PFC v R (No 2)

[2014] NSWCCA 241

Court of Criminal Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:	PFC v R (No.2) [2014] NSWCCA 241
Hearing dates:	23/10/2014
Decision date:	30 October 2014
Before:	Fullerton J R A Hulme J Garling J
Decision:	Application pursuant to Rule 50C of the Criminal Appeal Rules to vary the orders entered by the Court of Criminal Appeal on 15 December 2011 dismissed.
Catchwords:	CRIMINAL LAW - appeal - procedure - reconstitution of the Court; application for - apprehended bias, whether - remarks in case management hearing - lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question being decided, whether - no apprehended bias CRIMINAL LAW - appeal - procedure - leave to vary orders of Court of Criminal Appeal; application for - Criminal Appeal Rules; Rule 50C -- whether Court proceeded on a misapprehension of fact or law - misapprehensions of law - fraud exception to finality of litigation, whether - access to documents - no misapprehension of law - misapprehension of Court of Criminal Appeal in considering whether the convictions were unsafe or unsatisfactory, whether - misapplication of the principles in SKA v The Queen [2011] HCA 13; (2011) 243 CLR 400, whether - correct application - misapprehensions of fact - multiple documents - not tendered at trial - not put before Court as fresh evidence - no misapprehension of any fact on material before the Court - attempt to reargue unsuccessful appeal - representation at trial - dealt with comprehensively by Court of Criminal Appeal - attempt to reargue unsuccessful appeal
Legislation Cited:	Criminal Appeal Act 1912 Family Law Act 1975 (Cth) Supreme Court Act 1970
Cases Cited:	Achurch v The Queen [2014] HCA 10, (2014) 88 ALJR 490 Akkawi v R (No.2) [2013] NSWCCA 72 Alramadan v Director of Public Prosecutions (NSW) (No.2) [2008] NSWCCA 69 Baghdadi v R (No. 2) [2012] NSWCCA 77 Burrell v The Queen [2008] HCA 34; (2008) 238 CLR 218 DJL v The Central Authority [2000] HCA 17; (2000) 201 CLR 226 Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 Kauwenberghs v R [2009] NSWCCA 201 Michael Wilson & Partners Ltd v Nicholls [2011] HCA 48; (2011) 244 CLR 427 PFC v R [2011] NSWCCA 275 R v AB (No.2) [2011] NSWCCA 256 Regina v PFC [2011] NSWCCA 117. SKA v The Queen [2011] HCA 13; (2011) 243 CLR 400
Category:	Principal judgment
Parties:	PFC (Applicant) The Crown (Respondent)
Representation:	Counsel: In person (Applicant) Ms N Williams (Respondent) Solicitors: Directors of Public Prosecutions (Respondent)
File Number(s):	2008/3811069
Publication restriction:	Suppression of Applicant's Name
Decision under appeal	Jurisdiction: 9004 Citation: PFC v R [2011] NSWCCA 275 Date of Decision: 2011-12-15 00:00:00 Before: Giles JA Hoeben J Hall J File Number(s): 2008/3811069

Judgment

1. THE COURT: On 19 June 2009, after a trial before Norrish DCJ and a jury, on an indictment containing 29 counts, the jury returned verdicts of guilty on 23 counts. One count on the indictment was the subject of a verdict of not guilty by direction. The jury returned verdicts of not guilty on the remaining 5 counts.

1. On 21 December 2009, PFC was sentenced to an effective term of imprisonment comprising a non-parole of 10 years and 9 months, with a balance of term of 3 years and 8 months. This term of imprisonment was imposed with respect to 17 counts of sexual assault or acts of indecency involving different complainants and 6 counts of acting with intention to pervert the course of justice.

1. On 25 May 2011, for the reasons which were then expressed, the Court comprising Allsop P, Hoeben and Hall JJ, dismissed a Crown appeal against sentence: Regina v PFC [2011] NSWCCA 117.

1. An appeal against conviction was heard by the Court of Criminal Appeal on 14 and 24 October 2011. For the reasons which it published, the Court comprising Giles JA, Hoeben and Hall JJ, dismissed that appeal in a judgment delivered on 15 December 2011: see PFC v R [2011] NSWCCA 275.

1. On that day, PFC informed the Court of Criminal Appeal that he wished to apply to reopen his appeal. On 7 March 2012, PFC filed an application pursuant to Rule 50C of the Criminal Appeal Rules. This judgment deals with the application by PFC pursuant to r 50C of the Criminal Appeal Rules to set aside or vary the order of the Court of Criminal Appeal made on 15 December 2011, which was "Appeal dismissed".

1. It will be convenient to refer to the judgment of 15 December 2011 as the first judgment, and the Court which heard the appeal as the first Court.

