Peter Frederick Clark v The Queen - [2013] HCASL 49

PETER FREDERICK CLARK
v
THE QUEEN
[2013] HCASL 49
S346/2012

On 12 December 2006, at a trial before a judge alone, the applicant was found guilty in the District Court of New South Wales (Garling DCJ) of one count of attempting to procure a child over the age of 14 years to be used for pornographic purposes, one count of inciting a person under the age of 16 years to commit an act of indecency towards him and one count of possession of child pornography. The applicant was sentenced to a non-parole period of two years for the first count, a fixed term of six months for the second count and a non-parole period of 12 months for the third count.
The applicant appealed against conviction and sought leave to appeal against sentence. On 30 May 2008, the Court of Criminal Appeal of the Supreme Court of New South Wales (Bell JA, Barr and Buddin JJ) allowed the appeal against conviction in part, quashed the applicant's conviction on the count of possession of child pornography, granted the applicant leave to appeal against sentence and allowed the appeal against sentence in part. The applicant seeks special leave to appeal to this Court against the orders made by the Court of Criminal Appeal.
This special leave application is brought substantially out of time and the applicant seeks an order under r 41.02.2 of the High Court Rules 2004 dispensing with the need to comply with the time limit in r 41.02.1.
As the applicant does not have legal representation, the application falls to be dealt with under r 41.10.
Much of the draft notice of appeal and the written case is directed to material which was not in evidence in the Court below and which is alleged to cast doubt on the applicant's conviction. The additional material on which the applicant seeks to rely is not admissible in the appellate jurisdiction in this Court[1]. We see no reason to doubt the correctness of the conclusions reached by the Court of Criminal Appeal on the material that was before that Court.
Pursuant to r 41.10.5 we direct the Registrar to draw up, sign and seal an order dismissing the application.

K.M. Hayne
10 April 2013 S.M. Crennan

[1]Eastman v The Queen (2000) 203 CLR 1.

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Peter Frederick Clark v The Queen and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2013] HCASL 49
Decision Date

CaseChat Overview and Summary

In the case of Peter Frederick Clark v The Queen, the applicant, Mr Clark, applied for special leave to appeal against certain orders made by the Court of Criminal Appeal of the Supreme Court of New South Wales. Mr Clark had previously been found guilty in the District Court of New South Wales of attempting to procure a child over 14 years of age to be used for pornographic purposes, inciting a person under 16 years to commit an act of indecency, and possessing child pornography. The applicant appealed against his conviction and sentence, but the Court of Criminal Appeal upheld the convictions on two of the counts and allowed the appeal against sentence in part. Mr Clark now seeks special leave to appeal to the High Court against the orders of the Court of Criminal Appeal.

The primary legal issue for the High Court to consider was whether Mr Clark's application for special leave to appeal was brought substantially out of time and, if so, whether an order should be made under r 41.02.2 of the High Court Rules 2004 to dispense with the need to comply with the time limit in r 41.02.1. The Court also needed to determine whether the additional material on which Mr Clark sought to rely was admissible in the appellate jurisdiction of the High Court. Given that Mr Clark did not have legal representation, the application fell to be dealt with under r 41.10 of the High Court Rules.

The High Court found that the applicant's special leave application was indeed brought substantially out of time. The Court noted that the additional material on which Mr Clark sought to rely was not admissible in the appellate jurisdiction of the High Court, and that the Court of Criminal Appeal had reached its conclusions based on the material that was before it. The Court concluded that there was no reason to doubt the correctness of the conclusions reached by the Court of Criminal Appeal. As a result, the High Court dismissed the application for special leave to appeal. Pursuant to r 41.10.5 of the High Court Rules, the Registrar was directed to draw up, sign, and seal an order dismissing the application.

Orders