Clark v Attorney General of New South Wales

Court of Appeal (NSW)|2023-08-22|Before: Gleeson JA, White JA, Sweeney J

Background

In August 2009, the applicant was tried in the District Court on an indictment containing 29 counts. The jury convicted him of 23 counts, including count 12, which was in the following terms: "Between 1 August 2003 and 30 November 2003 at Pampoolah in the State of New South Wales [the applicant] did have sexual intercourse with SB, he being a person of the age of 14 years and under the age of 16 years, in circumstances of aggravation, namely that SB was under the authority of [the applicant]."
This offence was an aggravated offence of sexual intercourse with a child between 14 years and 16 years of age, pursuant to s 66C(4) of the Crimes Act 1900 (NSW), as in force at the time of the alleged offending. The circumstance of aggravation, being "under the authority of the alleged offender", was (and still is) found in s 66C(5)(d).
Mr Clark has sought to challenge his conviction with respect to count 12 in several proceedings. His short point has been that the evidence showed that SB was committed to his care by the Department of Community Services, but not until 2004 and that SB did not stay in the applicant's house until then. Accordingly, SB was not under his authority in 2003. The reason his complaint has been rejected is that there was evidence called before the jury that SB left his home, due to conflict with his father, on two occasions, once in the second half of 2003 and again in 2004. On each occasion he stayed in the applicant's home. For legal purposes, he was in the care of the applicant; he could be, and was, "under the authority" of the applicant without any legal or administrative direction from a court or state agency.

Nature of Pt 7 application

The application the subject of this proceeding was made pursuant to s 78 of the Appeal and Review Act, seeking "an inquiry" into his conviction on count 12. Such an application may be made to the Supreme Court by a convicted person. The Supreme Court may direct that an inquiry be conducted by a judicial officer into the conviction: s 79(1)(a). In the alternative, 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 (NSW): s 79(1)(b). However, action under s 79(1) may only be taken if it appears to the Court that there is "a doubt or question as to the convicted person's guilt". Further, the Court may "refuse to consider or otherwise deal with an application", including in circumstances where it appears that the matter has been "fully dealt with" at the trial, on appeal from a conviction, or by a previous application under Pt 7: s 79(3)(a). In addition to engagement of one of the matters in par (a), the Court must be "not satisfied that there are special facts or special circumstances that justify the taking of further action": s 79(3)(b).
Although s 79(3) does not purport to constrain the power of the Court to refuse to consider or otherwise deal with an application, because that power must be exercised properly, having regard to the subject-matter, scope and purpose of Pt 7, it is usual for the Court to consider an application unless the circumstances identified in s 79(3)(a) and (b) are satisfied. Although those matters are not the exclusive grounds for refusing to consider an application, they cover the common cases and were relied on in the present case.
The combined requirements of pars (a) and (b) of s 79(3) imply that there may be special facts or special circumstances which warrant further consideration, although the subject matter of the application has been fully considered in the past. Such circumstances might arise if there were further evidence which had not been considered on any appeal or earlier application under Pt 7. If the judge were satisfied that an available contention, though not raised for the first time, had in fact been ignored or misunderstood on past occasions, no doubt that could provide a reason not to refuse to consider the fresh application.
Self-evidently, a judge of the Court to whom an application has been referred, will have to give preliminary consideration to the content of the application, in order to determine, for example, whether it raises special facts or special circumstances under s 79(3)(b). That preliminary consideration is to be distinguished from the kind of assessment necessary to determine, on the merits, whether an inquiry or referral to the Court of Criminal Appeal is warranted.

