Clark v Attorney General of New South Wales

Court of Appeal (NSW)|2020-02-13|Before: Basten JA, Macfarlan JA, McCallum JA, Rothman J

The application for an inquiry

The application determined by Rothman J was accordingly the applicant's second application under Part 7 of the Crimes (Appeal and Review) Act. It invoked s 78 of the Act, which provides: (1) An application for an inquiry into a conviction or sentence may be made to the Supreme Court by the convicted person or by another person on behalf of the convicted person. (2) The registrar of the Criminal Division of the Supreme Court must cause a copy of any application made under this section to be given to the Minister.
The determination of such applications is governed by s 79 of the Act, which provides: (1) After considering an application under section 78 or on its own motion - (a) the Supreme Court may direct that an inquiry be conducted by a judicial officer into the conviction or sentence, or (b) the Supreme Court may refer the whole case to the Court of Criminal Appeal, to be dealt with as an appeal under the Criminal Appeal Act 1912. (2) Action under subsection (1) may only be taken if it appears that there is a doubt or question as to the convicted person's guilt, as to any mitigating circumstances in the case or as to any part of the evidence in the case. (3) The Supreme Court may refuse to consider or otherwise deal with an application. Without limiting the foregoing, the Supreme Court may refuse to consider or otherwise deal with an application if - (a) it appears that the matter - (i) has been fully dealt with in the proceedings giving rise to the conviction or sentence (or in any proceedings on appeal from the conviction or sentence), or (ii) has previously been dealt with under this Part or under the previous review provisions, or (iii) has been the subject of a right of appeal (or a right to apply for leave to appeal) by the convicted person but no such appeal or application has been made, or (iv) has been the subject of appeal proceedings commenced by or on behalf of the convicted person (including proceedings on an application for leave to appeal) where the appeal or application has been withdrawn or the proceedings have been allowed to lapse, and (b) the Supreme Court is not satisfied that there are special facts or special circumstances that justify the taking of further action.

