Clark v R

[2015] NSWCCA 265

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Clark v R [2015] NSWCCA 265

Hearing dates:

20 July 2015

Decision date:

06 October 2015

Before:

Beazley P;
Hall J;
Button J

Decision:

1. Application to vary or set aside the orders entered by the Court of Criminal Appeal on 30 October 2014 in PFC v R (No 2) [2014] NSWCCA 241 dismissed;

2. Application to vary or set aside the orders entered by the Court of Criminal Appeal on 30 October 2014 in Clark v R [2014] NSWCCA 236 dismissed.

Catchwords:

CRIMINAL LAW – appeals – Criminal Appeal Rules, r 50C – meaning of “any other power” in r 50C(5)

 

CRIMINAL LAW – appeals – Criminal Appeal Rules, r 50C – whether material misapprehension of fact or law not due to applicant’s default

 

ADMINISTRATIVE LAW – apprehension of bias – bias from sitting on previous cases involving applicant

 

ADMINISTRATIVE LAW – procedural fairness – access to legal documents in custody – whether reviewable in r 50C application

  CRIMINAL LAW – adequacy of trial representation – complaints fully litigated in prior proceedings – no claim specifying alleged misapprehension of fact or law

Legislation Cited:

Criminal Appeal Act 1912 (NSW)
Criminal Appeal Rules
Criminal Appeal Rules (Amendment No 1) 2007 (NSW)

Cases Cited:

Achurch v The Queen [2014] HCA 10; 236 A Crim R 427
Alramadan v DPP (NSW) (No 2) [2008] NSWCCA 69
Autodesk Inc v Dyason (No 2) [1993] HCA 6; 176 CLR 300
Burrell v The Queen [2008] HCA 34; 238 CLR 218
Gall v R (No 2) [2015] NSWCCA 152
Grierson v The King [1938] HCA 45; 60 CLR 431
Kauwenberghs v R [2009] NSWCCA 201
Miller v R [2015] NSWCCA 205
Re J.R.L; Ex parte C.J.L [1986] HCA 39; 161 CLR 342
SKA v The Queen [2011] HCA 13; 243 CLR 400

Category:

Principal judgment

Parties:

Peter Frederick Clark (Applicant)
Regina (Respondent)

Representation:

Counsel:
Applicant in person
J Girdham SC (Respondent)

  Solicitors:
Solicitor for Public Prosecutions (Respondent)

File Number(s):

2008/38112008/62317

 Decision under appeal 

Court or tribunal:

Court of Criminal Appeal

Citation:

Clark v R [2014] NSWCCA 236;
PFC v R (No 2) [2014] NSWCCA 241

Date of Decision:

30 October 2014;
30 October 2014

Before:

Leeming JA; Price J; McCallum J / Fullerton J; R A Hulme J; Garling J

File Number(s):

2008/62317;
2008/3811069

HEADNOTE

[This headnote is not to be read as part of the judgment]

The applicant was convicted, in two separate trials, of a number of counts of sexual offences committed against juvenile complainants, child pornography offences and offences of acting with the intention to pervert the course of justice. His appeals against convictions were dismissed and he was subsequently unsuccessful in an application to reopen the first of those appeals pursuant to the Criminal Appeal Rules, r 50C.

The applicant brought applications pursuant to r 50C to reopen the second of the appeals and the r 50C application relating to the first appeal. The applicant submitted that even if his contentions in respect of those decisions were not such as to attract the application of r 50C itself, it was open for the Court to proceed under r 50C(5), by which “any other power” of the Court to set aside or vary an order was preserved, including by creating a new precedent if necessary.

The applicant contended that he had been denied procedural fairness, and errors or miscarriages of justice had occurred, as a result of: the refusal of Garling J to recuse himself on the ground of apprehension of bias from sitting on the r 50C application relating to the first appeal; the failure of the Court to sit an enlarged bench to hear his appeals; and certain matters relating to the applicant’s access to his legal documents whilst in custody. The applicant also raised a number of complaints relating to his representation at trial.

