Clark v R

Claim 4 - alleged denial of procedural fairness by the Registrar failing to provide copies of "exculpatory material"

The material relied upon by the applicant in support of his notices of motion dated 21 September 2020 and 27 January 2021 and his "revised application" dated 22 December 2020 was contained in a court book. The applicant complains that certain documents were omitted from the court book, being annexures to the further appeal he sought to file dated 26 October 2020.
It is not in dispute that the court book did not include the annexures to the document described as the "De Novo (Revised) Notice of Appeal". It is appropriate that this Court consider those documents together with the submissions now made by the applicant about them.
It has not been shown that any of those documents were not in the possession of Mr Clark's legal representatives at his trial. Having carefully considered those documents, there is no occasion to change anything in the Court's principal decision. The essence of the applicant's complaint is an assertion that the Crown "concealed" exculpatory Department of Community Services ('DOCS') evidence that proved that "the evidence never supported Count 12".
The applicant's complaint about "concealment" of evidence by the Crown fails at the outset. There is absolutely no evidence that any evidence was "concealed" by the Crown, at his trial or subsequently.
The applicant's own submission makes clear that the documents he asserts were "concealed" from him were contained in "property held on behalf" of the applicant by Corrective Services. That is, the applicant's complaint is that the documents he now asserts were "concealed" were part of his property held by Corrective Services for eight years while he was in custody and only released to him on 12 October 2019. There is every reason to think that all of this material was in the possession of the applicant's legal representatives at the applicant's trial and that for that reason it formed part of the applicant's property when he went into custody. In any event, there is no evidence of "concealment" of material by the Crown.
Further, the applicant's submission is internally inconsistent. The evidence given by Detective Hatchwell in chief at the applicant's trial, referred to in the applicant's written submissions on the amended notice of motion dated 27 January 2021 at [15], demonstrates clearly that there was no concealment of the DOCS evidence. As Detective Hatchwell said in his evidence in chief at the trial, the DOCS documents he had obtained showed that SB (the complainant in relation to count 12) "was in Mr Clark's care in 2004". The material contained in the annexures to the "De Novo (Revised) Notice of Appeal" is consistent with the evidence given by Detective Hatchwell in the applicant's trial. There is not the slightest suggestion, beyond Mr Clark's repeated assertions, that the existence of the DOCS evidence, or the fact that they showed that SB was in Mr Clark's care in 2004, was concealed from Mr Clark's defence lawyers at the trial.
As Mr Clark's own submissions demonstrate, the issue of whether or not the jury were entitled to conclude that the offence charged as count 12 occurred when SB was under Mr Clark's authority in 2003 has been litigated extensively in earlier decisions of the Court of Criminal Appeal. In addition, the applicant's submissions misstate the way in which the Crown particularised the circumstances of aggravation for count 12. It was not then, and is not now, in doubt that the Crown case at the trial was that the DOCS documents obtained by the police showed that SB was in Mr Clark's care in 2004. The question was whether it was open to the jury to conclude, on all of the evidence, that the elements of count 12 had been proven beyond reasonable doubt.
The additional documents annexed by the applicant to his "De Novo (Revised) Notice of Appeal" do not provide a basis to doubt the correctness of any part of the Court's principal decision.

Claims 5 and 6 - alleged misunderstanding by the Court about the allegations of fraud

The applicant submitted that this Court has misapprehended the applicant's submissions about fraud (claim 5) and that the Court was incorrect to hold that earlier decisions of the Court had considered the relevant issues (claim 6). These grounds may be dealt with together.
At the heart of the applicant's claim is the assertion that the applicant's conviction on count 12 and subsequent judgments of the Court of Criminal Appeal were obtained by fraud. The Court clearly understood that in making its principal decision. No reason has been shown to doubt the Court's conclusion that the applicant's claims of fraud do not rise above mere assertion.
