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Supreme Court 27 April 2023

Applications by Peter Frederick Clark under Part 7 Crimes (Appeal and Review) Act 2001

[2023] NSWSC 445

Sexual offencesPublic order & justice offences
CRIME APPEAL AND REVIEW APPLICATION DISMISSED

Citation: [2023] NSWSC 445
Court: Supreme Court of New South Wales
Date: 27 April 2023
Judge(s): Sweeney J

Background

The applicant had been convicted of 23 counts at a 2009 trial before Norrish QC DCJ, including one count of sexual intercourse with a child (Count 12), and separately convicted of perverting the course of justice following a 2011 trial before Freeman DCJ and a jury. He had pursued multiple prior appeals and applications in both the Court of Criminal Appeal and the Supreme Court in relation to these convictions.

The applicant filed two applications under s 78 of the Crimes (Appeal and Review) Act 2001 (NSW), which allows a convicted person to apply to the Supreme Court for an inquiry into a conviction. Such an application does not initiate judicial proceedings but instead involves an exercise of administrative power. The court may direct an inquiry where it is satisfied there is a doubt or question as to the person's guilt, or where special facts or circumstances justify further action.

The applications raised a range of grounds, including alleged prosecutorial misconduct, double jeopardy, issue estoppel, res judicata, breach of an asserted agreement with the Crown, and concealment of exculpatory evidence.

Legal Issues

  • Whether the applicant's conviction on Count 12 (sexual intercourse with a child, 2009) raised a doubt or question as to his guilt sufficient to warrant an inquiry.
  • Whether the Crown's prosecution of Count 12 was barred by res judicata or double jeopardy following the earlier withdrawal of a related charge before the Local Court.
  • Whether the applicant's conviction for perverting the course of justice (2011) raised a doubt or question, including whether the Crown had agreed not to proceed with that charge and thereby breached principles of double jeopardy, issue estoppel, or res judicata.
  • Whether exculpatory evidence had been concealed from the jury in the 2011 trial.

Decision

Count 12 (2009 sexual offence conviction): Sufficiency of evidence

Sweeney J noted that the issue raised by the applicant, namely that the complainant was not under his authority in 2003, had been considered by the court on many previous occasions across multiple proceedings. Having reviewed the evidence in relation to Count 12, her Honour was not satisfied there was a doubt or question as to the applicant's guilt (at [17]). Because the matters raised had previously been fully considered and no special facts or special circumstances justified further action, the court refused to consider the application further in respect of Count 12 (at [26]).

Count 12: Res judicata and double jeopardy

The applicant argued that the Crown's presentation of Count 12 in 2009 was barred because an earlier related charge had been withdrawn before the Local Court in 2007. The court found that the withdrawal of that earlier charge (charge 002) did not constitute a final judicial determination of the same issues and therefore did not meet the requirements for estoppel as stated in Kuligowski v Metrobus and Ramsay v Pigram (at [23]-[24]). The two charges were also in different terms, covering different elements. On the authority of Derley v R, the Crown's decision to proceed was not an abuse of process (at [24]-[25]).

Perverting the course of justice (2011 conviction): Concealment of evidence

The applicant argued that the Crown had concealed a letter he wrote to Wood CJ at CL. The court found this ground had no substance: the letter was in evidence, the Crown referred to it in closing address, and Freeman DCJ addressed it in his summing up (at [39]). Documents found in Corrective Services custody after the trial did not alter this conclusion, as the letter's substance was fully before the jury (at [40]).

Perverting the course of justice: Alleged agreement, double jeopardy, and abuse of process

The applicant contended that the Crown had made a binding agreement not to proceed with the perverting the course of justice charge when presenting the 29-count indictment before Norrish QC DCJ in 2009, and that proceeding with it before Freeman DCJ in 2011 was a breach of that agreement and an abuse of process. The court found the trial transcripts before Norrish QC DCJ did not support the existence of any such agreement (at [54]). The perverting the course of justice charge that proceeded before Freeman DCJ was still before the Local Court at the time of the 2009 trial and was not mentioned in the discussions about reducing the indictment. The court further noted that the applicant, who was assertive in raising legal issues during his trial before Freeman DCJ, never raised the alleged agreement at that trial, nor in his subsequent wide-ranging appeal to the Court of Criminal Appeal (at [55]-[56]). The prosecution before Freeman DCJ did not breach any principle of double jeopardy, issue estoppel, or res judicata because the charge had not been previously determined (at [57]).

Orders Made

  • Both applications pursuant to s 78 of the Crimes (Appeal and Review) Act 2001 (NSW) seeking inquiries into the applicant's convictions are dismissed.

Key Takeaways

  • Under s 78 of the Crimes (Appeal and Review) Act 2001 (NSW), where the matters raised by an applicant have been previously fully considered and no special facts or circumstances are identified, the court may refuse to consider the application further without conducting a fresh analysis of those matters (at [26]).

  • The withdrawal of a charge before the Local Court, without a final judicial determination of the issues, does not meet the requirements for issue estoppel or res judicata and does not bar the Crown from subsequently presenting a charge in different terms covering different elements on an indictment (at [21], [24]).

  • No abuse of process arises merely from the Crown commencing a prosecution on an ex officio indictment after earlier proceedings on the same or similar subject matter were discontinued, in the absence of demonstrated prejudice to the accused (at [19], [24]).

  • An applicant's failure to raise an alleged Crown agreement or abuse of process at trial, particularly where the applicant was otherwise assertive in raising legal objections, and again on appeal, weighs against accepting that assertion in a later s 78 application (at [53]-[56]).

  • Evidence is not "concealed" from a jury for the purposes of a conviction review application where it was referred to by the Crown in closing address and addressed by the trial judge in summing up (at [39]-[42]).

Legislation and Cases Referenced

Legislation
- Crimes (Appeal and Review) Act 2001 (NSW)
- Supreme Court (Criminal Appeal) Rules 2021 (NSW)
- Criminal Appeal Act 1912 (NSW)

Cases
- Application by Peter Frederick Clark pursuant to Section 78 of the Crimes (Appeal And Review) Act 2001 (NSW) [2021] NSWSC 1364
- Clark v Attorney General of New South Wales [2019] NSWSC 1277
- Clark v Attorney General of New South Wales [2020] NSWCA 70
- Clark v Attorney General of New South Wales (No 2) [2020] NSWCA 135
- Clark v R [2014] NSWCCA 236
- Clark v R [2015] NSWCCA 265
- Clark v R (No 2) [2015] NSWCCA 271
- Clark v R [2021] NSWCCA 8
- Clark v R [2021] NSWCCA 67
- Clark v R (No 2) [2021] NSWCCA 48
- Clark v R (No 3) [2021] NSWCCA 64
- Derley v R [2016] NSWCCA 60
- Kuligowski v Metrobus (2004) 220 CLR 363; [2004] HCA 34
- PFC v R [2011] NSWCCA 275
- PFC v R (No 2) [2014] NSWCCA 241
- R v Burrell [2004] NSWCCA 185
- Ramsay v Pigram (1968) 118 CLR 271; [1968] HCA 34
- Sinkovich v Attorney General (NSW) (2013) 85 NSWLR 783; [2013] NSWCA 383
- Wood v State of New South Wales [2018] NSWSC 1247