Clark v Attorney General for New South Wales

JUDGMENT

1. THE COURT: On 11 November 2022 the court, as presently constituted, dismissed Mr Clark's summons for judicial review of a decision of Cavanagh J dismissing Mr Clark's application under s 78 of the Crimes (Appeal and Review) Act 2001 (NSW) for an inquiry into his conviction on 26 June 2009 of two offences (Clark v Attorney General for New South Wales [2022] NSWCA 231).
2. On 14 November 2022 Mr Clark filed a notice of motion seeking to set aside the order that his summons be dismissed with costs. Because his notice of motion was filed within 14 days of the entry of that order, the court has power under r 36.16(3A) of the Uniform Civil Procedure Rules 2005 (NSW) to set aside its earlier order, if appropriate. The court has the same power to review, correct or alter its order as if the order had not been entered. But the power must be exercised with caution and having regard to the public interest in the finality of judgments. In Autodesk Inc v Dyason (No.2) (1993) 176 CLR 300; [1993] HCA 6, Mason CJ said (at 303): "…it must be emphasized that the jurisdiction is not to be exercised for the purpose of re-agitating arguments already considered by the Court; nor is it to be exercised simply because the party seeking a rehearing has failed to present the argument in all its aspects or as well as it might have been put. What must emerge, in order to enliven the exercise of the jurisdiction, is that the Court has apparently proceeded according to some misapprehension of the facts or the relevant law and that this misapprehension cannot be attributed solely to the neglect or default of the party seeking the rehearing. The purpose of the jurisdiction is not to provide a backdoor method by which unsuccessful litigants can seek to reargue their cases."
3. Mr Clark's notice of motion has been dealt with on the papers. He provided submissions in support of the notice of motion on 14 November 2022 as supplemented by submissions dated 25 November 2022, which were said to be a revised version of submissions dated 22 November 2022.
4. Mr Clark seeks an order that the court, as presently constituted, not hear his notice of motion. In his submissions filed on 14 November 2022 Mr Clark submitted that the court was guilty of deceitful pretences, trickery, sharp practice and fraud to continue with a deception that the evidence adduced at his trial supported count 12 when in fact it did not. As we read Mr Clark's revised submissions of 25 November 2022 that submission is maintained. In paragraph [13] of Mr Clark's revised submissions he submits that "no amount of trickery, or deceitful pretences, or sharp practice, AKA fraud, by the Court or the respondent can impeach or stretch SB's evidence on the face of the record to suit the count 12 time frame…".
5. This submission at least amounts to a claim of actual bias by members of the court. We will assume that Mr Clark also maintains a claim of apprehended bias such that the court as presently constituted should not deal with his notice of motion.
6. A claim that a judge, or all three judges, was or were actuated by actual bias is a grave allegation that should not be made lightly and requires clear and cogent proof (Reid v Commercial Club (Albury) Ltd [2014] NSWCA 98 at [68]). Where actual bias is said to arise by reason of prejudgment the applicant must show by clear and cogent proof that the judge or judges concerned are so committed to a conclusion that their minds are incapable of alteration whatever argument is presented (Minister for Immigration and Multicultural Affairs v Jia Legeng (2017) 205 CLR 507; [2001] HCA 17 at [72], [127], [176]).
7. Mr Clark's allegations of actual bias are not limited to a claim of actual bias by prejudgment. He submits that the court is seeking to cover up for the then Crown Prosecutor, now a Supreme Court Judge, who prosecuted the charge which had previously been withdrawn but was later enlivened although, according to Mr Clark, the evidence never supported the charge.
8. The propriety of the conduct of the Crown Prosecutor was not an issue on the application for judicial review. Mr Clark points to no evidence to substantiate his charge of actual bias either on the grounds of prejudgment or otherwise, and relies only on the fact that this Court has rejected his claim. Each member of the court rejects the allegation that he or she was actually biased.
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.
12. Mr Clark's submissions are largely repetitive of the submissions he made at the hearing. He submitted that the court failed to answer the question: Did the evidence on the face of the record ever support count 12? He submitted that in her closing address the Crown Prosecutor told the jury that at the time of the alleged offence Mr Clark was the guardian of SB who was living with him, which was said to be false. He referred again to SB's evidence given at trial which he said established that he moved in with Mr Clark when he was in Year 9 after he was appointed guardian by DOCS, which only occurred after the period in which the offence was alleged to have occurred. He relied on the evidence which he addressed at the hearing of his summons for judicial review.
13. We did not misapprehend the facts on which Mr Clark relies. Mr Clark again failed to appreciate that the application before this Court was not a further application to seek to appeal from his convictions. It was not an appeal from the earlier decision of Courts of Criminal Appeal that had rejected his claims, nor was it an appeal by rehearing from the decision of Cavanagh J. Mr Clark had to demonstrate that Cavanagh J committed jurisdictional error, or arguably, error of law on the face of the record.
14. In our judgment of 11 November 2022 we considered the issues that Mr Clark had raised but found that the decision of Cavanagh J that he did not have the requisite doubt was not attended by jurisdictional error because his reasoning that the complaints had been made repeatedly on earlier occasions but rejected, was logical and rational. We also found that there was no error of law on the face of the record. The record includes Cavanagh J's reasons but not the submissions made to him.
15. Mr Clark challenges the correctness of these conclusions but his application seeks effectively a reargument of his case. He does not point to some misapprehension of fact or law.
16. Mr Clark relied upon the observations of Gageler J in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 at [110] that were quoted in the reasons of White JA at [51]. As we understand his submission, it is that the decisions of the previous Courts of Criminal Appeal were unreasonable on the facts, were unjust and failed to give adequate weight to relevant considerations. That was not the relevant question. The question was whether Cavanagh J's decision could be so characterised. For the reasons given by White JA, the reasons of Cavanagh J did not infringe that standard.
17. Mr Clark challenged White JA's finding (at [23]) that Cavanagh J correctly rejected his submission that a statement by Hoeben J in REGINA v PFC [2011] NSWCCA 117 at [12] on the Crown's appeal against sentence (that it was SB's coming into his care with the approval of the Department of Community Services that gave rise to the circumstances of aggravation) created an issue estoppel that was binding on the later Courts of Criminal Appeal. He cited Wood v State of New South Wales [2018] NSWSC 1247 at [62]-[63] (Fullerton J). Even if that decision supported his submission, it would not justify a reopening of the court's final orders of 11 November 2022 as it could have been cited at the hearing but was not. In fact Wood v State of New South Wales does not support Mr Clark's submission. Fullerton J was hearing a civil action for malicious prosecution. Her Honour did not decide whether findings of the Court of Criminal Appeal adverse to the State could create an issue estoppel in a subsequent civil action. On the assumption that they might, her Honour found that the findings relied on did not meet the requirement of identity of issues that needed to be decided (at [81]-[133]).
18. For these reasons, Mr Clark's notice of motion filed on 14 November 2022 is dismissed with costs.

Amendments 03 February 2023 - Correction to spelling of Counsel's name on coversheet 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: 03 February 2023