Clark v Attorney General for NSW

[2023] NSWSC 1045

Supreme Court

New South Wales

Medium Neutral Citation:

Clark v Attorney General for NSW [2023] NSWSC 1045

Hearing dates:

2 November 2022

Date of orders:

31 August 2023

Decision date:

31 August 2023

Jurisdiction:

Common Law

Before:

Campbell J

Decision:

(1) Prayer 3 of the plaintiff’s further amended summons filed 13 September 2022 be dismissed pursuant to r 13.4 Uniform Civil Procedure Rules 2005 (NSW).

(2) Prayer 4 of the plaintiff’s further amended summons filed 13 September 2022 be dismissed pursuant to r 13.4 Uniform Civil Procedure Rules 2005 (NSW).

(3)      Proceedings otherwise dismissed.

(4)      Liberty to apply in respect of costs.

Catchwords:

CIVIL PROCEDURE — defendant’s application for summary judgment — plaintiff was convicted by a jury for child sexual related and perjury offences — plaintiff has engaged in various review process, including appeals and a Part 7 inquiry — plaintiff seeks to invoke a fraud jurisdiction of the Court to set aside convictions — whether the plaintiff’s application is an abuse of process — consideration of the Court’s jurisdiction in relation to fraud — plaintiff’s allegations of fraud are mere assertions — not satisfied that the common law division has the power to set aside the conviction of a jury by way of judicial review — the plaintiff has repeatedly agitated the issue to this litigation — held that the plaintiff’s application is an abuse of process

Legislation Cited:

Crimes (Appeal and Review) Act 2001 (NSW), Part 7

Criminal Appeal Act 1912 (NSW) s 6

Uniform Civil Procedure Rules 2005 (NSW) rr 13.4, 36.15

Cases Cited:

Application by Peter Frederick Clark pursuant to s 78 of the Crimes (Appeal and Review) Act 2001 (NSW) [2021] NSWSC 1364

Burrell v The Queen [2008] HCA 34; (2008) 238 CLR 218

Clark v Attorney General (NSW) [2022] NSWCA 231

Clark v R [2015] NSWCCA 265

Clark v R [2021] NSWCCA 8

Director of Public Prosecutions v Mosely (2013) 275 FLR 140; [2013] NTSC 8.

Grierson v The King (1938) 60 CLR 431; [1938] HCA 45

PFC v The Queen (No 2) [2014] NSWCCA 241

R v Stanley [2015] 1 Qd R 118; [2014] QCA116; (2014) 241 A Crim R 73

SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189; [2007] HCA 35

Wentworth v Rogers (No 5) (1986) 6 NSWLR 534

Category:

Procedural rulings

Parties:

Peter Frederick Clark (Plaintiff)
Attorney General for NSW (Defendant)

Representation:

Counsel:
Self Represented (Plaintiff)
I Fraser (Defendant)

Solicitors:
Self Represented (Plaintiff)
Crown Solicitor’s Office (Defendant)

File Number(s):

2021/314531

JUDGMENT

1. By a document styled amended summons filed electronically on 26 November 2021, the plaintiff, Mr Clark, advanced six prayers for relief against the State of New South Wales and the State Parole Authority of New South Wales (“SPA”). By further amended summons dated 11 January 2022, prayers for relief expanded to nine and the defendants against whom relief was sought expanded to four to include the Commissioner for Corrective Services and the Attorney General for the State of New South Wales. The matters involving the SPA and the Commissioner were heard and determined by Fagan J on 13 September 2022. By then a further amended summons had been filed on 24 June 2022 expanding the prayers for relief to eleven. Prayers 3 and 4 in that version were somewhat different from the earlier further amended summons. However, those prayers were severed from the matters determined by Fagan J and came before me for hearing when I was sitting as duty judge on 2 November 2022.

2. At the hearing before me, Mr Clark withdrew a yet further form of amended summons which he had notified the Attorney General he wished to propound at the hearing (3.5- .12T) (MFI-1).

3. As expressed in the further amended summons filed in court before Fagan J on 13 September 2022, the relief sought but not dealt with by Fagan J was expressed as follows (Prayers 3 and 4):

“The plaintiff seeks the following orders, first offending:

3.   The inherent powers of the Supreme Court under the fraud jurisdiction are enlivened, certiorari and mandamus and habeas corpus are also enlivened to set aside the following convictions obtained by fraud against the plaintiff on:

i.   12 December 2006 at the District Court, Port Macquarie and

ii.    26 June 2009 at the District Court, Downing Centre and

iii.   31 August 2011 at the District Court, Downing Centre.