In addition, the applicant challenged one of his convictions in respect of complainant SB, being a conviction of a sexual offence occurring in the aggravating circumstance that it occurred while SB was under the applicant’s authority. The applicant contended that that count could be proved to have been impossible having regard to the time in which SB was living with the applicant, and that it followed that his conviction was contrary to the authority of SKA v The Queen [2011] HCA 13; 243 CLR 400.

Per the Court

(1)   Rule 50C(5) does not provide a freestanding power of the Court to set aside an order. As the applicant did not point to “any other power” under which the Court might proceed it was not open for the Court to develop a new precedent to suit the particular situation. The case fell to be decided pursuant to the established principles governing r 50C itself. [11]-[12]

(2) Rule 50C provides a limited mechanism by which the Court may reconsider its orders if it proceeded according to a material misapprehension of fact or law which was not due to the applicant’s neglect or default where the Court failed to consider a ground of appeal. The rule is also available to correct a slip in a judgment or order. The rule must be understood against the background of principle of finality and its importance to the rule of law. [6]-[18]

Bruce Edward Gall v R (No 2) [2015] NSWCCA 152; Burrell v The Queen [2008] HCA 34; 238 CLR 218; Grierson v The King [1938] HCA 45; 60 CLR 431; Alramadan v DPP (NSW) (No 2) [2008] NSWCCA 69; Autodesk Inc v Dyason (No 2) [1993] HCA 6; 176 CLR 300; Kauwenberghs v R [2009] NSWCCA 201; Achurch v The Queen [2014] HCA 10; 236 A Crim R 427; Miller v R [2015] NSWCCA 205

(3) There was no misapprehension of fact or law in the finding, in the r 50C application relating to the first appeal, that no question of apprehended bias was raised by the circumstance that Garling J had sat on one of the applicant’s previous matters. No other matter was raised with respect to the applicant’s bias claims such as would attract the operation of r 50C. [19]-[25]

Re J.R.L; Ex parte C.J.L [1986] HCA 39; 161 CLR 342

(4) The question of whether an enlarged bench should hear an appeal rests with the Chief Justice of New South Wales and is not amenable to review pursuant to r 50C. [26]

(5) The applicant’s contentions regarding his access to documents were fundamentally an attempt to reopen his appeal so as to remedy a perceived deficiency in material presented at the hearing. That approach is not permissible in r 50C applications. [27]-[34]

Alramadan v DPP (NSW) (No 2) [2008] NSWCCA 69

(6) The evidence on the question of when the complainant SB came to live with the applicant was disputed, and it was open to the jury to accept the Crown’s version of events rather than the applicant’s. None of the applicant’s claims in relation to this issue raised a misapprehension of fact or law such as to enliven r 50C. [35]-[46]

SKA v The Queen [2011] HCA 13; 243 CLR 400

(7) The issue relating to adequacy of trial representation was extensively litigated in the applicant’s prior proceedings, in which the applicant had had the opportunity to cross-examine trial counsel. The applicant pointed to no specific misapprehension of fact or law on this basis, except that the Court did not accept that his convictions should be overturned. [47]-[50]

Alramadan v DPP (NSW)(No 2) [2008] NSWCCA 69

Judgment

1. THE COURT: There are before the Court applications to reopen two judgments pursuant to the Criminal Appeal Rules, r 50C, being PFC v R (No 2) [2014] NSWCCA 241 (the first challenged judgment) and Clark v R [2014] NSWCCA 236 (the second challenged judgment).

2. The applicant was convicted after a trial before Norrish DCJ and a jury of a total of 23 counts of sexual offences against a number of juvenile complainants, child pornography offences and offences of acting with the intention to pervert the course of justice. The applicant was sentenced to an effective term of imprisonment comprising a non-parole period of 10 years and 9 months and a balance of term of 3 years and 8 months. An appeal against conviction was dismissed by a judgment of Giles JA, Hoeben and Hall JJ of 15 December 2011: PFC v R [2011] NSWCCA 275 (the Norrish DCJ appeal). An application to reopen that appeal pursuant to r 50C was dismissed by a judgment of Fullerton, R A Hulme and Garling JJ of 30 October 2014, being the first challenged judgment. The first application is therefore an application to reopen an application to reopen.