The allegations of fraud made by the applicant are wide-ranging and discursive. Many of the allegations made by the applicant have nothing whatever to do with fraud. The allegations which on a generous reading might be thought to amount to an allegation of fraud comprise the following: 1. allegations that SB and SB's father (and perhaps the remaining complainants) perjured themselves at the trial about various matters; 2. allegations that the Crown at the trial and subsequently have "continually distorted and misrepresented" facts and that the applicant "has been telling the truth from the beginning"; 3. allegations that DOCS documents exculpatory of the applicant were concealed by the Crown together with other unparticularised allegations of prosecutorial misconduct; and 4. allegations that the applicant's barrister and solicitor at the trial were incompetent such that, although it is tacitly accepted that the material the subject of the "concealment" by the Crown had been disclosed to his barrister, "he was oblivious to the exculpatory nature of these detailed documents [annexed to the 'De Novo (Revised) Notice of Appeal']". This, it was submitted, was reflected in his failing to ask any questions about the dates that formed part of the elements of count 12.
In Wentworth v Rogers (No 5) (1986) 6 NSWLR 534 at 538-540, Kirby P (with whom Hope JA and Samuels JA agreed) set out the principles for seeking to set aside a judgment obtained by fraud. Given the repeated and incorrect references by the applicant to the relevant test it is necessary to set out the relevant passages in full: "First, the essence of the action is fraud. As in all actions based on fraud, particulars of the fraud claimed must be exactly given and the allegations must be established by the strict proof which such a charge requires: Jonesco v Beard [1930] AC 298 at 301; McHarg v Woods Radio Pty Ltd (at 497). Secondly, it must be shown, by the party asserting that a judgment was procured by fraud, that there has been a new discovery of something material, in the sense that fresh facts have been found which, by themselves or in combination with previously known facts, would provide a reason for setting aside the judgment: see Lord Selborne LC in Boswell v Coaks (No 2) (1894) 6 R 167 at 170, 174; 86 LT 365 at 366, 368; Cabassi v Vila (1940) 64 CLR 130 at 147; McDonald v McDonald (1965) 113 CLR 529 at 533; Everett v Ribbands (1946) 175 LT 143 at 145, 146; Birch v Birch [1902] P 130 at 136, 137-138; Ronald v Harper [1913] VLR 311 at 318. This rule has an ancient lineage: see, eg, Shedden v Patrick (1854) 1 Macq 535 at 615, 622; Halsbury's Laws of England, 4th ed, vol 26, par 560 at 285. It is based upon a number of grounds. There is a public interest in finality of litigation. Parties ought not, by proceeding to impugn a judgment, to be permitted to relitigate matters which were the subject of the earlier proceedings which gave rise to the judgment. Especially should they not be so permitted, if they move on nothing more than the evidence upon which they have previously failed. If they have evidence of fraud which may taint a judgment of the courts, they should not collude in such a consequence by refraining from raising their objection at the trial, thereby keeping the complaint in reserve. It is their responsibility to ensure that the taint of fraud is avoided and the integrity of the court's process preserved. Thirdly, mere suspicion of fraud, raised by fresh facts later discovered, will not be sufficient to secure relief: Birch v Birch (at 136, 139); McHarg v Woods Radio Pty Ltd (at 498); Ronald v Harper (at 318). The claimant must establish that the new facts are so evidenced and so material that it is reasonably probable that the action will succeed. This rule is founded squarely in the public interest in finality of public litigation and in upholding judgments duly entered at the termination of proceedings in the courts. Fourthly, although perjury by the successful party or a witness or witnesses may, if later discovered, warrant the setting aside of a judgment on the ground that it was procured by fraud, and although there may be exceptional cases where such proof of perjury could suffice, without more, to warrant relief of this kind, the mere allegation, or even the proof, of perjury will not normally be sufficient to attract such drastic and exceptional relief as the setting aside of a judgment: Cabassi v Vila (at 147, 148); Baker v Wadsworth (1898) 67 LJQB 301; Everett v Ribbands (at 145, 146). The other requirements must be fulfilled. In hard fought litigation, it is not at all uncommon for there to be a conflict of testimony which has to be resolved by a judge or jury. In many cases of contradictory evidence, one party must be mistaken. He or she may even be deceiving the court. The unsuccessful party in the litigation will often consider that failure in the litigation has been procured by false evidence on the part of the opponent and the witnesses called by the opponent. If every case in which such an opinion was held gave rise to proceedings of this kind, the courts would be even more burdened with the review of first instance decisions than they are. For this reason, and in defence of finality of judgments, a more stringent requirement than alleged perjury alone is required. Fifthly, it must be shown by admissible evidence that the successful party was responsible for the fraud which taints the judgment under challenge. The evidence in support of the charge ought to be extrinsic: cf Perry v Meddowcroft (1846) 10 Beav 122 at 136-139; 50 ER 529 at 534, 535. It is not sufficient to show that an agent of the successful party was convicted of giving perjured evidence in the former proceeding, the result of which it is sought to impeach. It must be shown that the agent, in so acting, was in concert with the party who derived the benefit of the judgment: Ronald v Harper (at 318); Shedden v Patrick (at 643). Sixthly, the burden of establishing the components necessary to warrant the drastic step of setting aside a judgment, allegedly affected by fraud or other relevant taint, lies on the party impugning the judgment. It is for that party to establish the fraud and to do so clearly. In summary, he or she must establish that the case is based on newly discovered facts; that the facts are material and such as to make it reasonably probable that the case will succeed; that they go beyond mere allegations of perjury on the part of witnesses at the trial; and that the opposing party who took advantage of the judgment is shown, by admissible evidence, to have been responsible for the fraud in such a way as to render it inequitable that such party should take the benefit of the judgment."
The applicant's asserted fraud case fails here at every level: 1. sufficient particulars of the fraud claimed have not been given, exactly or otherwise, and the allegations have not been established, let alone by the strict proof which such a charge requires; 2. there has been no new discovery of anything material, in the sense that no fresh facts have been found which, by themselves or in combination with previously known facts, would provide a reason for setting aside the judgments. The applicant seeks to impugn a number of judgments of the Court by relitigating matters which were the subject of the earlier proceedings which gave rise to the judgments; 3. although the applicant asserts perjury, no perjury has been shown, let alone perjury warranting the setting aside of the judgments of this Court. The mere allegation of perjury is not sufficient to attract such drastic and exceptional relief as the setting aside of the judgments of this Court; 4. there is simply no evidence, let alone admissible evidence, that the successful party was responsible for a fraud which taints the judgments under challenge; and 5. the applicant has not established: 1. any case based on newly discovered facts; 2. any facts that make it reasonably probable that his case will succeed; 3. any facts that go beyond mere allegations; and 4. any conduct by the Crown which makes it even arguable that they have been responsible for anything which might be seen as fraud.
No reason has been shown by the applicant to depart from the conclusion reached in the principal judgment that the applicant's fraud claims do not rise above mere assertion. In particular: 1. it has not been demonstrated that SB, SB's father or anybody else perjured themselves at the applicant's trial; 2. it has not been demonstrated that the Crown at the trial and subsequently have "continually distorted and misrepresented" facts or that the applicant "has been telling the truth from the beginning"; 3. it has not been demonstrated that the Crown concealed any evidence or engaged in any other prosecutorial misconduct; and 4. it has not been demonstrated that the applicant's barrister and solicitor at the trial were incompetent. Even if it has been established, that conduct would not amount to fraud.
No reason has been shown to depart from the conclusion reached in the principal judgment that in its essential features, all of the complaints made by the applicant have been agitated at length in earlier proceedings. In the applicant's appeal against conviction in PFC v R [2011] NSWCCA 275 at [200]-[202] the Court said about the argument concerning SB's age in relation to the events charged as count 12: "(d) The age of SB at the time of the offence [200] The offence the subject of count 12 was alleged to have been committed in the latter part of 2003 when SB was living with the appellant; the living with the appellant was the basis for the element in the count that SB was under the appellant's authority. The appellant contended that SB came to live with him in May 2004. As best we understand it, the complaint was that the trial judge did not direct the jury that SB could not have come to live with him when 12 years old and in year 9, as he had said in his evidence in chief, and so the offence (which the appellant denied) could not have been committed in 2003 when SB was living with him. [201] The offences under counts 12 and 13 contained as an element sexual intercourse with someone under 16 years but, as the Crown Prosecutor emphasised in her closing address, the circumstance of aggravation in relation to those two counts was that SB was under authority at the time. A person in authority who breaches the trust relationship aggravates the offence. SB initially had said he thought the offence the subject of count 12 was in October 2004 but in evidence said that he thought he was 12 years old and in year 9. SB's father gave evidence that SB initially moved in with the appellant in August 2003 for a short period, then moved back home, and then moved back in with the appellant in 2004. The Crown submission was that SB's initial reference to October 2004 should be taken as having been an intended reference to October 2003. [202] No misdirection was identified, and it was for the jury to be satisfied as to the facts. We do not consider there is any substance in the complaint."