5.   Enter verdicts of acquittal. (Emphasis in original.)

It is important to emphasise that these proceedings were commenced in the Common Law Division. In advancing these claims for relief the plaintiff relied in particular on SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189; [2007] HCA 35 (“SZFDE”) and Director of Public Prosecutions v Mosely (2013) 275 FLR 140; [2013] NTSC 8 (“Mosely”).

4. On 25 August 2022, the Attorney General filed a notice of motion seeking the summary dismissal of the severed part of Mr Clark’s proceedings. This was the matter referred to me. At the hearing an amended notice of motion by leave was filed in court making clear that the Attorney General was seeking summary dismissal of the proceedings encapsulated in prayers 3 and 4 of the further amended summons of 24 June 2022.

5. It is quite clear from Mr Clark’s reference to the “fraud jurisdiction” in conjunction with references to orders in the nature of the former prerogative writs that Mr Clark is seeking to rely upon the supervisory jurisdiction of the Court. So much is also made clear by his reliance upon SZFDE, on the one hand and Mosely on the other. It is also quite clear from Mr Clark’s reliance upon Mosely, a unanimous decision of the Full Court of the Supreme Court of the Northern Territory, that he is attempting to invoke means of challenging and quashing convictions falling outside the scope and operation of the Criminal Appeal Act 1912 (NSW).

6. The ratio decidendi of the decision of the Northern Territory Full Court in Moseley is that the Supreme Court exercising original equitable jurisdiction may set aside a judgment obtained by fraud, including a judgment of the Court of Criminal Appeal (at [38], [44]-[45]). The Court’s decision proceeded in part upon an understanding of the judgment of Dixon J (as the Chief Justice then was) in Grierson v The King (1938) 60 CLR 431; [1938] HCA 45 at 436.

7. While Mr Clark is serving a sentence for a large number of offences which will expire on 7 March 2024, he seeks to impugn, by his allegation of fraud a single count of many being count 12 of which he was convicted on 29 June 2009 at the trial presided over by Norrish QC DCJ at Sydney. This was but 1 of 23 counts of which he was then convicted involving degrees of indecent assault or sexual intercourse with children and a number of counts of acting with intent to pervert the course of justice. Underpinning his case is the argument that if he were to establish fraud in respect of count 12, all of the counts of which he was convicted at three trials would also be called into question and quashed. He was convicted of three counts on 12 December 2006 at the Port Macquarie District Court. Garling DCJ was the trial judge. These counts also involved child sex offending and a count of attempting to pervert the course of justice. The conviction for the last-mentioned count was overturned on appeal. He was convicted on 31 January 2011 of a single count of doing an act that had a tendency to pervert the course of justice by a jury at a trial presided over by Freeman DCJ.

Gravamen of the claim

8. The averment in count 12 was pleaded as follows:

“For that he between 1 August 2003 and 30 November 2003 at Pampoolah 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, mainly that [SB] was under the authority of himself.”

The gravamen of Mr Clark’s argument is that to the knowledge of those responsible for prosecuting him, SB was not under his authority in 2003. SB’s own evidence was that he was in Year 9 when he commenced to live with Mr Clark who was then appointed his guardian and the sexual offending occurred. Other records show, on Mr Clark’s case, that SB was not in Year 9 until 2014. Mr Clark says these facts and the documents corroborating them were known to prosecutors who must have knowingly suppressed the evidence. Mr Clark argues that the evidence of SB’s father to the contrary must have been perjured.

9. While his summons falls a long way short of what is required by way of precision when a litigant wishes to raise and plead a claim of fraud, the aforegoing summation arises tolerably clearly from the material relied upon before me.

10. Mr Clark also argues that these facts were made good by fresh or new documentary evidence from the Department of Community Services that had been put before Cavanagh J for the purpose of an application under s 78 Crimes (Appeal and Review) Act 2001 (NSW) ([2021] NSWSC 1364). The documents tended to show, according to Mr Clark, that SB had been living at home for the whole of 2003 and did not commence to reside with Mr Clark until after his 15^th birthday on 1 March 2004 when, consistently with his evidence, he was in Year 9. From these documents, SB commenced to live with Mr Clark on 4 May 2004.