3. The applicant was also convicted of a charge of perverting the course of justice, following a trial before Freeman DCJ and a jury. Freeman DCJ sentenced the applicant to a term of imprisonment of 2 years and 8 months with a non-parole period of 2 years, to commence from the conclusion of the sentence already being served. An appeal against conviction was dismissed by a judgment of 30 October 2014 of Leeming JA, Price and McCallum JJ, being the second challenged judgment.

4. The applications to reopen the first and second challenged judgments pursuant to r 50C were made on 11 November 2014 and 7 November 2014 respectively. Both applications being made within 14 days of entry of the orders sought to be varied, this Court’s power to entertain them was enlivened: r 50C(2).

5. As the submissions relating to the two applications substantially overlap, it will be convenient to deal with them together.

Rule 50C

6. Rule 50C provides as follows:

“50C   Power to set aside or vary order

(1)   The Court may set aside or vary an order if an application for the setting aside or variation is made before entry of the order.

(2)   If an application for the setting aside or variation of an order is made within 14 days after the order is entered, the Court may determine the matter, and (if appropriate) set aside or vary the order under subrule (1), as if the order had not been entered.

(3)   Within 14 days after an order is entered, the Court may of its own motion set aside or vary the order as if the order had not been entered.

(4)   The Court may not extend the time limited by subrule (2) or (3).

(5)   Nothing in this rule affects any other power of the Court to set aside or vary an order.”

7. Rule 50C was introduced by the Criminal Appeal Rules (Amendment No 1) 2007, made on 30 August 2007 and gazetted on 7 September 2007. The background to the rule was explained by Hoeben CJ at CL in Bruce Edward Gall v R (No 2) [2015] NSWCCA 152, at [17]:

“The genesis of the rule was the problem which arose in [Burrell v The Queen [2008] HCA 34; 238 CLR 218]. The Court of Criminal Appeal in Burrell had occasion to consider its power to re-visit a decision made on an erroneous view of the facts. The court held that in the circumstances of that case it did have such power, but the circumstances and authorities referred to made obvious the advantage of putting the matter beyond doubt by the creation of a Rule. In fact the Court of Criminal Appeal’s decision as to the existence of such a power was overruled by the High Court in Burrell.”

8. In Burrell, at [24], the High Court approved the description of the jurisdiction of the Court of Criminal Appeal given by Dixon J in Grierson v The King [1938] HCA 45; 60 CLR 431 at 435, as follows:

“The jurisdiction is statutory, and the court has no further authority to set aside a conviction upon indictment than the statute confers. The Criminal Appeal Act of 1912 N.S.W. … does not give a general appellate power in criminal cases exercisable on grounds and by a procedure discoverable from independent sources.”

9. The explanatory note to the Government Gazette in which r 50C was published read as follows:

“The object of these Rules is to amend the Criminal Appeal Rules so as to require orders under the Criminal Appeal Act 1912 to be entered, and to enable them to be set aside and varied, in ways similar to those for judgments and orders under the Civil Procedure Act 2005.”

10. In Alramadan v DPP (NSW) (No 2) [2008] NSWCCA 69 at [3], the Court (Basten JA, Latham and Rothman JJ) declined, for the purposes of that case, to take the explanatory note into account. The Court held that the wide terms of the note had to be read in the context of the remark of Dixon J in Grierson at 436, that:

“The determination of an appeal is evidently definitive, and a conviction unappealed is equally final. No considerations controlling or affecting the conclusion to be deduced from [the provisions of the Criminal Appeal Act 1912 (NSW)] are supplied by analogous civil proceedings.”

11. In the hearing of this matter, the applicant’s central contention appeared to be that the Court ought to set aside or vary the challenged judgments on the basis of r 50C(5). In written submissions, he submitted that, even though his application did not fall under r 50C(2), “that did not absolve the [Court considering the first r 50C application] from creating or setting a NEW precedent or under Rule 50C par (5)”.

