 79(3)(a)(i)) or the Court is not satisfied that there are special facts or special circumstances that justify the taking of further action: s 79(3)(b).
I emphasise that the existence of special facts or special circumstances is not a threshold for satisfaction of the matters referred to in s 79(2). It is merely that, if the Court is not satisfied that there are special facts or circumstances and any of the matters set out in ss 79(3)(a)(i)-(iv) are established, then the Court may deal with the application summarily.
The purpose of s 79(3) is to balance the right of a convicted person to pursue an application under s 78 with the need to ensure that such applications are not merely pursued as a matter of course, as if it were a further step in the appeal process.

The nature of the offending

The applicant was convicted of offences against six males all under the age of 18. I adopt the summary of the offending set out in the first review application decision: 1. in relation to complainant DM: aggravated (under 16) indecent assault (one count); sexual intercourse with a child between the ages of 10 and 16 (one count); attempted sexual intercourse with a child between the ages of 10 and 16 (two counts); and pervert the course of justice (one count); 2. in relation to complainant CB: use of a child over the age of 14 for pornographic purposes (one count); 3. in relation to complainant SB: aggravated (under authority) sexual intercourse with a child between the ages of 14 and 16 years of age (two counts); use child for pornographic purposes (one count); and pervert the course of justice (one count); 4. in relation to complainant DB: sexual intercourse with a child between the ages of 10 and 16 years of age (four counts); and pervert the course of justice (two counts); 5. in relation to complainant MH: aggravated (under 16 years of age) indecent assault (one count); and pervert the course of justice (one count); and 6. In relation to complainant TB: sexual intercourse with a child between the ages of 10 and 14 years (two counts); sexual intercourse with a child between the ages of 14 and 16 years (two counts); and pervert the course of justice (one count).
This application relates to Count 6 which is a conviction in respect of doing an act with an intention to pervert the course of justice contrary to s 319 Crimes Act in respect of the complainant DM and Count 12 which was a conviction in respect of aggravated (under authority) sexual intercourse with a child between 14 to 16 contrary to s 66C(4) Crimes Act in respect of the complainant SB.

The first review application

The first review application under Part 7 was determined by Rothman J. The applicant maintained that the CCA was misled in his conviction appeal because of the flagrant incompetence of his trial counsel. Further, it was submitted that the CCA had failed to properly examine the evidence.
The applicant sought to rely on fresh evidence relating to his conviction, being evidence of a purported alibi, as well as purportedly fresh evidence relating to his conviction in relation to Count 12. The applicant also sought a review of his sentence suggesting that he had not pursued a sentence appeal because it had been overlooked whilst the focus was on the conviction appeal.
His Honour dealt with each of the points raised by the applicant in finding that nothing that was put on the application would cast any doubt on the conclusions of the CCA.
His Honour was satisfied that each of the grounds raised by the applicant had previously been dealt with by the Court and that the applicant had been given an opportunity to raise at the sentence hearing on appeal any mitigating circumstances in relation to the sentence.
His Honour was satisfied that the issues raised by the applicant related to matters that had been fully dealt with in proceedings giving rise to the conviction and on appeal in relation to the conviction and each of the matters had previously been dealt with under Part 7 by the Governor. His Honour then found that there were no special facts or special circumstances to justify the taking of further action and refused to consider or otherwise deal with the application further. The application was thus dismissed.

Grounds for this application

The grounds for this application have altered somewhat between the filing of the original application on 9 July 2020 and the applicant's final submissions.
Indeed, the applicant has filed extensive material in support of his application, seeking to rephrase, amend or add to his application/submissions on a number of occasions.
The submissions relied upon by the applicant include: 1. the application dated 9 July 2020; 2. the applicant's supplementary submissions dated 31 August 2020; 3. the applicant's further supplementary submissions dated 7 September 2020; 4. the applicant's "prequel" submissions dated 14 September 2020; 5. the applicant's further brief submissions dated 28 September 2020; 6. the applicant's response to the respondent's submissions dated 19 October 2020; 7. the applicant's headnote dated 24 October 2020; 8. the applicant's submissions on estoppel dated 19 November 2020; 9. the applicant's supplementary submissions dated 5 February 2021; and 10. the applicant's submissions in reply to the respondent's submissions dated 26 February 2021.
The respondent relies on submissions dated 15 October 2020, 26 November 2020 and 23 February 2021.
Having regard to the correspondence accompanying the applicant's submissions of 5 February 2021, in which he refers to obtaining expert legal advice to assist him in drafting the submissions and the extensive submissions accompanying his letter, it is a little difficult to understand whether the grounds and submissions in support of the application are all now conveniently summarised in the submissions of 5 February 2021 or whether the submissions of 5 February 2021 are truly just additional submissions. If it is the latter, they are somewhat repetitive.
I will have regard to all of the submissions advanced by the applicant although it is not my function to merely repeat and respond to every submission.

