Clark v R

Mr Clark's civil proceedings in 2004 3Mr Clark was arrested by Detective Senior Constable Cusack on 11 June 1997 and charged with aggravated indecent assault pursuant to s 61A(1) of the Crimes Act 1900 (NSW). A trial took place in the Burwood Local Court on 23 October 1997, where the charge of aggravated indecent assault was withdrawn and Mr Clark was charged with and pleaded not guilty to a count of aggravated sexual assault pursuant to s 61M of the Crimes Act 1900. He was convicted and ordered to perform 200 hours community service. The conviction was set aside on appeal to the District Court. The indictment which gave rise to Mr Clark's conviction in 2011 arose out of the trial of civil proceedings brought by Mr Clark against the State of New South Wales following his successful appeal. 4Mr Clark then commenced proceedings in the District Court in 1998 by ordinary statement of claim. He commenced separate proceedings in the Supreme Court in 2001 by summons. The District Court proceedings had joined Senior Constable Thomas Cusack as a defendant but the sole defendant in the Supreme Court proceedings was the State of New South Wales. The statement of claim in the Supreme Court refers to other occasions (on 21 February 2000 and 29 February 2000) when Mr Clark was arrested and charged, but for present purposes what matters is the conduct of Detective Senior Constable Cusack. The pleading alleged malicious prosecution, false arrest, false imprisonment and abuse of process arising, inter alia, from the allegation that Detective Senior Constable Cusack had sought to solicit a bribe from Mr Clark. Mr Clark sought damages, including aggravated and exemplary damages. The pleading was verified by Mr Clark and filed by his then solicitor. 5Mr Clark's civil proceeding came on for hearing before Wood CJ at CL on Monday 11 October 2004. Mr Clark was represented by senior and junior counsel. Senior counsel (Mr Steirn SC) had only recently been retained following the return of the brief by his predecessor (Mr Graham Ellis SC). On 12 October 2004, Mr Steirn stated that in his submission the matter was not ready to proceed, although his instructions were to proceed. He elaborated by reference to what he described as "the main plank of the plaintiff's case", a tape recording of what Detective Senior Constable Cusack had said to Mr Clark upon his arrest on 11 June 1997, in these terms: "CUSACK: Are you a player? PLAINTIFF: Pardon? CUSACK: Are you a player? PLAINTIFF: I don't understand. CUSACK: Once we go through that door you will be charged. For 50 grand you could walk. PLAINTIFF: I haven't done anything. CUSACK: I know the kid is full of shit. ... For 50 grand you walk. No charge, no publicity. PLAINTIFF: You do what you want to do but I won't pay anything. CUSACK: Well, I'll burn you and Chris Murphy." 6Mr Steirn added that "Mr Murphy, of course, is the solicitor who was to be instructed at the time". 7Mr Steirn said that on his instructions, Mr Clark had recorded the conversation on a pocket recorder, kept the cassette, and had transferred it to a CD. He said: "When I came into the matter I took the view that Mr Clark, as a matter of law, was entitled to record that conversation pursuant to s 5(3)(1) of the Listening Devices Act on the basis that he had a legitimate right to protect and consequently the matter would come before you, before this court at least, as original evidence pursuant to s 5 of the Act. Not unnaturally I required the original tape and the enhanced version relied upon to be played in my presence. The consequence was that I was unable to hear that tape and, at least as far as I'm concerned, I could not hear what was supposed to be on the enhanced version. As a consequence of that I listened to what I was told was the original tape and I share the same views as those others who listened to it. You cannot intelligently decipher what was said on the original tape." 8After some discussion, there was a short adjournment following which there was this exchange: "HIS HONOUR: Let me get it clear. Mr Steirn, your client wants to proceed, does he not, and your advice is he should seek an adjournment. STEIRN: Precisely. KOSTOPOULOS: It has just changed. He wants an adjournment." 9(Mr Clark told the Court from the dock in the course of the hearing of his appeal that he had given those altered instructions to his solicitor, who relayed them to Mr Kostopoulos, the junior retained to appear for him.) 10Counsel appearing for the State consented to the adjournment, and asked for costs to be reserved. He then asked for a direction that an affidavit be filed and served in relation to the original and enhanced copies of the tape recording, which was not opposed by Mr Steirn. Thereupon, his Honour made this direction: "I will direct that the plaintiff file and serve upon the defendant by 5.00pm on Monday next an affidavit identifying the original tape and all enhancements which have been made thereof, together with a list of the persons who have been involved in undertaking enhancements and of the date of those enhancements. I note that the parties will bring in some short minutes to establish a joint regime for the further testing and possible enhancement of the original tape." 11The consent to an adjournment advised by Mr Kostopoulos appears on p 8 of the transcript of the hearing of that day, and the direction to produce an affidavit on p 9. There was a live question whether Mr Clark was in court when the direction was made, although there is no doubt that his lawyers were. 12The matter was relisted before his Honour on 25 October 2004. However, there was no production of the original tape and any enhancements to it by Mr Clark. The judge was told that it had been destroyed. Mr Clark's lawyers applied, and were granted leave, to cease to act for him. Mr Clark was told by the judge that he would "well be advised to seek some legal advice, because what occurs from here on in may be highly relevant as to whether you have committed a criminal offence and also as to whether you are guilty of contempt of court in destroying what was to be a potential exhibit in the proceedings". 13That warning from the judge, and his former lawyers ceasing to act for him, was a consequence not merely of the non-compliance with the Court's direction, but also of a series of letters written by Mr Clark on the afternoon of 11 October 2004. They were prominent in his subsequent trial, where they were tendered. One was to his solicitor, Mr Walsh, and junior and senior counsel which included the following: "You only had to get me in the witness box I would have produced the original and the CD both crystal clear. How many times did I say that I wanted to get the tapes before a Judge then it would be in his hands, over and over I have stated this? That's all you have to do get me in the witness box, the court was the only entity that I would trust with the original tape and copy. ... If only you had put me on the stand, well on the way back to Taree I destroyed the original crystal clear tape and CD. They are scattered from Sydney to my home." 14Mr Clark also wrote directly to the judge, on the same day, but in different terms: "Your Honour Justice Wood Dear sir My Name is Peter Clark and you may recall seeing me in the Public Gallery of Court 11E today, I am the plaintiff in Clark Vs The State of NSW. Late this afternoon I received a telephone call from my solicitor Greg Walsh in response to a facsimile I sent to my senior counsel (copy page two). Mr Walsh said that I might have contravened orders that you made after I had left the court. I became extremely upset that the matter was going to be adjourned again and that I might never get to cross-examine Police Officer Cusack. Annoyed, frustrated at both parties senior counsel I destroyed the original tape and CD copy in the elevator as I left the building. If I did contravene your orders it was not my intention to do so and it was done in the heat of the moment. This matter has been dragging on since 1997 finally when I could see the finish line it was swept away from me again." 15Ultimately, the civil proceedings were dismissed as an abuse of process: Clark v State of New South Wales [2006] NSWSC 673; 66 NSWLR 640. However, an appeal was allowed in part: Clark v State of New South Wales [2012] NSWCA 139. Aspects of those proceedings continue in the Common Law Division: see Clark v State of New South Wales; Clark v Robards [2014] NSWSC 742. Nothing in these reasons should be read as bearing upon those civil proceedings, which are not before this Court.

