Clark v Attorney General of New South Wales

Supreme Court of NSW|2019-09-24|Before: Rothman J

Solicitors: Self-represented (Applicant) Crown Solicitor's Office (NSW) (Respondent) File Number(s): 2017/312454

Judgment

HIS HONOUR: On or about 10 October 2017, the Applicant, Peter Frederick Clark, filed an Application under s 78 of the Crimes (Appeal and Review) Act 2001 (NSW) (hereinafter "the Act"). During the course of 2018, and the earlier part of 2019, submissions were filed and/or exchanged between the Applicant and the Respondent, the last such submission being filed by the Applicant on 30 July 2019.
The Applicant was found guilty by a jury on 23 counts. The Crown had preferred 29 counts that went to trial. The "29th Count" was the subject of a verdict by direction. As a consequence, the jury found the Applicant guilty of 23 counts and returned a not guilty verdict on 5 or, if one were to include the directed verdict, 6.

The foregoing table is taken from the judgment of the Court of Criminal Appeal in R v PFC [2011] NSWCCA 117, in which the Court of Criminal Appeal dismissed a Crown appeal alleging manifest inadequacy of the sentence imposed. The Applicant filed an appeal against conviction, which for reasons which are currently irrelevant, was delayed in the hearing. Those reasons related to the legal representation of the Applicant and/or lack of it.
The Applicant's appeal was dismissed: PFC v R [2011] NSWCCA 275 (sometimes referred to as the "Conviction Appeal"). The Applicant then sought to reopen the appeal pursuant to r 50C of the Criminal Appeal Rules (NSW), seeking orders setting aside or varying the order of the Court of Criminal Appeal dismissing his appeal against conviction. That application was heard and dismissed: PFC v R (No 2) [2014] NSWCCA 241.
A second application to reopen and set aside the judgment was taken and dismissed: Clark v R [2015] NSWCCA 265. It should be noted that there was a further trial for an offence of one count of perverting the course of justice, which was heard before Freeman DCJ and a jury (the "Freeman Trial"). This offence, which is not directly relevant to the current proceedings, related to the Applicant's failure to comply with a court order for the production of certain evidence.
The Applicant was convicted of this offence by a jury and Freeman DCJ sentenced the Applicant to a non-parole period of 2 years, with a balance of term of 8 months, extending the earliest release date to 6 June 2021.
An appeal, against the conviction and sentence arising from the Freeman Trial, was lodged by the Applicant and heard by the Court of Criminal Appeal, during which the Applicant was self-represented and the appeal was dismissed: Clark v R [2014] NSWCCA 236. A third application under r 50C was set aside as "vexatious": Clark v R (No 2) [2015] NSWCCA 271.
The Applicant filed an application for special leave to appeal to the High Court of Australia from the judgment of the Court of Criminal Appeal in the Conviction Appeal and applications for special leave from the two judgments on applications under r 50C of the Criminal Appeal Rules, each of which was dismissed by the High Court: Peter Frederick Clark v The Queen [2016] HCASL 79.
On 17 May 2016, the Applicant petitioned the Governor of New South Wales under s 76 of the Act (which is in Part 7 of the Act) for a review of his convictions, which application was dismissed.
The Applicant seeks a review of both conviction and sentence. The initial application sought a review of the Court of Criminal Appeal judgment in the Conviction Appeal, which, it was alleged, was misled by trial counsel "to cover his flagrant incompetence" at the trial and that the Court of Criminal Appeal failed properly to examine the evidence.
Further, the Applicant relied upon purportedly fresh evidence relating to conviction on Count 2, being evidence relating to a purported alibi, relating to the complainant DM, which also affects the conviction on Count 1 and also on purportedly fresh evidence relating to his conviction in relation to Count 12 (relating to complainant SB).
Further, the Applicant seeks a review of the sentence, contending that the sentence appeal was not pursued, because of the work that was being performed in relation to the conviction appeal in relation to Count 12. It is noted that the Notice of Appeal, filed by the Applicant, which gave rise to the judgment of the Court of Criminal Appeal in the Conviction Appeal, did not raise grounds of appeal on sentence and nothing in the original application raised errors as to the sentencing process itself.
I reiterate that the Crown appealed against the sentence on the ground of manifest inadequacy in the sentence, and the circumstances giving rise to the sentence were the subject of significant analysis by the Court of Criminal Appeal in the reasons for judgment dismissing the Crown appeal. With that short background, it is necessary to deal, first, with the principles that apply in relation to a review under Pt 7 of the Act and, secondly, with the grounds the Applicant raises in his submissions.

Principles Applicable to a Review

While the application is for an inquiry into both the conviction and sentence and pursued under s 78 of the Act, consideration of the application is dealt with in s 79 of the Act. While the provisions of s 78, as they currently exist, replace provisions of the Crimes Act 1900 (NSW), the provisions of the Act, in this Part, extend to convictions and sentences entered or imposed before the commencement of the amendments.
The Court, as presently constituted, received the application for an inquiry and is required to deal with the application. The Court granted the Applicant leave to file further submissions in support of the application for an inquiry, the last of which, as already recited, was filed in July 2019, while the Court, as presently constituted, was on leave.
Pursuant to the terms of s 79 of the Act, the Court may, if the criterion is established, grant the application and direct that an inquiry be conducted by a judicial officer into the conviction or into the sentence, or, may refer the whole case to the Court of Criminal Appeal to deal with as an appeal under the Criminal Appeal Act 1912 (NSW): see s 79(1) of the Act. However, by operation of s 79(2) of the Act, the foregoing power to direct an inquiry or to refer the case to the Court of Criminal Appeal may only be taken if it appears to the Court, as presently constituted, 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": s 79(2) of the Act.
Further, the Court, as presently constituted, is empowered to refuse to consider, or otherwise deal with, an application in certain circumstances. Those circumstances include that the issues raised have been fully dealt with in the proceedings giving rise to the conviction or on appeal; that the issues have previously been dealt with under the Part or under previous review provision; and, relevantly, where an appeal has been withdrawn, or proceedings have lapsed. The Court is not entitled to act under those relevant criteria, if the Court were satisfied that there were special facts or special circumstances that justify taking further action.
The legislature has made clear that the function of the Court under Pt 7 is not a function that involves judicial proceedings or the exercise of judicial power. The function is an administrative or executive function: s 79(4) of the Act; Kirk Group Holdings Pty Ltd & v Workcover Authority of New South Wales [2006] NSWCA 172; Eastman v Director of Public Prosecutions (ACT) (2003) 214 CLR 318; [2003] HCA 28.
The principles to be applied in determining whether there is "a doubt or question" were the subject of discussion in SKAF, Bilal - Application under Part 7 Crimes (Appeal and Review) Act 2001 [2013] NSWSC 45 and Sinkovich v Attorney General of New South Wales (2013) 85 NSWLR 783; [2013] NSWCA 383.
In Sinkovich, supra, Basten JA (with whom Bathurst CJ, Beazley P and, relevantly, Price and Beech-Jones JJ agreed) said: "[25] The direction of an inquiry or referral of the case to the Court of Criminal Appeal are actions available under s 79(1) which 'may only be taken if' the gateway in sub-s (2) is passed. That is language of confinement: there is no power in the court to take action under s 79(1) unless a specified condition is fulfilled. [26] The action is to be taken by the Supreme Court, which means a judge authorised by the Chief Justice pursuant to s 75(1). Action can be taken only if it 'appears' to the judge that the condition is satisfied. In other words, it is the satisfaction of the judge as to the relevant condition which is critical. (That does not, of course, mean that the judge's decision is for that reason unreviewable, although the grounds and basis of review involve questions which will be addressed below.) [27] The content of the condition as to which the judge must be satisfied is somewhat obscurely worded. The necessary state of mind requires a 'doubt or question' as to (i) the convicted person's guilt, (ii) any mitigating circumstances in the case, or (iii) any part of the evidence in the case. However, neither the syntax nor the nature of the various elements permits any precise identification of the scope of the condition. Thus, a doubt or question as to a person's guilt could involve a doubt or question as to the procedural steps in the trial, admission of evidence, rejection of evidence, weight of the evidence, directions to the jury or any other matter upon which a finding of guilt is dependent. That includes a doubt or question as to the fitness of the accused to plead: Eastman v Director of Public Prosecutions (ACT) [2003] HCA 28; 214 CLR 318 at [125] (Heydon J, with whom members of the Court other than McHugh J each agreed). [28] The second element, 'any mitigating circumstances', is not of the same kind as 'guilt'. Reading the words in their ordinary meaning, the Crown Advocate submitted that there must be circumstances, that is events or happenings, which mitigated the culpability of the accused. She conceded that such circumstances could include the state of mind of the accused or a relevant mental illness or disability of the accused, which could affect both liability for the offence and moral culpability, as relevant to sentencing for the offence. Dealing only with the question of sentence, the precise operation of the phrase is obscure. The offender would hardly complain of mitigating circumstances which had been taken into account, although no doubt the offender would have grounds for complaint if significant mitigating circumstances were not taken into account and might wish to raise factual matters which were not known to the sentencing judge. [29] It would seem curious if no inquiry could be held where the sentencing judge had, mistakenly, sentenced on the basis of an extensive criminal record which related to another person. Although it might be possible to say that the absence of such a criminal record was a 'mitigating circumstance', that would be an artificial way of describing the error which had occurred. Similarly, the sentencing judge might have sentenced on the basis of a misapprehension as to the maximum penalty for the offence believing, for example, that it was significantly higher than that in fact prescribed. That such mistakes occur is undoubted: if the error were to be disclosed only after an appeal had been dismissed, it would seem curious that the offender could have no right of relief. The section does not limit the relationship of the doubt or question to its subject matter, and must allow for a range of connections. [30] As already noted, the three elements in s 79(2) are not self-contained. In Eastman, Heydon J noted that reference to a doubt or question about 'any portion of the evidence' gave a significant clue as to the breadth of the inquiry with respect to guilt, suggesting that the process of finding guilt was covered: at [135]. One of the points of significance raised by the Director in Eastman was that the equivalent provision discussed in that case referred, as does s 79(2), to 'guilt' rather than 'conviction'. Section 79(2) does not refer to sentence at all, although it is beyond doubt that there may be an inquiry into a sentence, because that term is expressly used in s 78(1). The looseness of the fit of the language as between ss 78(1) and 79(2) militates against reliance on the precise terms of s 79(2) to impose restrictions on the scope of the matters which an Applicant may seek to raise in applying for an inquiry. [31] Further, the submission of the Crown Advocate that s 74(2) has no direct application to s 79(2) cannot be accepted. Although the word 'inquiry' does not appear in the latter provision, the reference to '[a]ction under subsection (1)' refers, relevantly, to a direction that 'an inquiry be conducted ... into the ... sentence'. That is the precise phrase which is said by s 74(2) to extend to 'any aspect of the proceedings giving rise to the ... sentence'. Whether that constitutes a 'definition' (as described in the heading of the section, which is not part of the section - Interpretation Act 1987 (NSW), s 35) is immaterial: if s 74(2) is to be given effect according to its terms, it must be possible for the Supreme Court to direct an inquiry into any aspect of the proceedings giving rise to the sentence. In accordance with Eastman, that would include a procedural error. Any procedural error which possibly gave rise to a more severe sentence than should properly have been imposed, may found a doubt or question as to a mitigating circumstance; that is, the failure to sentence the prisoner on a basis which would have led to a less severe sentence than that imposed. [32] If that reasoning is correct, there is no basis in the language to exclude errors of law: indeed, it will often be easier to identify a miscarriage of justice which has resulted from an error of law than one resulting from a mistake as to some matter of fact."
It seems to me, that an arguable error of law or doubt as to any factual conclusion is sufficient to warrant referral for an inquiry. I will act on that basis, applying the foregoing principles.
The difficulty with the discretion to refuse to consider or otherwise deal with the application is that, on one view at least, to determine whether special facts or circumstances justify taking further action, the Court would need to consider all of the issues raised by the Applicant. Notwithstanding the existence of the discretion, the Court has examined all of the material on which the Applicant is relying. The foregoing approach may, on another view, be unnecessary, but, without deciding that issue, I have adopted that approach.