Count 6

Count 6 is an intent to pervert the course of justice offence contrary to s 319 of the Crimes Act involving the complainant DM.
Count 6 on the indictment was as follows: "On 1 December 2006 at Port Macquarie in the State of New South Wales, did an act intending to pervert the course of justice, namely, he tendered into evidence at proceedings held at Port Macquarie District Court a tape recording of [DM] making a false statement".
Count 6 was not the subject of any complaint or submission in the first review application.
In 2006 the applicant was charged with three counts relating to an attempt to procure a child over 14 for pornographic purposes. The trial took place in the District Court of Port Macquarie. He was convicted on all three counts. The applicant appealed. The CCA quashed the conviction on the third count. [21]
The Port Macquarie proceedings were the occasion for the offences the subject of the charges laid against the applicant of doing an act with intent to pervert the course of justice being Counts 6, 11, 15 and 22.
The applicant tendered a video in the Port Macquarie proceedings. The video which was Exhibit B at the trial in the Port Macquarie proceedings showed both DM and CB apologising for wrongly gossiping that he had molested them. This video was the subject of both Count 6 and Count 11.
Count 11 related to CB. The applicant was charged with a number of offences involving CB but was found not guilty on all of them, other than Count 7 being use a child over 14 for pornographic purposes.
As far as I can determine having regard to the multitude of documents filed by the applicant, he says that there is doubt or question as to his guilt for these principal reasons: 1. the Crown withheld evidence and misled and misdirected the jury; 2. the guilty verdict on Count 6 was inconsistent with the not guilty verdict on Count 11; 3. the guilty verdict on Count 6 was unsafe and unreasonable; and 4. there has been a miscarriage of justice in that Count 6 and Count 11 relate to the same single event and time and place and, as such are said to breach the rule against double-jeopardy as described in Pearce v The Queen. [22]
I have difficulty understanding the suggestion that evidence relating to Exhibit B has been concealed. The video tape was obtained by the applicant and its content is self-explanatory. Its content was disavowed by DM at trial.
The video was tendered by the applicant in the Port Macquarie proceedings. It was not put into evidence by the Crown and the prosecutor did not mislead the jury about this. Nor did the prosecutor conceal anything about the jury.
Contentions 2 and 3 were considered by the CCA on the conviction appeal at [335]-[348]. As the Court said: "Inconsistency of verdicts is a circumstance in which it may be concluded that the guilty verdict 'should be set aside on the ground that it is unreasonable, or cannot be supported, having regard to the evidence ... or that on any other ground whatsoever there was a miscarriage of justice': Criminal Appeal Act 1912, s 6(1). The appellant bears the burden of establishing inconsistency of verdicts, and 'it is only where inconsistency rises to the point that intervention is necessarily required to prevent a possible injustice that the relevant conviction will be set aside': Dungay v R [2010] NSWCCA 82 at [22]; Still v R [2010] NSWCCA 131 at [58]." [23]
Both counts were concerned with Exhibit B in the Port Macquarie proceedings. However, the applicant could not have been convicted of Count 6 unless the jury was satisfied that DM had made a false statement and could not be convicted on Count 11 unless the jury was satisfied that CB had made a false statement.
The jury found the applicant not guilty on Counts 8 and 9 (relating to CB) and guilty on Counts 1 to 4 (relating to DM). As the Court observed, there is no inconsistency in these findings because it must be that the reason for the different findings on Counts 6 and 11 was the jury's different approach to the individual complainants.
The jury must be taken to have accepted DM's evidence, to the effect that what he said on the video was not true and that he was merely given a piece of paper by the applicant which he read out. There was evidence before the jury which was capable of being accepted. The jury's verdict on Count 6 was plainly open to the jury.
That only leaves the applicant's submissions in respect of the fourth contention (the double-jeopardy/duplicity point).
The applicant's point is that he was the subject of two charges arising out of the same conduct being the tender of the one video which depicted the complainants DM and CB both making statements to the effect that what they had said was just "gossip" emanating from a party and apologising.
He submits that the observations of Kirby J in Walsh v Tattersall [24] are significant: "If, for example, criminal acts occurred within a few minutes of time and in close physical proximity, could they be regarded as components of the one activity, so as to be susceptible to treatment as a single count?" (Citations omitted).
The rule against double-jeopardy prevents a person being prosecuted or convicted for the same offending twice. [25]
The indictment in respect of Count 6 specified that the applicant tendered into evidence in the Port Macquarie proceedings a tape recording of DM making a false statement. The Crown could not have established the offence without establishing that DM was making a false statement on the video.
The indictment in respect of Count 11 specified that CB was making a false statement on the video. It was an essential element of the offence that CB was making a false statement.
It must be that the jury came to different views as to whether the Crown had established each element of the offence specified in Counts 6 and 11.
The applicant's contention appears to be that there was only one act being the act of tendering the video but, in reality, it was the Crown case that the applicant put before the jury two false statements of different persons. The fact that they were on the same video does not offend the rule against double-jeopardy. There was different conduct involving different complainants. The elements of the offences were not identical.
Further, the rule against duplicity has no application because the Crown did not seek to prosecute the applicant in respect of more than one offence under the one count.
The matters raised by the applicant in respect of his conviction under Count 6 have either been considered previously by the CCA or have no merit in that they misstate the legal principles or wrongly misstate what actually occurred at trial. Further, I am not considering an appeal on whether there should have been one or more counts arising out of the Port Macquarie proceedings.
In the circumstances, those matters do not cause me to have a doubt or question as to his guilt or a doubt as to any part of the evidence in relation to Count 6.