Mr Clark's criminal trial in 2008 16Mr Clark was not prosecuted for contempt, but he was charged, in 2008, with attempting to pervert the course of justice. The subject of the indictment was the destruction or making unavailable of the original tape and CD recording of the conversation with Senior Constable Cusack. The original indictment was amended at the commencement of the criminal trial, in August 2011, and the difference is the subject of one of Mr Clark's supplementary grounds of appeal. The trial took place over 14 days, at which Mr Clark's former counsel Mr Ellis SC, Mr Steirn SC and Mr Kostopoulos, and former solicitor and paralegal Mr Walsh and Ms Mileski gave evidence and were cross-examined, as were various police officers, excluding Senior Constable Cusack (his absence features prominently in Mr Clark's grounds of appeal and submissions). Mr Clark also gave evidence and was cross-examined. Some delays were caused by the sickness of two jurors. On 25 August 2011, Mr Clark advised that he wished to call his previous barrister, Mr Robert Webb, and two other witnesses, and needed an adjournment; that application was refused and forms one of the grounds of the appeal. 17In issue at his trial was whether Mr Clark had been present in court when the judge directed the production of the affidavit concerning the tape and enhancements of it. Mr Clark gave evidence and was cross-examined, and maintained that he was not aware of the orders because he had left the courtroom. He was cross-examined about the discrepancy in his letters between the tape being destroyed in the Supreme Court building inside the elevator, and on his way back to Taree. He maintained that he destroyed the mini-cassette by crushing it in his hand in the elevator. He said that he also crushed the CD. It was suggested to him that his testimony was absolutely false, which he denied. 18Mr Clark was also cross-examined about a letter written to him by Mr Walsh dated 14 October 2004, which included the following: "I further note that when I spoke to you on the afternoon of 12th October 2004, you informed me that you did not know of the Orders made by His Honour Justice Wood. I have spoken to my employed Solicitor, Pamela Mileski, and she has made it very clear to me that she spoke to you after you had left the Court and explained carefully to you the subject Orders. In this regard, I also wish to place on the record that you had specifically provided the instructions to seek the adjournment after initially wanting the matter to proceed. I note that I expressed my grave concerns about your conduct and that I indicated I could no longer act on your behalf and that I was bitterly disappointed as to your conduct in the matter."

Procedural history of the appeal 19Mr Clark's appeal from his conviction has had an unfortunate procedural history, which must be mentioned in order to explain the grounds presently being raised, and an application made by him after judgment was reserved. 20Mr Clark's appeal has been adjourned on four occasions when it was listed for hearing (on 25 February 2013, 15 March 2013, 30 April 2013 and 12 June 2013). His grounds of appeal have been formulated apparently without the assistance of a lawyer. They have been substantially amended from time to time. In their final form, they constituted nine grounds (see "Final Grounds of Appeal" dated 4 October 2013, with the note "this document supersedes all previous submissions") and a further three supplementary grounds provided on the morning the appeal was heard (marked MFI "A"). Mr Clark confirmed when the appeal was heard that those 12 grounds were the grounds on which he now relied. 21Mr Clark also provided, on the day the appeal was listed for hearing, an affidavit of 224 paragraphs and thirteen annexures and further submissions. Most of the affidavit addressed matters which took place years before, although some addressed Mr Clark's current conditions in prison. It was regrettable that it was provided to the Crown and the Court on the day the matter was heard (there having been an exchange of written submissions, including those of 219 paragraphs from Mr Clark filed on 15 October 2013). It may also be noted that aspects of the affidavit make serious allegations of misconduct against lawyers who formerly represented Mr Clark, police officers and officers of various correctional centres. However, rather than having the appeal adjourned for a fourth time, the parties acceded, pragmatically, to the course of determining whether the appeal could be heard notwithstanding the service of that affidavit. As will be seen below, I have formed the view that Mr Clark's appeal, as ultimately formulated, can be determined on its merits without the need to say anything more about that affidavit. 22Finally, three days after judgment was reserved, Mr Clark filed a motion seeking to re-open his appeal to introduce new evidence explaining the events the subject of his conviction. By a written submission in response, the Crown resisted that evidence being received. This falls into a different category from the foregoing, and is addressed separately below. 23In what follows, I address each of Mr Clark's grounds and supplementary grounds of appeal, and his application made after judgment was reserved to reopen the appeal. I have reproduced Mr Clark's grounds verbatim as they appear in his written document. It must be said that as well as an unusual written style, Mr Clark shows a capacity to produce very long, sometimes repetitive, sometimes rambling, submissions. It would be unhelpful to reproduce the written submissions in their entirety or to summarise them in these reasons; instead, I have sought to capture their essence, insofar as they relate to each particular ground of appeal.