Grounds for review by this Court

The decision is reviewable for jurisdictional error. It is not necessary in the present case to determine whether, being the decision of a judge of the Supreme Court exercising a non-judicial function, it is immune from review by this Court on the ground of error of law on the face of the record: cf Sinkovich v Attorney General of New South Wales (2013) 85 NSWLR 783; [2013] NSWCA 383 at [35].
At the hearing, the applicant accepted that his summons failed to identify any material errors in useful form and that the Court could proceed by reference to his written submissions in reply as the document that identified his claims of jurisdictional error and error of law.
The reply submissions in large measure perpetuate the confusion as to the scope of review by this Court. The submissions contend at par 4 that, in order to establish relevant error on the part of Rothman J, the applicant needs only to prove either of the following: 1. that "the matter has not been fully dealt with etc" (this adopts a convenient shorthand for the wordy provisions of s 79(3)(a) and I will do the same); or 2. that "there are special facts or circumstances".
The submission misconceives both the nature of the decision under review and the proper scope of judicial review by this Court. The discretion conferred by s 79(3) to refuse to consider or otherwise deal with an application is not conditional upon the establishment of any particular matter. The matters stated in pars (a) and (b) serve as a guide to the proper limits of that power but its exercise is not conditional upon their being satisfied. That is clear from the words "without limiting the foregoing". It may be accepted, however, that Rothman J relied on pars (a) and (b) as the basis for refusing to consider or otherwise deal with the application. In that circumstance, it is not necessary to give further consideration to the nature of any broader discretion conferred or the proper limits on its exercise.
More importantly for present purposes, the two conditions relied upon as enlivening the discretion each required the judge to reach a state of satisfaction as to a factual matter.
The first condition is that "it appears" that the matter has been fully dealt with etc. As explained by Basten JA in Sinkovich (considering the same words in s 79(2)), that expression indicates that "it is the satisfaction of the judge as to the relevant condition which is critical": at [26].
The applicant relied on the fact that Rothman J had acknowledged at [113] that there were "some details" that were not expressly raised in the earlier proceedings. He also relied on the fact that the judge was in one respect mistaken in thinking that a statement provided to his Honour had been put before the first Court of Criminal Appeal. It was submitted that his Honour "erred in determining the importance of the issues not dealt with". However, it is not open to this Court to substitute its own view on that issue (in making that point, I do not mean to suggest that a different view could or should have been reached). As submitted by the Attorney General, Rothman J's assessment of those matters could only be impugned in this Court if it was so unreasonable as to amount to jurisdictional error in the sense explained in Li.
The second condition (described by Basten JA in Sinkovich at [66] as a reflection of a general principle which would operate absent any statutory basis) is that the Supreme Court is "not satisfied" as to existence of special facts or special circumstances that justify the taking of further action. The applicant contends that, in considering that issue, his Honour was required to make his own independent assessment of the evidence in accordance with the principles stated in SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13 and that his failure to do so is "a jurisdictional error writ large". The reliance on the decision in SKA is misconceived. That decision states the approach to be taken in an appeal against conviction under s 6 of the Criminal Appeal Act 1912 (NSW). The task to be undertaken in a Part 7 application is governed by provisions which expressly authorise the Supreme Court to refuse to consider or otherwise deal with an application.
In determining whether to consider an application under Part 7, it would not be permissible for the judge to act arbitrarily or capriciously; where it is a condition of the exercise of a statutory power that the decision-maker must be "satisfied" as to the existence of certain factual matters, he or she is required to act in good faith in reaching a conclusion on that issue: Buck v Bavone (1976) 135 CLR 110; [1976] HCA 24 at 118 (Gibbs J), 131 (Mason J). The scope of the discretion is otherwise confined at least by "the subject matter, scope and purpose of the legislation under which it is conferred": Li at [23] (French CJ). The separate judgments of Basten JA and Beech-Jones J in Sinkovich provide a helpful analysis of the statutory history and language of Part 7. Justice Basten concluded at [52] that the overriding purpose of that Part is, "consistently with the high value placed on freedom of the individual and the unwillingness to allow that liberty to be infringed because of commission of a criminal offence unless the offence has been established beyond reasonable doubt, to provide a means to address doubts as to compliance with these principles". Acting consistently with that purpose, Rothman J was careful to consider the grounds for the application in some detail before deciding to refuse to consider them further.
It may be accepted that the scope of the grounds that may properly be raised for seeking an inquiry under Part 7 is broad. In Sinkovich at [30], Basten JA noted that 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". His Honour was referring to the fact that what may be sought under s 78(1) is "an inquiry into a conviction or sentence" whereas s 79(2) uses the term "guilt" (rather than conviction) and extends to matters underlying the conviction ("any part of the evidence in the case") and matters couched in the language familiar to proceedings on sentence ("any mitigating circumstances"); and see the additional remarks of Beech-Jones J in Sinkovich at [86] and [87] concerning the scope of an application concerning sentence.
It may be accepted in accordance with those remarks that the breadth of the matters which an applicant may seek to raise in applying for an inquiry informs the scope of the Court's consideration for the purposes of s 79(3) as to whether "the matter" has been fully dealt with at the trial or on appeal, or previously dealt with under Part 7. However, it does not follow that the Court cannot exercise the discretion without again considering every issue raised in any previous proceeding. On that approach the screening function of the discretionary power to refuse to consider an application would be defeated.
Finally, the content of the relevant "matter" and the question whether it has been "dealt with" previously will be informed by the nature of the issues raised. Although, as noted by Basten JA in Sinkovich at [46], Part 7 is "inherently an exception to the principle of finality", it is not intended to set the verdict of the jury at nought. There is nothing in the text of the statute to suggest that it is necessary, before the discretion to refuse to consider an application under Part 7 is enlivened, for the Supreme Court to be satisfied that every piece of evidence or every paragraph of every submission put in support of the application was fully dealt with at the trial or on appeal or has previously been dealt with under Part 7. The task is to identify the substance of the matter the applicant contends warrants an inquiry or referral of the case to the Court of Criminal Appeal.