Count 12

Although the grounds and submissions are extensive, the applicant's case for review in respect of Count 12 is really that: 1. there were a number of documents available to the Crown which were inconsistent with the Crown case put on Count 12 and which were withheld from the applicant at trial; 2. the conduct of the Crown in pursuing Count 12 and withholding documents represented a breach of the Crown's duty of disclosure and led to a miscarriage of justice; 3. the documents he relies on for the purposes of this application establish that the Department of Community Services ("DOCS") placement was not until 2004; 4. the circumstances of aggravation for the purpose of Count 12 was that the complainant was placed in the care of the applicant by DOCS and was thus under his authority; 5. this was accepted by the CCA when it first considered the matter, that is, on the sentence appeal; 6. on the next occasion that the CCA had occasion to consider the same issue i.e. the conviction appeal, the Court referred to the circumstances of aggravation being that the complainant was living with the applicant and referred to the evidence of the complainant's father in support of that allegation; 7. on each occasion that the CCA had occasion to consider further applications the Court proceeded on the same basis as in the conviction appeal; 8. the Court has erred on each occasion that it did not accept or find that the circumstances of aggravation were the placement of the complainant with the applicant through DOCS; and 9. in any event the CCA was estopped from making different and inconsistent findings. He says that the subsequent decisions are thus a nullity, ultra vires and that they must be set aside.
The applicant contends that the Crown was required to prove beyond a reasonable doubt that the complainant SB was residing with the applicant during the period of the alleged offending because the charge was not merely sexual intercourse with a child between the ages of 14 to 16 but was aggravated sexual intercourse on the basis that the complainant was under his authority at the time.
The applicant submits that: 1. there was evidence available to the Crown during the trial to the effect that the complainant was not living with the applicant during the period of the alleged offending which was withheld from the applicant or not disclosed during the trial; and 2. he now has fresh evidence that the complainant was not living with him during the specified period in 2003.
He has provided a number of documents which are said to represent contemporaneous documents, all of which he submits tend to suggest that the complainant was not living with him during 2003. The applicant points to the opening by the Crown in respect of Count 12 identifying the period when the offending occurred as being when the complainant was 14 and he had gone to live with the applicant. There was reference to some documentation from DOCS. The documents relied upon by the applicant include: 1. a statement from a DOCS case manager who refers to conversations with the applicant in 2004, suggesting that SB had been in the applicant's care for a period of 12 weeks prior to 15 May 2004; 2. a New South Wales Department of Education report to DOCS noting that SB was born in early 1989 which means he would have been 14 in 2003; 3. a further confidential report to DOCS referring to SB's parent or caregiver as his father; 4. an assessment record of DOCS created on 27 November 2003 referring to SB living with his father; 5. a statement of SB dated 4 May 2004 referring to himself as 15 and suggesting that he moved in with his sister on 1 March 2004; 6. a DOCS document dated 10 May 2004 linking the issues with DOCS to May 2004; 7. a letter from the applicant dated 15 May 2004 referring to SB coming into his care 2 weeks earlier; 8. a further letter from the applicant dated 1 July 2004 referring to SB being in his care for a period of 12 weeks; 9. a further letter from the applicant dated 11 July 2004 referring to him assisting SB to move back into his family home; 10. a further report from the Department of Education to DOCS which is a fax dated 26 July 2004 referring to SB leaving home and living with the applicant; and 11. a letter from the applicant dated 6 July 2005.
The applicant also refers to evidence given by a Detective Hatchwell to the effect that the DOCS documents showed when the complainant was in the care of the applicant.