Ground 1 "'The Missing Witness': The appellant's defences were inter alia; that the recording of the 'Bribe' was genuine and that he needed to examine and/or cross examine former Police Officer Thomas CUSACK on the authenticity of the 'Bribe' recording. The said CUSACK refused to answer the Crown's subpoena to give evidence this led to a serious Miscarriage of Justice!" 24During the course of the trial, the Crown advised the Court that the former police officer Thomas Cusack had not been served with a subpoena to attend. On 16 August 2011 (the fifth day of the trial) the Crown advised that Mr Cusack had told another police officer that "This thing has ruined my life. I don't want to have anything more to do with this case". On 18 August 2011, evidence was tendered that Thomas Cusack had been medically discharged from the NSW Police Force on 10 August 2007 as a result of a workplace injury (exhibit M). The officer through whom the certificate was tendered was cross-examined, briefly, by Mr Clark. 25During the cross-examination of the appellant, the Crown tendered a statement of Thomas Cusack prepared on 12 June 1997. It was tendered without any objection from Mr Clark. 26Mr Clark advanced written submissions of 83 paragraphs in support of this ground. His essential point was that part of the Crown case was that the recording of the bribe conversation was not authentic, and that his defence "was and is simple". As it was put in writing: "he had to prove to the Jury; that the recording was genuine and true, that the appellant did destroy the mini cassette tape because it was 'useless and undecipherable' in 'Self-Defence' and/or out of 'Necessity'..." 27The appellant said that an inference should be drawn from the absence of Mr Cusack that the recording was genuine; he went further and "also submits that 'inference' is not warranted in this matter that it is a conclusion far beyond reasonable doubt that the recording was genuine and that is why Cusack refused to set foot in the witness box let alone inside the courtroom". 28The written submissions continue, at some length, to maintain that Mr Clark would have been able to confront Mr Cusack with his voice on the recording at the trial. He concluded that "the main point" of this ground was that: "the jury were denied the opportunity of comparing Cusack's voice to what was on the CD's the appellant still had in his possession and that he wanted to tender when cross-examining Cusack. The appellant was denied due process, natural justice, procedural fairness and unable to put his defences to the jury. Without Cusack in the witness box and the jury hearing the CD of the bribe and able to compare Cusack's voice to what was on the CD the trial miscarried!" 29It will be seen that Mr Clark maintained, even in 2011, that he retained possession of copies of the bribe conversation. Indeed, during his sentencing remarks, the trial judge said: "Mr Clark, of course, somewhat surprisingly claims to still have a number of copies of the CD. It was always his intention he says to somehow surprise Officer Cusack with this recording when the Officer was giving evidence in whatever forum could be arranged. Quite how he could manage to do this I do not understand and it has never been satisfactorily explained. Mr Clark's knowledge of the law is patchy and appears, in any event, to be subject to his belief in what he ought to be allowed to do rather than what he would be allowed to do. In any event it is not clear to me how he was going to surprise Officer Cusack in a broader sense since knowledge of the alleged existence of a recording had been, on his own case, an open secret for years. Police knowledge of the so-called recording was the motivation, he claimed, for the various attacks and false accusations from which he has suffered over the years since 1998." 30The short answer to this ground is that, as the primary judge said in his summing up to the jury, the authenticity of the tape was not necessary to establish the appellant's guilt of the offence. The purpose of the order made on 11 October 2004, was to determine whether the recording was genuine; Mr Clark's non-production has meant that its authenticity or otherwise remains unknown. Further, for reasons addressed in response to ground 4.3 below, the course which Mr Clark wished to adopt would not have occurred on any view of events. 31Another complaint made by Mr Clark is that there are references in the written submissions of the Crown to a "medical certificate" from Mr Cusack. Those references are less than perfectly accurate, but nothing turns on that. 32It is also convenient here to deal with a related submission made by Mr Clark, that there was error in permitting Mr Cusack's statement to be put into evidence. This occurred during the cross-examination of Mr Clark. Within the Crown case, there was evidence that Mr Cusack had left the police force and did not wish to come to Court. He was not called. The statement was put to Mr Clark during cross-examination, without objection. In the circumstances of this trial, no error is thereby shown.