11. An application for judicial review of Cavanagh J’s decision rejecting Mr Clark’s application was decided by the Court of Appeal after the hearing before me: Clark v Attorney General (NSW) [2022] NSWCA 231. When that decision came to my attention, I asked for and received further written submissions from both parties: from the Attorney General on 21 November 2022; and from Mr Clark on 22 November 2022: Clark v Attorney General for NSW [2022] NSWCA 231 (Macfarlan, White and Mitchelmore JJA). Rejecting the ground of review that Cavanagh J’s decision was legally unreasonable, White JA (Macfarlan and Mitchelmore JJA agreeing), said, pertinently for the present application (at [54]):

“The fact that the same complaints had been made repeatedly on earlier occasions and had been rejected is a rational reason for not entertaining doubt about Mr Clark’s conviction. The fact that Mr Clark had obtained documentary confirmation that SB was in Year 8 in 2003, not Year 9, only confirmed what he already knew and which could have been and evidently was advanced to the Court of Criminal Appeal on his appeal against conviction and his applications to reopen that appeal. Cavanagh J characterised the fresh evidence on which Mr Clark relied as additional evidence. That evidence did not displace the facts that whether SB was in Year 8 or Year 9 in 2003 was not an element of count 12, that there was some evidence to support the jury’s finding, and that Mr Clark’s complaint about SB’s evidence and SB’s father’s evidence had been considered and rejected on earlier occasions.”

History of allegations of fraud by Mr Clark

12. This is not the first occasion upon which Mr Clark has sought to have his conviction overturned on the grounds of fraud. In PFC v The Queen (No 2) [2014] NSWCCA 241, Mr Clark sought to reopen his conviction appeal on the ground of fraud. The fraud on that occasion is said to be collusion amongst the various complainants. It was not said that the prosecutors were tainted by that allegation. However, Mr Clark relied upon Burrell v The Queen [2008] HCA 34; (2008) 238 CLR 218 at [15], where the power to set aside a final judgment procured by fraud by separate action was referred to in passing. The Court (Fullerton, Garling, and RA Hulme JJ) disposed of the argument in the following way at [43]-[47]:

“43 In support of this submission, [Mr Clark] draws attention to a statement of the plurality in Burrell v The Queen [2008] HCA 34; (2008) 238 CLR 218 at [15]. The extract quoted describes the principal of finality in litigation and then says:

"That fundamental tenet finds reflection in rules concerning the bringing of an action to set aside a final judgment on the ground that it was procured by fraud ... ."

There follows a reference to an earlier decision of the High Court of Australia, DJL v The Central Authority [2000] HCA 17; (2000) 201 CLR 226 at 244-245.

44 Although not specifically referred to by [Mr Clark], the balance of the paragraph in Burrell is worth setting out so as to see the real context and meaning of the judgment of the plurality. Their Honours said in[15]:

"That fundamental tenet finds reflection in rules concerning the bringing of an action to set aside a final judgment on the ground that it was procured by fraud, and in doctrines of res judicata and issue estoppel. The principal qualification to the general principle of finality is provided by the appellate system. But in courts other than the Court of final resort, the tenet also finds reflection in the restrictions upon reopening final orders after they have been formally recorded."

45 DJL was a decision with respect to a civil claim, and not a criminal matter. Itwas a case about orders made in the Full Court of the Family Court with respect to the application of regulations made under the Family Law Act 1975 (Cth). The High Court held by a majority that the Full Court of the Family Court did not have power to reopen final orders after their entry.

46 DJL is not authority which supports the proposition contended for by [Mr Clark]. The "fraud exception" of which it speaks is not applicable to the principle of finality as it applies in criminal cases, let alone to proceedings in the Court of Criminal Appeal. The extract from the judgment in Burrell does not support the submissions made by [Mr Clark].

47 There is nothing in this two page submission which would enable this Court to conclude that the first Court in December 2011 proceeded on any misapprehension of fact or law, sufficient to engage the jurisdiction under Rule 50C of the Criminal Appeal Rules.”