12. This submission was misguided. Rule 50C(5) does not provide a free-standing power of the Court to set aside an order. Rather, its effect is that “any other power” of the Court to set aside or vary its orders remains following the enactment of r 50C. The applicant did not specify any other existing power upon which he relied and it goes without saying that the Court cannot create for itself a “new precedent” to suit the situation as the applicant sees it. It follows that this case falls to be determined pursuant to the decided principles relating to r 50C itself.

13. The application and extent of r 50C was first considered in Alramadan (No 2). In that case, the Court held, at [4], that r 50C was to be understood according to the powers the Court had always had in relation to orders which have not been entered. The Court, at [6], went on to cite the statement of Mason CJ in Autodesk Inc v Dyason (No 2) [1993] HCA 6; 176 CLR 300 at 303 that, in order to enliven the jurisdiction to vacate orders made, it must appear:

“… that the Court has … proceeded according to some misapprehension of the facts or the relevant law and that this misapprehension cannot be attributed solely to the neglect or default of the party seeking the rehearing. The purpose of the jurisdiction is not to provide a backdoor method by which unsuccessful litigants can seek to re-argue their cases.”

The Court held, at [7], that the same principle applied to applications made under r 50C.

14. In Kauwenberghs v R [2009] NSWCCA 201, the Court (Beazley P, Hall and Fullerton JJ) held, at [10], that three questions needed to be answered affirmatively before the Court would be entitled to consider varying orders under r 50C. Those questions were:

1. whether the Court proceeded (or apparently proceeded) according to some misapprehension of fact or law;

2. whether that misapprehension was a material one; and

3. whether the misapprehension was due to the applicant’s neglect or default.

These principles have since been applied in a number of cases: see the first challenged judgment at [31] and the cases cited therein.

15. Underlying the narrow scope of r 50C is the central importance to the rule of law that controversies, once resolved, are not to be reopened except in limited circumstances. As was held by French CJ, Crennan, Kiefel and Bell JJ in Achurch v The Queen [2014] HCA 10; 236 A Crim R 427, at [16]:

“The principle of finality forms part of the common law background against which any statutory provision conferring power upon a court to re-open concluded proceedings is to be considered.”

See also Miller v R [2015] NSWCCA 205 at [25].

16. In Miller, Adams J, with whom Hoeben CJ at CL and Hidden J agreed, described the limited scope of r 50C as follows:

“40   After judgment has been entered, nothing of substance can be changed, though this still permits changes to orders or reasons where the language of either mistakenly does not reflect the order contemplated by the reasons or the sense of the reasons themselves. It must follow that no second appeal can be had on the merits, still less can a subsequent Court of Criminal Appeal hear such an appeal from an earlier decision of the Court. The mere contention that some error of law or misapprehension of fact has affected the decision is immaterial. If what is sought is, in effect, a rehearing on the merits of a decided appeal by this Court, the only recourse is by way of further appeal [to the High Court], if special leave is granted.

41   As a useful guide, any application before the orders are perfected which requires more than a summary consideration and determination of the impugned judgment or order is likely to be outside the scope of the rule.”

17. In Gall (No 2), Hoeben CJ at CL (R A Hulme and Davies JJ agreeing), at [27], listed by way of illustration the situations in which r 50C has been applied:

“To correct a slip, being the omission of words to clarify an infelicitous or ambiguous expression. When doing so it was not altering the basis or rationale of the judgment as it was originally intended (R v Jones; R v Hili (No 2) [2010] NSWCCA 195; 79 NSWLR 143 at [49].

To overcome agreed difficulties where there was a gap of three months from the conclusion of the notional sentence on a count and the commencement of the notional sentence on the next count and it was appropriate to remedy that slip (R v AB (No 2) [[2011] NSWCCA 256]).

When the Court had not considered a ground of appeal (Baghdadi v R (No 2) [2012] NSWCCA 77).

