Clark v Attorney General for New South Wales

JUDGMENT

1. WHITE JA: I propose to deliver my own reasons on Mr Clark's application that I recuse myself or am disqualified from hearing his application.
2. His application is for judicial review of a decision of Sweeney J of 27 April 2023, see: Applications by Peter Frederick Clark under Part 7 Crimes (Appeal and Review) Act 2001 [2023] NSWSC 445. In delivering my reasons separately, I am acting in accordance with the reasons given by Gordon J at [94]-[105], Edelman J, at [131]-[133]; and Steward J, at [193], in QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 15; (2023) 97 ALJR 419. Sweeney J refused Mr Clark's application made under s 78 of the Crimes (Appeal and Review) Act 2001 (NSW) for an inquiry into his conviction in 2009 on a count of having had sexual intercourse with a person, who is called SB, under the age of 16 years in circumstances of aggravation: namely, that SB was under the applicant's authority. This was count 12 of an indictment that Mr Clark faced in 2009.
3. The reasons that Mr Clark submits that I am disqualified from sitting as a member of this Court to consider his application for judicial review of Sweeney J's decision is that for me to do so would involve a contravention of s 110(1) of the Supreme Court Act 1970 (NSW) which provides, in substance, that "a Judge of Appeal…shall not sit on the hearing of an appeal from a judgment given or an order made by himself or herself." He also submits that, by reason of my earlier involvement in a similar application, either I will not bring an impartial mind to bear on his application or that a fair-minded lay observer might apprehend that I might not do so.
4. My earlier involvement arose from an earlier application that Mr Clark brought for judicial review of a decision given by Cavanagh J on a similar application that had been brought by Mr Clark for an inquiry into his conviction on counts which included count 12. Cavanagh J acted pursuant to subs (2) of s 79 of the Act and found that he did not entertain a doubt or question as to Mr Clark's guilt or as to the evidence in the case: see Application by Peter Frederick Clark pursuant to s 78 of the Crimes (Appeal and Review) Act 2001 (NSW) [2021] NSWSC 1364.
5. The application for judicial review of that decision came before this Court constituted by Macfarlan JA, Mitchelmore JA and me in 2022. We gave two judgments. In the first, I concluded that Cavanagh J did not make any error of law on the face of the record, nor commit jurisdictional error in concluding as his Honour did. Macfarlan and Mitchelmore JJA agreed with my reasons and with my proposed order that his Summons be dismissed with costs: see Clark v Attorney General for New South Wales [2022] NSWCA 231. Mr Clark's application for special leave to appeal to the High Court from this decision was dismissed by Edelman and Gleeson JJ on 9 March 2023. Their Honours observed that Mr Clark had not identified any reason to doubt the correctness of our decision (Clark v Attorney General of New South Wales & Anor [2023] HCASL 21).
6. On 3 February 2023, the Court, again constituted by Macfarlan JA, Mitchelmore JA and me, dismissed Mr Clark's application that we set aside our earlier order dismissing his Summons. In doing so, we rejected Mr Clark's contention that the Court as being constituted should not hear his application. In relation to the allegation of apprehended bias, we said (Clark v Attorney General for New South Wales (No 2) [2023] NSWCA 3): "[9] Although a claim of apprehended bias was not specifically raised, because Mr Clark is a self-represented litigant, we will assume that he would also contend that the Court as presently constituted should disqualify itself from dealing with his notice of motion on the ground of apprehended bias. On that issue, the question would be whether a fair-minded lay observer might reasonably apprehend that the judges might not bring impartial minds to the resolution of the question we are required to decide: (Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 at [6]). [10] That requires an identification of what it is said might lead the judges to decide a case other than on its legal and factual merits and the logical connection between that matter and the feared deviation from the course of deciding the case on its merits (Ebner v Official Trustee in Bankruptcy at [8]). [11] A fair-minded lay observer may be taken to know that a judge, both by training and by reason of his or her judicial oath or affirmation, can be expected dispassionately to consider the merits of any application under r 36.16(3A) to set aside or vary an order previously made if the applicant can demonstrate, in accordance with the principles referred to above at [2], that the decision was erroneous. We do not accept that a fair minded lay observer might apprehend that we might not bring impartial minds to Mr Clark's application because he asserts error in our previous decision."
