Citation: [2021] NSWSC 1364
Court: Supreme Court of New South Wales
Date: 8 November 2021
Judge(s): Cavanagh J
Background
The applicant was convicted in June 2009 following a jury trial on 23 counts of sexual offending against children and doing acts with intent to pervert the course of justice. The offending involved six male complainants. On 21 December 2009, the sentencing judge imposed a total sentence of 14 years and 5 months with a non-parole period of 10 years and 9 months.
The convictions had been the subject of numerous appeals and review applications over more than a decade, including multiple proceedings before the Court of Criminal Appeal (CCA). This application was the second formal review application made to the Supreme Court under s 78 of the Crimes (Appeal and Review) Act 2001 (NSW), focusing specifically on Count 6 (doing an act with intent to pervert the course of justice involving complainant DM) and Count 12 (aggravated sexual intercourse with a child between 14 and 16 involving complainant SB).
The applicant argued that doubt existed as to his guilt on those two counts, and that any such doubt would also infect all remaining counts.
Legal Issues
- Whether the material raised by the applicant in respect of Count 6 created a doubt or question as to his guilt, including contentions about concealed evidence, jury inconsistency, and alleged double jeopardy or duplicity arising from two separate counts relating to the same video
- Whether the material raised in respect of Count 12 created a doubt or question as to his guilt, including contentions based on documentary evidence said to show the complainant SB was not placed with the applicant by DOCS until 2004, and arguments based on estoppel, res judicata, and alleged inconsistency between earlier CCA judgments
- Whether the application should be dismissed summarily under s 79(3) of the Review Act on the basis that the matters raised had already been fully dealt with in prior proceedings, or that no special facts or circumstances justified further action
Decision
Count 6: Perverting the Course of Justice (Complainant DM)
Cavanagh J found that most of the grounds relating to Count 6 had either been previously considered by the CCA or lacked merit on their face. The jury was entitled to accept DM's evidence that the statements he made on the video were false and had been scripted for him by the applicant. The jury's verdict on Count 6 was plainly open (at [43]).
On the applicant's double jeopardy and duplicity argument, the Court rejected the contention that laying separate charges in respect of the same video recording breached those principles. Count 6 required proof that DM made a false statement, while Count 11 required proof that a different person, CB, made a false statement. The elements were not identical, different complainants were involved, and the rule against duplicity was not engaged because each count charged only one offence (at [48]-[52]). None of the matters raised created a doubt or question as to guilt on Count 6 (at [92]).
Count 12: Aggravated Sexual Intercourse (Complainant SB)
The applicant's central argument was that SB was not placed with him by DOCS until 2004, meaning the alleged offending in 2003 could not have involved the aggravating circumstance of the complainant being under his authority. Cavanagh J acknowledged that the documents relied upon tended to suggest a DOCS placement occurred in 2004, but emphasised that the application was not a new fact-finding exercise or an appeal (at [77]-[78]).
The Court held that this was substantively the same point the applicant had advanced on multiple earlier occasions, including before Rothman J on the first review application and in the 2015 CCA proceedings. There was evidence from SB's father that SB had lived with the applicant at some time in 2003, and questions of credibility were for the jury to resolve (at [80]). Critically, the indictment did not specify that the aggravating circumstance arose from a DOCS placement, so establishing that no formal DOCS placement occurred in 2003 did not undermine the conviction (at [83]). The arguments based on estoppel and res judicata were also rejected: a differently constituted court is not bound by observations made in an earlier appeal on a different point (at [81]).
Overall
None of the matters raised in respect of either count created any doubt or question as to the applicant's guilt, and no such doubt extended to the remaining counts (at [92]-[93]). Grounds for summary dismissal under s 79(3) existed in relation to Count 12, as the issues had been comprehensively addressed in prior proceedings (at [88]-[89]). The application was dismissed.
Orders Made
- The application is dismissed.
Key Takeaways
- A section 78 application under the Crimes (Appeal and Review) Act 2001 (NSW) is an administrative function, not a judicial proceeding, and cannot be used as an additional step in the appeal process (at [9], [85]).
- Under s 79(3), the Supreme Court may dismiss a review application summarily where the matters raised have already been fully dealt with in prior conviction or appeal proceedings, or where no special facts or circumstances justify further action (at [14]).
- Where an applicant has repeatedly raised the same factual contention across multiple appeals and review applications, presenting additional documents said to support that contention does not automatically generate a fresh doubt as to guilt, particularly where the underlying factual question was determined by the jury on evidence that was open to be accepted (at [77]-[80]).
- Separate counts relating to the same physical act do not necessarily breach double jeopardy or duplicity principles where the elements of each offence differ and different complainants are involved (at [48]-[52]).
- A court determining a conviction appeal is not estopped by observations made in an earlier sentence appeal on a different issue, even where those observations touch on related factual matters (at [81]-[82]).
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW)
- Crimes (Appeal and Review) Act 2001 (NSW)
- Criminal Appeal Act 1912 (NSW)
Cases
- Application of Peter James Holland under s.78 Crimes (Appeal and Review) Act 2001 [2008] NSWSC 251
- Armand-Iskak v Attorney-General of New South Wales [2019] NSWCA 145
- Clark v Attorney General of NSW [2019] NSWSC 1277
- Clark v Attorney General of NSW [2020] NSWCA 70
- Clark v Attorney General of NSW (No 2) [2020] NSWCA 135
- Clark v R (2008) 185 A Crim R 1; [2008] NSWCCA 122
- Clark v R [2014] NSWCCA 236
- Clark v R [2015] NSWCCA 265
- Clark v R [2021] NSWCCA 8
- Clark v R (No 2) [2015] NSWCCA 271
- Clark v R (No 2) [2021] NSWCCA 48
- Clark v R (No 3) [2021] NSWCCA 64
- Clark v R (No 4) [2021] NSWCCA 67
- Eastman v Director of Public Prosecutions of the Australian Capital Territory (2003) 214 CLR 318; [2003] HCA 28
- Kirk Group Holdings Pty Ltd v WorkCover Authority of New South Wales (2006) 66 NSWLR 151; [2006] NSWCA 172
- Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57
- Peter Frederick Clark v The Queen [2016] HCASL 79
- PFC v R [2011] NSWCCA 275
- PFC v R (No. 2) [2014] NSWCCA 241
- R v PFC [2011] NSWCCA 117
- Varley v Attorney-General in and for the State of New South Wales (1987) 8 NSWLR 30
- Walsh v Tattersall (1996) 188 CLR 77; [1996] HCA 26