Special Facts or Circumstances

As earlier stated, even where the discretion to refuse to consider or deal with an application is activated, the Court is not entitled to exercise that discretion if satisfied that there were "special facts or special circumstances" justifying the taking of further action. In the Applicant's submissions of 17 June 2019 and 21 December 2018, the Applicant relies upon the proposition that special facts or circumstances arise as a consequence of receiving "expert advice" from a former inmate, which was, hitherto, unavailable and this amounts to a special circumstance. It is necessary to deal with the appropriate definition of special fact or circumstance.
The Court, as presently constituted, acting in a judicial capacity, had occasion to deal with the meaning of the term "special" in the context of the Bail Act 1978 (NSW), and in particular, s 9D thereof, in the reasons for judgment for the Bail application, in R v Daron John Wright (Supreme Court (NSW), Rothman J, 7 June 2005, unreported). During the course of the reasons for judgment, the Court said: "'Special' is defined by the Macquarie Dictionary as 'relating or peculiar to a particular person, thing, instance; having a particular function, purpose, of a distinct or particular character; being a particular one; extraordinary or exceptional'. Thus the distinction between 'special and extraordinary' and 'extraordinary' may be more illusory than substantial. [23] The Macquarie Dictionary defines the word 'exceptional' as: '1. forming an exception or unusual instance; unusual; extraordinary. 2. exceptionally good, as of a performance or product. 3. exceptionally skilled, talented or clever.' [24] The Oxford English Dictionary defines the word 'exceptional' as: 'Of the nature of or forming an exception; out of the ordinary course; unusual, special.' [25] Thus it would seem that if a Court or authorised officer is satisfied that one or more factors either singularly or combined produced a circumstance or situation out of the ordinary or unusual the mandatory requirement otherwise contained within s 9D(1) of the Act will be satisfied. 'Special' on the other hand, seems to imply a unique situation or one which pertains only to that individual."
The term "special" is often used synonymously with the term "extraordinary", but its connotation often places greater emphasis on that which is special for the individual in question, rather than out of the ordinary class of fact or circumstance to which it applies. It seems to me, in dealing with the prohibition on the exercise of the discretion not to deal with or consider a review, the Court would not be entitled to exercise that discretion if the fact or circumstance upon which the Applicant relied was one that was special or extraordinary to that individual. In that way, the facts or circumstances justifying the taking of further action would be "special".
On the other hand, the fact, assuming it be the fact, that advice was received from a particular individual, which advice was hitherto unavailable, does not, of itself, constitute "special facts" or "special circumstances". It is the argument or fact or circumstance upon which the Applicant relies in support of his review that must constitute the special facts or special circumstances.
The circumstance that an individual Applicant has a different argument, or raises different issues, may constitute special facts or special circumstances. The fact that the same argument or issues are raised, but this time on the advice of another, does not and cannot amount to a special fact or special circumstance.
Having made that comment, it can be said that if there was evidence that on a previous review, or on appeal, the judicial officer or Court dealing with the application misunderstood an argument or failed to comprehend sufficiently that which was put in support of the review or appeal, then its better communication, as a result of expert advice of a particular individual, may, depending upon the circumstances, constitute special facts or special circumstances. There is no suggestion in the case of the Applicant that any previous judicial officer (including for this purpose the Governor) or Court exercising judicial power misunderstood or failed adequately to comprehend the matters that were sought to be relied upon by the Applicant in that review or on that appeal.

