Citation: Clark v Attorney General of New South Wales [2019] NSWSC 1277
Court: Supreme Court of New South Wales
Date: 24 September 2019
Judge(s): Rothman J
Background
The applicant was convicted by jury in the District Court of New South Wales in May and June 2009 on 23 counts, including multiple counts of sexual offences against six male complainants. He was sentenced to a non-parole period of 10 years and 9 months with a balance of term of 3 years and 8 months. A separate jury later convicted him of perverting the course of justice.
Following conviction, the applicant pursued an extensive course of litigation. The Court of Criminal Appeal dismissed his conviction appeal, two subsequent applications to reopen that appeal under rule 50C of the Criminal Appeal Rules, and his appeal against the perverting the course of justice conviction. The High Court dismissed his applications for special leave to appeal. The Governor of New South Wales also dismissed a petition for review under Part 7 of the Crimes (Appeal and Review) Act 2001 (NSW) in September 2017.
In October 2017, the applicant filed a further application under section 78 of the Act, seeking an inquiry into both his conviction and sentence. He relied on alleged fresh evidence, claims that his trial counsel misled the Court of Criminal Appeal, and alleged post-sentence assistance as a mitigating circumstance.
Legal Issues
- Whether there was a "doubt or question" as to the applicant's guilt, any mitigating circumstance, or any part of the evidence, sufficient to warrant directing an inquiry or referring the matter to the Court of Criminal Appeal under section 79 of the Act
- Whether the purported evidence of an alibi witness (SC) and a statement by the father of complainant SB (SB senior) constituted fresh evidence capable of raising a doubt as to conviction
- Whether trial counsel misled the Court of Criminal Appeal in the conviction appeal
- Whether post-sentence assistance constitutes a "mitigating circumstance in the case" under Part 7
- Whether special facts or special circumstances existed to preclude the exercise of the court's discretion to refuse to deal with the application under section 79(3)
Decision
Issue 1: Discretion to refuse to deal with the application
The court noted that the issues raised had been fully canvassed in proceedings at trial, on multiple appeals, and in the prior application to the Governor (at [126]-[128]). The court found no special facts or special circumstances that would prohibit exercising the discretion under section 79(3) to refuse to consider the application further (at [130]). The applicant's receipt of advice from a former inmate, which he characterised as giving rise to special circumstances, did not meet the threshold: it was the argument or fact itself, not the source of advice, that must constitute the special circumstance (at [29]-[30]).
Issue 2: Alleged misleading of the Court of Criminal Appeal by trial counsel
The court found no basis in the evidence to support the proposition that trial counsel lied or misled the Court of Criminal Appeal (at [81]). Trial counsel had given sworn evidence in the conviction appeal, the applicant was present and able to cross-examine, and could have adduced contradictory evidence but did not. The Court of Criminal Appeal's reasons addressed this matter comprehensively across 375 paragraphs (at [74], [80]-[82]).
Issue 3: Alleged fresh evidence relating to Counts 2 and 12
The documents relied upon, including the statement of SB senior and material relating to the alibi witness SC, were not fresh. Each existed at the time of trial and at the time of the conviction appeal, and each was either actually or constructively available to the applicant and his representatives at those times (at [84]-[85], [100]). Even setting aside the freshness question, the court examined the substance of the material. The sworn trial evidence of SB senior and SB established that SB lived with the applicant in the relevant period, supporting the conviction on Count 12 (at [91]). The alibi evidence concerning SC had been expressly raised and rejected by the Court of Criminal Appeal in the conviction appeal (at [102]-[105]). The court was not satisfied that any of this material cast any doubt on the convictions (at [101], [107], [114]).
Issue 4: Sentence review and post-sentence assistance
The sentence imposed by the District Court was found to be within the available range, with the Court of Criminal Appeal having refused to intervene in the Crown's appeal on manifest inadequacy grounds (at [118]). The applicant did not pursue a sentence appeal and raised no grounds of error in the sentencing process. Post-sentence assistance does not constitute a "mitigating circumstance in the case" under Part 7, because a sentencing judge cannot logically take into account circumstances that arise after sentence has been imposed (at [120]-[122]). No special facts or circumstances justified reopening the sentence (at [124]-[125]).
Orders Made
- There are no special facts or circumstances prohibiting the exercise of discretion under section 79(3) of the Crimes (Appeal and Review) Act 2001 (NSW)
- Pursuant to section 79(3), the court refuses to consider or otherwise deal with the application further
- To the extent otherwise required, the application is dismissed
Key Takeaways
- Under section 79(3) of the Crimes (Appeal and Review) Act 2001 (NSW), a court may refuse to deal with a Part 7 review application where the issues raised have been fully addressed in prior proceedings, unless the applicant establishes special facts or special circumstances justifying further action (at [20], [130]).
- The source of an argument, such as advice received from a new person while in custody, does not itself constitute a special fact or circumstance; it is the substance of the argument or evidence advanced that must be special or extraordinary to the individual applicant (at [29]-[30]).
- Evidence is not "fresh" for Part 7 purposes where it existed at the time of trial or the conviction appeal and was actually or constructively available to the applicant and legal representatives at those times (at [84]-[85]).
- Post-sentence assistance does not constitute a "mitigating circumstance in the case" capable of supporting a sentence review under Part 7, because a sentencing court cannot take into account circumstances arising after sentence is imposed (at [120]-[122]).
- Finality of proceedings carries significant weight in Part 7 applications: where an applicant has had extensive opportunities to raise issues at trial and on appeal, and those opportunities have been exercised or deliberately foregone, this weighs against the grant of further review (at [111], [127]-[128]).
Legislation and Cases Referenced
Legislation
- Bail Act 1978 (NSW), s 9D
- Crimes Act 1900 (NSW)
- Criminal Appeal Act 1912 (NSW), ss 79(1), 79(2)
- Crimes (Appeal and Review) Act 2001 (NSW), s 78
- Criminal Appeal Rules (NSW), r 50C
- Felons (Civil Proceedings) Act 1981 (NSW)
Cases
- Application of PFC [2016] NSWCA 102
- Clark v R [2014] NSWCCA 236
- Clark v R [2015] NSWCCA 265
- Clark v R (No 2) [2015] NSWCCA 271
- Peter Frederick Clark v The Queen [2016] HCASL 79
- Eastman v Director of Public Prosecutions (ACT) (2003) 214 CLR 318; [2003] HCA 28
- House v King (1936) 55 CLR 499; [1936] HCA 40
- Kirk Group Holdings Pty Ltd & v Workcover Authority of New South Wales [2006] NSWCA 172
- PFC v State of New South Wales & Anor [2015] NSWSC 1507
- PFC v R [2011] NSWCCA 275
- PFC v R (No 2) [2014] NSWCCA 241
- R v PFC [2011] NSWCCA 117
- R v Daron John Wright (Supreme Court (NSW) Rothman J, 7 June 2005, unreported)
- Ratten v R (1974) 131 CLR 510; [1974] HCA 35
- Sinkovich v Attorney General of New South Wales (2013) 85 NSWLR 783; [2013] NSWCA 383
- Swain v Waverley Municipal Council (2005) 220 CLR 517; [2005] HCA 4
- SKAF, Bilal - Application under Part 7 Crimes (Appeal and Review) Act 2001 [2013] NSWSC 45