In Clark v R [2015] NSWCCA 265 the Court said about this same topic: "The claim relating to SB [35] The applicant made the following claim in relation to count 12 on the indictment before Norrish DCJ: '… the Crown's very own trial evidence prove[d] categorically and beyond any doubt that SB count 12 was absolutely and physically impossible to have occurred in the time frame specified in the indictment.' (emphasis in original) [36] The applicant contended that his conviction on this count amounted to a miscarriage of justice and resulted from a number of misapprehensions of law and fact. [37] By count 12, the applicant was indicted as follows: 'Between 1 August 2003 and 30 November 2003 at [city] in the State of New South Wales, 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].' [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. [41] In the Norrish DCJ appeal, the Court held, at [201]-[202]: '201 … SB initially had said he thought the offence the subject of count 12 was in October 2004 but in evidence said that he thought he was 12 years old and in year 9. SB's father gave evidence that SB initially moved in with the appellant in August 2003 for a short period, then moved back home, and then moved back in with the appellant in 2004. The Crown submission was that SB's initial reference to October 2004 should be taken as having been an intended reference to October 2003. 202 No misdirection was identified, and it was for the jury to be satisfied as to the facts. We do not consider there is any substance in the complaint.' [42] The relevant finding in the first challenged judgment, at [125], was as follows: 'Insofar as Count 12 is concerned, [the applicant] 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] [of the Norrish DCJ appeal], 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.' [43] In his submissions, the applicant emphasised evidence before Norrish DCJ to the effect that SB did not live with him in 2003. The existence of this evidence is not sufficient to prove that the offence could not have occurred. As was noted in the first challenged judgment, it was clear from [200]-[201] and [359] of the Norrish DCJ appeal that the evidence on this issue was disputed. It was open for the jury to accept those aspects of the evidence which were consistent with SB being in the applicant's care at the relevant time and to reject those which were not. There was no error in the finding to that effect in the Norrish DCJ appeal. More pertinently, as the Crown submitted, there was no identification of any material error of fact or law asserted to have arisen from [the] first challenged judgment such as would enliven r 50C other than the fact that the Court did not accept the applicant's contentions. [44] The applicant made a related submission that his conviction, in particular in relation to count 12, was contrary to the authority of SKA v The Queen [2011] HCA 13; 243 CLR 400. The main contention appeared to be as follows: 'The dates of the offences were the ground put forward in SKA! My ground and the facts were the very same in my appeal, namely the dates of the offences, in particular to SB count 12. I repeat, my ground was the very same, namely the dates of the offence in particular to SB count 12 being an absolute impossibility to have occurred at any time in 2003!' (emphasis in original) [45] The circumstance that a similar factual issue arose in the applicant's case to a factual issue in SKA is not relevant to the application before the Court. The issue to be determined is whether the test from SKA was correctly applied to the different circumstances of the applicant's case and, if not, whether the default amounted to a material misapprehension of law. The applicant has raised no argument such as to raise any question about the correctness of the application of SKA. Again, this question was fully dealt with in the first challenged judgment as follows: '84 … ultimately, in the part of the first judgment to which I have referred, the [Court hearing the Norrish DCJ appeal] went through each of the offences and examined the evidence in respect to them and considered whether it was satisfied, that, in accordance with the test set forth in SKA, the appeal by [the applicant] on the basis of an unreasonable conviction, should be upheld. It is clear that in so doing, because the evidence had previously been extensively canvassed, it was only necessary for the first Court to express its conclusions concisely. 85 In [371] the first Court noted the extent of the evidence and said that it had had regard to the evidence as a whole. It concluded its review of the material and submissions with respect to this ground by saying this: 372 It was starkly a matter for the jury whether they found the complainants' evidence credible and reliable, to the point of satisfaction beyond reasonable doubt. They saw and heard the complainants give their evidence. In our opinion it was open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty on each of the counts on which he was found guilty.' [46] The applicant has raised no issue with respect to the SB counts to which r 50C could apply." (Emphasis in original.)