Chronology of Hearing of Appeal/Review

It is necessary to set out the applications for review and appeals that have been agitated by the Applicant. The trial for the initial charges occurred over 35 days from 11 May 2009 until 6 June 2009, before Norrish QC DCJ. His Honour is and was an extremely experienced criminal lawyer and criminal judge.
On 26 June 2009, the jury returned guilty verdicts on 23 counts out of 29 charges. Prior to 26 June 2009, namely, on 25 May 2009, the jury returned a verdict of not guilty by direction in relation to Count 10. On 22 October 2009, the Applicant filed a Notice of Intention to Appeal, confined, at that time, to an appeal against conviction only.
On 2 December 2009, the Applicant filed the Application Seeking Leave to Appeal and the Notice of Appeal to the Court of Criminal Appeal (hereinafter "CCA"). On 21 December 2009, the Applicant was sentenced and, on 27 January 2010, the Crown lodged a Notice of Appeal against the manifest inadequacy of the sentence.
On 2 February 2010, correspondence from the CCA to the Applicant advised that certain matters need to be addressed before the appeal could be dealt with and/or could be processed.
On 11 February 2010, the Applicant prepared and sought to file an Amended Notice of Appeal, including certain documentation in support. That documentation included two recordings, being video recordings.
On 25 February 2010, the CCA Registrar corresponded with the Applicant to the effect that, because of the voluminous nature of the material, the Registry of the CCA was still determining whether it could be accepted for filing.
On 11 March 2010, the Applicant filed an Amended Notice of Appeal and documents in support of his conviction appeal; and the appeal was listed for hearing on 16 July 2010.
On 23 March 2010, at a directions hearing for the appeal against conviction by the Applicant and the appeal against sentence by the Crown, directions issued which required the Crown to file its appeal submissions by 30 April 2010; the Respondent to file its submissions (including submissions in reply to the Crown submissions on sentence) by 6 July 2010; and a reply by the Crown was due on or before 12 July 2010. Any affidavit on re-sentence was to be filed and served by 2 July 2010.
Issues arose as to the capacity of the Applicant to obtain legal representation. There was a further directions hearing on 8 April 2010 in which it was made clear that legal aid had been granted for both the Crown appeal against sentence and the appeal against conviction. Counsel was instructed, as the CCA was informed, on 6 May 2010.
On 3 June 2010, the Crown put on record that, because the Applicant raised the incompetence of counsel as a ground of appeal, it would require a waiver of legal professional privilege; the provision of sufficient particulars; and the final grounds of appeal. This was required at least four weeks before the hearing, which, at that stage, had been set for 16 July 2010.
On 17 June 2010, the Applicant, or lawyers on his behalf, made an application for the vacation of the hearing date of 16 July 2010. The dates were vacated and new dates were fixed for 13 and 15 September 2010.
On 1 July 2010, there was a further mention of the proceedings; and an expert psychiatric report was obtained from Dr Allnut. Further directions hearings were held and the hearing of the matter further delayed on the application of the Applicant. As at the date of the new hearing dates, the Applicant's submissions had not been finalised. The date for hearing was vacated and new dates were fixed for 6 and 7 December 2010.
There were issues associated with the capacity of the new solicitors to obtain material from the previous solicitor's file, which difficulties were brought to the attention of the CCA on or about 2 December 2010. At a further directions hearing, dealing with case management, the hearing dates in December 2010 were vacated and the hearing of the appeals was listed for 2 May 2011 (bearing in mind the possibility that the appeal, unusually, may take as long as two days). A timetable was fixed.
During December 2010 and early January 2011, correspondence between the Court, the Crown and the Applicant revealed some confusion as to whether the Applicant had filed a Notice of Appeal in relation to sentence and what grounds of appeal were relied upon in relation to the conviction. On 13 January 2011, the Crown applied to vacate the hearing of 2 May 2011.
The Applicant, at the directions hearing on 30 January 2011, confirmed that he waived legal professional privilege regarding his trial lawyers but did not waive privilege relating to the report of Dr Allnut. There were further case management hearings and/or directions hearings. Orders were made by the Court relating to the alleged privilege that the Applicant said applied to the report of Dr Allnut. The Court ordered production.
On 9 May 2011, the CCA heard the Crown appeal relating to manifest inadequacy. Procedural orders were also made. On 25 May 2011, the CCA dismissed the Crown appeal against the inadequacy of the sentence, in the reasons for which it analysed the sentences at some length.
On 31 August 2011, the Applicant was convicted of the offence of perverting the course of justice, after a 14 day trial before a judge and jury, presided over by Freeman DCJ. The alleged perversion of the course of justice was the Applicant's alleged destruction or the failure to make available the original tape and CD recording of the conversation between the Applicant and Senior Constable Cusack.
On 20 September 2011, there was a mention of the Applicant's appeal on conviction and directions issued. The appeal against conviction was heard on 14 and 24 October 2011, during which hearing the Applicant was self-represented.
On 31 October 2011, the Applicant filed an Amended Notice of Appeal against his conviction and sentence in the proceedings for the perversion of the course of justice.
On 15 December 2011, the Applicant's appeal against convictions in the hearing that was conducted by Norrish QC DCJ was dismissed: PFC v R [2011] NSWCCA 275 (the "Conviction Appeal").
The Applicant's submissions on this application for review, once more, complain that the CCA, in dealing with his conviction appeal, did not hear or mention the appeal against sentence (assuming there be one). The foregoing statement in parentheses is necessary because the Applicant's Amended Grounds of Appeal did not set out a ground of appeal against sentence.
On 24 August 2012, the Applicant filed a Further Amended Notice of Appeal against conviction and sentence in relation to the offence of pervert the course of justice. The CCA heard that appeal on 14 July 2014 and, on 30 October 2014, dismissed the appeal: Clark v R [2014] NSWCCA 236.
Further, on 23 October 2014, the CCA heard an application brought under the provisions of r 50C of the Criminal Appeal Rules, to reopen the Applicant's appeal against conviction, in the Conviction Appeal. Also on 30 October 2014, the Applicant's appeal under r 50C (or utilising the provisions thereof) was dismissed.
On 7 November 2014, the Applicant filed an application under the provisions of r 50C of the Criminal Appeal Rules in relation to the appeal against his conviction for the offence of pervert the course of justice and, on 11 November 2014, the Applicant filed a further application, seeking to utilise the provisions of r 50C of the Criminal Appeal Rules, relating to the Conviction Appeal judgment.
Each of these further applications, seeking to utilise the provisions of r 50C of the Criminal Appeal Rules, were heard on 20 July 2015, following which, on 21 July 2015, certain corrections to annexures were made by the Applicant. These applications utilising the provisions of r 50C of the Criminal Appeal Rules, made, respectively, on 7 and 11 November 2014, were dismissed by the CCA on 6 October 2015: Clark v R [2015] NSWCCA 265.
In the meantime, on 27 July 2015, the Applicant filed a Summons seeking leave under the Felons (Civil Proceedings) Act 1981 (NSW) to commence proceedings against the State of New South Wales and the Director of Public Prosecutions and, on 17 August 2015, by Motion on notice, the Applicant sought expedition of the hearing of the aforementioned Summons.
On 13 October 2015, the Applicant made a further application pursuant to r 50C of the Criminal Appeal Rules, to set aside the judgment of 6 October 2015, being the judgment to set aside the applications under r 50C of 7 and 11 November 2014. On 15 October 2015, the Summons for leave to commence under the Felons (Civil Proceedings) Act was dismissed: PFC v State of New South Wales & Anor [2015] NSWSC 1507.
Further, on 16 October 2015, the application, made under or pursuant to r 50C of the Criminal Appeal Rules, to set aside the judgment of 6 October 2015, dismissing the two previous applications pursuant to r 50C of the Criminal Appeal Rules, was dismissed: Clark v R (No 2) [2015] NSWCCA 271.
On 4 March 2016, the Applicant filed a fourth application for special leave to appeal to the High Court, including submitting, as is required under the Rules thereof, a Draft Notice Of Appeal, relating to the convictions in the trial over which Norrish QC DCJ presided. On 5 May 2016, each of those applications for special leave to appeal was dismissed on the papers.
On 11 May 2016, the Applicant's Summons to seek leave to appeal the dismissal of the Summons under the Felons (Civil Proceedings) Act was dismissed: Application of PFC [2016] NSWCA 102.
On 17 May 2016, the Applicant sought a review under Pt 7 of the Act to the Governor of New South Wales. On 6 September 2017, the Applicant's application to the Governor, under Pt 7 of the Act, was dismissed.
On 10 October 2017, the Applicant filed the Pt 7 Application, pursuant to s 78 of the Act, which contained two additional grounds to the application to the Governor that was dismissed on 6 September 2017.
The foregoing does not repeat the chronology of events arising prior to the proceedings before the District Court of New South Wales, referred to in the foregoing as the proceedings over which Norrish QC DCJ presided or giving rise to the Conviction Appeal. That chronology is extensive and deals with some parts of the investigation by the Police, committal proceedings and the events that gave rise to the complaints and ultimate convictions.
That chronology of events was filed in the CCA on 7 October 2011, updated in relation to events from Justice Link, and forms Annexure 2 to the submissions of the Attorney General in relation to the application under s 78 of the Act.
That chronology sets out the events in relation to each count; the complaints and the like. It (or, more accurately, that part of it that was available at the time) was essentially accepted as an accurate depiction of that which it purports to summarise by the CCA in the appeal against conviction to which earlier reference has been made and, having checked the document, I accept it as an accurate summary of the matters described therein and do not consider it appropriate or necessary to repeat each of the entries or a summary of the most relevant entries.
Nevertheless, the chronology of events leading up to the convictions and summarising the allegations, charges and investigation is accurate and accepted by me for the purposes of these reasons. I will deal with the allegations proved, or found proved by the jury, in the trial over which Norrish QC DCJ presided, reciting the summary by the CCA, which, having examined the material, I consider accurate.
