Supreme Court New South Wales Medium Neutral Citation: Applications by Peter Frederick Clark under Part 7 Crimes (Appeal and Review) Act 2001 [2023] NSWSC 445 Hearing dates: On the papers Date of orders: 27 April 2023 Decision date: 27 April 2023 Jurisdiction: Common Law Before: Sweeney J Decision: The applications pursuant to s 78 of the Crimes (Appeal and Review) Act 2001 (NSW) seeking inquiries into the applicant's convictions are dismissed. Catchwords: CRIME — Appeal and review — Applications to Supreme Court under Part 7 — sexual and perverting the course of justice offences — application dismissed Legislation Cited: Crimes (Appeal and Review) Act 2001 (NSW) Supreme Court (Criminal Appeal) Rules 2021 (NSW) Criminal Appeal Act 1912 (NSW) Cases Cited: Application by Peter Frederick Clark pursuant to Section 78 of the Crimes (Appeal And Review) Act 2001 (NSW) [2021] NSWSC 1364 Clark v Attorney General of New South Wales [2019] NSWSC 1277 Clark v Attorney General of New South Wales [2020] NSWCA 70 Clark v Attorney General of New South Wales (No 2) [2020] NSWCA 135 Clark v R [2014] NSWCCA 236 Clark v R [2015] NSWCCA 265 Clark v R (No 2) [2015] NSWCCA 271 Clark v R [2021] NSWCCA 8 Clark v R [2021] NSWCCA 67 Clark v R (No 2) [2021] NSWCCA 48 Clark v R (No 3) [2021] NSWCCA 64 Derley v R [2016] NSWCCA 60 Kuligowski v Metrobus (2004) 220 CLR 363; [2004] HCA 34 PFC v R [2011] NSWCCA 275 PFC v R (No 2) [2014] NSWCCA 241 R v Burrell [2004] NSWCCA 185 Ramsay v Pigram (1968) 118 CLR 271; [1968] HCA 34 Sinkovich v Attorney General (NSW) (2013) 85 NSWLR 783; [2013] NSWCA 383 Wood v State of New South Wales [2018] NSWSC 1247 Texts Cited: Nil Category: Principal judgment Parties: Peter Frederick Clark (Applicant) Attorney General of New South Wales (Respondent) File Number(s): 2002/69098 Publication restriction: Nil JUDGMENT 1. Peter Frederick Clark has made two applications pursuant to s 78 of the Crimes (Appeal and Review) Act 2001 (NSW) seeking inquiries into his convictions. 2. The application filed first in time, on 21 October 2022, is in respect of his conviction for an offence of perverting the course of justice, for which he was tried before Freeman DCJ and a jury in August 2011, the jury's guilty verdict being returned on 31 August 2011. 3. The second in time application, being an amended application filed on 6 February 2023, is in relation to his conviction on one count of sexual intercourse with a child, Count 12, in an indictment containing several counts, in respect of which he was tried before Norrish QC DCJ and a jury in 2009. 4. The relevant statutory provisions are as follows. 5. S 78 of the Crimes (Appeal and Review) Act provides that "(1) An application for an inquiry into a conviction... may be made to the Supreme Court by the convicted person…". 6. S 79 states: "79 Consideration of applications (1) After considering an application under section 78… – (a) the Supreme Court may direct that an inquiry be conducted by a judicial officer into the conviction or sentence, or (b) the Supreme Court may refer the whole case to the Court of Criminal Appeal, to be dealt with as an appeal under the Criminal Appeal Act 1912. (2) Action under subsection (1) may only be taken if it appears that there is a doubt or question as to the convicted person's guilt, as to any mitigating circumstances in the case or as to any part of the evidence in the case. (3) The Supreme Court may refuse to consider or otherwise deal with an application. Without limiting the foregoing, the Supreme Court may refuse to consider or otherwise deal with an application if – (a) it appears that the matter – (i) has been fully dealt with in the proceedings giving rise to the conviction… (or in any proceedings on appeal from the conviction… ), or …. (ii) has previously been dealt with under this Part or under the previous review provisions, or and (b) the Supreme Court is not satisfied that there are special facts or circumstances or special circumstances that justify the taking of further action. (4) Proceedings under this section are not judicial proceedings. However, the Supreme Court may consider any written submissions made by the Crown with respect to an application." 1. As noted, an application under s 78 does not initiate a judicial proceeding but instead an exercise of administrative power. 2. I will deal first with the application filed second in time by Mr Clark. It concerns his first in time conviction, in 2009. Although Mr Clark's application seeks an order "that an inquiry be conducted into all the convictions", his application focused on Count 12 in the indictment in the 2009 trial. 3. The trial before Norrish QC DCJ and a jury in August 2009 involved an indictment containing a number of counts alleging sexual and indecent offences and child pornography offences relating to six male complainants, and charges of doing an act with intent to prevent the course of justice, related to allegations of seeking to cause complainants to give false evidence. The applicant was convicted of 23 of the 29 counts at the trial. Count 12, of which the applicant was convicted, and which is the subject of this application, was in the following terms: "Between 1 August 2003 and 30 November 2003 at Pampoolah in the State of New South Wales did have sexual intercourse with SB, he being a person of the age of 14 years and under the age of 16 years, in circumstances of aggravation, namely that SB was under the authority of [the applicant]". 