Identification of the material that was before Rothman J

The application in this Court is to be determined by reference to the material that was before Rothman J. The material filed by the applicant included additional material not before Rothman J and did not include all of the material that was before his Honour.
The material filed in support of the summons in this Court was an affidavit of the applicant sworn 2 January 2020 and written submissions dated 23 December 2019 (prepared by an unidentified "qualified professional accountant" and adopted by the applicant) together with four bundles of annotated evidence. As noted by the Attorney General, that material is a mixture of asserted facts, further evidence and submissions. The Attorney General objected to much of it on the basis that it was not before Rothman J and was otherwise irrelevant to the grounds for review. The objections were well-founded. I have disregarded that material to the extent that it addresses matters that were not before his Honour.
At the outset of the hearing, the applicant handed up a bundle of "tender documents" (marked MFI 1). Part of that bundle was marked exhibit A and was admitted subject to the same objections by the Attorney General. I have treated that material on the same basis.
The applicant also filed written submissions dated 10 February 2020 in reply to the written submissions of the Attorney General and handed up a written outline of his oral submissions at the outset of the hearing.
After this Court reserved its decision the applicant provided a further two-page submission (including further evidence) dated 14 February 2020, without leave and purportedly in exercise of a right to re-open the hearing within 14 days (apparently mistakenly drawing on his considerable experience of r 50C). The additional material should be disregarded but in any event takes the matter no further, merely rehearsing the matter raised by the applicant concerning count 12 which I have addressed below.
The Attorney General tendered a number of documents to address the incompleteness of the Court Book. That process was assisted by the contents of a letter to the Registrar dated 24 July 2019 (marked exhibit B in this Court) in which the applicant listed the material on which he relied for the purpose of his Part 7 application and asked when it was likely to be "heard" (such applications do not require a hearing). The letter was stamped as received by the Court on 30 July 2019 and was referred to in the decision of Rothman J at [1] as the last submission filed by the applicant. With the assistance of that letter, it can be concluded that the material that was before Rothman J (or, in the case of one document, intended to be) was as follows: 1. the applicant's Part 7 application dated 3 October 2017 (tab 7 in the Court Book); 2. the applicant's additional application dated 30 October 2017 (tab 8 in the Court Book); 3. the Attorney General's written submissions dated 2 March 2018 (tab 9 in the Court Book); 4. the applicant's further "affidavit - submission" dated 15 March 2018 (marked exhibit C in this Court). As explained below, it appears Rothman J did not see this document; 5. further additional material provided to the Registrar on 31 July 2018 seeking to rely on two further documents. The first was a document dated 18 June 2018 which appears at tab 10 of the Court Book. Although headed "additional material re Part 7 application", that was in fact simply a copy of an affidavit prepared for the purposes of the applicant's civil claim against police. The applicant sought to rely on that affidavit in the Part 7 application because he said the evidence and submissions it contained "cross-pollinate this Part 7 application"; 6. the additional material provided to the Registrar on 31 July 2018 also included a list of the applicant's property held by Corrective Services (part of exhibit B in this Court). The relevance of that list was that it showed that there was a quantity of legal papers marked "NFI" (not for issue to inmate) which was said to support the applicant's contention that the fresh evidence before Rothman J was not available to him at the time the Court of Criminal Appeal heard his original conviction appeal; 7. the applicant's "further response to the respondent's submissions" dated 24 October 2018 (tab 11 in the Court Book); 8. the Attorney General's submissions in reply dated 14 November 2018 (tab 12 in the Court Book); 9. the applicant's further submissions in reply dated 21 December 2018 (tab 13 in the Court Book); 10. a folder containing portions of the trial transcript (marked exhibit D in this Court); 11. page 10 of Norrish QC DCJ's sentence judgment, which was referred to in the applicant's supplementary submissions (marked exhibit E in this Court).
It was established by evidence adduced by the Attorney General that the applicant's further "affidavit - submission" dated 15 March 2018 (exhibit C in this Court) was not received by either the Crown Solicitor's Office (representing the Attorney General) or the judge. However, it was referred to in the applicant's letter dated 24 July 2019 (exhibit B) which was evidently provided to Rothman J, putting his Honour on notice of its existence. A question accordingly arises as to whether that administrative omission was material.
I have had regard to exhibit C and have concluded that its omission from the material considered by Rothman J was not material error. Much of the submission is directed to the harshness of the applicant's circumstances of incarceration and the danger he faces in the prison system as a convicted paedophile. Without derogating from the seriousness of such matters, they were not relevant to the grounds raised for consideration by Rothman J (addressed below).
Separately, the submission addresses the difficulties faced by the applicant in preparing his previous applications due to both the constraints he faced in obtaining access to documents and resources and the fact that he apparently suffers from a degree of cognitive impairment resulting from a head injury inflicted on him during an assault in gaol. That was relevant to explain why the fresh evidence should be received. As his Honour considered the fresh evidence in any event, the fact that he did so without seeing the submission is immaterial.
Finally, the submission described assistance the applicant asserts he has given to authorities which he relied upon to support the submission that special facts or special circumstances justified the taking of further action in respect of his sentences. That material duplicates other material that was before Rothman J, in some instances repeating other submissions and assertions verbatim.