Constitution of the Court

1. For the hearing of this application, the Chief Justice directed that the Court be constituted by Fullerton, RA Hulme and Garling JJ: s 3 Criminal Appeal Act 1912.

1. Prior to the commencement of the hearing, the Court was notified that the applicant objected to Garling J being a member of the Court, and hence objected to the composition of the Court. Accordingly, at the commencement of the application, PFC was invited to inform the Court of the basis of that application, and to put such submissions as he wished in support of the application.

1. Having considered those submissions, the Court refused the application of PFC that it be reconstituted and indicated that it would deliver its reasons with this judgment on the principal application. What follows are the Court's reasons for declining to accede to PFC's application for the Court to be reconstituted.

1. By letter dated 20 September 2014, PFC notified an objection to Garling J being a member of the Court to hear the principal application. He drew attention to s 110 of the Supreme Court Act 1970. He then said this:

"The main reason and my submission is possible bias as GARLING J, along with MCLELLAN CJ at CL, MCCALLUM J on 4 September 2012 heard and dismissed my application to re-open my previous criminal appeal ... The facts in that application are similar and included that the complainants in that trial were the same complainants that gave evidence in this trial." (sic.)

1. However, PFC abandoned this ground when he made oral submissions. Instead, he submitted that Garling J should not sit because of a reasonable apprehension of bias arising from a remark made by Garling J in the course of a case management hearing on 19 September 2014, in preparation for the hearing of the principal application.

1. Notwithstanding earlier written submissions indicating that he did not rely on Garling J's role as being the case manager of the proceedings, PFC submitted that during a case management hearing on 19 September 2014, Garling J, in the course of discussing with the Crown the content of the submissions which were still outstanding, had drawn the Crown's attention to a decision of the High Court of Australia in Achurch v The Queen [2014] HCA 10, (2014) 88 ALJR 490. PFC submitted that as Garling J's remark was addressed only to the Crown and not to him, it demonstrated a reasonable basis for an apprehension of bias.

1. We have carefully examined the whole of the transcript of the case management hearing of 19 September 2014. It is clear that Garling J was in the process of ensuring that the Crown understood the Court's requirements that its written submissions sufficiently addressed the issues which were to be determined by the Court. In so doing, Garling J referred to arguments of statutory interpretation which had been advanced in Achurch by way of an analogy, to demonstrate what issues the Court required the Crown's submissions to cover.

1. Further discussions between Garling J and PFC about the content of the Crown's submissions, concluded with Garling J saying to PFC in the clearest of terms that he was not telling the Crown what the contents of their submissions should be. PFC accepted that. He made no complaint during that hearing about the reference to Achurch by Garling J.

1. It is clear that PFC puts his application to this Court on the basis of possible bias arising out of a remark during a case management hearing. We would take this expression to be an assertion of what legally would be called "apprehended bias".

1. The test for disqualification is to be found in Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 at [6] per Gleeson CJ, McHugh, Gummow and Hayne JJ. Their Honours said:

"Where, in the absence of any suggestion of actual bias, a question arises as to the independence or impartiality of a judge ..., the governing principle is that, subject to qualifications relating to waiver ... or necessity ..., a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide."

1. Their Honours went on to say that the principle which they enunciated gave effect to the requirement that justice should be both done and be seen to be done, itself a reflection of the fundamental importance of the principle that the Tribunal be independent and impartial. See also Michael Wilson & Partners Ltd v Nicholls [2011] HCA 48; (2011) 244 CLR 427 at [31] per Gummow A-CJ, Hayne, Crennan and Bell JJ.

1. In Michael Wilson at [67], the plurality judgment said:

"... an allegation of apprehended bias requires an objective assessment of the connection between the facts and circumstances said to give rise to the apprehension and the asserted conclusion that the judge might not bring an impartial mind to bear upon the issues that are to be decided."

1. PFC relies on part of the content of a discussion between Garling J and counsel for the Crown in the course of a case management hearing. The remark was one in which Garling J referred, by way of analogy, to a principle enunciated in a case which was potentially relevant to these proceedings, and sought to ensure that the Court received submissions from the Crown which touched upon all relevant principles.

1. The remark indicated no concluded view of Garling J about whether the principle in that case related to, let alone that it was determinative of, this application. The further remarks made to PFC also made it plain that his Honour was not engaged in the process of dictating to the Crown the contents of its submissions.

1. Such a remark (or a remark of similar kind) is typically made in case management hearings to ensure that submissions which the Court is to receive are relevant and comprehensive. The remark was made in open Court, PFC heard it: if he wished to respond to the Crown's submissions, he had the opportunity to do so, orally, at the hearing of the application.