After setting out the offences of which the Applicant was convicted at [15], the CCA in PFC v R [2011] NSWCCA 275 (Giles JA, Hoeben J (as he then was) and Hall J) described the offences commencing at [17]. I recite the summary of the CCA from [16], which is in the following terms: "[16] For the 1997 conviction, later quashed, to which we have referred at [14] it was alleged that on 7 June 1997 the appellant took his son B and a friend TR to Sydney, the appellant and TR slept in the back of the appellant's station wagon, and TR woke up to find the appellant touching him in the groin area. The appellant was charged with indecent assault on 11 June 1997. The Crown initially sought to rely on this as tendency evidence, but it was excluded. As earlier indicated, this was relevant to counsel's conduct of the defence. [17] The first offences in time in the present appeal involved DM. DM was born in 1983. [18] The first offence was in August - September 1997, when DM stayed at the appellant's home in company with the appellant's son B and a friend SC. DM and the two others were watching videos. They fell asleep. DM woke to find the appellant touching him on the penis. He was directed into another room, where the appellant masturbated him. DM was scared. The appellant asked if he was going to tell anyone, and he said no. Afterwards the appellant gave DM some cash. This was the subject of count 1. [19] On 27 November 1997 the appellant was convicted in the Local Court at Burwood of indecent assault on TR. Looking ahead for the moment, he appealed to the District Court and on 27 July 1998 the conviction was quashed when the complainant was unwilling to give evidence. [20] The jury was not told of the TR allegations or the TR proceedings. [21] The second offence involving DM was in December 1997. The appellant took DM, in company with his son B and SC, from DM's home in Newcastle for a trip to Sydney, where they went skating and to the markets and played video games. DM and the other boys slept at the house of the appellant's mother in Rozelle. DM woke during the night with the appellant performing oral sex on him. This was the subject of count 2. [22] The third offence involving DM was some months later, in the first months of 1998. DM was taken to a lookout around 20 minutes out of Wingham, where the appellant took photographs of him with a video camera. DM was told to undress and masturbate himself so as to be erect for the photographs. The appellant said he wanted to have sex with DM, and pressed himself against his back and attempted to have intercourse whilst clothed. This was the subject of count 3. [23] The fourth offence involving DM was later again, in March-April 1998. The appellant gave DM a lift to a party at Wingham, to see CB and other friends. He stopped the car in a rest area. DM was told to remove his clothes and the appellant grabbed him on the penis. They then moved to the back seat of the car. The appellant was masturbating DM and "sort of" masturbating himself. The appellant attempted to put his penis in the anus of the complainant. After some time DM returned to the front seat of the car and they drove off. The appellant made DM reassure him that he was not going to tell anyone what had occurred and gave him cash (maybe $100-$150) and bought alcohol for him. This was the subject of count 4. [24] The appellant was charged with a further sexual offence involving DM (count 5), on which he was found not guilty. It was alleged that in March-April 1998 the appellant employed and used DM, a child under the age of 18 years, for pornographic purposes. [25] The next offence in time involved CB. He was born in 1982. [26] The appellant met CB through DM in or around May 1998. He introduced CB to pornography, including child pornography, at his home. The appellant told CB that he could make money by posing in photographs similar to those he had been shown, and that the appellant would take pictures of him and find someone to sell them to and would give CB a percentage of the money made. CB initially told the appellant that he was not interested in the offer. Around one week later CB contacted the appellant and said he was willing to have some photos taken. They met in town and the appellant drove the complainant to a lookout. The appellant told CB there was no guarantee of being paid immediately. The complainant was told to pose and to arouse himself. After the photos were taken CB was given money so that he could buy some cigarettes. This was the subject of count 7. [27] The appellant was charged with other offences involving CB, on which he was found not guilty. Three occasions of sexual assault in April-May 1998 were alleged (counts 8-10 ; count 10 was the subject of the verdict by direction). He was also charged with acting with intent to pervert the course of justice (count 11), see at [57] below. [28] Chronologically, and material to the charge in counts 6 and 11 of perverting the course of justice, on 9 June 1998 the appellant asked DM and CB to make a video for him. The video (Exhibit B) depicts DM and CB speaking to the camera. The trial judge noted that the complainants appeared to be saying memorised lines or reading from pieces of paper. In the video DM said the following - 'DM: CB and I would like to apologise to [ son B] and his dad Mr C. We have been to lots of parties and someone always brings up Mr C and they call him Paedophile P. We add to the gossip by saying that he felt us up and molested us. When we're at these parties everyone tries to outdo each other with bullshit. We are sorry for upsetting [son B] and his dad, they have done a lot and always been there for us to help us, me a lot since I moved out of home. Mr C is a ledge. Today is the 9th June 1998. And do you know what, Mr C is a scammer. Sorry, [son B], man. Hey DB its your turn bro. CB: Really let [son B] and Mr C down. When you're at a party and you don't care what you say as long as someone listens to you, you say bullshit like Mr C molested me and everyone wants to know the details and girls really get sorry for me and start to hug me. I know it was the wrong thing to say these things, wait, I can't read my own writing, but I get so mixed up that I just like attention. Sorry [son B], I hope you and your dad can forgive me. I am in a bit of trouble now and Mr C is helping me. I don't know how bullshit can get out of control. I've heard the school, I heard it at school about me and DM. I'm sorry.' [29] DM gave evidence that the contents of the recorded statement were not true and that in the video he had read from a statement that the appellant had given him. [30] The next offences in time involved DB. He was born in 1987. He first met the appellant through the appellant's nephew JR, who attended the same school. [31] The first offence involving DB was in the second half of 2001. JR and DB went out on the appellant's jet ski on a number of occasions. When they returned from one of their outings, JR and DB went back to the appellant's house and started playing on the computer in the appellant's computer room. The appellant took DB into the lounge room, and had him lie on his stomach while he gave him a massage all over his body. DB was then asked to lie on his back while the appellant massaged his chest and legs and had DB remove his shirt. The appellant started to play with the complainant's penis. DB ran away, but eventually was taken back to the lounge room when the appellant undid DB's pants and placed DB's penis in his mouth. This was the subject of count 16. [32] The second offence involving DB was about a month later. DB went to Sydney with the appellant and JR. They took JR to his stepfather's house, then went to Time Zone and thereafter to McDonalds. The appellant told DB that they should sleep in the car as it was getting late. He parked the car on a small road near bushland and had DB get into the back of the station wagon with him. There was no bedding. The appellant had the complainant face away from him and inserted his penis into DB's anus. Both slept in the car then eventually drove back to Taree with JR. This was the subject of count 17. [33] The third offence involving DB was later in 2001 or in 2002. DB, SB and a number of other boys were staying at the appellant's house. The appellant suggested that DB accompany him to get some pizza. He drove to a lookout near Taree, stopped the car and got into the back of the station wagon with DB, and inserted his penis into DB's anus. They bought pizza and returned to the appellant's home. This was the subject of count 19. [34] The fourth offence took place later in 2002. DB continued to go jet skiing with the appellant. On one occasion after they returned to the appellant's home the appellant watched DB shower, then took him to his bedroom and inserted his penis into DB's anus. This was the subject of count 20. [35] The appellant was charged with a further sexual offence involving DB, count 18, on which he was found not guilty. DB gave evidence of them driving to a motel near Lismore, where they shared a bed and the appellant touched his penis and put the appellant's mouth to it. [36] The next offence in time involved MH. He was born in 1990. He had met the appellant through a friend when he was in year 7. [37] The offence was in the first half of 2003. The appellant had offered to take MH wherever he would like to go around the Taree area. MH called the appellant and asked him for a lift. The appellant picked MH up and told him that he needed to go back to his house to collect something. The appellant took MH into the computer room where he showed him pictures and files of naked boys. MH said he was not interested in the pictures and asked to be taken home. The appellant told MH that he could make a lot of money from selling photos such as the ones he had shown him on the internet and overseas. The appellant then led MH into the shower and told him to wash himself. He took MH out of the shower, took him into the lounge room, told him to lie down on the floor and began to masturbate him. When the appellant had finished he offered to take MH home. MH dressed himself. The appellant told MH not to tell anyone. This was the subject of count 23. [38] The next offences in time involved SB. He was born in 1989. There were problems at home, and SB came to live at the appellant's house and the appellant became his guardian. [39] 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 appellant disturbed SB while he was attempting to go to sleep. He touched SB on the leg. SB pushed him away. The appellant pulled down SB's boxer shorts and kept forcing himself on the complainant (who was lying on his stomach), eventually putting his penis in SB's anus and ejaculating. The appellant told SB not to tell anyone or go to the police. This was the subject of count 12. [40] Chronologically, we next refer to the proceedings between the appellant and the father of TR, whom we will call TR2. On 7 November 2003 the appellant complained to police that TR2 tried to run him over. On 2 December 2003 he commenced a private prosecution against TR2 in the Taree Local Court on a charge of intimidation. [41] During the hearing of that matter on 15 April 2004, DB gave evidence as a witness for the appellant. Count 21 charged that the appellant had done an act with intent to pervert the course of justice, namely, persuade DB to give false evidence in the TR2 proceedings. At a time before the hearing he got DB to sign, without reading them, statements to the effect that he saw a man trying to run the appellant over, whom he knew and would recognise. The appellant called DB as a witness, telling him that he had to abide by the statements or he would be in trouble. DB gave evidence in the present trial that the statements were false. [42] Also at a time before the hearing, the appellant promised MH money to sign a statement for use in the TR2 proceedings saying that he saw the appellant being hit by a man near a store. MH signed a statement dated 11 November 2003. MH ultimately did not give evidence. This was the subject of count 24. [43] The appellant subsequently withdrew the intimidation charge against TR2. [44] The second offence involving SB was in April-June 2004. SB went between his father's house and the appellant's house frequently. At a time SB was staying with the appellant he was again asleep when the appellant entered his bedroom. The appellant pulled down the blankets and SB's boxer shorts and put his penis into SB's anus. This lasted for approximately 5 minutes, SB thought the appellant ejaculated. He said he was going to inform the police what had happened. The appellant told him, "No you won't because you're getting money out of this case". This was the subject of count 13. [45] The third offence involving SB concerned the appellant using a video camera to record SB performing sexual acts with a carrot. The appellant and SB went on holidays together to the Gold Coast and Thredbo. Over this time the appellant asked the complainant if he would pose for pornographic photos for him, and showed him pornographic pictures of youths aged between 10 and 17. He told the complainant