Issues raised in the application determined by Rothman J

The grounds for seeking an inquiry were specified in the two separate application documents listed above. The original application dated 3 October 2017 identified three grounds. Ground 1 asserted that there was "fresh and/or new evidence now available that was not put before the trial court of the first Court of Criminal Appeal" that cast doubt on "numerous convictions". Grounds 2 and 3 concerned the sentences. On 30 October 2017 the applicant submitted an additional application identifying two further grounds concerning the convictions (confusingly referred to in the document as grounds 3 and 4), namely, that trial defence counsel lied to the first Court of Criminal Appeal to cover his alleged incompetence and that the first Court of Criminal Appeal failed to examine the whole of the evidence "presented on the appeal".
By reference to that material, Rothman J identified five issues for his consideration, four relating to conviction (summarised at [69]-[73] of the decision) plus the question of sentence (at [15] and [120] of the decision). Contrary to a submission put by the Attorney General, the applicant's primary submissions in this Court did take issue with his Honour's identification of the issues raised, contending that they "do not precisely correspond with the applicant's submission" (submissions dated 23 December 2019 at par 81). The applicant said "whilst Rothman J identified issues with counts 1, 2 and 12, the applicant submits that the whole trial is tainted and that the guilty verdicts of the jury should be set aside". However, the balance of those submissions perpetuated the misconception reflected in the summons as to the scope of judicial review by this Court. At the hearing, the applicant in effect recognised as much and, as already noted, accepted that this Court could proceed on the basis that the reply submissions identify his claims of jurisdictional error and error of law. Despite acknowledging the need "to nail down a jurisdictional error", the reply submissions fail to identify any ground for review or any basis for expanding the scope of the five issues identified by Rothman J.
Those issues are addressed in turn below.

Issue 1: alleged fresh or new evidence of alibi

The first issue related to purported evidence of alibi. Justice Rothman at [70]-[71] noted that the applicant relied on alibi for counts 1 and 2 involving the complainant DM. The Court of Criminal Appeal in the first conviction appeal had dealt with the issue of alibi at [106]-[114] of the judgment in the context of a ground of appeal alleging incompetence of counsel. The Court concluded that the evidence relied upon would not have provided an alibi and that the applicant had failed to establish that his case at trial was damaged by counsel's failure to raise that issue. Justice Rothman was satisfied that nothing had been put in the Part 7 application that would in any way cast doubt on that conclusion: at [107].
The applicant's challenge to that conclusion in this Court reflects a fundamental misconception as to what amounts to evidence in support of alibi. Count 2 charged an offence of sexual intercourse with DM in December 1997 at Balmain contrary to s 66C(1) of the Crimes Act 1900 (NSW). The Crown case concerning that offence was summarised at [21] of the decision of the Court of Criminal Appeal as follows: "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."
The Court noted at [108] that the applicant had said he stayed that night "at his sister's house nearby" and that SC, a friend of the applicant's son who had gone to Sydney with them, "could corroborate this". That issue was considered at [109] as follows: "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" (emphasis added).
The "fresh and/or new evidence" provided to Rothman J included a statement the applicant says he took from SC before the 2009 trial (statement dated 4 November 2006, annexure 6 to the original Part 7 application). The applicant attributes the failure to call SC at trial to incompetence on the part of trial defence counsel, whom he also accuses of lying to the Court of Criminal Appeal in the first conviction appeal (issue 3, considered below). When the barrister gave evidence at the conviction appeal, he was not cross-examined about the purported statement of SC. In his submissions to Rothman J, the applicant explained that he knew the statement was relevant but that he did not have access to it at the time of the appeal because it was one of the documents locked away by Corrective Services in the tub marked "NFI" (not for issue to inmate).
As to the purported statement of SC, leaving aside any question as to its authenticity, the critical passage is as follows: "7. I remember we stayed at Mr Clark's mother's place but I do not remember the suburb. I remember it was a very tiny house joined to another house and a hotel there were only two bedrooms. I remember sleeping in the front bedroom with B and DM, I remember the bedroom was tiny it had two single beds and a slide out single bed under one of the single beds I think there called a trundle bed. 8. I remember I slept near the door, B slept in the middle on the trundle and DM sleeping next to the window. I remember Mr Clark did not sleep there that night because there was no room I do not remember where Mr Clark went or stayed. I remember mucking around with B and DM before we went to sleep. I remember mucking around until about 11 or 12 o'clock that night before we went to slept and Mr Clark was not there then as he had already left. [sic]" 9. I remember Mr Clark coming back the next morning and we all went and looked at more cars Mr Clark bought a new Ford station wagon later that day."
Justice Rothman concluded at [103]-[105] that the purported alibi based on any evidence that could have been adduced from SC was fully dealt with and rejected by the Court of Criminal Appeal in the first conviction appeal. No basis has been established for impugning that conclusion. His Honour was mistaken in thinking that the statement produced to him as fresh evidence was before the Court of Criminal Appeal but that is an immaterial factual error. SC was not an alibi witness. His statement did not establish that the applicant was in another place at the time the offence was committed. Further, it is clear that Rothman J was sceptical as to the authenticity of any statement taken by the applicant, as he was entitled to be. The statement did not cast any doubt on the conclusion reached by the Court of Criminal Appeal.
Count 1 alleged an aggravated indecent assault against the same complainant, DM, between 1 August and 30 September 1997 contrary to s 61M(1) of the Crimes Act. The offence was alleged to have been committed at the applicant's home in Wingham in northern New South Wales. The applicant contended that he could not have committed an offence in Wingham because he had moved to Sydney in May 1997 to live with his elderly mother in Rozelle and that after June 1997 it was a condition of his bail for other sexual offences that he continue to reside with his mother at the Rozelle address.
The "fresh and/or new evidence" included a letter dated 27 July 2008 from the applicant to his trial solicitor setting out his instructions as to the supposed alibi (annexure 4 to the original application) and a copy of the first 4 pages of the indictment setting out trial defence counsel's handwritten notes concerning counts 1 to 6 (annexure 5).
The applicant asserted that he gave instructions to trial defence counsel concerning that alibi in the following conversation: "Webb: You were obviously in Sydney, so [DM] is lying? Applicant: Yes. Webb: How can we prove that? Applicant: Easy my police statement that I typed and gave to the police it has my mother's address, [address stated], Rozelle. Webb: If I get that police brief will it have your mother's address?"
It was open to Rothman J to dismiss the proposition that the residential condition of the applicant's bail (and his implied assertion that he complied with that condition) afforded evidence that he was not in Wingham on a particular night that year when the offence alleged in count 1 was committed.