1. There is no reason to suppose that any fair minded lay observer might reasonably apprehend that Garling J might not bring an impartial mind to the determination of this proceeding.

1. Accordingly, for these reasons, the Court declined PFC's application that it should be reconstituted.

Criminal Appeal Rules

1. This application is brought in reliance on Rule 50C of the Criminal Appeal Rules which is in the following form:

"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."

Legal Principles and Authorities

1. Rule 50C commenced on 7 September 2007. It was first considered by this Court in Alramadan v Director of Public Prosecutions (NSW) (No.2) [2008] NSWCCA 69.

1. The Court noted in Alramadan that in applying Rule 50C in its terms, the Court:

"... will have the same powers under the Criminal Appeal Act, taking into account relevant principles under the general law, as it has always had in relation to orders which have not been entered."

1. The Court then proceeded to consider the proper application of Rule 50C. It said this:

"6 Where judgment has been given but the order has not been entered, the power to reconsider an appeal is not precluded. Nevertheless, the circumstances in which the Court will be persuaded to entertain further argument (and possibly further evidence) are quite limited. In Elliott and Blessington at [31]-[32], the High Court held that the criteria by which this Court should determine an application to re-open a proceeding, prior to judgment being entered, were those stated by Mason CJ in Autodesk Inc v Dyason (No. 2) [1993] HCA 6; 176 CLR 300 at 303:

'What must emerge, in order to enliven the exercise of the jurisdiction, is that the Court has apparently 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 reargue their cases.' "

1. The Court went on to say this:

"7. Applying those principles in the present case, it is necessary to identify some misapprehension of fact or law, not solely attributable to the applicant, which materially affected this Court's judgment in the appeal."

1. The Court again considered the application of Rule 50C in Kauwenberghs v R [2009] NSWCCA 201. The Court, in applying Alramadan, held that there were three questions which required an affirmative answer before the Court would be entitled to consider varying the original set of orders. It expressed those questions in this way:

"10. The first question is whether, in considering the application for leave to appeal against sentence, the Court proceeded (or apparently proceeded) according to some misapprehension of fact or law. Unless that has occurred the application to vary the ... order must be dismissed. If it is established that the Court proceeded according to some misapprehension of fact or law, the Court must then be satisfied that the matter complained of affected its consideration of the merits of the appeal in some material way. That is, the misapprehension must be a material one. Again, unless that matter is established, the application to vary the ... order must fail. Assuming the materiality of the misapprehension of fact or law, the final question is whether it was due to the applicant's neglect or default."

1. The Court went on to say that it was essential that on an application under Rule 50C that the Court resolve the application in accordance with the principles enunciated:

"... since to do otherwise is to run the risk that the application takes on the character of an appeal or a re-hearing of the original appeal".

1. In a number of judgments since, the Court has applied this approach to applications made pursuant to Rule 50C: see R v AB (No.2) [2011] NSWCCA 256; Baghdadi v R (No. 2) [2012] NSWCCA 77; Akkawi v R (No.2) [2013] NSWCCA 72.

1. Accordingly, in considering the submissions, both written and oral, of PFC, together with the additional documentation identified, this Court will need to consider first, whether the first Court in its first judgment proceeded, or apparently proceeded, on a misapprehension of fact, or of law, and if it do so, whether any such misapprehension was material?

1. If either of these questions are not answered affirmatively, then the application must be dismissed. If ultimately satisfied of each of those matters, the Court will need to consider the question of neglect or default, on the part of the applicant, before considering whether the orders should be varied.

Case Management of this Application

1. As is apparent from our reasons above, it was determined that judicial case management of this application was appropriate.

1. During the course of the case management, the applicant was required to specify with precision the material upon which he relied for the purposes of this application. In seeking such specification, the Court reminded the applicant that an application under Rule 50C of the Criminal Appeal Rules was not a "backdoor" pathway to re-litigate his appeal.

1. By letter dated 20 September 2014, in response to the Court's requirement that the applicant specify what he wished to rely upon for the purpose of this application, the applicant, in writing, said:

"To what I rely on for my application to re-open the appeal;

FIRST: These two pages;

SECOND: My affidavit / submissions dated 10 July 2014 which details inter alia; my grounds why my appeal was not heard on the merits of my case through no fault of my own including the fact that further exculpatory evidence has now been found and/or finally given to me by Corrective Services.

THIRD: My affidavit / submissions PART "A" which detail and particularise that my appeal was not heard on the merits of my case through no fault of my own, that this Court the proceeded on a misapprehension of the facts detailed and particularised in my appeal submissions filed before the hearing 11 & 24 October 2011, that this Court then misapplied the law relating to an appeal such as mine.