For the purpose of this application, the applicant contrasts that documentary evidence with the evidence of SB and his father. SB's evidence was to the effect that the applicant had offered to allow him to stay at his place in August 2003. The evidence of SB's father was to the effect that SB had lived with the applicant for a period in 2003 but that he moved back in with the father in November 2003.
However, the applicant says that the father's evidence must be incorrect or that he was just trying to support SB.
The applicant then submits that there is inconsistency in the findings of the CCA in its sentence judgment and subsequent judgments.
In the sentence appeal judgment [26] Hoeben J said at [12]: "…This was particularly true in relation to SB, who came into the respondent's care with the approval of the Department of Community Services. This gave rise to the circumstances of aggravation in the count 12 and 13 offences being committed while under the authority of the respondent."
In the conviction appeal CCA judgment [27] the offending the subject of Count 12 was described at [39] as follows: "The first offence involving SB was about a week after SB moved into the appellant's house. It was charged as an offence in the period 1 August 2003 - 31 November 2003, but the appellant contended that SB did not come to live at his house until May 2004..."
The Court summarised the offending the subject of Count 12 as follows at [200]: "The offence the subject of count 12 was alleged to have been committed in the latter part of 2003 when SB was living with the appellant; the living with the appellant was the basis for the element in the count that SB was under the appellant's authority. The appellant contended that SB came to live with him in May 2004. As best we understand it, the complaint was that the trial judge did not direct the jury that SB could not have come to live with him when 12 years old and in year 9, as he had said in his evidence in chief, and so the offence (which the appellant denied) could not have been committed in 2003 when SB was living with him."
The Court dealt with the point about SB not living with him in 2003 as follows at [201]-[202]: "The offences under counts 12 and 13 contained as an element sexual intercourse with someone under 16 years but, as the Crown Prosecutor emphasised in her closing address, the circumstance of aggravation in relation to those two counts was that SB was under authority at the time. A person in authority who breaches the trust relationship aggravates the offence. SB initially had said he thought the offence the subject of count 12 was in October 2004 but in evidence said that he thought he was 12 years old and in year 9. SB's father gave evidence that SB initially moved in with the appellant in August 2003 for a short period, then moved back home, and then moved back in with the appellant in 2004. The Crown submission was that SB's initial reference to October 2004 should be taken as having been an intended reference to October 2003. No misdirection was identified, and it was for the jury to be satisfied as to the facts. We do not consider there is any substance in the complaint."
The point emphasised by the applicant is that on the sentence appeal, the Court (per Hoeben J) referred to SB coming into the applicant's care with the approval of DOCS. Yet, subsequently, the Court has not made reference to the connection between coming into the applicant's care through a DOCS placement (rather than just being in the applicant's care in 2003 for a period as suggested by the complainant's father).
The applicant submits that the "findings" of the CCA on the conviction appeal and in all subsequent judgments are barred by res judicata and estoppel by record. He submits that the Court has contradicted itself.
Further, the applicant submits that this provides the basis for the contention that the Crown misled the CCA on the conviction appeal and subsequent Courts by retracting reliance on the DOCS placement. This is said to be an abuse of process, fraud and double-jeopardy. It is also suggested that the later decisions were ultra vires as the Court did not have the power to go behind its previous findings and rulings.
The applicant submits that the CCA was estopped from going behind the earlier finding going to the very same issue. That is, as the conviction appeal was determined on the same evidence as the earlier sentence appeal, the Court in the conviction appeal was estopped from making findings inconsistent with its findings in the sentence appeal.