To effect the orders proposed in the reasons for judgment with the correct calculation of the aggregate head sentence (Akkawi, Mark v R; Akkawi, Paul v R (No 2) [2013] NSWCCA 72).

To restructure sentences to achieve an aggregate non-parole period which reflected the Court’s intention (KW v R (No 2) [2013] NSWCCA 84).

To correct some minor accidental slips which included the numbering of the orders and some minor changes of wording, neither of which altered the substance of the reasons or the orders made (R v Ly (No 2) [2014] NSWCCA 91).”

18. These illustrations may be contrasted with the situation in Alramadan (No 2), which the Crown contends is analogous to the present case. In Alramadan (No 2), an application pursuant to r 50C was made on the basis of the availability of two witness statements additional to those presented at trial. The Court held, at [8], that “the sole reason [the evidence was] not considered by the Court at the hearing of the appeal was that [the applicant] did not put it before the Court”. At [12], their Honours held:

“In substance, the applicant has sought to reopen the appeal so as to remedy a deficiency in the material presented at the hearing. That approach would appear to fall squarely within the impermissible purpose of seeking ‘by a backdoor method’ to reargue an unsuccessful appeal. It cannot be justified on the criteria explained by Mason CJ in Autodesk (No. 2).”

The applicant’s contentions

Bias claims

19. The applicant claimed that the proceedings resulting in the first challenged judgment should not have been heard by Garling J. The applicant had, at the commencement of those proceedings, objected to Garling J sitting. He contended that an apprehension of bias (or perhaps actual bias) arose out of the circumstance that his Honour had previously sat on another of the applicant’s matters and additionally as a result of comments made by Garling J in the course of a case management hearing.

20. It is convenient at this point to record that, at the commencement of the hearing of this matter, the applicant also made an application that Hall J not sit, on the basis that his Honour was on the bench that decided the Norrish DCJ appeal. Hall J declined to recuse himself.

21. The principles relating to apprehension of bias on the basis of a judicial officer’s involvement in prior related proceedings were considered by Mason J in Re J.R.L; Ex parte C.J.L [1986] HCA 39; 161 CLR 342 at 351. His Honour considered that there had been an increase in the frequency of bias claims on that basis, and held that:

“It needs to be said loudly and clearly that the ground of disqualification is a reasonable apprehension that the judicial officer will not decide the case impartially or without prejudice, rather than that he will decide the case adversely to one party. There may be many situations in which previous decisions of a judicial officer on issues of fact and law may generate an expectation that he is likely to decide issues in a particular case adversely to one of the parties. But this does not mean either that he will approach the issues in that case otherwise than with an impartial and unprejudiced mind in the sense in which that expression is used in the authorities or that his previous decisions provide an acceptable basis for inferring that there is a reasonable apprehension that he will approach the issues in this way. In cases of this kind, disqualification is only made out by showing that there is a reasonable apprehension of bias by reason of prejudgment and this must be ‘firmly established’ … Although it is important that justice must be seen to be done, it is equally important that judicial officers discharge their duty to sit and do not, by acceding too readily to suggestions of appearance of bias, encourage parties to believe that by seeking the disqualification of a judge, they will have their case tried by someone thought to be more likely to decide the case in their favour.” (citations omitted)

22. The first challenged judgment dealt with the bias claim in some detail at [7]-[23]. At [11], their Honours noted that that aspect of the application which related to Garling J sitting on a previous matter had been abandoned in oral argument before them. The applicant now denies that that was the case. This denial cannot be sustained, having regard to following exchange recorded in transcript:

“FULLERTON J: So your concern about Garling J continuing or sitting as a member of this bench is that in the course of case management he referred to a decision of the High Court in a dialogue with the Crown and did not explain to you what this judgment meant or otherwise help you to understand it…

APPLICANT: That’s correct your Honour, yes.

FULLERTON J: Is that the only basis for your seeking to have Garling J removed - -

APPLICANT: That’s correct.”