that he had posed in similar photos when he was the complainant's age. The complainant refused to take part. Then the appellant asked SB again, and told him that he could make money as the video could be sold overseas on the internet. SB agreed as he had no money. They went back to the appellant's house, where the video was set up in the lounge and sexual acts were recorded including masturbation and SB placing the carrot in his anus. No one else was present. This was the subject of count 14. [46] The "carrot video" and a "second carrot video" received particular attention in the appeal. At the end of the "carrot video" SB said, "DB P's home. Can we stop now?" SB gave evidence that he was told to say this by the appellant, whom he was afraid of. The appellant relied on it to show that he was not recording the video, and cross-examined SB accordingly. [47] The final sexual offences involved TB. He was born in 1991, and had met the appellant through his brothers although initially he had not been allowed to go jet skiing with them. [48] The first offence involving TB was in early 2005. The appellant asked SB and TB to chop wood for him. Whilst he was taking a break the appellant asked TB to lie on the lounge, rubbed him on the chest and body on the outside of his clothes, then asked him to take off his shirt and shorts which TB did as he was afraid of what would happen otherwise. The appellant asked TB to take off his underwear. TB did not want to do it but thought he had to. The appellant then sucked TB on his penis. TB ejaculated. The appellant asked TB to repeat the action to him. TB refused to do so. This was the subject of count 25. [49] The second offence involving TB was in the following months. TB was approached by the appellant in the street. He told the appellant he was going to his friend's house to borrow some money. The appellant said that he would give TB some money and a McDonalds meal if TB came with him to his house. They purchased some McDonalds and drove to the appellant's house. Along the way the appellant told TB to remain hidden (crouched down) in the car to be out of sight to observers. When TB and the appellant arrived at the appellant's house they went to the appellant's bedroom where the appellant told TB to remove his clothes and lie on the bed. The appellant helped TB remove his clothes and sucked TB's penis. The appellant then told TB to turn over onto his hands and knees, which he did. TB felt some liquid on his backside that he later understood to be lubricant. The appellant had anal intercourse with TB. The complainant asked the appellant to stop what he was doing. On his second request the appellant stopped. TB had a shower and the appellant drove him home. This was the subject of count 26. [50] The third offence involving TB was [sic] took place some months later again, in the latter part of 2005. The appellant invited TB over to his house. TB was reluctant to go but the appellant offered him money if he went with him. While the complainant was playing PlayStation, the appellant sucked TB's penis. TB ejaculated. This was the subject of count 27. [51] The fourth offence involving TB was in the first part of 2006. About 5 or 6 months after the preceding incident TB was approached by the appellant in his car as TB was walking to the Aquatic Centre. The appellant asked TB to come to his house, and offered him money for entrance to the Aquatic Centre and some McDonalds. TB agreed. The appellant drove TB to his house, asking TB to hide himself in the car so that he would not be seen. On arrival the appellant told TB he had something to show him. He took him to the computer room where he showed him a video of two boys giving each other oral sex. The appellant then pulled TB's pants down and sucked his penis. TB ejaculated. The appellant took TB to the Acquatic Centre and gave him money for entry to the pool and some McDonalds. This was the subject of count 28. [52] At this point we refer to "the Port Macquarie proceedings", from which came the 2006 convictions to which we have referred at [14]. [53] The Port Macquarie proceedings took place before Garling DCJ in the District Court at Port Macquarie in 2006. In that trial the appellant was charged with attempting to procure a child over 14 for pornographic purposes, inciting a person under 16 to commit an act of indecency and possession of child pornography. The appellant represented himself at the hearing. The appellant was convicted on all three counts. The Court of Criminal Appeal confirmed the conviction for the first two counts but quashed the conviction on the third count ([C] v The Queen [2008] NSWCCA 122; (2008) 185 A Crim R 1). The appellant was re-sentenced to imprisonment with a non-parole period of 18 months and a balance of term of 18 months on which he was eligible for release on parole in June 2008. [54] The Port Macquarie proceedings were the occasion for the offences the subject of counts 6, 11, 15 and 22. By a statement of agreed facts, the jury was told only enough of them to explain the calling of DM, CB and DB as witnesses in the proceedings, and was told that they did not concern allegations of sexual assault made by DM, CB, DB or SB. [55] The appellant gave the police a video recording of SB stating that the appellant did not make sexual advances to him, to enable the police to call SB as a witness at the trial. He also asked SB to sign various statements containing denials that he had ever been assaulted by the appellant. SB gave evidence in the present case that he told the appellant before the Port Macquarie hearing that he would not give evidence for the appellant or lie for him, and that threats had been made to him to entice him to make various recordings. This was the subject of count 15. [56] The appellant persuaded DB to attend Port Macquarie court and give evidence under oath that he had seen DB and the complainant in the Port Macquarie proceedings kissing, which in his evidence in the present case DB said was untrue. This was the subject of count 22. [57] The appellant tendered in the Port Macquarie proceedings the video Ex B in which DM and CB apologised for wrongly gossiping that he had molested them. This was the subject of counts 6 (guilty) and 11 (not guilty). [58] The final count, one of perverting the course of justice, is count 29. On 8 February 2009 the appellant approached TB at a supermarket in Taree. He asked TB to record a video saying that the appellant was a "top notch bloke" and that his brothers had lied in their allegations against him. TB gave evidence that the appellant had offered him $250,000. He told the appellant that he would consider the offer. Later he told the appellant that he did not want to do the interview. The appeal [59] The appellant's former solicitors filed a notice of appeal on 17 December 2009. The appellant became unrepresented. As earlier mentioned, there were difficulties in bringing the appeal to a hearing. An earlier hearing date for the appeal was vacated. [60] The appellant filed numerous affidavits and submissions, the former largely being in the nature of submissions rather than factual and the latter containing non-evidentiary factual assertions. There were over 950 pages of these materials ('the appellant's submissions'). The issues raised included the conduct of the appellant's defence by his counsel and solicitor and his mental state at the time of the trial. Affidavits from counsel and the solicitor and from a consultant psychiatrist who had examined the appellant in connection with his trial and a post-conviction bail application were read by the Crown. The materials in appellant's submissions were supplemented by a complete set of appellant's written instructions to his lawyers. Counsel and the solicitor were cross-examined by the appellant. [61] We set out below the appellant's grounds of appeal in their final form. They will be repeated as appropriate when we deal with each. The appellant relies upon the following Grounds & Submissions in that the appellant lost a 'Significant possibility' of an acquittal because of the matters referred to below. 1. The incompetence of trial counsel led to a miscarriage of justice in that counsel - a. failed to put the appellant's defence of being setup by one group of complainants to the court, b. failed to act on the appellant's written and verbal instructions before and during the trial including alibi evidence, c. failed to call upon crown witnesses for cross-examination, d. failed to call upon defence witnesses to give evidence, e. failed to defend the appellant with respect to the aspersion made by his Honour before the Jury that the appellant may be a 'MIND READER', f. failed to put exculpatory statements and/or documents before the court and to the various Crown Witnesses as outlined in the submissions, g. failed to properly and/or adequately examine the appellant in chief and/or in re-examination to establish his innocents [sic] with regard to the state of the evidence, h. failed in general to defend the appellant to a professional standard having regard to all matters raised in these submissions inter alia, no proof of evidence. 2. A miscarriage of justice was caused by the Crown - a. failing to call upon Crown Witnesses to give evidence, b. becoming emotionally involved in the trial, c. breached it's duty of disclosure in concealing exculpatory evidence from the court, d. misstating the true state of the evidence during the trial and in Her summing-up to the jury, e. caused unfair prejudice to the accused in cross-examination by casting aspersions against his character in that he had lied to the court when in fact the appellant had told the truth and the Crown had evidence to support this. 3. The learned trial Judge erred and/or misled the jury as to the true state of the evidence in his Honour's summing-up, this led to a miscarriage of justice. 4. The learned trial Judge cast an unjustifiable aspersion against the appellant which was highly prejudicial this led to a miscarriage of justice. 5. The appellant was mentally ill shortly before and during the trial which led to a miscarriage of justice. 6. The appellant was under DURESS that if he exposed that the complainants had set him up his family would be gravely endangered this led to a miscarriage of justice. 7. The prosecutions were malicious carried out by police who were and are defendants in the appellant's statement of claims for malicious prosecution this led to a miscarriage of justice. 8. That the verdicts of the jury on all counts which the appellant was found guilty by the jury were unsafe and/or unreasonable and/or unsatisfactory and/or inconsistent having regard to the whole evidence at the trial. And the learned trial Judge had reservations about the guilty verdicts of the Jury; see his Honour's remarks, Sentencing and Bail transcripts 4 days, December 2009. 9. Fresh and/or new evidence as outlined herein was never put before the court his [sic] led to a miscarriage of justice inter alia Counsel did not know the 'Full Carrot Video' existed and has never seen the 'Todd Ellis' Video. 10. That the appellant is innocent on all counts and justice has miscarried the appellant relies globally on the contents and/or all matters raised in this entire document for this Appeal. Ground of Appeal 1 - The incompetence of trial counsel led to a miscarriage of justice in that counsel - a. failed to put the appellant's defence of being set up by one group of complainants to the Court. b. failed to act on the appellant's written and verbal instructions before and during the trial including alibi evidence. c. failed to call upon Crown witnesses for cross-examination. d. failed to call upon defence witnesses to give evidence. e. failed to defend the appellant with respect to the aspersion made by his Honour before the jury that the appellant may be a 'MIND READER'. f. failed to properly and/or adequately examine the appellant in chief and/or re-examine to establish his innocence with regards to the state of the evidence. g. failed to properly and/or adequately examine the appellant in chief and/or in re-examination to establish his innocents [sic] with regard to the state of the evidence, h. failed in general to defend the appellant to a professional standard having regard to all matters raised in these submissions, inter alia, no proof of evidence."