Jurisdiction of Court on judicial review

The jurisdiction of this Court is encapsulated in s 69 of the Supreme Court Act 1970 (NSW) and is sometimes described as the Court's supervisory jurisdiction. It does not provide for the exercise of review (as opposed to appeal) with respect to judges of the Supreme Court exercising their judicial functions, but the decision of Sweeney J was not the exercise of a judicial function: Appeal and Review Act, s 79(4). The Court will review a decision with respect to an application under Pt 7 of the Appeal and Review Act on the basis of jurisdictional error or error of law on the face of the record. The applicant invoked both grounds. Thus, ground 4 relied on: "Jurisdictional error in that substantial arguments identified by the Applicant namely fraud and the special facts or special circumstances, were not addressed or not adequately addressed by the primary judge which [and] as such [was] a constructive failure to exercise the jurisdiction."
Largely to similar effect, ground 7 provided: "The decision of the primary judge according to the facts; was unreasonable; and plainly unjust; and failed to give adequate weight to relevant considerations; and was a failure to exercise the discretion actually entrusted to [her Honour]."
A decision which is legally unreasonable and therefore plainly unjust may provide a basis for a finding of jurisdictional error. However, an assessment of the adequacy of the weight given to particular considerations will not, unless it is clear that little weight has been accorded to a factor of great importance: Minister for Aboriginal Affairs v Peko-Wallsend Ltd. [1] Even then, as Mason J stated at 42: "… a court should proceed with caution when reviewing an administrative decision on the ground that it does not give proper weight to relevant factors, lest it exceed its supervisory role by reviewing the decision on its merits."
Ground 6 alleged that the primary judge had erred in proceeding "on misapprehensions of fact, and law, which were material". Ground 3 alleged that "[i]n refusing to consider or otherwise deal with the application … the primary judge made a House error …".
It may be that, as in ground 3, the applicant equated judicial review with an appeal from a discretionary judgment such as a judgment on sentence, to which the principles explained in House v The King [2] apply. Such language is inapposite in identifying the scope of judicial review, although there are common elements between the two categories of proceedings, and appeals limited to questions of law: see Peko-Wallsend at 42.
Further, in grounds 8 and 9, the applicant introduced concepts such as "miscarriage of justice" and "misdirecting the jury" which were redolent of an appeal to the Court of Criminal Appeal. These grounds tended to assume that if the applicant brought a complaint which would have warranted relief in the Court of Criminal Appeal, this Court would be empowered to intervene to set aside the decision of Sweeney J. However, that was not correct for two reasons. The first is that Sweeney J disposed of the application under s 79(3) on the basis that the matters raised had been fully dealt with in the appeal and in earlier Pt 7 applications. In any event, the function being undertaken by Sweeney J was not, in effect, to conduct an appeal from those earlier decisions (as indeed the applicant expressly described it) but merely a consideration of whether the matter raised by the applicant had been fully dealt with (under sub-par (i)) or dealt with (under sub-par (ii)) in those proceedings. For example, if a particular matter was raised on appeal to the Court of Criminal Appeal and addressed by that Court, it was not for Sweeney J to determine whether that Court had disposed of the matter correctly. Similarly, it is not for this Court, in reviewing the decision of Sweeney J, to determine whether she had correctly decided the issues before her, but rather whether she had committed an error of law which appeared on the face of the record, or had so misconceived her function under Pt 7 as not to have made a valid decision.
In seeking to address the passages in the reasons of the primary judge identified by the applicant, this Court will be limited to determining whether the applicant has established that Sweeney J in fact made an error apparent on the face of the record or committed jurisdictional error, which may include determining whether, on the material before her, her decision may be characterised as legally unreasonable and therefore beyond power.