FOURTH: My affidavit / submissions PART "B" which detail and particularise inter alia; my responses to the instructing solicitor and trial counsel's affidavits and evidence to this Court which flow back into my PART "A".

FIFTH: My "TENDER DOCUMENTS".

SIXTH: Oral argument at the hearing 23 October 2014.

Note: I fully understand that an application to reopen an appeal is not a "back door" for me to re litigate my appeal. I submit that my appeal "Proper" has not been heard for the reasons detailed in the submissions referred to above!" (sic.)

1. At the commencement of the hearing, the applicant, PFC, confirmed that this document correctly set out the materials upon which he wished to rely for the purpose of the application.

1. It is convenient to examine those documents to identify the basis of this application to vary the orders made in December 2011, and in particular, to identify whether the documents and PFC's oral submissions demonstrate that the Court should answer affirmatively all of the three questions which we have set out in [32] - [33] above.

Two Page Summary of Argument

1. In a two page 'Summary of Argument' forwarded to the Court on 20 September 2014, PFC submitted that his convictions were obtained by fraud. He introduced that submission in the following way:

"I, the appellant gave my instructing solicitors and my trial counsel very, very clear and precise written and verbal instructions along with exculpatory evidence under the hand of the complainants to support the fact that the complainants had conspired in a "FRAUD" to set me up to police with false sexual and/or indecent allegations so "they" could then make "FRAUDULENT" claims on Victim's Services for substantial gain."

1. He then asserts that the evidence before the first Court was that his trial counsel knew of these matters, and that he and his solicitor failed to put that material to the complainants in cross-examination at his trial or to lead evidence at trial.

1. PFC then put this submission:

"4. The result I submit meant that the "FRAUD" instigated by the complainants was allowed to transpire and continue in the trial. And that the instructing solicitors and counsel in not exposing and/or running the "FRAUD" as a defence and/or putting to the complainants that their allegations were in fact "FRAUDULENT" allowed the "FRAUD" to be perpetuated leading to a miscarriage of justice!

5. I submit that the clear result was that the instructing solicitors and trial counsel then became part of the "FRAUD", albeit through "Flagrant Incompetence". As detailed in my submissions Part A and Part B which include trial counsel lying to the trial Judge and not reading the exculpatory evidence that he was provided with by me and/or the instructing solicitors before and/or during the trial." (sic.)

1. PFC then goes on to submit that:

"... my case is the very rare exception in that the convictions in my case were brought about by "FRAUD" and that this Court has a duty to see that this injustice occasioned to me is rectified." (sic.)

1. In support of this submission, PFC 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.

1. Although not specifically referred to by PFC, 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."

1. DJL was a decision with respect to a civil claim, and not a criminal matter. It was 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.

1. DJL is not authority which supports the proposition contended for by PFC. 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 PFC.

1. 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.

Affidavit of 10 July 2014

1. This affidavit consists of 38 pages and 15 annexures, some of which consist of multiple pages. The contents of the affidavit commence with the following statement:

"1. That I am the appellant and this affidavit relates to why my conditions of custody have affected my abilities to properly prepare grounds and, submissions, the appeal proper and this application to reopen the appeal. That I strongly believe that I have been denied procedural fairness and natural justice that led to a serious miscarriage of justice as detailed below. In particular I strongly believe that my appeal miscarried long before the judgment was delivered on 15 December 2011 and long before the need to apply under Rule 50C as detailed below!" (sic)

1. The affidavit then commences with a review of certain legal authorities and quotations, references to the rights of other inmates and then commences with a chronological description from early 2007 of attempts made, whether successful or unsuccessful, by PFC to access a computer and all of his tubs of legal documents whilst in custody at various locations.

1. Paragraph 3 of the affidavit is in the following form:

"3. I rely on two grounds to reopen the appeal:

3.1 I was obstructed and/or prevented:

(a) from being able to properly prepare my grounds and submissions leading up to the appeal by some Correctional Officers which denied me, the appellant natural justice and procedural fairness &

(b) then from being able to conduct my appeal proper before the Court of Criminal Appeal by some Correctional Officers which again denied me, the appellant natural justice and procedural fairness.

3.2 As a consequence of a. and b. above my appeal, through no fault of my own was not able to put forward on the merits of my case and that this led to the New South Wales Court of Criminal Appeal misconceiving and / or misunderstanding my grounds and submissions and that this led to a serious miscarriage of justice."

1. It can be observed that the first of the bases upon which PFC puts this application is that the conditions of his custody were such as prevented him from putting all of the relevant material and submissions before the Court on the hearing of his appeal. He submits that this has resulted in a serious miscarriage of justice because the Court could not consider the material.

1. As his submissions make clear, all of the events which gave rise to this submission occurred before the commencement of the hearing of his appeal in October 2011.