Issues Raised by the Applicant

Essentially, the Applicant raises issues associated with Counts 2 and 12 of the foregoing. In relation to Count 2, the Applicant was charged that "between 1 December 1997 and 31 December 1997 at Balmain in the State of New South Wales [the Applicant] did have sexual intercourse with [DM], a person above the age of 10 years and under the age of 16 years".
The Applicant contends that a statement from SC, dated 4 November 2006 is "fresh evidence" [application at [71] and Annexure 6, thereto). The Applicant contends this is evidence of alibi that casts doubt on the conviction in relation to Count 2.
The alibi, upon which the Applicant relies, is that the Applicant left the house at Balmain and stayed with his sister at Rozelle. Further, alibi is relied upon in relation to Count 1 in the foregoing convictions.
In relation to Count 12, the Applicant seeks to rely upon a purported statement of SB senior (the father of the alleged victim), which statement is dated 9 November 2007 and is said, by the Applicant, to be fresh evidence.
Further, the Applicant relies upon an allegation that his trial counsel was untruthful to the CCA in the appeal against conviction and/or misled the CCA in the evidence that was given. Lastly, the Applicant relies upon an allegation that the CCA failed properly to examine the whole of the evidence before it (and/or before the District Court) in dealing with the appeal.

Consideration

I deal firstly with the submission that the CCA failed properly to examine the whole of the evidence in the proceedings. This submission is without merit. The CCA made clear that it had regard to the evidence as a whole and the submission was dealt with in the PFC v R (No 2) judgment, to which earlier reference has been made: see PFC v R (No 2) [2014] NSWCCA 241 at [113] and [119]. The initial appeal judgment ran for 375 paragraphs and dealt comprehensively with the submissions that were put. Unless some argument otherwise put by the Applicant in this application points to a doubt that arises in relation to any one or more of the convictions, then, in and of itself, such a bald assertion cannot give rise to a doubt and cannot properly be raised.
I turn then to the substance of allegation that the Applicant's trial counsel lied to the CCA in the appeal hearing. The CCA heard evidence adduced, on oath, by the trial counsel as a result of the waiver of legal professional privilege. The Applicant was present during the course of the evidence that was adduced and the Applicant was able to cross-examine his trial counsel in relation to that evidence.
Further, the Applicant could have, had he so chosen, given evidence in the appeal proceedings inconsistent with the evidence given by the trial counsel. At no stage did the Applicant seek to adduce evidence inconsistent with the evidence provided by his trial counsel to the truth of which his trial counsel swore. Further again, to the extent that there is an issue relating to all access to documents that too could have been the subject of evidence or an application for adjournment. With one exception, no such applications were made. The exception related to a number of documents for the examination of which the CCA provided the Applicant with a short adjournment, although it doubted that the Applicant had not had access to the documents previously.
At the second application under Rule 50C, the Court noted that the only complaint made in relation to these matters was made after the relevant hearing (see Clark v R [2015] NSWCCA 265 at [31] and following).
Moreover, the material relied upon by the Applicant in his supplementary application of 30 October 2017 was before the CCA in the original appeal proceedings, by way of both evidence and submissions.
In the Conviction Appeal, the Court, at [106], dealt with the alleged communication between the Applicant and his lawyers as to alibi and concluded that he had instructed his lawyers that he had no alibi in relation to any relevant issue. The issue upon which there was an alibi, relating to issues associated with the complainant CB, are currently irrelevant as the Applicant was acquitted of those charges.
The CCA detailed and summarised the evidence relating to the allegations made by the Applicant, now, against his trial counsel. The argument of the Applicant that the evidence before the CCA in the first appeal against conviction was, itself, "overwhelming proof" of trial counsel misleading the Court is inconsistent with the findings of the CCA in that proceeding which details extensive material and came to the opposite conclusion: see Conviction Appeal at [63].
There is no basis in the evidence before me, in the evidence at conviction or in the evidence at the first appeal that warrants an arguable proposition that trial counsel lied or misled the CCA in the evidence.
This ground is rejected. A reading of the judgment of the CCA on the first appeal against the convictions in the trial before Norrish QC DCJ is inconsistent with any such suggestion.
Next, the Applicant relies upon an allegation of "fresh" evidence. The fresh evidence is said to be a statement of the father of SB (referred to as SB senior). This is accompanied by his letter of instruction dated 27 July 2008 (Annexure 4 to the application); a chronology, prepared by the Applicant and said to have been signed by SB senior and SB (Annexure 3 to the application); and what is alleged to be trial counsel's handwriting on a copy of the Indictment (Annexure 5 to the application). Further, the terms of Annexure 2 of the application, which are written instructions, is also said to be fresh evidence.
First, a number of these documents could not amount to evidence, but are merely assertions by the Applicant as to the facts, which assertions could have been the subject of evidence by the Applicant, either at trial or on appeal. Secondly, none of the material is, in any sense of the term, "fresh".
Each of the documents existed at least at the time of the appeal against conviction: see Ratten v R (1974) 131 CLR 510; [1974] HCA 35. Each of these documents and/or the contents thereof was available either actually or constructively to the Applicant at the time of his trial and, certainly, at the time of the Conviction Appeal.
Notwithstanding that the material is not fresh evidence, it seems to me that in the function of a judicial officer in a review under Pt 7, any evidence that may give rise to a doubt or question as to the conviction (and/or any of the other descriptions in ss 78 and 79 of the Act) is able to be used by the Applicant and must be taken into account by the Court in determining whether such a doubt or question exists.
Ultimately, to the extent that the statement of SB senior is evidence that must be examined by the Court presently, it must be noted that SB senior gave evidence, under oath, at trial to the opposite effect of that contained in the purported statement, as did SB. The evidence, in effect, goes to whether SB lived with the Applicant in 2003 or lived with the Applicant in 2004. If the victim SB did not live with the Applicant between 1 August 2003 and 30 November 2003, then the allegations in relation to Count 12 could not have been proved.
Of course, the allegations in relation to SB in Counts 13 and 14 would still hold. Further, if the evidence in the purported statement of SB senior was adduced at trial to show the inconsistency with the timing otherwise adduced through SB and SB senior, two fundamental issues would have arisen for the Applicant.
First, if counsel, representing the Applicant at trial, put to SB senior (and/or SB) that the victim first lived with the Applicant at the beginning of 2004 and not, as alleged in Count 12, in August 2003, this would have corroborated the evidence of SB senior and SB in relation to Counts 13 and 14, to which the Applicant pleaded not guilty.
Secondly, it would have been open to the Crown, albeit subject to the leave of the Court and any necessary adjournment, to amend the Indictment in Count 12 so that it applied to the period from 1 August 2003 to 31 March 2004. Plainly, a forensic decision was taken not to utilise any material relating to evidence of SB senior as to the dates upon which SB went to live with the Applicant. That decision was understandable and, in hindsight, wise.
Ultimately, the sworn evidence of SB senior (and SB) is to the effect that SB went to live with the Applicant in the period 1 August 2003 to 30 November 2003. The statement, available to the Applicant at trial and on appeal, does not engender a doubt as to the truthfulness of the sworn evidence of SB senior and/or SB.
It is unnecessary to deal with any tendency associated with Counts 6, 15, 21, 22, 24, 29 (or the conviction before Freeman DCJ) in relation to the statement of SB senior. It is relevant to note that the reference to "under authority" was not a reference to whether the victim, SB, was under DOCS care, but whether he was living "as a child" with the Applicant and therefore was "under authority".
Further, as was pointed out by the trial judge, the timing of the offence was not seemingly related to the school year in which SB was then enrolled, but the time at which he was under the care of the Applicant: Transcript 104, 22 June 2009.
Notwithstanding the earlier comment as to "tendency", the Applicant was facing charges of perverting the course of justice in relation to persuading SB to make a video recording and statements denying any assault. In the words of the CCA in the Conviction Appeal [68]-[69]: "[68] … Not only did he have to deal with a large number of counts of an essentially similar kind from six different complainants, but those counts included what were described as 'public justice counts', ie doing acts intending to pervert the course of justice (counts 6, 11, 15, 21, 22, 24 and 29). Counsel also had to deal with counts involving the use of juveniles for pornographic purposes (counts 7 and 14). [69] Most of the material the appellant wished to rely upon which suggested that he had been 'set up' by the complainants came from statements and videos taken by him from the complainants or other young persons. Counsel appreciated that the more statements taken by the appellant which were produced, the stronger the inference would become that the appellant was able to control and manipulate these young persons by getting them to sign statements that he had prepared or participate in videos which he had arranged. Neither at trial, nor in the appeal, did the appellant appear to understand the seriousness of this problem."