The respondent's submissions

The respondent submits that the applicant does not identify which of the documents to which he refers were withheld by the prosecutor, which he did not have and which should have been provided.
Further, the respondent refers to each of the documents in the applicant's bundle, identifying that the documents: 1. could not have had any bearing on the outcome of the case; and 2. do not support the submissions made by the applicant; and 3. might support the proposition that the complainant was in the applicant's care for a period in 2004 and that he returned to his father's care at some stage in 2004 but do not negate the proposition that he was in the applicant's care for at least some time in 2003.
In particular, the respondent submits that the documents referred to by the applicant would not constitute fresh evidence and, even at the highest on the applicant's case, merely go to the same point which has already been the subject of extensive consideration by the Court.
In particular, the respondent refers to the decision of the CCA in the further r 50C application in 2015 at [38]-[43]: [28] "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: "That between 1 August 2003 and 30 November 2003 at [suburb of city] NSW he did have homosexual intercourse with SB, over 14 years and under 16 years, in circumstances of aggravation, namely SB was in his care through DOCS." (emphasis in original) 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]: '201 … SB initially had said he thought the offence the subject of count 12 was in October 2004 but in evidence said that he thought he was 12 years old and in year 9. SB's father gave evidence that SB initially moved in with the appellant in August 2003 for a short period, then moved back home, and then moved back in with the appellant in 2004. The Crown submission was that SB's initial reference to October 2004 should be taken as having been an intended reference to October 2003. 202 No misdirection was identified, and it was for the jury to be satisfied as to the facts. We do not consider there is any substance in the complaint.' The relevant finding in the first challenged judgment, at [125], was as follows: 'Insofar as Count 12 is concerned, [the applicant] submits that his conviction was erroneous because an essential element, namely that the complainant SB was under his authority in 2003 when he is alleged to have had sexual intercourse with him, was not proved because SB only came under his authority in 2004. The Court of Criminal Appeal specifically considered this issue. In [200] and [201] [of the Norrish DCJ appeal], it referred to the evidence, concisely, that was before the jury on this issue. It concluded that there was no misdirection of law about that evidence, and that the conviction was not unreasonable. We detect no misapprehension of fact or law in the first judgment on these issues. In so doing, we do not accede to the invitation of PFC to undertake this exercise by reference to the further material which he placed before this Court.' 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."

Count 12 - consideration

The point made by the applicant in respect of Count 12 is essentially the same point that he has made on a number of occasions since the trial, albeit expressed in a different way. He says that SB was not placed by DOCS with him until 2004 and as such the conduct the subject of Count 12 could not have occurred in 2003. Further, the circumstance of aggravation could not have occurred because the complainant was not under his authority in 2003. He relies on "fresh evidence" to establish that the complainant was not placed with him by DOCS in 2003.
If the outcome of this application was dependent upon a review of the documents relied on by the applicant and a determination as to when DOCS placed the complainant with the applicant, then the applicant may be on stronger ground. This is because the documents relied on by the applicant tend to suggest that the complainant was placed with the applicant by DOCS in 2004.
However, I am not engaged in a new fact finding process based on allegedly fresh evidence. Even if contrary to the respondent's submissions some of the documents on which the applicant relies are fresh and were not previously available and even if in some way the applicant should have had access to them previously, the facts which are said to be established by these new documents are the same facts on which the applicant has been relying throughout his applications and appeals for many years.
I am not considering an appeal. I am considering whether the matters raised as part of this review cause me to have a doubt as to the applicant's guilt.
The point pursued by the applicant was dealt with comprehensively by the CCA in the applicant's appeal in respect of the further r 50C application. I have already referred to the relevant passages from that judgment. As the Court observed for the purposes of that appeal, the applicant appears to have rewritten the indictment. [29] The applicant takes the same approach to this review.
As the Court said in 2015, there was evidence that SB was living with the applicant at least at some time in 2003. That evidence came from SB's father. The applicant complains on this application that SB's father was not telling the truth but that was a matter for the jury to determine. Rothman J considered a similar point based on different fresh evidence on the first review application.
Further, the applicant's submissions on estoppel and res judicata and other similar points rather confuse the principles to be applied and the different functions of the Court and the parties. The Court as differently constituted from time to time is not estopped from coming to its own view or decision because a judge in an appeal on a different point made an observation to the contrary.
The applicant relies on the description of the offending under Count 12 given by Hoeben J when considering the sentence appeal but his Honour was not considering whether there was error in the conviction of the applicant under Count 12. There is no merit in the applicant's contention that the CCA was bound to adopt the observations of the Court on the sentence appeal when considering the points raised by the applicant on his conviction appeal.
The material relied on by the applicant for the purposes of this application does not cause me to have a doubt or question as to the applicant's guilt under Count 12. Nor does it cause me to have a doubt or question as to the evidence in the case. There was evidence that the complainant was in the care of the applicant at some point in 2003, albeit not through DOCS. The indictment does not specify that the circumstances of aggravation arose through the complainant being placed with the applicant through DOCS. Gaining access to and relying on additional evidence to establish that the complainant was not placed with him until 2004 does not advance the points raised by the applicant on earlier occasions.