Ground 2 "FRESH and/or NEW EVIDENCE: The Crown (Police) failed in their 'Duty of Disclosure' concealing exculpatory evidence. Namely the appellant's statement dated 20 October 2004 to Justice Wood relating to the 'Chain of Evidence' re the bribe recording and copies thereof this led to a Miscarriage of Justice!" 33Mr Clark's submissions incorporate what he says was a six page letter of 53 single spaced paragraphs dated 20 October 2004 sent by him directly to Justice Wood. It commences "Dear Sir, I claim privileged and/or request this document be withheld from the Defendant pending a formal enquiry into Mr Steirn's conduct...". The letter recorded Mr Clark's belief that his barrister had "tipped off" Mr Cusack that he had told the defendants about the mini tape and that Cusack, on the morning of 12 October 2004 in court, had looked at him "with a big grin as if he knows the mini-tape and the other copies of the bribe are useless". The letter continued: "Why would or could Steirn tip Cusack off against written instructions that I had recorded him soliciting the bribe? Nothing made any sense, only that I was being screwed by my lawyers. I was terrified that if Cusack caught me with the tape he would murder me just like in the Rogerson matters or hurt my family especially my grandson ... I had to escape I walked out the courtroom and ran to the elevator as I did I crushed the mini tape and CD in my pocket. I put the first spool of the mini tape in my mouth and chewed it up. I ran back to chambers to collect my bag as it had my car keys in. As I was leaving Ms Mileski came out the elevator stating, 'I wondered where you went, Clive wants to see you at 2 o'clock, the matter's been adjourned, his Honour also wants a chain of evidence'. I said, 'Okay' and left. I was not going to meet Steirn he had to go." 34The Crown does not, for the purpose of this appeal, accept that any such letter was sent to Justice Wood. It is not established that such a letter was written. The transcript of 25 October 2004 records his Honour stating that "a letter has been sent to me personally from the plaintiff of 2 October". That letter is reproduced above. There is no mention in the transcript of a second letter. Even if there was a second letter, it is not established that there was any breach of the Crown's duty of disclosure; on its face, the letter was not sent to the Crown, and was the subject of a claim of "privilege". There is nothing to indicate that it ever came into the possession of the Crown. Even if the letter existed and came into the possession of the Crown, it is not established that it was unavailable to Mr Clark in 2011 (it is on its face a letter from him, and it is not shown that it was unavailable to him in the preparation of this appeal). Moreover, and fundamentally, it is not shown that any failure by Mr Clark to have such letter if it existed would have had any material impact on the trial.

Ground 3 "FRESH and/or NEW EVIDENCE: Corrective Services New South Wales denied the appellant access to the same statement referred to above during the trial. Namely the appellant's statement dated 20 October 2004 to Justice Wood relating to the Chain of Evidence re the bribe recording and copies thereof this led to a Miscarriage of Justice!" 35This ground is related to the second. The appellant claims that he had made, before and during the trial, written and verbal applications to officers at the Metropolitan Remand and Reception Centre to have access to all his legal files. He asserts that this did not occur, that one officer demanded a covert corrupt payment of $1000 to allow Mr Clark access to a computer and that, as a result of the State's breach of duty of care, he was assaulted by another inmate and threatened and assaulted by another officer. True it is that in the lengthy affidavit served when the appeal was heard, Mr Clark gives some evidence supporting of this (serious) claim. In the particular circumstances of this appeal, and despite the seriousness of the allegations, it is not necessary to take that matter any further. For the reasons given in relation to ground 2, the non-production of the letter of 20 October 2004 (assuming it existed) is not shown to have been a consequence of those matters, and in any event, would not materially have altered the course of the trial.