Lastly, it is worth noting that in the appeal against conviction, the CCA noted that there was cross-examination by trial counsel in relation to a purported statement said to have been signed by SB on 6 December 2006, which denied any assault. This statement was put to SB during the course of the trial. However, SB denied that the signature at the foot of the document was his signature and testified that he had never seen the document before: Conviction Appeal at [83].
After cross-examining on the statement of SB, and in relation to the "shower video" of SB, it would have been most unwise for trial counsel to have cross-examined SB senior on a statement, the veracity of which and the authenticity of which was not assured and which, even on its face, would have corroborated the allegations in relation to other offences.
It is not only that the statement of SB senior was not "fresh", in the strict meaning of the term, that is relevant, it is the possession of the material at the time that SB senior was cross-examined and the forensic decision, which in my opinion was correct, not to put the statement to SB senior, in circumstances where, if it were disavowed, it may have given rise to significant inferences relating to the conduct of the Applicant and, on one view, may have given rise to further charges.
Essentially, the questions raised in relation to the conviction on Count 12 rely heavily on the statement of SB senior, to which reference has been made. That statement alleges that SB was "never living with the Applicant in 2003". The statement, as already noted, was taken by the Applicant, himself.
The statement of SB senior was an issue raised in the conviction appeal and dealt with by the CCA in various paragraphs of its reasons for judgment, dismissing the appeal.
The statement was in existence at the time the trial occurred; it was in existence at the time of the conviction appeal; and it was certainly available to solicitors and counsel at the time that SB senior was cross-examined. Not only is the evidence, assuming the statement be authentic, not "fresh"; there was also ample opportunity to raise the issues both at trial and on appeal, none of which were taken by the Applicant or his representatives.
I am not satisfied that the alleged statement by SB senior is a matter that casts any doubt whatsoever on the conviction in relation to Count 12 that has not been adequately dealt with by one or other of the previous applications under Pt 7 or the appeals.
Next, the Court deals with the questions raised in relation to the conviction on Count 2. Whether SC was a witness who could provide an alibi to the Applicant was dealt with by the CCA in the Appeal Conviction.
Trial counsel gave evidence that he had express instructions, prior to the trial being conducted, that there was no alibi available to the Applicant. The CCA (at [113] of the Conviction Appeal) dealt expressly with the purported alibi raised by evidence that could have been adduced or was alleged to have been able to be produced by SC.
It is informative to recite paragraphs [113] and [114] of the Appeal Conviction, which are in the following terms: "[113] Mr Webb referred to those matters in his affidavit of 4 October 2011 as follows - '5. On the issue of alibi, [the appellant] gave specific instructions prior to the trial that he did not have an alibi available to him of which he was aware. In respect of count 2, at [the appellant's] mother's place at Rozelle, [SC] did not in my view raise alibi. [SC] was present at the house overnight, with the question at trial being whether or not [the appellant] returned to the house during the night (as [the appellant] instructed me that he was staying at his sister's house nearby, and returned the following morning bringing croissants for breakfast). 6. [JR] was made available by the learned Crown prosecutor at trial and was available to be called at the defence request. [the appellant] was advised of this matter during the course of the trial. I expressed a concern in the context of the trial raising public justice counts, that [JR] had previously been approached by [the appellant] to provide a statement. I raised with [the appellant] the issue that this matter might be dangerous. [the appellant] then indicated that he did not require [JR] to be called. Otherwise [JR] had initially been raised by [the appellant] as a prospective witness on the issue of character, not alibi.' Mr Webb was not cross-examined as to alibi by the appellant in the appeal. [114] The advice which counsel provided to the appellant in relation to JR was forensically sound. Any evidence from SC would not have provided an alibi. The appellant has failed to establish that he had an alibi defence available and that his case at trial was damaged by counsel's failure to raise that issue."
The submission in relation to this matter is a submission that has been fully canvassed by the CCA and rejected.
The issue of alibi was raised to seek to cast doubt on the Applicant's conviction on Count 1, relating to the victim DM. At [106] and following of the Conviction Appeal, the CCA said: "[106] The appellant initially instructed counsel in 2008 that he was not present at a number of the alleged crime scenes (counsel's preliminary advice, 5 August 2008 at appellant's submissions p 98). The appellant later instructed counsel that he did not have an alibi. In relation to that matter, Mr Webb said in his affidavit of 14 June 2011 - '9. I cannot recall whether it was in the conference of 21 August or 9 October at Chambers that I raised the issue of alibi with [the appellant]. This occurred in one of these two conferences. 10. I said to [the appellant]: "Mr C in relation to any of the matters that you are aware of is it the situation that you may have in fact been somewhere else, other than the place where the alleged conduct is said to have occurred?" Mr C said: "Not really. All of the allegations basically relate to the area in which I lived and many of the allegations relate to things said to have happened in my own home". I said: "You need to think clearly about this issue because if you are going to raise any issue going to alibi Mr Roff needs to know well before any trial. An alibi means that you are saying that when something happened you were in fact somewhere else, positively identifying where it was that you were in terms of place and time. Mr Roff needs to provide notice to the Crown as to any issue of alibi. Alibi can't be raised on the run. It requires notice to the Crown so that the police can make enquiries. Do you understand that?" Mr C said: "Yes but I don't have an alibi because I was living in the area where these things are said to have happened and many of them happened on the Crown case in the house that I was living at. So no I don't have an alibi for any of the matters that I am aware of." 11. The issue of alibi was raised by me in conference and not by [the appellant].' As a result of those instructions, no alibi notice was ever served. The appellant was present in court when counsel told his Honour that he was not running alibi (AB1863, 1865-1866) and there is no record of any complaint made by him at the time. [107] The appellant submits, at appellant's submissions p 80, that the two matters where he would have relied upon alibi were in respect of counts 2 and 17. [108] Count 2 involved DM staying at the home of the appellant's mother in Rozelle. The appellant said that he stayed that particular night at his sister's house nearby. He said that SC, the friend of his son who had gone to Sydney with them, could corroborate this. [109] It was never alleged, nor was it the Crown case, that the appellant had stayed the night at his mother's home. The evidence of DM (AB688-689, 764) was that he awoke just as he was ejaculating to find the appellant giving him oral sex. The appellant then left the room. In cross-examination, DM said 'He may well have left after that happened, but what I said was true, that's a fact. That's what happened he was there and that was him'. No statement was ever obtained from SC, nor was he subpoenaed or required to be called in the Crown case by the defence. [110] Count 17 involved DB being sexually assaulted in the appellant's car. DB's evidence (AB1293-1299) was that the offence occurred after they had left JR with JR's stepfather. The appellant said that JR would be able to give evidence that DB had stayed that night with him and his stepfather and that the offence could not have occurred. [111] Police obtained a statement from JR on 5 May 2009, in which he said that the appellant had already seen him and had obtained an affidavit from him. Both the police statement and the affidavit obtained by the appellant are annexures to the affidavit of Ms Boulous sworn on 29 September 2011. The statement made by JR to the police and that obtained by the appellant are quite inconsistent on this issue. The statement made by JR to the police does not exclude the offence in count 17. [112] The police served on the defence a copy of the statement made by JR and also a copy of the affidavit which the appellant had obtained from him. The witness was made available, but was not required to be called by defence counsel. [113] Mr Webb referred to those matters in his affidavit of 4 October 2011 as follows - "5. On the issue of alibi, [the appellant] gave specific instructions prior to the trial that he did not have an alibi available to him of which he was aware. In respect of count 2, at [the appellant's] mother's place at Rozelle, [SC] did not in my view raise alibi. [SC] was present at the house overnight, with the question at trial being whether or not [the appellant] returned to the house during the night (as [the appellant] instructed me that he was staying at his sister's house nearby, and returned the following morning bringing croissants for breakfast). 6. [JR] was made available by the learned Crown prosecutor at trial and was available to be called at the defence request. [the appellant] was advised of this matter during the course of the trial. I expressed a concern in the context of the trial raising public justice counts, that [JR] had previously been approached by [the appellant] to provide a statement. I raised with [the appellant] the issue that this matter might be dangerous. [the appellant] then indicated that he did not require [JR] to be called. Otherwise [JR] had initially been raised by [the appellant] as a prospective witness on the issue of character, not alibi.' Mr Webb was not cross-examined as to alibi by the appellant in the appeal. [114] The advice which counsel provided to the appellant in relation to JR was forensically sound. Any evidence from SC would not have provided an alibi. The appellant has failed to establish that he had an alibi defence available and that his case at trial was damaged by counsel's failure to raise that issue."
Nothing has been put in this application that would in any way cast doubt on the conclusion of the CCA recited above.