All of the essential aspects of the applicant's claim in the present proceedings have been dealt with. The "new" material he advances in support of those claims has not been shown to be fresh. There is no reason to think that Mr Clark's legal representatives did not have that allegedly "new" material at the trial or, at the very least, by the exercise of reasonable diligence would have obtained it.
The applicant's claims in relation to count 12 were most recently addressed in detail by Rothman J in Clark v Attorney General of New South Wales [2019] NSWSC 1277. His Honour described at length the applicant's complaints repeated in these proceedings and identified legitimate forensic reasons why Mr Clark's lawyers at the trial could have chosen not to conduct the case that Mr Clark now asserts should have been conducted. His Honour said: "Issues Raised by the Applicant … [72] In relation to Count 12, the Applicant seeks to rely upon a purported statement of SB senior (the father of the alleged victim), which statement is dated 9 November 2007 and is said, by the Applicant, to be fresh evidence. Consideration … [83] Next, the Applicant relies upon an allegation of 'fresh' evidence. The fresh evidence is said to be a statement of the father of SB (referred to as SB senior). This is accompanied by his letter of instruction dated 27 July 2008 (Annexure 4 to the application); a chronology, prepared by the Applicant and said to have been signed by SB senior and SB (Annexure 3 to the application); and what is alleged to be trial counsel's handwriting on a copy of the Indictment (Annexure 5 to the application). Further, the terms of Annexure 2 of the application, which are written instructions, is also said to be fresh evidence. [84] First, a number of these documents could not amount to evidence, but are merely assertions by the Applicant as to the facts, which assertions could have been the subject of evidence by the Applicant, either at trial or on appeal. Secondly, none of the material is, in any sense of the term, 'fresh'. [85] Each of the documents existed at least at the time of the appeal against conviction: see Ratten v R (1974) 131 CLR 510; [1974] HCA 35. Each of these documents and/or the contents thereof was available either actually or constructively to the Applicant at the time of his trial and, certainly, at the time of the Conviction Appeal. [86] Notwithstanding that the material is not fresh evidence, it seems to me that in the function of a judicial officer in a review under Pt 7, any evidence that may give rise to a doubt or question as to the conviction (and/or any of the other descriptions in ss 78 and 79 of the Act) is able to be used by the Applicant and must be taken into account by the Court in determining whether such a doubt or question exists. [87] Ultimately, to the extent that the statement of SB senior is evidence that must be examined by the Court presently, it must be noted that SB senior gave evidence, under oath, at trial to the opposite effect of that contained in the purported statement, as did SB. The evidence, in effect, goes to whether SB lived with the Applicant in 2003 or lived with the Applicant in 2004. If the victim SB did not live with the Applicant between 1 August 2003 and 30 November 2003, then the allegations in relation to Count 12 could not have been proved. [88] Of course, the allegations in relation to SB in Counts 13 and 14 would still hold. Further, if the evidence in the purported statement of SB senior was adduced at trial to show the inconsistency with the timing otherwise adduced through SB and SB senior, two fundamental issues would have arisen for the Applicant. [89] First, if counsel, representing the Applicant at trial, put to SB senior (and/or SB) that the victim first lived with the Applicant at the beginning of 2004 and not, as alleged in Count 12, in August 2003, this would have corroborated the evidence of SB senior and SB in relation to Counts 13 and 14, to which the Applicant pleaded not guilty. [90] Secondly, it would have been open to the Crown, albeit subject to the leave of the Court and any necessary adjournment, to amend the Indictment in Count 12 so that it applied to the period from 1 August 2003 to 31 March 2004. Plainly, a forensic decision was taken not to utilise any material relating to evidence of SB senior as to the dates upon which SB went to live with the Applicant. That decision was understandable and, in hindsight, wise. [91] Ultimately, the sworn evidence of SB senior (and SB) is to the effect that SB went to live with the Applicant in the period 1 August 2003 to 30 November 2003. The statement, available to the Applicant at trial and on