Clark v Attorney General for New South Wales

Count 12

In his decision of 24 September 2019, Rothman J said (at [87]), no doubt correctly in the circumstances of this case, that if SB did not live with Mr Clark between 1 August 2003 and 30 November 2003, then the allegations in relation to count 12 could not be proved.
Mr Clark pointed to evidence that he said established beyond doubt that SB was not living with him during that period. This included evidence given by SB at trial, a statement made by SB's father before trial, and documents which he said he only obtained after his application to Rothman J had been dismissed.
At the trial SB gave evidence in chief that he first met Mr Clark when he was in Year 9 and that was in 2003. He said that he was then about 12. The Crown Prosecutor repeated the question saying: "Q: I don't want to suggest an answer to you, do you remember how old you were in Year 9 at […School]? A: Yeah, 12."
SB said he had a conversation with Mr Clark about his situation at home and that Mr Clark said that "We'll go to DOCS and organise you to come into my care". He was asked for how long he had known Mr Clark by the time of that conversation and said "Not very long I don't think; a couple of months I think". Records obtained from DOCS record that Mr Clark assumed care of SB on 4 May 2004. It is not now disputed (if it ever was) that SB was in Year 9 in 2004 and that in 2003, when the offence charged by count 12 was said to have been committed, he was in Year 8. This is confirmed by documents produced by the Department of Education, which Mr Clark said he was only able to obtain after the hearing before Rothman J.
Mr Clark raises two issues. First, whether the charged aggravating circumstance of SB being under his authority was based on his having the approval of DOCS to be responsible for SB's care and secondly, whether SB was living with him during the period of August to November 2003.
In her opening address to the jury, the Crown Prosecutor said: "Now what the Crown has to establish beyond reasonable doubt to prove that aggravated element is that SB was under the accused's care or supervision, and I anticipate that you will hear evidence that SB had gone by arrangement to live with the accused and there were only two of them living together when he was 14 and there is some documentation from DOCS and the Public Trustee, and the evidence of SB's father all going to that element."
In May 2004 SB was 15. He was 14 in the period from 1 August to 30 November 2003.
These were not the only relevant circumstances in evidence. In her closing submissions, the Crown Prosecutor said: "…there was a circumstance of aggravation in relation to these two counts, counts 12 and 13, and what that circumstance is, is that SB was under the authority of Mr Clark at that time, which means that Mr Clark was[, the] word "guardian" has been used or carer. He was living with him."
The Crown Prosecutor then went on to address conflicting evidence as to when SB first lived with Mr Clark.
In his summing up to the jury, the trial judge said: "[The Crown] must prove that SB was under the accused's care, supervision and authority at the time of the commission of the offence and the prosecution relies upon the evidence of the complainant that he was living with the accused and that the accused was caring for [him] under the auspices of the Department of Community Services, administering his finances and the like."
Here the trial judge identified two grounds on which the Crown asserted that SB was under Mr Clark's authority, namely, the fact that he, as a minor, was living with Mr Clark and secondly that he had been given responsibility for the care of SB by DOCS and had authority to administer his finances.
In his sentencing remarks, the trial judge said that the circumstances of aggravation arose from SB coming into Mr Clark's care with the approval of DOCS. As noted above, this was repeated by Hoeben J in the Crown appeal against sentence (REGINA v PFC at [12]). But as also noted above the issue was before the Court of Criminal Appeal on three occasions between 2011 and 2015, where the fact that DOCS' approval to Mr Clark's assuming responsibility for SB's care was not given until May 2004 was evidently accepted.
Returning to SB's evidence as to when he first lived with Mr Clark, SB was asked about the conversation referred to at [32] and gave the following further evidence: "Q. Do you remember when it was that you had that conversation with him? A. October l think. Q. What year are you talking about? A. 2004 l think. Q. I just want to clarify this. You said that you first met him when you were in year 9 at … School? A. Yeah."
SB was reminded that he had given evidence that he first met Mr Clark when he was in Year 9 and confirmed that that was the year he was talking about.
SB's father gave evidence that SB went to live with Mr Clark in August 2003 and said that that was when SB was in Year 9. He then repeated that SB moved out of the family home in August 2003.
In his submissions before the Cavanagh J, Mr Clark contended that SB's father's evidence at trial was tainted because he was repeating what he had said in a statement he had made to the police which repeated the date from a statement given by SB to the police (which SB's father had been given by the police). SB's father was not cross examined on this evidence. That is one of Mr Clark's complaints. He submits, as he submitted before the Court of Criminal Appeal, that his defence was conducted incompetently by his counsel.
SB's father's evidence was clarified by the trial judge in the following questions and answers: "Q: You say he moved to live with Mr Clark in August 2003, is that correct? A: That's correct. Q: And you said he was there a short period and he returned to your home? A: That's correct. Q: Could you tell us when he returned? A: November 2003. Q: And then he stayed another short period at your place? A: That's correct, your Honour. Q: And when did he move out again? A: Early 2004. Q: I see, and how long did he stay away from your home then? A: I'm not sure on recollection. CROWN PROSECUTOR Q: Did he return to live with you again? A: I'm sure he did."
In the Crown Prosecutor's closing address, she stated: "SB's evidence was that, first as to dates, that this was in year 9, he initially said that he thought it was October 2004, but then he talked about moving out and moving back in the following year in April of 2004. So what the Crown says, it is a matter for you, members of the jury, you are the finders of the fact, that when he said October '04 he meant October '03 and that is because of the evidence he gave afterwards. Importantly I can indicate this: His father gave evidence as to these dates. SB senior, it was his recollection that SB first went to live with Clark in August '03 when he was in year 9 but he only lived with him for a short time and then came home in about November. The dates of that count are between 1 August and 30 November 2003. The Crown says that's consistent with that evidence."