Issue 2: alleged fresh or new evidence concerning count 12

The second issue concerned count 12, which alleged an offence of aggravated sexual intercourse with a child between the ages of 14 and 16 contrary to s 66C(4) of the Crimes Act. The offence was alleged to have been committed between 1 August 2003 and 30 November 2003. The complainant was SB. The circumstance of aggravation was that SB was under the authority of the applicant at the time of the offence.
The fresh evidence in respect of count 12 was a purported statement from SB's father (taken by the applicant). Justice Rothman's conclusion concerning this issue at [101] was: "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."
The material before Rothman J included the parts of the trial transcript that were relevant to that count, including the Crown's opening and closing address, SB's evidence, the evidence of SB's father, the evidence of SB's sister and the trial judge's summing up.
In his conviction appeal, the applicant relied on a ground that the conviction on count 12 was "unsafe and/or unsatisfactory". The Court said: "[359] We go then to the appellant's submissions concerning count 12. There is no substance in his complaint. We have earlier referred to the evidence concerning SB's age and when he was living with the appellant. The Crown Prosecutor drew attention to all the evidence in her closing address, and invited the jury to find that SB had meant October 2003, not October 2004, as was consistent with his father's evidence. This was a matter for the jury, and in our view it was entirely open to the jury to have found that the incident occurred in October 2003, during the period stated in count 12 and while SB was living with the appellant. [360] Although without more focussed submissions from the appellant, we must make our independent assessment of the evidence. Having in mind the jury's advantage in seeing and hearing the evidence, we must ask ourselves whether upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty, and we must ask ourselves that question in relation to each of the counts on which a verdict of guilty was returned. We have undertaken that task."
In his first r 50C application, the applicant sought to reopen the conviction appeal on the basis that his conduct of the appeal was obstructed or prevented by reason of the fact that correctional services officers had denied him access to a box of relevant documents. The Court rejected that claim on the basis that the events complained of occurred before the commencement of the hearing of the appeal or during the appeal and that the transcript of the proceedings before the first Criminal Appeal Court indicated that the issue of access to documents "was resolved satisfactorily by the Court adjourning until the tub of documents arrived": at [51]-[54].
Dealing with the applicant's oral submissions, the Court said at [125]: "Insofar as Count 12 is concerned, PFC submits that his conviction was erroneous because an essential element, namely that the complainant SB was under his authority in 2003 when he is alleged to have had sexual intercourse with him, was not proved because SB only came under his authority in 2004. The Court of Criminal Appeal specifically considered this issue. In [200] and [201], it referred to the evidence, concisely, that was before the jury on this issue. It concluded that there was no misdirection of law about that evidence, and that the conviction was not unreasonable. We detect no misapprehension of fact or law in the first judgment on these issues. In so doing, we do not accede to the invitation of PFC to undertake this exercise by reference to the further material which he placed before this Court."
The applicant raised the same matter in the second r 50C application. The Court dealt with the issue in detail at [35]-[46]. In doing so, the Court noted at [38]-[40] that the applicant had misstated the indictment: "[38] The applicant contended that the offence the subject of count 12 could not have occurred because SB was not under his authority until 2004. In his written submissions, he reproduced count 12 in different terms, as follows: 'That between 1 August 2003 and 30 November 2003 at [suburb of city] NSW he did have homosexual intercourse with SB, over 14 years and under 16 years, in circumstances of aggravation, namely SB was in his care through DOCS.' (emphasis in original) [39] Were it an element of the offence charged that SB was in the applicant's care through DOCS, the applicant might have been on slightly firmer ground. However, the applicant's version of count 12 is not accurate. [40] The Crown case was that, at the time relevant to count 12, SB was under the applicant's authority not because he had been placed into his care by DOCS but because he had been residing with the applicant in an earlier period in 2003. At trial, the applicant contended, unsuccessfully, that this was not the case and that SB had first come to live with him in 2004. The issue was re-examined on appeal and again reconsidered in the first challenged judgment. The applicant now attempts to relitigate it for a fourth time."