23. The applicant further contended that, as a result of a head injury, he omitted, in the hearing of the first challenged judgment, to mention or reinforce additional aspects of his bias claim, including that Garling J had threatened that his sentence might be increased if he persisted with his r 50C application. This allegation was not supported by any reference to transcript. It did not rise above a bare assertion and should be rejected. The applicant also contended that the court should have put a particular letter to him so as to assist his memory. This is not the role of the Court.

24. In any case, having regard to the principles in Re J.R.L., it is clear that it was open and indeed proper for Garling J not to recuse himself from hearing the first r 50C proceeding. The same may be said about Hall J in relation to the present case.

25. There was no misapprehension of law or fact in relation to the bias claim in the first challenged judgment such as would enliven r 50C.

Five judge bench application

26. The applicant submitted that he was denied procedural fairness by the Court’s refusal of his application that a five judge bench be sat to hear the proceedings subject to the first challenged judgment. The power to sit a bench of more than three judges rests in the Chief Justice of New South Wales: Criminal Appeal Act 1912 (NSW), s 3. His Honour’s decision not to sit an enlarged bench was not, and could not have been, in issue in the proceedings subject to the challenged judgments and it is not a decision amenable to review pursuant to r 50C.

Access to documents

27. More substantially, the applicant contended that the conditions of his custody prevented him from being fully able to argue his case, and that this resulted in miscarriages of justice in the proceedings subject of both the first and second challenged judgments. This claim related, in particular, to access to documents which the applicant contended were in the custody of Corrective Services and had not been provided to him or returned to his son, with the result that he had no access to them at all. It was contended that those documents contained evidence favourable to the applicant which he was unable to put to the jury or to this Court on appeal or reopening. As was put in oral argument:

“BEAZLEY P: As I understand it, that’s virtually your central allegation, that … you were not able to prosecute your appeal properly because you did not have access to certain documents.

APPLICANT: That’s correct.”

28. The applicant made a further and related submission that he had not been served, prior to the hearing that resulted in the first challenged judgment, with an affidavit of Superintendent Quarrie sworn on 21 October 2014. That affidavit related to the conditions of the applicant’s custody with respect to his access to computers and documents for the purposes of preparing for his legal matters.

29. The Crown submits that the affidavit was in fact served. An affidavit of Anna Ilardo, solicitor in the employ of the Director of Public Prosecutions, was in evidence. In that affidavit, Ms Ilardo deposed to having organised on 21 October 2014 the service on the applicant of the affidavit of Superintendent Quarrie. She attached an acknowledgement of service appearing to be signed by the applicant and dated the following day.

30. There is a further question about whether, once served, the applicant had access to the affidavit while in custody.

31. The question of access to materials was dealt with in the first challenged judgment at [53], in which the Court held that:

“If such events [relating to access to materials for the preparation of the applicant’s case] occurred, about which we do not need to make any findings, then the proper course was to raise the position when the hearing of the appeal commenced, so that the first Court which was hearing the [Norrish DCJ] appeal could make the appropriate determination about whether, and if so how, it might proceed to hear the appeal. An examination of the transcript demonstrates that, with one exception, PFC made no complaint of the kind which he now seeks to adumbrate on this application.”

The “one exception” related to a specific issue in which access to documents was delayed on the second day of the trial: see at [54]. It is not relevant to the applicant’s current claims.

32. At [69]-[71] in the first challenged judgment, the Court made the following comments:

“69   In short, [the applicant] wishes to complain that there has been a miscarriage of justice because he says, now, that he did not have adequate access to documents to enable him to adequately argue his case.

70   There is some reason to doubt that this is so, having regard to the fact that no such assertion was made to the Court at the time, and as the transcript clearly discloses, every opportunity was given to [the applicant] to cross-examine the witnesses which he wished to, and to put all submissions upon which he wished to rely. It is clear that he did not perceive at the time, and prior to the judgment being delivered, any difficulty with respect to the process which was being followed.

71   The second fundamental difficulty is a complaint which in substance amounts to a miscarriage of justice based upon the process that was followed, including [the applicant’s] ability to put all his arguments before the Court, does not fall within Rule 50C.”