1. If such events 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 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. In fact, the only reference to access to computers was at the conclusion of his oral submissions when he informed the Court, almost as an aside, that:

"... it would help if inmates had access to computers in their cells because this would not be as complicated as it is."

1. The exception to which we referred above was a specific issue which arose with respect to the conduct of the appeal surrounding a delay in access to a tub of documents on the second day of the hearing of the appeal. The transcript indicates that this issue was resolved satisfactorily by the Court adjourning until the tub of documents arrived.

1. There was no generalised complaint or submission by PFC to the first Court that he was not properly prepared for the hearing or that during the hearing he could not put all of the submissions which he wished to.

1. The submission about a miscarriage of justice on either of the two "grounds" nominated, does not fall within the circumstance contemplated by Rule 50C of the Criminal Appeal Rules. The submissions do not suggest any misapprehension of fact or law in the first judgment. No passage in the first judgment is identified or even referred to. Rather, there is a generalised complaint which is unrelated to the contents of the judgment. Principle does not permit a complaint of this kind as a basis for the application of Rule 50C.

1. The balance of the affidavit deals with events which have occurred since the judgment of the Court of Criminal Appeal was delivered in December 2011. PFC gives evidence in this affidavit that, prior to the commencement of the argument on that day, his "main notes and questions" for the cross-examination of a witness, Dr Webb, were missing from his tub of documents. He says that that document became available one week later in circumstances unassociated with the hearing of his appeal to the Court of Criminal Appeal.

1. In conclusion, his affidavit states, by reference to all of the facts and circumstances set out in it, that:

"... I have not only been denied procedural fairness and natural justice. That I have been persecuted, intimidated, obstructed and discriminated against by numerous Correctional Officers intent on perverting the true course of justice.

Just as I could not prosecute this (my) appeal properly without all my legal files the same can be said for my trial counsel .... In that my trial instructing solicitor ... failed to provide [trial counsel] with; inter alia;

(a)   my specific and detailed defences to each count and/or each of the allegations;

(b)   my detailed responses to not only all the complainant's allegations and their police statements but also each and every Crown witnesses police statement;

(c)   and the vast majority of exculpatory witness statements that I had taken, not only from the complainants over many years but also the father of the three brothers [B], Mr SB Senior and Ms Marie MINNS

and

(d)   other exculpatory evidence." (sic)

1. Attached to and forming part of the affidavit is a short submission in the following form:

"All the above I submit and strongly believe denied me natural justice and procedural fairness by preventing me from preparing proper documents to brief counsel for my appeal and/or prepare my own appeal document properly. Which I believe and I submit all led to a serious miscarriage of justice."

1. It will be observed that nowhere in the balance of the affidavit, in either the submissions which were incorporated within it or the documents annexed to it, is there any specific reference to any part of the judgment of the first Court which it is sought to "reopen". Nowhere does PFC identify any misapprehension of fact or misapprehension of the law in that first judgment.

1. The substance of the complaint made, and the claimed support for it in the affidavit, is that PFC did not have an adequate opportunity to properly prepare his appeal prior to the hearing of it, and in particular, on the second day of the hearing, and that his claimed limited access to computers and documents was part of an ongoing "campaign" against him by correctional services officers.

1. He claims in the result that there has been a "miscarriage of justice".

1. A perusal of the transcript of the hearing of the appeal, including the transcript of the events of the morning of 24 October 2011, indicates that when the Court assembled, PFC drew the Court's attention to the missing tub of documents and the fact that he had "missed out on about three hours of finalising my cross-examination of [trial counsel] and tidying up the paperwork this morning". He was asked whether there would be a problem with recommencing his cross-examination of the witness who was part heard, namely his trial counsel, and he responded to the Court that there was no problem with him resuming that cross-examination as soon as his papers arrived.

1. Accordingly, the Court adjourned the commencement of the proceedings until the documents arrived and then reassembled. Upon reassembly the witness was called and re-sworn. PFC raised no complaint with the Court about any missing document, or other incapacity in asking questions.

1. The cross-examination concluded by PFC announcing that he had asked all of the questions he wished. The Court took a short break before the submissions from PFC were taken.

1. When the Court resumed, the fresh evidence upon which PFC wished to rely was provided to the Court and identified by the presiding Judge. PFC then made submissions orally in addition to his written submissions.

1. At the conclusion of submissions, PFC informed the Court that he had concluded his submissions and said this:

"Well I might leave it at that and thank you for your time and it would help if inmates had access to computers in their cells because this would not be as complicated as it is. It's just so hard trying to get an hour's worth on a computer and not be repetitious, cause just trying to read the document it takes hours. Thank you your Honour, thank you gentlemen."