1. The essence of the applicant's challenge to his conviction in respect of this offence is his assertion that the complainant SB was not under his authority in 2003, but only came under his authority in 2004. 2. In connection with that challenge to his conviction on that count the applicant raises a number of grounds. He asserts that in this Court's previous consideration of his challenge to his conviction on Count 12 the Court has never fully dealt with his argument, in that it has misunderstood or failed to comprehend sufficiently his argument, or has erred in law in considering his challenge. He asserts misconduct by the Crown Prosecutor in the trial in "coaching" the jury into delivering a verdict of guilty on Count 12 that was not supported by the evidence, by misstating the evidence in her closing address to the jury or misleading the jury in that address about the state of the evidence; and misconduct by police officers in the investigation by, inter alia, coaching the father of the complainant SB to give false evidence. The applicant asserts that his conviction on Count 12 was unreasonable, being unsupported by the evidence, and the dismissal of his appeal against his conviction on that count by the Court of Criminal Appeal was also unreasonable, being unsupported by the evidence in the trial. The applicant asserts bias or incompetence on the part of this Court in considering his previous applications, including, inter alia, covering up for the Crown Prosecutor in the trial who is now a Justice of the Supreme Court. 3. The applicant also asserts that the Crown proceeding with Count 12 in the trial before Norrish QC DCJ was prohibited by the doctrines of res judicata and double jeopardy, as the Crown had agreed to not proceed with that charge in 2007, and therefore proceeding with that charge in the trial in 2009 was an abuse of process. 4. In Sinkovich v Attorney General of New South Wales [2013] NSWCA 383, the Court of Appeal, considering the nature of applications under s 78, said that a doubt or question as to a person's guilt can include a doubt or question "as to the procedural steps in the trial, admission of evidence, rejection of evidence, weight of the evidence, directions to the jury or any other matter upon which a finding of guilt is dependent": at [27]. 5. Count 12 charged the applicant with an act of sexual intercourse with the complainant SB when he was, inter alia, under the authority of the applicant. It was the Crown case that the complainant SB was living with the applicant between 1 August 2003 and 30 November 2003 when the offence occurred. It was the Crown case in the trial, relying on evidence from SB and SB's father, that SB lived with the applicant between those dates in late 2003, then returned home to live with his father, and then returned to live with the applicant in May 2004, the latter under the supervision of DOCS. It was the applicant's case at trial, relying in part on DOCS records as well as his own assertion, that the complainant SB only came to live with him in May 2004, did not live with him in 2003, and therefore SB could not have been under his authority in 2003 and it was impossible for the offence charged in Count 12 to have been committed in the terms charged, with that circumstance of aggravation. 6. There was evidence in the trial from SB's father that SB had gone to live with the applicant from August to November 2003. When SB's evidence began he said he first went to live with the applicant in late 2004. In her closing address to the jury the Crown Prosecutor referred to the evidence of SB's father about SB living with the applicant in late 2003 and invited the jury to conclude that SB was mistaken when he initially said he went to live with the applicant in October 2004, reminding the jury of the complainant's evidence that he moved out and then moved back with the applicant in the following year in April of 2004. 7. This is the applicant's third application under s 78 in respect of this conviction. His conviction on Count 12 has also been considered by this Court in a number of other proceedings. The previous proceedings are as follows: * In 2011, the Court of Criminal Appeal dismissed the applicant's appeal against his convictions from the trial before Norrish QC DCJ and in doing so considered the issue of whether SB was living with the applicant and therefore under his authority in 2003 when the offence in Count 12 was alleged to have been committed: PFC v R [2011] NSWCCA 275. * Thereafter three applications by the applicant pursuant to r 50C of the Criminal Appeal Rules to set aside that decision by the Court of Criminal Appeal were dismissed: PFC v R (No 2) [2014] NSWCCA 241; Clark v R [2015] NSWCCA 265 and Clark v R (No 2) [2015] NSWCCA 271. In the first two of those decisions the