13. In Clark v R [2021] NSWCCA 8, the applicant again sought to reopen his conviction appeal on the ground of fraud (see [27]). The judgment does not specify Mr Clark’s argument in relation to fraud. But their Honours (Payne JA, Johnson and Wilson JJ) set out in a most succinct but pertinent manner the history of Mr Clark’s attempts to reopen his unsuccessful conviction appeal including by way of special leave applications in the High Court. Of Mr Clark’s attempt to raise his fraud case under r 36.15 Uniform Civil Procedure Rules 2005 (NSW) as that rule applies to criminal appeals, the Court said (at [28]):

“There are four difficulties with the applicant’s reliance upon UCPR r 36.15 in the present case. Collectively, those difficulties are insurmountable. First, the decision of this Court in Miller v R (No 2) at [19] is inconsistent with the existence of the jurisdictional basis which is asserted by the applicant to permit the reopening of earlier decisions of this Court. Secondly, assuming (without deciding) that the contrary conclusion about the application of a different rule (UCPR r 36.16) suggested by a differently constituted Court in El Ali v R (No 2) is correct and extends to r 36.15, we are not persuaded that any arguable basis has been shown to conclude that any judgment has been given or entered, or any order made, irregularly, illegally or against good faith. That is, assuming the power to be available, the preconditions to the exercise of the power in UCPR r 36.15 to set aside a judgment for fraud explained by Kirby P in Wentworth v Rogers (No 5) (1986) 6 NSWLR 534 at 537 –540 have not been satisfied by the applicant. Shortly put, the applicant’s claim of “fraud” does not rise above mere assertion. Thirdly, this Court has already closely considered what is now asserted by the applicant to be evidence of “fraud” in its earlier decisions and rejected the applicant’s assertions: see, for example, Clark v R [2015] NSWCCA 265 at [35]–[46] where this Court explained at length the issue concerning conflicting evidence about count 12 in the indictment and the way that issue had been dealt with at trial and on appeal. The Court rejected the applicant’s complaints about count 12. No reason has been shown to doubt that conclusion. The evidence concerning count 12 remained the central aspect of the applicant’s complaint in the present application. Fourthly, the applicant’s attempts to engage the power of the Executive and the Court to review his convictions on the basis of the same material now proffered by the applicant as evidence of “fraud” have all been unsuccessful: see, for example, Clark v A-G (NSW) [2019] NSWSC 1277 at [69]–[115] .”

14. Taking up their Honours reference to the judgment of Kirby P (as his Honour then was) in Wentworth v Rogers (No 5) (1986) 6 NSWLR 534 at 539, assuming that principle to be applicable to criminal proceedings, it is worth setting it out in full:

“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.”

15. I interpolate that the present claim is not based upon newly discovered facts. Mr Clark has always asserted that SB did not reside with him, nor did he have any authority over him in 2003. He has always relied upon the circumstance that SB was not in Year 9 until 2004. These facts are not newly discovered. More significantly perhaps, other than Mr Clark’s assertion that “it must be so”, there is no suggestion of the availability of any admissible evidence that the prosecution or any individual lawyer involved in the prosecution took advantage of any perjury on the part of any witness such that it could be shown that the prosecution “was responsible for the fraud in such a way as to render it inequitable that conviction should stand”. There is absolutely no material from which it could be inferred that if this claim was permitted to go to trial in the ordinary way, evidence of actual fraud on the part of anyone responsible for the prosecution is likely to be available. I repeat that Mr Clark’s case does not rise above mere assertion.

16. I should also say that in Clark v R [2015] NSWCCA 265, the question of the evidence supporting when SB came to live with the applicant was a central issue. The Court, Beazley P, Hall and Button JJ, pointed out (at [40]) that the applicant had misconceived or misapprehended the Crown case against him on count 12. It was not an element of the offence that SB “had been placed into [Mr Clark’s] care by DOCS”. Rather the Crown case was that SB had resided with Mr Clark at an earlier period in 2013, notwithstanding Mr Clark’s denials that he had resided with him before 2004. Their Honours pointed out that the case at hand was the fourth time Mr Clark had sought to relitigate that issue. There Honour’s said (at [39]-[43]):

“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.

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.”

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.”

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 first challenged judgment such as would enliven r 50C other than the fact that the Court did not accept the applicant’s contentions.”

17. Mine is not an exhaustive review of all of Mr Clark’s attempts to challenge his conviction on count 12 whether on the basis of fraud in its various iterations or otherwise. It is sufficient, however, to amply demonstrate that it has been repeated propounded and consistently rejected. However, Mr Clark seeks to formulate his attack by reference to various legal categories, the fact remains that the Court of Criminal Appeal has steadfastly held that it was open to the jury on the evidence lead at trial to convict Mr Clark of count 12 as pleaded.