1. Insofar as PFC relies upon anything contained in this affidavit as forming a basis to support an application under Rule 50C of the Criminal Appeal Rules to this Court to vary the orders of the first Court, there is simply no basis disclosed in this affidavit for that.

1. In short, PFC 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.

1. 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 PFC 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.

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

1. As is clear from the authorities to which we have earlier referred, the Court cannot act under Rule 50C unless it is first satisfied that in the original judgment, upon the basis of which the orders have been made, there has been some misapprehension of fact or law.

1. PFC in this affidavit asserts no misapprehension of fact or law, he gives no evidence which would allow such a conclusion to be drawn and in fact makes a complaint of a kind which is wholly irrelevant to an application under Rule 50C.

1. We would not uphold this application on the basis of anything contained in this affidavit.

Part A Submissions

1. PFC's Part A submissions were filed on 25 August 2014.

1. The submissions were filed, apparently, in response to a direction that PFC file all submissions upon which he proposed to rely with respect to the application to vary orders pursuant to Rule 50C. The submissions consist of 140 pages.

1. At the commencement of the submissions, PFC sets out his three arguments with respect to the application. They are as follows:

"2. My first argument is that my appeal was not heard on the merits of my case through no fault of my own as detailed in my affidavit dated 10 July 2014 and below.

3. My second argument is that this Court then proceeded on a misapprehension of the facts detailed in my appeal submissions and now on the relevant material/documents detailed below.

4. My third argument is that this Court then misapplied the law relating to an appeal such as mine."

1. PFC points out that all of his three arguments overlap to some degree. The first argument has already been addressed and nothing further arises in this document. As we have said, it does not succeed.

1. In addressing his third argument, in his submissions, PFC submits that the first Court was in error and misapprehended the law in the way in which it dealt with its obligations when considering his submission that the convictions were unreasonable or could not be supported having regard to the evidence. Alternatively expressed, his complaint is that in considering his ground of appeal that his convictions were unsafe and/or unsatisfactory, the first Court misapprehended the law.

1. The first Court dealt with this matter at [349]-[373] of the judgment.

1. The judgment commences by identifying the relevant statutory provision and the legal test to be applied by a Court as set out in the decision of the High Court of Australia in SKA v The Queen [2011] HCA 13; (2011) 243 CLR 400, in the joint judgment of French CJ, Gummow and Kiefel JJ.

1. The applicant complains that the first Court misapprehended the relevant law because it stated in [351], in reference to the judgment of the High Court of Australia in SKA, that "the appeal was dismissed" whereas in fact the appeal to the High Court in SKA was allowed.

1. Although it is clear that the appeal to the High Court was upheld in SKA, it was upheld on a ground different from the ground argued about the relevance and availability of the trial Judge's sentencing remarks on an appeal. The passage in [351] of the first judgment refers specifically to this ground and is therefore correct. To the extent that in SKA the issue turned on the obligation of the Court of Criminal Appeal to adopt the remarks of the trial Judge about a complainant's veracity, that part of the appeal was dismissed. There is no misapprehension of the law in [351] of the first judgment.

1. Even if there was a misapprehension of the law, it was not a material one. That is because, ultimately, in the part of the first judgment to which I have referred, the first Court 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 PFC 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.

1. 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."

1. Earlier in the judgment, the Court had said that the trial Judge's views with respect to the witnesses did not weigh heavily in the task they had to perform.

1. It had also said when identifying the approach to the determination of the appeal:

"360. Although without more focussed submissions from the appellant, we must make our independent assessment of the evidence. Having in mind the jury's advantage in seeing and hearing the evidence, we must ask ourselves whether upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty, and we must ask ourselves that question in relation to each of the counts on which a verdict of guilty was returned. We have undertaken that task."

1. There is no basis for a contention that on the material before them, the Court misapprehended as a matter of law, the task upon which it was engaged in dealing with the submission of PFC that his conviction was unsafe or unsatisfactory

1. The substance of the submissions by PFC in this Part A document with respect to the erroneous application of the principles set out in SKA, largely refer to other parts of the judgment in which the Court was considering other grounds of appeal. The reference in the Part A submissions to those parts of the judgment do not persuade us that there was a misapprehension of the law with respect to the task which the Court was undertaking. When the Court came to consider the ground of appeal with respect to unreasonable conviction, it set out the basis of its consideration and did so entirely correctly.

1. We are wholly unpersuaded that there has been in any misapprehension of the law of any kind in the first judgment.

1. With respect to PFC's second argument, namely that there had been a misapprehension of fact in the first judgment, it must be said that the submissions in Part A are somewhat unfocussed and discursive. The submissions move readily, and without clear delineation, between the evidence adduced at the trial before Norrish DCJ and the jury, the evidence adduced as fresh evidence before the first Court, and further evidence placed before this Court which PFC contends would amount to fresh evidence if his application to reopen the appeal were allowed, and he was entitled to lead that fresh evidence.