Ground 4 36This ground comprises a series of seven complaints relating to the way in which the trial was conducted. Some complaints are specific, others are general. 37The first complaint in this ground is specific: that "his Honour failed to follow up on the appellant's application for a laptop computer to be made available to the Court to demonstrate to the Court how CDs are activated by the Windows operating system" and "to demonstrate, play and compare" copies of the conversations and put the same to various Crown witnesses. There was a debate, on the first day of the trial, which concluded inconclusively, directed to the availability of a computer. His Honour said "I'm going to make inquiry about whether we have a suitable cleansed machine. I don't know, however, how much that demonstration will really convey because I dare say - ". At that point, Mr Clark interrupted his Honour and maintained that some members of the jury were not computer literate. The exchange ended inconclusively. The question appears not subsequently to have been reagitated. It is not established by Mr Clark that in any respect was he denied a fair trial by the course taken subsequently. 38The second element of this ground (ground 4.2) is that it is said that the trial judge erred in allowing Mr Clark's later convictions in 2006 and 2009 to be put before the jury: "which included; a. multiple aggravated sexual assaults, b. multiple aggravated indecent assaults, c. multiple pervert the course of justice, d. possession of child pornography & e. procurement for child pornography." 39Mr Clark's point is that the jury should not have been exposed to convictions which occurred after he destroyed the tape. Illustrative of his submission is paragraph 135 (emphasis in original): "The Crown then put before the jury inter alia; the appellant's conviction in 2009, five years after the appellant destroyed the tape, this allowed material that was at the highest end of prejudicial material to be misused by the jury obtained at the trial." 40There is nothing in this element of this ground of appeal. First, once character is put in issue, there is no rule preventing convictions occurring after the events giving rise to the charge from being put to the jury. The contrary is the case. 41Secondly, Mr Clark was advised, in the strongest terms, against the course he proposed. That came about in this way. 42At the commencement of the trial (and in the absence of the jury) Mr Clark handed a written outline of his defence to the Court. His Honour immediately asked: "Well as to Mr Clark's intention to adduce evidence of his character and his antecedents does he run any risk by doing so Mr Crown? Does Mr Clark run any risk by his intended course of adducing evidence as to his character and antecedents?" 43The Crown indicated that if general good character was asserted, there would be an application by the Crown for evidence in rebuttal. Mr Clark confirmed that that was his case, leading to this exchange: "ACCUSED: Yes I understand what you're saying your Honour yes. And it is my intention to raise my character and the antecedents your Honour. HIS HONOUR: I see alright well as long as you understand that you thereby run some risk. ACCUSED: I understand that I run a great risk." 44On 18 August 2011, the matter was debated. His Honour said that "you can't imagine more prejudicial material" and "it seems to me to serve absolutely no purpose except one adverse to your interest in letting this material be read by the jury". Mr Clark said: "I understand what you're saying, your Honour, but it is my intention to raise my character and put before the jury these false allegations that have been made and take the jury through what's happened to me since I took on this Mr Cusack." His Honour continued: "Well, you see, you want to let in all this extremely damaging material, and the only thing you can say against it is that some jury wasn't convinced beyond reasonable doubt. That leaves you in an indefensible position." The Crown placed it on the record that if Mr Clark did lead evidence of himself having been falsely accused of impropriety with young boys, he would be compelled to lead evidence of his being convicted in respect of about 20 matters. Mr Clark then said: "I'll put those convictions before the jury. HIS HONOUR: Why on earth would you do that? ACCUSED: Your Honour, it is my defence and my character that I'm putting before the jury. Now I have a fundamental right to put my character, good or bad, before the jury and let the jury decide what happened. HIS HONOUR: How can the jury decide otherwise than that you are a person of bad character if you've been convicted of paedophilic activities? ACCUSED: Well, that is still subject to the appeal, your Honour. HIS HONOUR: At the moment you are convicted. ACCUSED: I understand that and that's what I will put to the jury. CROWN PROSECUTOR: Your Honour, what concerns me is whether Mr Clark is laying a foundation for a mistrial on the basis of his own incompetence." 45Mr Clark denied that. The exchange concluded: "HIS HONOUR: Well, Mr Clark, look, in the strongest terms I suggest to you that you do not do this. The one thing that an accused does not want a jury to know is that he's a convicted paedophile. ACCUSED: Well, I understand what you're saying, your Honour, but it is my intention to raise these convictions and put the evidence before the jury. Put the character before the jury, put the facts before the jury. The jury are the finders of fact. HIS HONOUR: The facts are that you're a convicted sexual criminal. ACCUSED: Yes, your Honour, I agree, at the moment those facts still stand. HIS HONOUR: Oh dear, Mr Clark. Do think about this between now and 2 o'clock because it seems to me that this is almost incomprehensible that you would want the jury to know that. ACCUSED: Well, I understand what you're saying your Honour, but I believe the jury are twelve reasonable people who will come to the right conclusion. The only way to do that is to put all of Peter Clark before the jury and the facts. HIS HONOUR: Well, I've given you such a caution as I can. I'll resume at 2 o'clock." 46The numerous convictions of Mr Clark were put into evidence, substantially in the way which had been contemplated in the exchange reproduced above. The trial judge gave a direction to the jury designed to ensure that the jury did not use the evidence impermissibly, about which no complaint is made. 47The Crown submits that rule 4 of the Criminal Appeal Rules has particular application here, where the course taken occurred in an informed way, following warnings given by the trial judge which were entirely appropriate and as strong as possible, consistent with his Honour's position presiding over the trial. 48I agree. Leave should not be granted to permit this ground to be raised. Lest it be thought that this be unduly harsh in respect of an unrepresented litigant, who might not be thought to be aware of the rules, it should be added that Mr Clark was an experienced litigant, and was plainly aware of the fact that rule 4 stood in the way of taking a point on appeal that had not been made at trial. When for example the primary judge refused Mr Clark's application to supply a written submission to the jury, there was this exchange: "HIS HONOUR: You've pressed for it, but I reject it. ACCUSED: That's okay, your Honour. That covers me with rule 4, I think." 49That said, it is clear that leave should be granted if there is an error which has led to a miscarriage of justice: see Carney v R; Cambey v R [2011] NSWCCA 223; 217 A Crim R 201 at [67]. However, there was no miscarriage of justice when Mr Clark, even allowing for the fact that he was representing himself, chose to take a course which turned out to be ill-advised, well knowing the risks he was running. 50Ground 4.3 is that: "The appellant could not properly cross-examine Crown witnesses as His Honour denied the appellant's request to obtain the CD attached to solicitor Gregory WALSH's affidavit on file in the Supreme Court." 51The Crown's written submissions claimed (paragraph 99) that none of Mr Clark's written submissions addressed this aspect of ground 4. In fact it is mentioned, but only briefly, in paragraph 167 of Mr Clark's written submissions (which do not precisely follow the order of the grounds). Mr Clark's oral submissions on ground 4 did not address it. It is not shown that the two CDs of sound recordings annexed to Mr Walsh's affidavit had any bearing on the trial. 52This is related to a point which Mr Clark plainly regarded both at the time, and in 2014, as important, namely, his idea that it would be possible if only Mr Cusack entered the witness box, to cross-examine him with devastating effect by playing the recording. Indeed, Mr Clark's submissions stated that he was mentored by a barrister when he was a teenager, and continued (para 178): "[The barrister] also taught me one other very important thing when it comes to trials you get the witness to confirm the lie under oath 'that it didn't happen'. Then you confront them with the truth namely the appellant would have pulled a copy of the CD out of his pocket and CUSACK would have been exposed in front of the jury! I submit that 1 single deliberate lie exposed would have had an overwhelming effect on the jury!" 53This was plainly an issue at the trial. It led to this statement in the trial judge's summing up to the jury: "The scenario which Mr Clark has built up in his mind of having Cusack in the box, and Mr Clark being able to produce triumphantly the tape, and so, 'Gotcha, you're a liar', was never going to come to pass. He would have had to give evidence first of the existence of the tape otherwise he could not have used it in cross-examination. And as soon as the tape was mentioned any court would direct that it be tested, because the question of whether it was true or not is absolutely central to its value." 54Mr Clark submits, repeatedly, that that statement and others to the same effect by the judge and the Crown, caused error. That is not so. 55Accepting that on occasion it is possible in a civil trial to cross-examine a witness on a document not previously produced, it is quite plain that where as here there had been a direction to produce the sound recordings, which had not been complied with, and which founded the charge, as soon as any such attempt was made, the course explained by the trial judge would have taken place. Mr Clark's belief in the feasibility of the course he wished to follow is misplaced. So are his complaints when the trial judge pointed out as much to him. That suffices to address a substantial aspect of Mr Clark's grounds of appeal, and the same reasoning addresses ground 4.3 to the extent (if at all) it is pressed. 56Ground 4.4 is that: "His Honour denied the appellant's application to have SB called to give evidence to rebut the Crown's allegation that 3,000 child pornographic images had been found on the appellant's computer." 57This overlaps with ground 6 and is addressed below. 58Ground 4.5 is in general terms: "The learned trial Judge failed to keep proper control of the proceedings." 59This ground is developed at paragraphs 132-167 of the written submissions. Those paragraphs focus on the placing of convictions before the jury, and Mr Clark's wish to have SB give evidence. All aspects of those paragraphs are addressed under other grounds, especially ground 6 below. 60The sixth element of this ground is: "4.6 The learned trial Judge misdirected the Jury." 61This is addressed in paragraphs 168-178 of Mr Clark's submissions. Those submissions are directed to Mr Clark's complaint that the judge erred in instructing the jury that Mr Clark's preferred course of confronting Mr Cusack with the sound recording was not feasible. It has already been addressed. 62Ground 4 concludes with: "4.7 The appellant submits that all the above led to a miscarriage of justice!" 63That does not advance Mr Clark's position on the appeal.