7. In the decision under review, Sweeney J has referred to many judgments of the Court of Criminal Appeal, to decisions of single judges of the Common Law Division, and to judgments of this Court, which all concern, in one way or another, Mr Clark's challenges to his conviction on count 12, or which seek an inquiry into that conviction. Sweeney J dealt with a ground of challenge that there had been an abuse of process by the Crown in the laying of count 12 because, so Mr Clark contended before her Honour, an earlier charge to substantially the same effect had been withdrawn or no billed in the Local Court in August 2007. He apparently contended that the laying of count 12 was contrary to an agreement with the Crown: see [18] of her Honour's reasons.
8. Her Honour rejected that ground and concluded: "[25] I am not satisfied there is any doubt or question about that procedural step in the applicant's trial. Therefore I am not satisfied that this matter raises a doubt or question about the applicant's guilt on Count 12. To the extent that it is not clear whether this particular issue has been dealt with in any of the applicant's previous applications or proceedings in this Court I would dismiss the application. [26] Otherwise, the matters raised by the applicant in respect of his conviction of the offence in Count 12 have previously been dealt with under this Part and in his appeal against his conviction. I am not satisfied there are special facts or special circumstances that justify the taking of further action, all the matters raised by the applicant having previously been fully considered. Therefore I refuse to consider or otherwise deal with his application in respect of Count 12 in his 2009 trial."
9. In so deciding under [26] her Honour proceeded under subs (3) of s 79 of the Act. So far as I am aware, the challenge based on the no bill argument had not been raised before Cavanagh J. The challenge was not raised in hearing in this Court in 2022. Nor did the application for judicial review of Cavanagh J's decision raise an issue under subs (3) of s 79.
10. The question is whether a fair minded lay observer might reasonably apprehend that I might not bring an impartial mind, that is a mind open to persuasion, to the present application.
11. An unprejudiced mind is not to be treated as a mind that has not already considered the subject matter falling for decision or formed a view upon it or with regard to it (R v Commonwealth Conciliation and Arbitration Commission; Ex parte The Angliss Group (1969) 122 CLR 546 at 554; [1969] HCA 10). Bias by pre-judgement would exist if a decision-maker's state of mind disabled him or her from undertaking, or rendered him or her unwilling to undertake, a proper evaluation of the materials relevant to the decision to be made (Jia v Minister for Immigration and Multicultural Affairs (1998) 84 FCR 87 at 104 per French J, approved in Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at [82]; [2001] HCA 17).
12. As Mason J said in Re JRL; Ex parte CJL (1986) 161 CLR 342 at 352; [1986] HCA 39: "...the ground of disqualification is a reasonable apprehension that the judicial officer will not decide the case impartially or without prejudice, rather than that he will decide the case adversely to one party. There may be many situations in which previous decisions of a judicial officer on issues of fact and law may generate an expectation that he is likely to decide issues in a particular case adversely to one of the parties. But this does not mean either that he will approach the issues in that case otherwise than with an impartial and unprejudiced mind in the sense in which that expression is used in the authorities or that his previous decisions provide an acceptable basis for inferring that there is a reasonable apprehension that he will approach the issues in this way."
13. Section 110(1) of the Supreme Court Act to which Mr Clark has referred is inapplicable. This application is not an appeal from a judgment given by the Court of Appeal.
14. The principal legal issue on this application is different from that which was raised in the 2022 judicial review proceeding in that in this application Mr Clark, substantially, I apprehend, needs to challenge Sweeney J's exercise of her power under subs (3) of s 79. That subsection was not in issue in the 2022 proceeding. Nonetheless, I infer from Mr Clark's written submissions that much of his argument will cover, or attempt to cover, the same materials on which he relied in his challenge to Cavanagh J's decision. His argument may also seek to traverse the reasoning of this Court in Clark v Attorney General of New South Wales [2020] NSWCA 70, which did address s 79(3), although his written submissions do not do that.
15. I would accept that a fair-minded lay observer might well apprehend that if Mr Clark's submissions do not go beyond a repetition of what he has previously submitted, they will meet the same fate as previously. But that is not to say that such an observer might apprehend that that would be because I might not be impartial or might be prejudiced.
16. For these reasons, I refuse the application to recuse myself.

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