1. The difficulty with this approach is that in an application under Rule 50C, the Court is asked to consider whether the original judgment proceeded upon a misapprehension of fact or law. That exercise necessarily is limited to the material which was before the first Court at the time it made its judgment. Leaving aside a case in which it may be possible to establish a misapprehension of fact because the record or a part of it before the Court was erroneous in a factual respect, there is no cause for this Court, when considering an application under Rule 50C, to examine documents which were not before the Court when it heard the appeal and delivered its first judgment.

1. This issue was addressed by the Court in Alramadan at [12], where it said:

"Accepting that it was necessary to reopen the appeal to call further evidence, the applicant assayed that task, but without providing any explanation as to why such further, and arguably more persuasive, material had not been presented on the appeal. Senior counsel for the applicant properly accepted that his application must be confined to material relevant to the existing grounds of appeal. 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)."

1. An example in the Part A submissions of the contentions of PFC about misapprehension of fact will be sufficient to demonstrate the exercise which PFC wrongly asks this Court to engage in.

1. At paragraph 45 in the Part A document, he says:

"It is very important that this Court does its duty this time and properly scrutinises not only the above documents but also ALL that evidence referred to herein! And that all that evidence has so much probative force and weight, and that had that evidence been put to SB [a witness at the trial], the other complainants, Crown witnesses and properly before the trial Court it would have raised more than a reasonable doubt in the minds of the jury and that I would have been totally acquitted by the jury."

1. This extract demonstrates that the exercise upon which PFC is engaged in the Part A submissions, with respect to questions of fact, is simply an attempt to re-argue his unsuccessful appeal by reference to documents which were not tendered at trial, nor adduced by way of fresh evidence on the appeal.

1. Nothing has been demonstrated in the Part A submissions that would indicate that the first Court misapprehended any fact on the material before it.

1. The Part A submissions conclude with this statement:

"435. SUMMARY: My trial miscarried simply because:

a.   No draft proof of evidence was prepared before the trial;

b.   That it was then too late to prepare draft proofs after all the complainants had given evidence and the Crown case was about to close;

c.   That both the instructing solicitor and trial counsel failed to read my responses and defences to the complainant's allegations set out in their police statements;

And that all these failures could not be attributed to any fault of the appellant more over the appellant did everything humanly possible to see that he received a fair trial. By providing all the material well in advance of the trial to his lawyers, namely "Due Diligence"!" (sic)

1. The issue of whether, having regard to all of the circumstances, PFC 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 PFC of both his former solicitor and former counsel, and then in the first judgment.

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

1. 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 PFC 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 PFC had in his possession prior to the appeal, interspersed with additional evidence inserted into the submissions as though it were commentary.

1. 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.

1. We would not be prepared to uphold this application on the basis of anything written in the Part A submissions.

Part B Submissions

1. The Part B submissions comprise 53 pages.

1. They commence with the following:

"First I remind this Court of these serious allegations against my trial counsel (a) that he lied to the trial Judge, (b) that he lied to this Court and (c) further that then conspired with the trial instructing solicitor to lie and/or deliberately mislead this Court. And that my allegations are not mere assertions from a disgruntled client. That the incriminating evidence comes from both trial counsel and the instructing solicitor's own evidence to this Court detailed in Part A and in Part B below!" (sic.)

1. The substance of the submissions in Part B is that PFC sets out in detail reference to additional material which was not before the first Court by reference to each relevant paragraph of the affidavit of his trial counsel dated 14 June 2011. That affidavit was obtained by the Crown prior to the hearing of the appeal in 2011, and formed the evidence in chief of his trial counsel to the first Court. It was on the basis of that affidavit and other material in the possession of PFC, that PFC conducted a cross-examination of his trial counsel during the hearing of the appeal.

1. As we have said, there is no reason to doubt, from a careful reading of that cross-examination, that PFC had every opportunity to ask all relevant questions which he wished to raise.

1. In respect of a number of paragraphs of trial counsel's affidavit, the Part B submissions contain assertions of fact as to whether the contents of that affidavit are factually true and factually correct. For example, where trial counsel has given a factual account of what transpired between he and PFC in the course of one or another conference, in these Part B submissions, PFC gives a contrary account or else a supplementary account of material that was also disclosed, and invites this Court to conclude that there was a misapprehension of fact in the first judgment.

1. It cannot be doubted that this material could have been, and if relevant, should have been, put before the first Court . If, having cross-examined his trial solicitor and trial counsel, PFC asserted that there were factual errors, he was at liberty to apply to the Court then hearing the matter to take his evidence orally setting out what those factual inconsistencies were. He made no such application.