Ground 5 "The trial miscarried in that the verdict of the jury was perverse, unsafe and/or unreasonable and/or unsatisfactory having regard to the whole of the evidence, in the trial and here in these submissions." 64This proposed ground invited the Court to review the whole of the evidence and conclude that the guilty verdict was not supported. It was not otherwise elaborated (see paragraph 189 of Mr Clark's written submissions). It is clear from what has already been said that the evidence was capable of sustaining the jury's verdict. The fact of non-production was not in dispute. There was ample evidence on which a jury could conclude beyond reasonable doubt that Mr Clark knew of the order, and intended by not-producing the sound recordings to frustrate its evident purpose. Whether or not his defences at trial of "self-defence" or "necessity" were established turned principally on an assessment by the jury of him giving evidence. 65Given that this proposed ground was not otherwise elaborated, save by reference to submissions advanced in relation to other grounds of appeal, it is best treated as dependent upon the matters raised in those other grounds. To that extent, it is addressed elsewhere in these reasons. Otherwise, leave should not be granted in respect of this proposed ground, in circumstances where (despite the length of the appellant's written and oral submissions) no attempt has been made to expand upon it.

Ground 6 "6. Miscarriage of Justice, the missing witness; the appellant submits that the learned trial Judge erred in denying the appellant's application to call [SB] to give evidence this led to a miscarriage of justice. Note this submission overlaps with the above." 66A major theme in Mr Clark's submissions concerns "the missing witness", SB, who cannot be named. Attached to Mr Clark's submissions is a copy of a statement, purporting to have been signed by SB, claiming that evidence he had given against Mr Clark in other criminal proceedings in 2006 was false. SB was a complainant in a trial at which Mr Clark was convicted of offences of aggravated sexual intercourse, using a child for pornographic purposes, and intending to pervert the course of justice. Mr Clark's appeal from those convictions was pending when the trial took place. It was subsequently heard and dismissed. 67It is not necessary for present purposes to set out the details of what was established by the guilty verdict in the other prosecution. It suffices to record that on the morning of 25 August 2011, the 13th day of the trial and the day on which evidence closed and the Crown addressed, Mr Clark handed what purported to be a subpoena and a retraction statement from SB to the judge in support of an application for an adjournment to call SB ("I would like [SB] here on Monday if possible"). SB had been named by Mr Clark when he was cross-examined, in the course of answers which appear to have been non-responsive, and some of which were struck out. One instance is as follows: "CROWN: You are aware that the search was being conducted to establish - to find whether there was evidence that you were using children for pornographic purposes? ACCUSED: That's the reason the police put forward, yes. CROWN: You are aware that they were searching for such images as would constitute the offence of possessing child pornography. ACCUSED: Yes. That's the story - that's what I was told, yes. CROWN: You were convicted of that offence but you appealed the conviction. ACCUSED: That's correct. CROWN: The conviction was set aside on the basis that the child - 3,000 photographs were in deleted folders? ACCUSED: That's correct, yes. CROWN: So that it was a technical point which allowed you to have that conviction overturned? ACCUSED: I'm not sure. I haven't read the judgment, but-- CROWN: I have. ACCUSED: --but when the matter went before Judge Garling, Judge Garling said to me halfway through the trial, 'Mr Clark' - because of the other outstanding charges in relation to [three males including SB], Judge Garling said, 'Mr Clark, it's a matter of commonsense that one would normally keep their powder dry.' So I had three charges in relation - two in relation to [another complainant] and one in relation to possession of child pornography. Now, Judge Garling told me to keep my powder dry because I had far more serious charges coming up that the Crown refused to add together in the [case of the other complainant], so then I didn't put - I never gave evidence in that trial, Mr Crown." 68The primary judge dealt with the application immediately, together with another application to call a witness, as follows: "HIS HONOUR: You can't re-litigate the trial involving [SB]. ACCUSED: I understand that and that's not what I had intended to do. But I had intended to do the - my instructions to Mr Webb about those statements and to cross-examine [SB] and the other boys knowing each other, it never happened. HIS HONOUR: No. Look, I decline to allow you to call Mr Webb because he has nothing to contribute in a positive way to the conduct of this trial. He doesn't reflect upon your instructions to Murphy. His evidence is likely to be extremely destructive to you with no gain, and besides, it's not relevant. And the same is true of [SB]. He just doesn't have anything to contribute to the issues in this trial." 69That ruling reflected in part the fact that Mr Clark's conviction for intending to pervert the course of justice, by causing SB to make a video recording for use in court containing a false statement, had not been placed before the jury. It also reflected his Honour's with respect correct acceptance that the convictions in respect of SB could not be relitigated in the current prosecution. 70No error is established in his Honour's decision.