33. In submissions before this Court, the applicant contended that, contrary to the findings contained in the first challenged judgment at [53], he had raised these matters before the Registrar of the Court of Criminal Appeal, as well in hearings of civil proceedings he brought against the State of New South Wales. This may be accepted. As the Crown submitted, however, no relevant complaints were made until after the relevant hearing.

34. Further, it is not the role of this Court, on an application pursuant to r 50C, to determine whether the applicant might have been able to put on additional evidence had he been in different circumstances or whether such evidence might have affected the verdict or the outcome on appeal. Such arguments may in some circumstances be raised on appeal. The misapprehension of fact and law which the applicant contends has occurred is a failure of the Court of Appeal, in the proceedings in which this issue has been raised, to accept the applicant’s arguments. This contention fundamentally involved an attempt to “reopen the appeal so as to remedy a deficiency in the material presented at the hearing”: Alramadan (No 2) at [12]. As was pointed out in the first challenged judgment at [71], complaints of this type do not fall within the ambit of r 50C.

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 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.

Contention regarding trial representation

47. The applicant made further submissions relating to complaints about his counsel and instructing solicitor at trial. He contended that counsel had acted contrary to his instructions in cross-examination of witnesses, that there had been a failure to raise alibi evidence in the trial before Norrish DCJ, and that his lawyers had failed to prepare a draft proof of evidence. The applicant’s major contention appears to be that further evidence relating to the SB counts should have been either adduced by his lawyers or extracted from witnesses in cross-examination by counsel in the trial before Norrish DCJ, although a contention was also made relating to incompetence of counsel with regard to the trial before Freeman DCJ.

48. These issues, as they related to the Norrish DCJ trial, were dealt with in the appeal from those convictions at [62]-[82]. Both trial counsel and his instructing solicitor were called in that proceeding and cross-examined by the applicant.

49. The issues regarding representation were then reconsidered in the first challenged judgment at, inter alia, [99]-[102]:

“99   The issue of whether, having regard to all of the circumstances, [the applicant] was properly represented at the trial, and to the extent, if any, that he was not, whether a miscarriage of justice thereby occurred, was one dealt with at very great length by the first Court during its hearing including by allowing lengthy cross-examination by [the applicant] of both his former solicitor and former counsel, and then in the first judgment.

100   There was no suggestion that [the applicant] did not have a fair opportunity to cross-examine each of the witnesses during his appeal, coming from [the applicant] during the course of the appeal. The transcript demonstrates that in fact he had an entirely satisfactory opportunity in this respect.

101   The arguments which are now contained within the Part A submissions, particularly with respect to the issue of the competence of solicitor and counsel, clearly represent an attempt by [the applicant] to reargue his appeal by reference to, not just the documents which were before the Court on that appeal, but by reference to other documents, the existence of which pre-dated the appeal, and copies of which [the applicant] had in his possession prior to the appeal, interspersed with additional evidence inserted into the submissions as though it were commentary.

102   This approach is entirely impermissible on an application under Rule 50C and cannot be used in an attempt to demonstrate that the first Court misapprehended the facts or the law.”

50. It is difficult to distil from the applicant’s lengthy submissions on this topic any specific misapprehension of fact or law he contends were made in the challenged judgments, except that the Court did not accept that the applicant’s convictions should be overturned on this ground. Again, if the major strand of this complaint is that the actions of the applicant’s lawyers at trial resulted in deficiencies in the evidence presented in his cases, Alramadan (No 2) stands as authority that it is not open to him, on an application pursuant to r 50C, to attempt to remedy those deficiencies.

Conclusion

51. The Court makes the following orders:

1.   Application to vary or set aside the orders entered by the Court of Criminal Appeal on 30 October 2014 in PFC v R (No 2) [2014] NSWCCA 241 dismissed;

2.   Application to vary or set aside the orders entered by the Court of Criminal Appeal on 30 October 2014 in Clark v R [2014] NSWCCA 236 dismissed.

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Decision last updated: 06 October 2015