Decision of judge to whom application referred

The grounds of appeal in the applicant's summons were expressed discursively. The fundamental proposition was that Sweeney J had erroneously refused to deal with the application on the basis that the same matters had been considered and rejected, both by the Court of Criminal Appeal and by judges to whom previous applications under Pt 7 had been referred. The applicant contended that such a course should not have been taken because his complaint was that the Court of Criminal Appeal and the judges dealing with earlier Pt 7 applications had all failed to address his complaints and it was therefore an error for Sweeney J to decline to address his application. His primary complaint was (and had been on prior occasions) that the evidence proffered by the prosecution at his trial in support of count 12 was not capable of supporting the conviction. (Indeed, he asserted the evidence was positively inconsistent with his conviction.)
The decision of Sweeney J, made on 27 April 2023, [3] was an administrative determination: see s 79(4). Although the judge's reasons are publicly available, it will be convenient to set out the challenged passages in addressing the present application for judicial review.
First, the judge correctly identified that "[t]he essence of the applicant's challenge to his conviction in respect of this offence is his assertion that the complainant SB was not under his authority in 2003, but only came under his authority in 2004": at [10]. The reasons continued: "11 In connection with that challenge to his conviction on that count the applicant raises a number of grounds. He asserts that in this Court's previous consideration of his challenge to his conviction on Count 12 the Court has never fully dealt with his argument, in that it has misunderstood or failed to comprehend sufficiently his argument, or has erred in law in considering his challenge."
The judge then identified the bases of the complaint as (i) misconduct by the prosecutor in misstating the evidence and misleading the jury as to the state of the evidence; (ii) misconduct by police officers in coaching the father of the complainant to give false evidence; (iii) a resulting conviction which was unreasonable because unsupported by the evidence; (iv) the dismissal of an appeal against conviction by the Court of Criminal Appeal which was also unreasonable and (v) bias or incompetence on the part of this Court in dismissing previous applications under Pt 7, including by covering up for the prosecutor in the trial who is now a judge of the Court: at [11].
A sixth ground was identified, namely that the prosecution was prohibited from proceeding with count 12 by the doctrines of res judicata and double jeopardy arising from the fact that an earlier charge relating to the same conduct had been laid but later withdrawn in 2007: at [12]. Although that finding was not challenged on this application for judicial review, it should be noted that the judge dismissed the suggestion that the Director was precluded from including count 12 in the 2009 indictment because an earlier charge in similar terms had been before the Local Court, resulting in a direction that he was "committed for trial", but was not then tried. By reference to authority, the judge concluded that there was no estoppel raised because there had been no judicial determination of the earlier count, and there was no abuse of process in including count 12 on the 2009 indictment.
The judge summarised the background circumstances: "14 … It was the applicant's case at trial, relying in part on DOCS records as well as his own assertion, that the complainant SB only came to live with him in May 2004, did not live with him in 2003, and therefore SB could not have been under his authority in 2003 and it was impossible for the offence charged in Count 12 to have been committed in the terms charged, with that circumstance of aggravation."
The judge continued in her summary of the trial, in a passage sought to be challenged by the applicant, in the following terms: "15 There was evidence in the trial from SB's father that SB had gone to live with the applicant from August to November 2003. When SB's evidence began he said he first went to live the applicant in late 2004. In her closing address to the jury the Crown Prosecutor referred to the evidence of SB's father about SB living with the applicant in late 2003 and invited the jury to conclude that SB was mistaken when he initially said he went to live with the applicant in October 2004, reminding the jury of the complainant's evidence that he moved out and then moved back with the applicant in the following year in April of 2004."
Ground 1 in the summons complained that "[t]he reasoning of the primary judge at [15] exposed the very same fundamental error all the previous judicial officers had made [in addressing] whether, as a question of law, there was evidence to support Count 12 rather than making [her] own independent assessment of the whole of the evidence…".
That ground misconceived the nature of [15] in the reasons: the paragraph was merely part of the background to the application and did not form part of the judge's reasoning to her conclusion.
At [16], the judge then noted that this was the third application under s 78 in respect of this conviction: the judge listed the manner in which the matter had come before the Court on previous occasions, including by way of judicial review from the refusal of previous Pt 7 applications, and by way of three applications to the Court of Criminal Appeal under r 50C of the Criminal Appeal Rules (as then in force) seeking to reopen the judgment of that Court on appeal.
Sweeney J then stated: "17 Thus the issue raised by the applicant in respect of Count 12 has been considered by this Court on many occasions. Having considered the evidence in relation to Count 12 I am not satisfied there is a doubt or question as to the appellant's guilt in respect of Count 12." Ground 2 in the summons asserted error in this passage on the basis that the judge could not have considered the evidence and not upheld the applicant's complaint.