Conviction

In the course of an appeal in relation to civil, rather than criminal, proceedings, the High Court in Swain v Waverley Municipal Council (2005) 220 CLR 517; [2005] HCA 4 at [2] (per Gleeson CJ) said: "In the common law system of civil justice, the issues between the parties are determined by the trial process. The system does not regard the trial as merely the first round in a contest destined to work its way through the judicial hierarchy until the litigants have exhausted either their resources or their possibilities of further appeal. Most decisions of trial courts are never the subject of appeal. When there is an appeal, the appellate court does not simply re-try the case. Depending on the nature of the appeal provided by statute, courts of appeal act according to established principles by which their functions are constrained. Those principles reflect the primacy of the trial process and the practical limitations upon the capacity of a court which does not itself hear the evidence justly to disturb an outcome at first instance. Trial by jury carries with it significant limitations of that kind."
The reference to the finality of a jury decision and the primacy of the trial process reflect the prima facie position associated with criminal proceedings. That prima facie position is subject to the exceptions provided for by statute.
Those exceptions include a challenge to a conviction on the basis of the Criminal Appeal Act and, particularly, to a challenge on the basis of an unreasonable verdict under which the Court, on appeal, must examine the evidence and determine, for itself, whether a doubt exists as to a particular conviction, which doubt is not overcome by the advantage enjoyed by a jury. A further exception arises as a result of the operation of Pt 7, which forms the basis upon which this application must be considered.
Nevertheless, there is, in this application, an issue arising from the finality of proceedings. The earlier reference to the chronology of litigation, which the Applicant has undertaken, points directly to the opportunities that the Applicant has had to raise the very same issues that the Applicant raises on this application.
None of the material presented by the Applicant, on the question of conviction, is "new", in the sense that it raises an issue not previously dealt with by the Court either at trial or on appeal. Further, the issues have been raised in the previous application for a review made to the Governor, pursuant to the Act.
To the extent that there are some details that were not expressly raised at trial, most, if not all of them, were raised expressly on appeal. They were dealt with on appeal. To the extent that they were not dealt with on appeal, they do not raise matters that cast any doubt on any of the convictions in this matter.
The Court has taken a view similar to that described by the High Court as the function to be taken in dealing with an appeal that raises an unsatisfactory or unreasonable conviction. That is, the Court has examined that which has been raised in light of the material presented on appeal and at trial to see whether the Court, as presently constituted, has any doubt (or arguable doubt) as to the conviction. I have none.
The application, in relation to conviction, is refused.

Sentence

As already stated, the Crown appealed the sentence imposed by Norrish QC DCJ on 21 December 2009. The effective sentences, the details of which have been recited above, was a non-parole period of 10 years and 9 months with a balance of term of 3 years and 8 months.
After setting out the sentence that was imposed by the District Court, the Court (Hoeben J (as His Honour then was) with whom Allsop P and Hall J agreed) set out the circumstances of the offending, the grounds of the appeal and the submissions of the Crown. Essentially, the Crown appeal on sentence related to the degree of concurrency and the lack of accumulation of the offences involved. As would be expected of a judicial officer, with the experience of Norrish QC DCJ, all of the principles on sentencing were discussed, so far as relevant, and applied.
The CCA, in the Crown Sentence Appeal, determined that "the sentences imposed were…well within the range available". The CCA refused to intervene in the sentence imposed by the District Court on the basis that to do so would involve interfering with an exercise of discretion, in circumstances where no error, of the kind to which the High Court referred in House v King (1936) 55 CLR 499; [1936] HCA 40, was disclosed.
Likewise, nothing has been put, on sentence, by the Applicant, that discloses any error on the part of the District Court in the sentence that was imposed in relation to the offences proved. On the contrary, the sentence that was imposed can be seen to be at the lower end of the range that was available to the District Court.
The Applicant raises post-sentence assistance. Post-sentence assistance does not cast doubt or raise a question as to the guilt of the Applicant. Nor does it cast doubt; nor raise a question or mitigate any part of the evidence in the case.
Where, as here, an application is made for a review into a sentence, the Applicant is capable, in my view, of providing material that might "mitigate circumstances in the case". There is a nice distinction as to whether the term "mitigating circumstances in the case" requires something that mitigates that which has already been determined in the case or evidence in the case.
If the foregoing be correct, post-sentence assistance, if provided, would never "mitigate circumstances in the case", but would or might, with hindsight, mitigate the sentence. A sentencing Judge (including any Appeal Court), as a matter of logic, cannot take into account circumstances in mitigation of sentence that occur after the sentence is imposed.
No error in the sentence at first instance is suggested. Indeed, if the sentence at first instance is described as anything, it would be described as a lenient sentence in the circumstances of the offending, albeit within range. It is that description that probably motivated the Crown to appeal on the basis of manifest inadequacy.
Further, the Applicant, given an opportunity to raise grounds of appeal on sentence, chose not to do so and allowed that aspect of the appeal proceedings, if there were an appeal against sentence, to be abandoned. There are no special facts or circumstances that justify the reopening of that appeal or of the sentence imposed at first instance.
On the contrary, given the time that has elapsed since the sentence was imposed, there are good grounds not to open the sentence or to enquire into its appropriateness. I am not satisfied, on the material presented by the Applicant, that there is any mitigating circumstance that would warrant an enquiry into the sentence imposed. Nor am I satisfied that there is any special fact or circumstance applying that would prohibit a refusal to deal with the matter.

Conclusion

The Court, as presently constituted, has examined the grounds raised by the Applicant. Each of them, in one way or another, has been dealt with by the Courts and/or the Governor.
Further, the Applicant has had considerable opportunity, certainly more than a reasonable opportunity, to raise at the sentence hearing and on appeal any mitigating circumstances in relation to sentence. The Applicant has chosen, it seems deliberately, not to pursue any sentence proceedings, other than this application and the application to the Governor.
The issues raised by the Applicant relate to matters that have been fully dealt with in proceedings giving rise to the conviction and on appeal in relation to the conviction and each of the matters have previously been dealt with under this part, by the Governor. Further, the Applicant has had a right of appeal on conviction and a right to apply for leave to appeal against sentence, each of which has either been exercised and dismissed or exercised and abandoned.
As earlier noted, the Applicant has taken a number of proceedings, in the nature of appeals or reviews, all of which have been dismissed, withdrawn or allowed to lapse.
As earlier stated, there are no special facts or special circumstances that justify the taking of further action and, pursuant to the provisions of s 79(3) of the Act, the Court, as presently constituted, refuses to consider or otherwise deal with this application further.
The application is otherwise dismissed.

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: 27 September 2019

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