As already noted, the third r 50C application was dismissed summarily as being vexatious.
The applicant argues, by reference both to material that was before Rothman J and additional material that was not, that the period during which SB was under the applicant's care "under the auspices of DoCS" commenced in 2004. Based on the terms of the Crown's opening, the fact that SB described the incident as having occurred after the applicant had contacted DoCS and the terms of the trial judge's summing up, he submits that it is impossible for the offence to have been committed as alleged in the indictment.
Contrary to the applicant's stridently expressed submissions, it is clear from the material referred to above that the matter of the reasonableness of the jury's verdict on count 12 had been looked at repeatedly and thoroughly.
The "fresh and/or new" evidence relied upon by the applicant was: 1. SB's original statement made to police dated 27 September 2006 (annexure 1 to the original Part 7 application dated 3 October 2017); 2. the statement said to have been taken by the applicant from SB's father dated 9 November 2006 (annexure 2 to the original application); 3. an 11-page chronology of events from 5 February 2005 concerning the conduct of SB which was said to have been shown to SB's father and accepted as accurate by him and by SB (annexure 3 to the original application).
The statement by SB's father is generally exculpatory of the applicant and specifically states that SB did not go to live with the applicant in 2003. The applicant's submissions acknowledge that he did not cross-examine SB's father as to any such statement when he had the opportunity to do so at an earlier trial. He explained at par 39 of his original Part 7 application that, by then, he had been charged with the offences against SB and the other complainants. The explanation is implausible having regard to the applicant's defence in the 2009 trial, which was to have all counts tried together and to accuse the boys of conspiracy.
As already noted, Rothman J evidently thought that the purported statement of SB's father was before the Court of Criminal Appeal at the conviction appeal: at [99] of his decision. He was mistaken in that respect but the error is immaterial. It is clear from the decision that his Honour was sceptical as to the authenticity of the statement. While he did not say so in terms, he referred to the statement in the context of the six charges of doing an act with the intention of perverting the course of justice for which the applicant was being tried at the same time before Norrish QC DCJ and on which the applicant was found guilty (counts 6, 15, 21, 22, 24 and 29). One of those counts concerned SB. The Court of Criminal Appeal in the conviction appeal summarised the evidence on that count as follows at [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."
The applicant accepts that Rothman J was sceptical as to the authenticity of the statement. He does not suggest his Honour was not entitled to form a view about the plausibility of the fresh evidence. It was simply suggested that his assessment was wrong.
At par 129 of tab 1 (the annotated evidence concerning count 12 relied upon in this Court), the applicant said: "One error made by the Court of Criminal Appeal, and adopted by Rothman J, is the view that statements taken by the applicant are inherently unreliable. This is not a valid argument, especially in relation to critical issues relating to dates, as this evidence is supported by other credible evidence of fact in the Crown case. The rule is clear - such evidence must be relevant to a fact in issue, cogent, reliable and plausible. It [the purported statement of SB's father] meets that standard."
As noted at the outset of this discussion, the determinative conclusion by Rothman J was that the fresh material did not cast "any doubt whatsoever" on the conviction on count 12 that had not been fully dealt with before. No ground has been made out for impugning that conclusion. The proposition that the supposed fresh evidence afforded a basis for doubting the jury's verdict is untenable.