Read in isolation, the second sentence in [17] might be understood as disposing of the application on the merits. However, there would then be a non-sequitur in the reasoning, as the second sentence, so read, would not follow from the first sentence. Further, it is clear that [17] was not intended as a disposal of the application on any basis. The judge immediately went on to deal with the additional ground (based on res judicata and double jeopardy) and to explain why the withdrawal of the 2007 charge did not result in the later proceeding on count 12 constituting an abuse of process. Although the judge noted at [18] that it was not the first time that this issue had been raised, she dealt with it separately on the basis that there might have been some doubt as to whether the particular manner in which the argument was presented had been considered in previous applications and, to the extent that it had not, expressed her conclusion that it did not raise a doubt or question about that procedural step in the applicant's trial: at [25].
The judge then returned to the other matters concluding: "26 Otherwise, the matters raised by the applicant in respect of his conviction of the offence in Count 12 have previously been dealt with under this Part and in his appeal against his conviction. I am not satisfied there are special facts or special circumstances that justify the taking of further action, all the matters raised by the applicant having previously been fully considered. Therefore I refuse to consider or otherwise deal with his application in respect of Count 12 in his 2009 trial."
Thus, reading the judge's reasons as a whole, it is evident that she disposed of the matter by declining to consider further or otherwise deal with the application, pursuant to s 79(3), on the basis that it had been dealt with previously, both in the proceedings in the Court of Criminal Appeal, and by previous applications under Pt 7. She made a finding that it had been so dealt with and further that she was not satisfied that there were special facts or special circumstances that justified the taking of further action.
So understood, the second sentence at [17] is coherent with the outcome, and constitutes a logical step in the process. Although, as noted above, the Court may refuse to consider or otherwise deal with an application without satisfying the terms of s 79(3)(a) and (b), the judge expressly applied those provisions. That required her, first, to determine what was "the matter" which had been identified in the fresh application under s 78(1), for the purpose of determining whether that "matter" had been fully dealt with in earlier proceedings for the purposes of s 79(3)(a). If, in the course of that exercise, the judge had identified a basis for a doubt or question as to the applicant's guilt, for the purposes of s 79(2), that might have been a reason either to find that the matter had not been fully dealt with, or that there were special facts or special circumstances that justified further action under s 79(3)(b). Hence the preliminary finding in the second sentence in [17] was appropriate.
Returning to [26] in the decision under review (set out at [31] above) it may be seen that the judge expressly adverted to the possibility of there being "special facts or special circumstances" that justify taking further action and held that there were not. As will often be the case, it is sufficient that all the matters raised have already been considered. While it was the applicant's submission that they had not previously been properly considered, there was no evidence that there were any other special facts or circumstances relied upon to justify further consideration of the fresh application. Thus, in so far as ground 4 referred to substantial arguments with respect to special facts or special circumstances not addressed by the judge, the ground was not made good and must be rejected.
It may readily be accepted that, for the purposes of considering an application to set aside or quash the decision of the judge, her reasons will constitute part of the "record", as identified in s 69(4) of the Supreme Court Act. However, the applicant identified no error of law by reference to the judge's reasons, and this Court is not satisfied that there was any such error. It was open to the applicant to establish jurisdictional error by demonstrating, for example, that the decision of the judge was legally unreasonable. The allegation that the evidence at the trial "proved beyond a shadow of a doubt" that count 12 had not been made out, may be understood as an assertion that the decision was legally unreasonable, as alleged in ground 7. However, in fact there was conflicting evidence before the jury, which the judge accepted was a matter for the jury to resolve.
It was open to the judge to determine, as she did, that that factual issue had been fully dealt with by the Court of Criminal Appeal and by the consideration of earlier applications under Pt 7. In circumstances where a fresh application under Pt 7 raises no new material, which is credible and persuasive, it is not only open to a judge to refuse to consider the matter further under s 79(3), but it is entirely appropriate for the judge to deal with it in that manner. Further, identification of "the matter" raised by the application as one which has already been dealt with, involves a question of fact for the judge considering the new Pt 7 application. There was no reason to suppose that she had made some manifestly unreasonable decision in that regard; indeed, it was a central element in the applicant's submissions in this Court that the same issue had been raised repeatedly, although, in his submission, never properly dealt with. However, as noted above, it was no part of the judge's function to determine, as if on appeal, that the earlier decisions were right or wrong. The applicant's submissions in support of the view that his case had never been properly dealt with had been clearly raised by him and dealt with by the primary judge.
Although ground 5 made an allegation of a "fraudulent" misrepresentation of the truth, this was mere hyperbole. The applicant submitted that fraud would form a basis to set aside any and each of the decisions in question, referring to Director of Public Prosecutions v Moseley. [4] Moseley was a case in which the Northern Territory Court of Criminal Appeal had been induced to set aside a conviction on the basis of evidence from a third party that he, not the appellant, had been the second person involved in the robbery for which the appellant had been convicted. He later told police that he had lied, and that the appellant had offered him a large sum of money to say he did something which he did not do. The Court of Appeal was satisfied that, if the recanting were accepted, the setting aside of the appellant's conviction had been obtained by fraud and should itself be set aside. While Moseley was a case where it was accepted that fraud could undo an earlier judicial ruling, it has no application in the present case. There was no shred of evidence to support such a complaint and it should not have been raised.