Grierson v The King

18. As I have said, the underpinning of the reasoning of the Full Court of the Supreme Court of the Northern Territory in Mosely was based upon the analysis of Dixon J in Grierson v The King. Central to Dixon J’s reasoning was the statement (p 435) that the jurisdiction of the Court of Criminal Appeal “is statutory, and the Court has no further authority to set aside the conviction upon indictment than the statute confers”. In emphasising the finality of the Court of Criminal Appeal’s determination of an appeal, his Honour stated (p 436):

“The determination of an appeal is evidently definitive, and a conviction unappealed is equally final. No considerations controlling or affecting the conclusion is to be deduced from these provisions are supplied by analogous civil proceedings”. (My emphasis.)

19. It was in the context of that reference to civil proceedings that Dixon J went on to discuss the power of a court of Chancery to reopen or set aside a judgment obtained by fraud even after the introduction of the Judicature system and the institution of a court of appeal of general jurisdiction. His Honour said that the Chancery jurisdiction “is an independent proceeding equitable in origin and nature”. As I read his Honour’s statement it is no more than an obiter dictum exposition of an available civil procedure for setting aside a civil judgment. As his Honour said, such analogies do not derogate from the finality of an appeal to the Court of Criminal Appeal. One might add, they do not derogate from the Court of Criminal Appeal’s power to quash a conviction obtained by fraud.

20. I appreciate that I am presumptively bound by a considered decision of an interstate court of appeal or full court where there is no contrary decision of the Court of Appeal binding on me. However, in this regard there is at least contrary obiter from one judge in the Queensland Court of Appeal in the matter of R v Stanley [2015] 1 Qd R118; [2014] QCA160; (2014) 241 A Crim R 73 (“Stanley”). While Fraser JA and Mullins J (as the President then was) found it appropriate to reserve their position on the correctness of Mosley, I accept the correctness of the Attorney General’s analysis of the judgment of Morrison JA. This is as follows:

1. there is authority to support a conclusion that there is a power to set aside a dismissal of an appeal where the appeal has been abandoned due to fraud (Stanley at [14]);

2. that “there is no authority prior to Mosley which holds that there is an equitable jurisdiction which may be exercised by a Court other than [the Court of Criminal Appeal] and which enables criminal convictions to be set aside on the basis of fraud” (my emphasis) (Stanley at [62]);

3. that the existence of a remedy in the form of the statutory entitlement to petition for a pardon is an argument against extending the jurisdiction as found in Mosley. His Honour noted that in Mosley there was otherwise no remedy for what had occurred (Stanley at [68]-[69]);

4. that there was reason to doubt the correctness of the decision in Mosley (Stanley at [70]).

21. So far as point (c) in this analysis is concerned, there are, of course, very detailed provisions contained within Part 7 Crimes (Appeal and Review) Act for reconsidering a conviction the subject of a final determination by the Court of Criminal Appeal extending to a ground of fraud, including, but not limited to, s 78, which procedure Mr Clark has availed himself of on several occasions. I am of the view that given that statutory framework, the considered dicta of Morrison JA in Stanley is more apposite to the statutory regime concerning criminal appeals in New South Wales than the decision in Mosley. I am of the view that the Supreme Court, as opposed to the Court of Criminal Appeal, has no power to set aside a conviction entered by the verdict of a jury, or for that matter its confirmation on appeal to the Court of Criminal Appeal under s 6 Criminal Appeal Act 1922 (NSW), by way of any fraud exception.

22. SZFDE is authority for the completely unsurprising proposition that fraud is a ground of judicial review of the decisions of inferior courts and tribunals. The jurisdiction may extend to at least summary criminal cases where no further right of appeal lies to a higher court. In my judgment that principle does not avail Mr Clark.

Conclusion

23. For these reasons and bearing in mind the large number of occasions on which Mr Clark has sought to argue his case of fraud in the Court of Criminal Appeal in various iterations, I am satisfied that his current summons is an abuse of process. I will accede to the orders sought by the Attorney General in the amended notice of motion filed in court on 2 November 2022.

24. My orders are:

1. Prayer 3 of the plaintiff’s further amended summons filed 13 September 2022 be dismissed pursuant to r 13.4 Uniform Civil Procedure Rules 2005 (NSW).

2. Prayer 4 of the plaintiff’s further amended summons filed 13 September 2022 be dismissed pursuant to r 13.4 Uniform Civil Procedure Rules 2005 (NSW).

3. Proceedings otherwise dismissed.

4. Liberty to apply in respect of costs.

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Decision last updated: 31 August 2023