appeal, does not engender a doubt as to the truthfulness of the sworn evidence of SB senior and/or SB. [92] It is unnecessary to deal with any tendency associated with Counts 6, 15, 21, 22, 24, 29 (or the conviction before Freeman DCJ) in relation to the statement of SB senior. It is relevant to note that the reference to 'under authority' was not a reference to whether the victim, SB, was under DOCS care, but whether he was living 'as a child' with the Applicant and therefore was 'under authority'. [93] Further, as was pointed out by the trial judge, the timing of the offence was not seemingly related to the school year in which SB was then enrolled, but the time at which he was under the care of the Applicant: Transcript 104, 22 June 2009. [94] Notwithstanding the earlier comment as to 'tendency', the Applicant was facing charges of perverting the course of justice in relation to persuading SB to make a video recording and statements denying any assault. In the words of the CCA in the Conviction Appeal [68]-[69]: '[68] … Not only did he have to deal with a large number of counts of an essentially similar kind from six different complainants, but those counts included what were described as 'public justice counts', ie doing acts intending to pervert the course of justice (counts 6, 11, 15, 21, 22, 24 and 29). Counsel also had to deal with counts involving the use of juveniles for pornographic purposes (counts 7 and 14). [69] Most of the material the appellant wished to rely upon which suggested that he had been "set up" by the complainants came from statements and videos taken by him from the complainants or other young persons. Counsel appreciated that the more statements taken by the appellant which were produced, the stronger the inference would become that the appellant was able to control and manipulate these young persons by getting them to sign statements that he had prepared or participate in videos which he had arranged. Neither at trial, nor in the appeal, did the appellant appear to understand the seriousness of this problem.' [95] Lastly, it is worth noting that in the appeal against conviction, the CCA noted that there was cross-examination by trial counsel in relation to a purported statement said to have been signed by SB on 6 December 2006, which denied any assault. This statement was put to SB during the course of the trial. However, SB denied that the signature at the foot of the document was his signature and testified that he had never seen the document before: Conviction Appeal at [83]. [96] After cross-examining on the statement of SB, and in relation to the 'shower video' of SB, it would have been most unwise for trial counsel to have cross-examined SB senior on a statement, the veracity of which and the authenticity of which was not assured and which, even on its face, would have corroborated the allegations in relation to other offences. [97] It is not only that the statement of SB senior was not 'fresh', in the strict meaning of the term, that is relevant, it is the possession of the material at the time that SB senior was cross-examined and the forensic decision, which in my opinion was correct, not to put the statement to SB senior, in circumstances where, if it were disavowed, it may have given rise to significant inferences relating to the conduct of the Applicant and, on one view, may have given rise to further charges. [98] Essentially, the questions raised in relation to the conviction on Count 12 rely heavily on the statement of SB senior, to which reference has been made. That statement alleges that SB was 'never living with the Applicant in 2003'. The statement, as already noted, was taken by the Applicant, himself. [99] The statement of SB senior was an issue raised in the conviction appeal and dealt with by the CCA in various paragraphs of its reasons for judgment, dismissing the appeal. [100] The statement was in existence at the time the trial occurred; it was in existence at the time of the conviction appeal; and it was certainly available to solicitors and counsel at the time that SB senior was cross-examined. Not only is the evidence, assuming the statement be authentic, not 'fresh'; there was also ample opportunity to raise the issues both at trial and on appeal, none of which were taken by the Applicant or his representatives. [101] 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."
There is no reason for the Court to depart from the conclusion reached in the principal judgment that all of the essential features of Mr Clark's complaints in these proceedings have been addressed in numerous previous decisions of the Court.

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