This issue was ventilated in Mr Clark's appeal against conviction in 2011 (PFC v R). There, the Court stated: "[200] … 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. [201] 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. [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 issue was raised again in 2014 on the first application made pursuant to r 50C of the Criminal Appeal Rules to vary or set aside the orders of the Court of Criminal Appeal of 15 December 2011 (PFC v R (No.2) [2014] NSWCCA 241 at [84]-[88], [125]) and on the second application under r 50C in 2015 (Clark v R at [43]-[46]).
It was not an element of the offence charged under count 12 that SB was in Year 9 at the time the offence was said to have been committed. But both SB and SB's father, by referring to SB's having been in Year 9 at the time he went to live (or first went to live) with Mr Clark may have anchored their memory on dates with their recollection of what year he was in at school at that time. Mr Clark complains that neither was cross-examined on when SB was in Year 9.
Grounds of review numbered two to four were as follows: "Two: In dismissing the application summarily under s 79(3) Cavanagh J made a House error, he 'mistook the facts' in that the fresh evidence was absolute it went fair and above 'a doubt or question' proving beyond doubt that the Count 12 conviction was unsafe calling into question the other guilty verdicts. Three: Cavanagh J made a jurisdictional error because substantial arguments were not addressed according to law the authority cited in Buttrose v Attorney General of New South Wales [2015] NSWCA 221 at [25] and in PFC v R (No. 2) [2014] NSWCCA 241 at [32]. Four: By proceeding, on misapprehensions of fact, and law, which were material Cavanagh J erred."
This is not an appeal from the orders of Cavanagh J, let alone from the earlier orders of the Courts of Criminal Appeal. A challenge on the ground of manifest unreasonableness amounting to jurisdictional error is not to be equated with a merits review. In Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18, Hayne, Kiefel and Bell JJ referred to a decision-maker being unreasonable in a legal sense where, by reference to the scope and purpose of the statute under which the decision was made, he or she has failed to give adequate weight to a factor of great importance, or given excessive weight to a factor of no importance, or reasoned illogically or irrationally (at [72]). French CJ said (at [30]) that the requirement of reasonableness is not a vehicle for challenging a decision on the basis that the decision-maker has given insufficient or excessive consideration to some matters or made an evaluative judgment with which the court disagrees but was rationally available. Gageler J said: "[109] The conception underlying the stringency of the test as applicable in Australia is captured by the observation made fifty years ago that: 'This Court has in many and diverse connections dealt with discretions which are given by legislation to bodies, sometimes judicial, sometimes administrative, without defining the grounds on which the discretion is to be exercised … We have invariably said that wherever the legislature has given a discretion of that kind you must look at the scope and purpose of the provision and at what is its real object. If it appears that the dominating, actuating reason for the decision is outside the scope of the purpose of the enactment, that vitiates the supposed exercise of the discretion. But within that very general statement of the purpose of the enactment, the real object of the legislature in such cases is to leave scope for the judicial or other officer who is investigating the facts and considering the general purpose of the enactment to give effect to his view of the justice of the case.' [110] The same observation lends force to the suggestion that, for the purpose of applying the test, 'guidance may be found in the close analogy between judicial review of administrative action and appellate review of a judicial discretion'. There is, in particular, a close analogy with the settled principle that an appellate court will review the exercise of a judicial discretion 'if upon the facts it is unreasonable or plainly unjust', or if 'failure to give adequate weight to relevant considerations really amounts to a failure to exercise the discretion actually entrusted to the court'. It is therefore fair to say that '[i]f a discretionary power is exercised in a way in which a reasonable repository of the power might exercise it, the exercise of the power is supported by the statute which confers it, whether the discretion is judicial or administrative in nature'." (Citations omitted)
A decision under s 79(1) is discretionary, and s 79(2) must be satisfied before the discretion can be exercised.
Cavanagh J's essential reasons were: "[79] 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. The applicant takes the same approach to this review. [80] 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. … [83] 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."
These reasons are logical and rational. The fact that the same complaints had been made repeatedly on earlier occasions and had been rejected is a rational reason for not entertaining doubt about Mr Clark's conviction. The fact that Mr Clark had obtained documentary confirmation that SB was in Year 8 in 2003, not Year 9, only confirmed what he already knew and which could have been and evidently was advanced to the Court of Criminal Appeal on his appeal against conviction and his applications to reopen that appeal. Cavanagh J characterised the fresh evidence on which Mr Clark relied as additional evidence. That evidence did not displace the facts that whether SB was in Year 8 or Year 9 in 2003 was not an element of count 12, that there was some evidence to support the jury's finding, and that Mr Clark's complaint about SB's evidence and SB's father's evidence had been considered and rejected on earlier occasions.
For these reasons neither ground 2 nor 4 of the grounds of review is established. Nor did Mr Clark establish any substantial and clearly articulated submission that the judge did not address (ground 3).
On the hearing of the summons for judicial review Mr Clark asked that this Court require SB to attend for questioning. No such order was made, or could properly have been made. His request was the result of an apparent misconception of the application to this Court. Whether the judge made an error that was amenable to judicial review depended on the materials before him. No evidence SB could have given to this Court could have been relevant to that question.
None of the grounds of review is established. I propose that the summons be dismissed with costs.
MITCHELMORE JA: I agree with White JA.

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