Ground 7 "7. Miscarriage of Justice, the Crown put false and highly prejudicial evidence before the jury inter alia; alleging 3,000 images of child pornography were found on the appellant's computer. This allegation is not supported by the truth and overlaps the other grounds as stated herein." 71As Mr Clark observes, this ground overlaps with others, notably ground 4.2. It suffices to say that, Mr Clark's good character having been put in issue, the Crown cross-examined about the execution of a search warrant in the manner set out above. There was no miscarriage of justice in that course occurring.

Ground 8 "8. The delay in prosecuting the appellant led to a miscarriage of justice. The offence occurred on 11 October 2004, WOOD CJ CL cautioned the appellant, the Defendant's Barrister ... was in court when the possibility of an offence was canvassed, yet it takes over 5 (?) years for the matter to be brought to trial." 72Mr Clark's complaint is that "the offence occurred on 11 October 2004 ... yet it takes over 5 (?) years for the matter to be brought to trial" [sic] (written submissions, para 215). He submitted that some Crown witnesses had forgotten what had taken place. For example when cross-examining his former counsel, Mr Steirn said "I have absolutely no recollection of you, Mr Clark, other than what is in the transcript". 73Substantially the same complaint was made at trial, and the trial judge directed the jury accordingly: "The appellant told you that the delay in prosecution has been unfair, and it is fair that I give you these directions, that when the hearing of a charge is long delayed it does have a deleterious effect on the position of an accused person because people's memories fade, documents get lost, and so on, so there can be - in this case probably are - some forensic disadvantages to Mr Clark because people's recollection is not as sharp now as it would have been had the proceedings taken place sooner after the events in 2004." 74Mr Clark made (and makes) no complaint as to that direction. In the (unusual) circumstances of this trial, on some critical questions (did Mr Clark originally make the recording, did it continue to be in his possession, did he fail to make them available following the direction) there was no dispute. On others (was Mr Clark in court, was he aware of the direction, what was his purpose) there was the evidence of Mr Clark's own letters to his lawyers and to the judge written on the day. The unusual nature of what occurred is apt to have left an actual recollection in the minds of the witnesses, whose evidence the jury were entitled to assess. It is impossible to conclude that this is a case where delay has led to a miscarriage of justice.

Ground 9 "The trial miscarried in general; the appellant relies globally on ALL the grounds and submissions referred to herein for this ground stating that he lost a significant chance of acquittal but for what took place! The appellant is a litigant in person which requires the Court of Criminal Appeal to scrutinize the WHOLE of the evidence and the appellant's appeal documents with great care." 75This ground does not advance Mr Clark's case any further. Although I have sought to construe Mr Clark's very lengthy documents generously to him, making allowance for their having been drafted by him, I have failed to identify any material error.

Supplementary Ground A 76Mr Clark relies here upon an exchange on day 13 of the trial concerning a note from the jury which read "Mr Clark stated that he still has copies of the CD in question. Can he be requested to produce this now for us all to hear?". The note was debated in the absence of the jury, and it became common ground that the Court could request, but could not order, Mr Clark to produce the CD. A statement to that effect was then made in the presence of the jury. 77Mr Clark submits that it followed that the original indictment was bad in law. As originally formulated, the indictment asserted that the production of the mini audio cassette was "in breach of an order of the Supreme Court". Mr Clark also maintained that the indictment as amended, which referred to Mr Clark "being required to present" the cassette recording and CD "for such examination as may be directed by the Court", is bad in law. Both in its original form and as amended, according to Mr Clark, the indictment was bad because there was power only to request production. 78Basal to the adversarial system of criminal justice is the inability to compel an accused to produce evidence. However, in the civil proceedings in which Mr Clark was the plaintiff and in which Wood CJ at CL made the order, there is ample power to compel production. This occurs on a daily basis, through discovery, subpoenas, notices to produce and orders for specific production. The power exists even if (as Mr Clark maintains) he might assert a privilege against self-incrimination as an answer to the production (for Mr Clark contends that his junior counsel gave him "very strong legal advice" that his recording contravened the Listening Devices Act 1984 (NSW); it is not necessary to express a view one way or the other as to whether a privilege against self-incrimination would have been available, and indeed on the material available to this Court it is not possible to do so). There is nothing in this ground.