Court considered the issue raised by the applicant about the complainant SB being under his authority in 2003. The applications were dismissed. In 2016 the High Court refused the applicant an extension of time in which to seek special leave to appeal in respect of those decisions of the Court of Criminal Appeal. * Rothman J dealt with the applicant's first application under Part 7, which referred in part to Count 12. His Honour, pursuant to s 79 (3) of the Act, refused to consider or otherwise deal with the application further and otherwise dismissed the application. However, his Honour did consider in his judgment matters raised by the applicant in respect of Count 12: Clark v Attorney General of New South Wales [2019] NSWSC 1277. * Thereafter the applicant sought judicial review of Rothman J's decision. In dismissing his summons the Court considered this issue raised by the applicant in respect of Count 12: Clark v Attorney General of New South Wales [2020] NSWCA 70. * The applicant sought review of that decision, which was dismissed by the Court of Appeal in Clark v Attorney General of New South Wales (No 2) [2020] NSWCA 135, finding that there was no reason to doubt the Court's previous rejection of his complaints about Count 12. * The applicant made a further application pursuant to r 50C in respect of the 2011 dismissal of his conviction appeal, which application was dismissed: Clark v R [2021] NSWCCA 8, again referring to Count 12. An appeal against the dismissal of that Notice of Motion was dismissed: Clark v R (No 2) [2021] NSWCCA 48, as was a further application under r 50C: Clark v R (No 3) [2021] NSWCCA 64 and Clark v R (No 4) [2021] NSWCCA 67. The applicant was refused an extension of time within which to file an application for special leave to appeal to the High Court in respect of his proceedings concerning that Notice of Motion. * Cavanagh J dealt with the applicant's second application pursuant to s 78 and dismissed it: Application by Peter Frederick Clark pursuant to Section 78 of the Crimes (Appeal And Review) Act 2001 (NSW) [2021] NSWSC 1364. In doing so his Honour considered the applicant's issues about Count 12 and his assertions that the complainant SB was not living with him during 2003, essentially in the same terms as are raised in this application and relying on the same evidence. 1. Thus the issue raised by the applicant in respect of Count 12 has been considered by this Court on many occasions. Having considered the evidence in relation to Count 12 I am not satisfied there is a doubt or question as to the applicant's guilt in respect of Count 12. 2. The applicant raised another ground, although not for the first time, that the Crown presenting Count 12 on the indictment in the trial before Norrish QC DCJ was an abuse of process because it was barred by the doctrines of double jeopardy and res judicata. In this regard he relies on a charge, referred to as charge 002, having been withdrawn or "no billed" before the Local Court at Taree on 28 August 2007 and then asserts that contrary to that "agreement" the Crown charged Count 12, based on the same alleged offence and timeframe. 3. In response, the Attorney General submits that whether the charge was dismissed in the Local Court before committal, or committed for trial and subsequently no billed, it was open to the Crown to revive the charge, unless there was prejudice to the applicant, which prejudice has not been asserted by the applicant. The Attorney General relied on the decision of the Court of Criminal Appeal in Derley v R [2016] NSWCCA 60 that: "There is no rule that commencement of a prosecution based on an ex officio indictment, filed after earlier trial proceedings on the same or similar subject matter had been discontinued by the Crown, and even in the absence of any significant new evidence, will generally, let alone must, constitute an abuse of process: R v Burrell [2004] NSWCCA 185". 4. The material shows the following. Charge 002, before the Local Court, was in terms that "between 1/9/2003 and 30/11/2003 at Taree [the applicant] did have sexual intercourse with SB, the said SB being a person of the age of 14 years". That is, it can be seen that it was in different terms from Count 12 in the indictment. The Local Court coversheet has the notation beside charge 002 "CT", which appears to be an abbreviation for "committed for trial". It is not clear when that notation was made, although the court papers suggest that the last appearance in the Local Court was on 28 August 2007. The charge sheet for charge 002 has a notation "no billed 4.4.08". The author of the note is not known. That would appear to be a note made after committal. However, there was no legal impediment to the Crown putting Count 12 on the indictment in different terms than charge 002, pleading different dates and different elements. 5. The applicant is not assisted by the principles of res judicata or double jeopardy because he had not been the subject of any proceedings which determined that charge prior to the DPP presenting Count 12 in the indictment in 2009. 