Issue 3: trial counsel's alleged lies to the first appeal court

The third issue raised in the application determined by Rothman J was the contention that trial defence counsel lied in his evidence to the first Court of Criminal Appeal "to cover up for his flagrant incompetence before and during the District Court criminal trial" and that this resulted in a "mismanage of justice" (presumably intended to read "miscarriage of justice").
As already noted, this ground was raised in the "additional Part 7 application" dated 30 October 2017. In support of the additional ground, the applicant provided a copy of trial defence counsel's written advice dated 5 August 2008 but evidently signed by counsel on 21 August 2008. In that advice, trial defence counsel recorded that the applicant "presently instructs that he was not present at a number of the alleged crime scenes". Counsel sought instructions as to the applicant's movements "as provable on the basis of evidence able to be obtained by us". Justice Rothman noted that the advice was before the Court of Criminal Appeal in the original conviction appeal "by way of both evidence and submissions": at [78]. His Honour concluded at [79] that the Court had dealt with that issue and concluded that the applicant had instructed his lawyers that he had no alibi.
No ground has been established for impugning that conclusion. The Court of Criminal Appeal at [106] summarised the evidence given in the appeal by trial defence counsel, the burden of which was that the matters raised in the written advice were discussed in a later conference and that it was concluded that there was no alibi for any of the charges. Nothing put by the applicant in the present proceedings establishes that Rothman J's rejection of this complaint was legally erroneous.

Issue 4: alleged failure of the Court to consider the whole of the evidence

The fourth issue contends that the first Court of Criminal Appeal failed to execute their duty by properly examining the whole of the evidence presented on the appeal which, so it was asserted, "proved beyond any doubt, that the applicant's trial counsel had lied to the first Court of Criminal Appeal", again resulting in a miscarriage of justice. This issue falls with issue 3 addressed above.

Issue 5: sentence

The final issue raised in the application determined by Rothman J concerned the applicant's sentences. First, it was contended that the applicant had brought an appeal against his sentence and that the appeal had never been determined by the Court.
Justice Rothman concluded at [124]: "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."
That conclusion was plainly open. In this Court, the applicant provided a copy of a purported letter to the Registrar dated 23 December 2010 setting out his "sentence appeal grounds and submissions". That material was not before Rothman J and should be disregarded by this Court. In any event, even if the letter had been before Rothman J, it could not have altered his Honour's conclusion. It if was ever sent to the Court (which was not established), it did not properly institute an appeal against sentence and must in any event be taken to have been abandoned. Further, his Honour's conclusion at [119] that the sentence was at the lower end of the permissible range is not vitiated by any legal error.
Separately, the applicant sought an inquiry into his sentence on the basis of events after sentence. Justice Rothman was not persuaded that the material relied upon established special circumstances. That conclusion has not been demonstrated to be irrational or unreasonable in the Li sense. The material put before Rothman J, far from showing assistance to authorities, tended to sustain the impression his Honour evidently formed that the applicant was given to preparing false statements for the purpose of legal proceedings. In one of the statements provided to Rothman J as part of the "fresh and/or new evidence" (annexure 7 to the original application, pars 12-16), the applicant in effect admits doing just that.

Conclusion

I agree with the additional observations of Basten JA.
I propose that the summons be dismissed with costs.

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HEADNOTE [This headnote is not to be read as part of the judgment] The applicant sought judicial review of a decision of a judge of the Supreme Court refusing to consider or otherwise deal with his application under Part 7 of the Crimes (Appeal and Review) Act 2001 (NSW) seeking an inquiry into his convictions and sentences for child sexual offences. The decision under review was an exercise of the power under s 79(3) of the Crimes (Appeal and Review) Act. The summons for review alleged factual and legal errors in the conclusions reached in exercising that power. The key issues raised by the application were whether: 1. vitiating error in the decision could be established by contradicting the judge's conclusion as to one of the considerations in s 79(3)(a) and (b); 2. the decision was unreasonable in the legal sense. The Court (McCallum JA, Basten and Macfarlan JJA agreeing) held, dismissing the summons:

A decision under s 79(3) of the Crimes (Appeal and Review) Act 2001 (NSW) is not amenable to review on the merits but is reviewable for jurisdictional error: [12], [36]. Patsalis v Attorney General for New South Wales (2013) 85 NSWLR 463; [2013] NSWCA 343, Sinkovich v Attorney General of New South Wales (2013) 85 NSWLR 783; [2013] NSWCA 383 applied.
The discretion conferred by s 79(3) of the Crimes (Appeal and Review) Act is not conditional upon the establishment of any particular matter. The matters stated in s 79(3)(a) and (b) serve as a guide to the proper limits of that power but its exercise is not conditional upon their being satisfied: [39].
Consideration of the matter stated in s 79(3)(a) required the judge to reach a state of satisfaction as to facts. The jurisdictional condition of engagement of the power was the satisfaction of the judge: [41]. The judge's conclusion on that issue could be impugned if it was unreasonable in the legal sense: [42]. Sinkovich at [26], quoted and applied, Minister for Immigration and Citizenship v Li (2013) 249 CLR 332, referred to.
Consideration of the matter stated in s 79(3)(b) did not require the judge to make an independent assessment of the whole of the evidence before his Honour. SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13, referred to
In determining whether to be "satisfied" as to the existence of certain factual matters for the purposes of considering whether to exercise the discretion under s 79(3), the judge to whom a Part 7 application is referred may not act arbitrarily or capriciously and must act in good faith: at [44]. Buck v Bavone (1976) 135 CLR 110; [1976] HCA 24 at 118 (Gibbs J), 131 (Mason J), referred to.
The scope of grounds that may properly be raised for seeking an inquiry under Part 7 is broad: [45]. It is not necessary for the judge to address every issue, piece of evidence and submission raised in previous proceedings before exercising the discretion in s 79(3) to refuse to consider or otherwise deal with the application: [46]-[47]. Sinkovich at [30], applied.
The decision under review was not unreasonable in the sense explained by the High Court in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18. The Court (Basten JA, Macfarlan and McCallum JJA agreeing) observed:
The power conferred by s 79 of the Crimes (Appeal and Review) Act 2001 enables the court to refuse to consider an application which is frivolous, vexatious, misconceived or lacking in substance: at [5]. However, the structure and language of the section lead to the giving of extensive reasons in circumstances where an application might properly be given short shrift: [8]-[9].

Circumstances in which the application for an inquiry was made

The applicant was tried in 2009 by Norrish QC DCJ with a jury on an indictment containing 29 counts including 19 child sexual offences, three child pornography offences and seven counts of perverting the course of justice. I will refer to that trial as the 2009 trial.
The sexual offences involved six male complainants. The perversion of justice counts alleged that the applicant had prevailed upon some of the complainants to make false exculpatory statements, in one instance with a view to giving false exculpatory evidence concerning the offences in the trial and other matters. Against the advice of his lawyers, the applicant insisted that all counts be tried together. He defended them on the basis that the complainants had conspired to make false allegations against him so as to be able to obtain victims' compensation payments by fraud.
The applicant was found guilty on 23 counts and sentenced to a term of imprisonment with a non-parole period of 10 years and 9 months and a balance of term of 3 years and 8 months.
The Crown appealed against the alleged inadequacy of the sentence. The applicant sought leave to appeal against the convictions and contends that the appeal extended to the sentences imposed. It will be necessary to return to the question of the purported sentence appeal.
The Crown appeal was heard first and was dismissed: R v PFC [2011] NSWCCA 117 (Allsop P, Hoeben and Hall JJ). The applicant was represented in that appeal. The judgment makes no reference to any sentence appeal by the offender, nor is there any such reference in a separate judgment dealing with procedural directions in the conviction appeal published on the day on which the Court heard the Crown appeal: PFC v R; R v PFC [2011] NSWCCA 130 (Allsop P, Hoeben and Hall JJ).
The applicant's conviction appeal was heard later in the same year and was also dismissed: PFC v R [2011] NSWCCA 275 (Giles JA, Hoeben and Hall JJ). The judgment makes no reference to any ground of appeal against sentence. I will refer to that as the original conviction appeal.
In the meantime, on 31 August 2011 (between the hearing of the Crown appeal and the applicant's appeal), the applicant was found guilty after a trial before Freeman DCJ with a jury of an offence of perverting the course of justice arising out of his conduct of civil proceedings brought by him in which he made allegations of misconduct against police (as to which see Clark v State of New South Wales (2006) 66 NSWLR 640; [2006] NSWSC 673 (Johnson J) and Clark v State of New South Wales; Clark v Robards [2014] NSWSC 742 (Hidden J)). The applicant was sentenced for that offence on 15 September 2011 to a term of imprisonment for 2 years and 8 months with a non-parole period of 2 years, which had the effect of extending his earliest possible release date to 6 June 2021. I will refer to that trial as the 2011 trial.

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