Supplementary Ground B 79This ground is that the trial judge erred in denying the appellant a reasonable amount of time to prepare his closing address, leading to a miscarriage of justice. The Crown closing address occurred immediately after the conclusion of the evidence, and was very brief, occupying seven pages of transcript. 80So far as may be seen from the record of the trial, Mr Clark made no application for any adjournment. His closing address took place the following morning. The primary judge was well placed to determine whether it was necessary or appropriate for any further time to be given, even though none was sought. Indeed, Mr Clark indicated, in the absence of the jury, that he had a written document which he wanted to provide to the jury. His Honour ruled that it could be read, but not given to the jury. This was the occasion (referred to above) when Mr Clark responded, "That's okay, your Honour. That covers me with rule 4, I think". 81Mr Clark claims that he was, at the time, "suffering a degree of 'cognitive impediment' that led to a miscarriage of justice", and refers to assaults which had occurred some years previously. However, the submission and evidence fall far short of establishing that there was a miscarriage of justice occasioned by the failure to grant an unsought adjournment before Mr Clark made his closing address. 82It will have been seen that there were a number of unusual aspects to the criminal trial. One is that despite the charge being the making unavailable of the various recordings of the conversations in 2004, Mr Clark claimed, repeatedly, to have copies of those recordings available to play to the jury in 2011. (Indeed, many of his grounds of appeal seem to turn on his disappointment in finding himself unable to do so.) 83Another, which is related, is that Mr Clark contends that his recordings are genuine, and some of the grounds of appeal are directed to a complaint that the course taken by the trial prevented their genuineness from being determined by the jury. That contention is unsound. The genuineness or otherwise of the recordings was not in issue in his prosecution. The point of the order made by Wood CJ at CL for production was to permit the recording to be tested, something which, of course, has not occurred. 84A third, indeed perhaps the most striking feature of the trial, is that Mr Clark contended before the jury that he was a person of good character. He was told, by the Crown and the judge (in the absence of the jury and before he had put his character in issue) that that would have the consequence of his prior convictions (including for attempting to pervert the course of justice, and for a series of sexual offences) would go before the jury. He nevertheless maintained that course (and indeed, now seeks to rely on what happened as a miscarriage of justice). 85In those unusual circumstances, the distinction drawn by Hunt J in R v Gidley (1984) 3 NSWLR 168 at 181 and by Beazley P, Barrett and Emmett JJA in Ekermawi v Harbour Radio Pty Ltd [2013] NSWCA 54 at [12]-[15] is to the point. The judge may advise the unrepresented accused of the likely prejudicial consequences of a course which he is proposing to take, but the choice must remain that of the accused. There is no unfairness or miscarriage of justice when an accused, properly informed of the position, takes a course which turns out not to be to his advantage. 86Further, it is plain from the transcript in 2011 (and confirmed by the conduct of the appeal in 2014) that Mr Clark is able to articulate arguments, including technical legal arguments, and that he claims some knowledge of legal principle. It may be said immediately that his knowledge is imperfect, and that there are some matters in respect of which he feels he has been treated very harshly. However, there was no reason to think in 2011 that the judge who saw Mr Clark conduct his defence over 14 days had any doubts that Mr Clark was unfit to be tried such that the procedures of the Mental Health (Forensic Provisions) Act 1990 (NSW) in particular s 8 applied.

Supplementary Ground C 87Mr Clark submits that: "The unsafe verdict GROUND, the CROWN case is again reflected at T342.7: CROWN: The only question is whether Mr Clark was aware that the Court wanted to examine those documents." 88Mr Clark asserts that fact "as Mr Walsh states in his letter". The gravamen of this ground appears to be a challenge to the jury's conclusion that Mr Clark knew of the judge's order. It is quite plain (not least from the contemporaneous correspondence) that it was open to the jury so to find.

Application to re-open 89Mr Clark applied, after judgment was reserved, and without leave, to reopen in order "to admit one tiny piece of further evidence" and to rely on a further written submission. The further evidence is an affidavit of 6 paragraphs directed to the events of July 2004. It is directed to explaining the letters he wrote in 2004. He now asserts that: "on my way back to Taree on 12 October 2004 I feared that I would be intercepted by corrupt police. Or that I would again be woken in the middle of the night with a gun to my head by corrupt police threatening my children or grandchildren. So I had to do something that would help negate and/or help neutralise my fears. And the best and only way to do that was, I believed, to write and fax that letter!" 90The gravamen of the submission seems to be that the letter was intended to find its way to the Crown and the police officers: "But the target for that letter was never my lawyers ... they were secondary. The main and intended target was police officers ... I knew that I could not sent a letter to [those officers]. They would never have believed that I would have destroyed the original tape and ALL COPIES. So in fear that is why I drafted my letter in that format and sent it too?" 91Applications should not be made without leave after judgment is reserved. Accepting that Mr Clark is an unrepresented litigant, he is an experienced litigant, and ought to be taken to know as much. But even if the application to reopen and to adduce further evidence be treated on its merits, it is plain that it must be refused. The evidence sought to be adduced by Mr Clark in 2014 is as to his own state of mind a decade earlier on a matter central to his criminal trial, as to which he gave evidence and was cross-examined. It is not possible to take that radically different course on appeal.

Orders 92Leave should not be granted to permit Mr Clark to challenge, by proposed ground 4.2 of his appeal, the admission into evidence of his convictions, in circumstances where it was plain that that course was taken by him in full knowledge of its risks. Nor should leave be granted in respect of proposed ground 5, which was undeveloped in Mr Clark's written and oral submissions. Otherwise, making allowance for Mr Clark being an unrepresented litigant, and having dealt with his grounds on their merits, there should be a grant of leave to appeal, but the appeal should be dismissed. Mr Clark's application to reopen should also be dismissed. 93PRICE J: I agree with Leeming JA. 94McCALLUM J: I agree with Leeming JA.

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: 30 October 2014