6. In support of his other application, the applicant referred to the decision of Wood v State of New South Wales [2018] NSWSC 1247, which referred to the statement of the High Court in Ramsay v Pigram (1968) 118 CLR 271; [1968] HCA 34 per Barwick CJ that an estoppel will be available when the precise matter has already been necessarily and directly decided by a competent tribunal in resolving rights or obligations between the same parties; the issue determined must have been identical in each case. 7. Fullerton J in Wood also referred to the three essential requirements for an estoppel, as stated by the High Court in Kuligowski v Metrobus (2004) 220 CLR 363; [2004] HCA 34 at [21] – the same question has been decided; the judicial decision which is said to create the estoppel was final; the parties to the judicial decision are the same parties to the proceedings in which the estoppel is raised. 8. The withdrawal of charge 002 by the prosecution before the Local Court did not meet those requirements. It did not constitute a final judicial determination of the same issues. Moreover, on the authority of Derley, the DPP proceeding as it did was not an abuse of process. 9. I am not satisfied there is any doubt or question about that procedural step in the applicant's trial. Therefore I am not satisfied that this matter raises a doubt or question about the applicant's guilt on Count 12. To the extent that it is not clear whether this particular issue has been dealt with in any of the applicant's previous applications or proceedings in this Court I would dismiss the application. 10. Otherwise, the matters raised by the applicant in respect of his conviction of the offence in Count 12 have previously been dealt with under this Part and in his appeal against his conviction. I am not satisfied there are special facts or special circumstances that justify the taking of further action, all the matters raised by the applicant having previously been fully considered. Therefore I refuse to consider or otherwise deal with his application in respect of Count 12 in his 2009 trial. 11. The other application by the applicant is in respect of his conviction for an offence of perverting the course of justice, of which he was found guilty by a jury on 31 August 2011. The applicant made written submissions in support of his application and I also received written submissions on behalf of the Attorney General for New South Wales, and the Crown Solicitor produced the transcript of the applicant's trial on this offence before Freeman DCJ and jury in 2011 and parts of the applicant's trial before Norrish QC DCJ in 2009, which are relevant to some of his grounds in this application. 12. The indictment in the trial before Freeman DCJ charged the applicant that he "between the 11th and the 13th day of October 2004, at Sydney and other places in the State of New South Wales, did engage in conduct that had a tendency to pervert the course of justice, namely, being required to present a mini cassette recording and a CD that were in his possession for such examination as may be directed by court, did take steps to make such documents unavailable for suitable directions by the court, with the intention that engaging in such conduct would pervert the course of justice". 13. In the trial before Freeman DCJ the applicant represented himself. 14. The allegation in the trial was that the applicant had commenced civil proceedings in the Supreme Court and claimed to have, in support of his case, a tape-recording and a CD copy of the recording, of a police officer soliciting a bribe from him. The genuineness of the recording was an issue in the proceedings and Wood CJ at CL directed that the tape-recording and CD copy recording be made available for expert examination. The Crown case was that the applicant did not make them available, he having said that he destroyed them. 15. The background to the charge was that in 1997 the applicant was charged with an offence of indecent assault of a male. He was convicted in the Local Court, but on appeal to the District Court the complainant declined to give evidence, the DPP offered no evidence and the conviction and penalty imposed in the Local Court were dismissed. Thereafter the applicant commenced proceedings against the State of New South Wales claiming damages for false arrest, false imprisonment and malicious prosecution in respect of those Local Court proceedings. In the course of those proceedings, the applicant alleged that the police informant, a Detective Cusack, had sought to solicit a bribe of $50,000 from him to avoid him being charged. It was the applicant's case in the civil proceedings that when Detective Cusack solicited that bribe he recorded the conversation using a pocket tape recorder. He alleged that the conversation was, in summary, that Detective Cusack told him that for "50 grand" he would not be charged, that Detective Cusack knew the complainant was "full of shit", that the applicant refused to pay the bribe sought, in response to which Detective Cusack said "I'll burn you and Chris Murphy [the solicitor representing the applicant in the Local Court proceedings]". 