Orders

The application for judicial review was resisted by the Attorney General for the State of New South Wales. Although the underlying proceeding involved review of a criminal conviction, he submitted that the application should be dismissed with costs. In the circumstances, that order should be made.
Accordingly, the Court orders: 1. Grant the applicant leave to file the further amended summons for judicial review dated 21 August 2023. 2. Dismiss the further amended summons. 3. Order that the applicant pay the Attorney General's costs in this Court.

Endnotes

(1986) 162 CLR 24 at 41 (Mason J); [1986] HCA 40.
(1936) 55 CLR 499; [1936] HCA 40 at 505.
[2023] NSWSC 445.
[2013] NTSC 8. 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: 06 September 2023

HEADNOTE [This headnote is not to be read as part of the judgment] In 2009 the applicant, Peter Frederick Clark, was indicted on 29 counts and tried in the District Court of NSW. A jury found him guilty of 23 counts relating to child sexual offences, including count 12. Count 12 alleged that in 2003 Mr Clark had sexual intercourse with a boy known as SB, who was between 14 and 16 years of age, in aggravated circumstances because SB was under the authority of Mr Clark. Mr Clark unsuccessfully appealed his conviction on count 12 and has subsequently brought three applications under Pt 7 of the Crimes (Appeal and Review) Act 2001 (NSW) ("Appeal and Review Act") seeking an inquiry by a judicial officer into his conviction. On each challenge the substance of his case was that the evidence demonstrated that SB was placed in his care by the Department of Community Services in 2004, not 2003 as alleged in the indictment. His argument was rejected because there was evidence before the jury which, if accepted, established that, due to conflict with his father, SB had left home and stayed with Mr Clark on two separate occasions, once in 2003 and once in 2004. The present application was referred to Sweeney J who refused to consider or otherwise deal with it because the matter had been fully dealt with by the Court of Criminal Appeal and on earlier Pt 7 applications and there were no special facts or special circumstances which justified the taking of further action. On the application for judicial review, Mr Clark submitted that Sweeney J had erred in holding that the matter had been dealt with previously because on no previous occasion had the judges who considered the applications addressed the basis of his claim, namely, that SB only came under his authority pursuant to a direction of the Department, and that was in 2004. The Court held, dismissing the further amended summons: (1) The assertion that the evidence at trial "proved beyond a shadow of a doubt" that count 12 had not been made out may be understood as a complaint that the decision under review was legally unreasonable: [14], [35]. Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; [1986] HCA 40 applied (2) There was conflicting evidence before the jury, which the judge accepted was a matter for the jury to resolve. It was open to the judge to determine that that factual issue had been fully dealt with by the Court of Criminal Appeal and in considering earlier applications under Pt 7. There was no error of law in making that finding for the purposes of s 79(3)(a) of the Appeal and Review Act: [35]-[36]. (3) The applicant's case was that the "matter" raised in his application had already been raised (but not properly dealt with) on prior occasions. It was not Sweeney J's function to determine whether the earlier decisions were right or wrong when considering whether to hear a fresh Pt 7 application. Absent new, credible and persuasive material it was open to the judge to refuse to consider the matter further under s 79(3); indeed, it was entirely appropriate for the judge to deal with it in that manner: [36]. (4) The applicant's allegation of a "fraudulent" misrepresentation of the truth, was mere hyperbole. There was no material which supported the allegation and it should not have been made: [37]. Director of Public Prosecutions v Moseley [2013] NTSC 8 distinguished

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