1. It is simply not open to this Court to take assertions of fact of this kind into account in determining an application under Rule 50C to vary the order which was made.

1. The Part B submissions conclude with these paragraphs:

"275. That finalises my responses to [trial counsel] and [trial solicitor]'s affidavits and their evidence.

276. Two final matters the first I submit that this Court must under it's mandate scrutinise my responses and/or defences that I provided to [both trial lawyers] to the complainants and Crown witnesses police statements that both [trial lawyers] failed to read and/or examine and put before the trial Court!

277. The second that this Court must according to Law also scrutinise all the documents and/or exculpatory statements that are now included in my folder marked "TENDER DOCUMENTS"! " (sic)

1. It is abundantly clear from reading the Part B submissions that they are in substance directed to rearguing the appeal which has already been heard and determined.

1. There is simply nothing in these submissions addressing the question of how the first Court in its judgment so misapprehended the facts or the law as to mean that the orders dismissing the appeal ought be reopened and varied. We are not persuaded that PFC has demonstrated any misapprehension of fact or law in the first judgment.

1. There is simply nothing in the Part B submissions that would enable this Court to exercise its jurisdiction to vary the order of the first Court.

Bundle of Tender Documents

1. PFC has provided to the Court a bundle of tender documents. It is 452 pages in length. It includes many documents that were tendered at the trial or else relied upon in the first Court, and documents which were not. All of the documents, according to the dates contained in the index prepared by PFC, came into existence prior to April 2009, and certainly before the commencement of the trial before Norrish DCJ and the jury.

1. Many of the documents are specific responses prepared by the appellant to the police statements of various witnesses, copies of various police statements taken at different times in respect of the same witnesses and in respect of different witnesses, statements apparently taken by or prepared on behalf of PFC from various of the witnesses, and extensive copies of correspondence between the appellant and his trial lawyers, both solicitor and counsel.

1. As all of these documents were created by PFC, or else pre-existed the trial of PFC and were available to him, prior to that time, it follows that if he regarded any of them as being relevant to the hearing of the appeal in 2011, then he was obliged to seek to put them before the first Court. If he did not do so, then that is not a reason why he can apply on the basis of further documents to vary the order of the first Court pursuant to Rule 50C.

1. The substance of the documents appear to go to the issue which was before the Court on the appeal, namely, whether the conduct of his defence by his trial lawyers, solicitor and counsel, was competent and appropriate in the circumstances. That issue was fully ventilated and determined by the Court of Criminal Appeal. What occurs in submissions by reference to these documents is plainly an attempt by PFC to re-argue his appeal.

1. There is nothing revealed in the additional 450 pages of documents in the tender bundle which, of itself, would occasion this Court to conclude that the first Court in its judgment misapprehended the facts.

1. We would not accede to PFC's application under Rule 50C based upon this material.

Oral Submissions

1. The final material to which it is necessary to refer are the oral submissions to this Court on the hearing of this application.

1. In fact, and helpfully so, PFC reduced those submissions to 36 pages of writing in one set of submissions, and 5 pages in another set of submissions, and provided copies to the Court. He had some short supplementary oral submissions.

1. In the longer of the two sets of submissions, PFC concentrates on two principal issues. The first deals with the competence of his trial lawyers. The second deals with a discrete question with respect to the offence constituted by Count 12 on the Indictment.

1. Insofar as the submission referred to the conduct of his trial before Norrish DCJ and the jury by his trial lawyers, PFC by reference to material not before the trial Court or the first Court , repeats, perhaps rather more stridently than earlier, his submissions that his trial miscarried because of their incompetence. Because the additional material was integral to, and the basis of, these submissions, which were put to and determined by the first Court, it is plain that this Court cannot accede to them. They do not show that the Court in its first judgment misapprehended the facts or the law.

1. Insofar as Count 12 is concerned, PFC 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], 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.

1. In our view, the substance of the oral submissions (including those referred to in writing) of PFC was an attempt to re-argue his appeal. They do not demonstrate any misapprehension of fact or law in the first judgment.

Conclusion

1. We have earlier referred to the three questions of which it is necessary for an applicant to persuade this Court, before an order under Rule 50C of the Criminal Appeal Rules can be made.

1. The applicant, PFC, has, for the reasons which have been outlined, wholly failed to persuade the Court that his application should succeed. He has demonstrated no misapprehension of fact or law in the first judgment.

Orders

1. The Court makes the following order:

(2) Application pursuant to Rule 50C of the Criminal Appeal Rules to vary the orders entered by the Court of Criminal Appeal on 15 December 2011 dismissed.

**********

Decision last updated: 30 October 2014