Conclusion

The applicant appears to treat this further application for review as another step in the appeal process. Indeed, his final submissions, which he says have been drafted by a legal expert, take the form of an appeal to the High Court.
An application for review is not another step in the appeal process. I am exercising an administrative function.
I may only direct that an inquiry be conducted or refer the whole case to the CCA if it appears 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.
Further, I may refuse to deal with the application on the grounds set out in s 79(3) of the Review Act.
In my view, the issues raised by the applicant in respect of Count 12 have been considered by the CCA on earlier occasions and are, in general terms, the same issues that were raised in the first review application.
There are grounds for dismissing the application in respect of Count 12 summarily.
Having said that, in order to come to that view, it has been necessary to consider the points raised by the applicant in some detail. They do not cause me to have a doubt or question as to his guilt.
Not all of the matters raised by the applicant in respect of Count 6 have been the subject of earlier review or appeal. Those points are in the nature of legal arguments (which are misplaced) as to whether the prosecution should have pursued separate counts against him and whether he should have been convicted having regard to the verdict of not guilty on Count 11.
None of the matters raised by the applicant cause me to have a doubt or question as to his guilt in respect of the offending the subject of Count 6.
Further, none of the matters raised in respect of Counts 6 or 12 could cause there to be any doubt or question about his guilt in respect of all of the other counts.
In the circumstances, the application is dismissed.

Endnotes

PFC v R [2011] NSWCCA 275.
R v PFC [2011] NSWCCA 117.
PFC v R (No. 2) [2014] NSWCCA 241.
Clark v R [2015] NSWCCA 265.
Clark v R [2014] NSWCCA 236.
Clark v R (No 2) [2015] NSWCCA 271.
Peter Frederick Clark v The Queen [2016] HCASL 79.
Clark v Attorney General of NSW [2019] NSWSC 1277.
Clark v Attorney General of NSW [2020] NSWCA 70.
Clark v Attorney General of NSW (No 2) [2020] NSWCA 135.
Clark v R [2021] NSWCCA 8.
Clark v R (No 2) [2021] NSWCCA 48.
Clark v R (No 3) [2021] NSWCCA 64.
Clark v R (No 4) [2021] NSWCCA 67.
Eastman v Director of Public Prosecutions of the Australian Capital Territory (2003) 214 CLR 318; [2003] HCA 28 at [60], [64]-[75] (Heydon J); Kirk Group Holdings Pty Ltd v WorkCover Authority of New South Wales (2006) 66 NSWLR 151; [2006] NSWCA 172 at [11] (Spigelman CJ).
Varley v Attorney-General in and for the State of New South Wales (1987) 8 NSWLR 30 at 48-50 (Hope JA).
Application of Peter James Holland under s.78 Crimes (Appeal and Review) Act 2001 [2008] NSWSC 251 at [6]-[8] (Johnson J).
Holland at [7].
Clark v Attorney General of New South Wales [2020] NSWCA 70 at [5] (per Basten JA, Macfarlan and McCallum JJA agreeing); Armand-Iskak v Attorney-General of New South Wales [2019] NSWCA 145 at [7] (per White JA, Macfarlan JA agreeing)
Clark v Attorney General of New South Wales [2020] NSWCA 70 at [5] (per Basten JA, Macfarlan and McCallum JJA agreeing).
Clark v R (2008) 185 A Crim R 1; [2008] NSWCCA 122.
(1998) 194 CLR 610; [1998] HCA 57.
[2011] NSWCCA 275 at [338]-[339] (Giles JA, Hoeben and Hall JJ).
(1996) 188 CLR 77 at 107; [1996] HCA 26.
Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57.
R v PFC [2011] NSWCCA 117 (Allsop P and Hall J agreeing).
PFC v R [2011] NSWCCA 275 (Giles JA, Hoeben and Hall JJ).
Clark v R [2015] NSWCCA 265 (Beazley P, Hall and Button JJ).
Clark v R [2015] NSWCCA 265 at [39] (Beazley P, Hall and Button JJ). DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 10 November 2021

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