16. The evidence in the applicant's trial before Freeman DCJ in respect of the events around the civil proceedings included the following. The applicant having instructed his legal representatives that he was in possession of the recording of the soliciting of a bribe, they asked him to provide the tape recording to them. Senior counsel who was initially briefed to appear for the applicant in the civil proceedings gave evidence in the trial before Freeman DCJ that in a conference with the applicant, the applicant did not produce a tape but played on his computer a conversation, which he told his lawyers was on a CD copy of the tape-recording. When the applicant played the conversation in counsel's chambers, a conversation between the applicant and another male person could be heard, in the terms in which the applicant had alleged Detective Cusack had solicited the bribe from him and he had refused. Senior counsel directed the applicant's then solicitor to secure the CD recording and the solicitor did so. When the hearing date approached and a different senior counsel was preparing the matter, the CD was brought from the solicitor's office and when it was played there was no conversation able to be heard on the recording. Senior counsel who had heard the previous conversation was called into chambers and expressed the opinion that the recording sounded different from that which he had heard earlier, but there was no conversation discernible. 17. Thereafter, on the date set for hearing of the civil claim, 12 October 2004, before Wood CJ at CL, senior counsel for the applicant told his Honour of what was alleged to be in the recording and of the history of the conversation being heard, and then on a subsequent listening by lawyers not able to be discerned. Counsel for the applicant and counsel for the State agreed that the hearing should be adjourned and investigations made about the copying and enhancement of the recordings. There was discussion between his Honour and counsel about proposed testing of the recordings. His Honour directed, inter alia, that counsel would prepare orders to establish a joint regime for the further testing and possible enhancement of the original tape. 18. When the matter next came before the Supreme Court on 25 October 2004 there was no production of the tape or any enhancements. The Judge was told that it had been destroyed. 19. There was an issue raised by the applicant in his trial of the charge of not making the tape available to the Supreme Court as to whether he was in court when the direction was made by Wood CJ at CL. There was evidence that the applicant wrote a letter to his solicitor and junior and senior counsel in which he said that he would only trust the court with the original tape and copy and so he destroyed the "original crystal clear tape and CD" on the way back from Sydney to his home in Taree. 20. There was evidence that the applicant also wrote a letter to Wood CJ at CL, dated 12 October 2004, which said in part: "Late this afternoon I received a telephone call from my solicitor… [He] said that I might have contravened orders that you made after I left the court. I became extremely upset that the matter was going to be adjourned again and that I might never get to cross examine Police Officer Cusack. Annoyed, frustrated at both parties senior counsel I destroyed the original tape and CD copy in the elevator as I left the building. If I did contravene your orders it was not my intention to do so and it was done in the heat of the moment." 1. In his trial before Freeman DCJ, the applicant gave evidence in which he referred to that letter, and the Crown Prosecutor referred to that letter during his closing address to the jury (although the Crown did submit that that letter was in different terms than what he had told his solicitor, that he had destroyed the tape between Sydney and Taree). The letter to Wood CJ at CL was also referred to by Freeman DCJ in his summing up, and the issue of the applicant's intention required to be proved by the Crown was squarely before the jury. 2. In his closing address the applicant told the jury that his case was that he had no intention to pervert the course of justice, that he destroyed the tape because he did not want to hand over the tape to the Court because it would have exposed him to a charge under the Listening Devices Act (of making an illegal recording), and because he feared harm to himself or his family from police, and he did not trust his lawyers, who wanted the tape-recording enhanced. Therefore the applicant's defence in the trial before Freeman DCJ focused more on him not making the recordings available to the court in defence of himself and/or his family. However the issue that he was not present in court and did not know of Wood J's orders and therefore did not have the intention required to be proved was also before the jury. 3. The applicant relies on two sets of grounds in support of this application. I will deal first with the fourth and fifth grounds, which were raised in response to submissions prepared on behalf of the Attorney General. Those grounds were that the Crown concealed exculpatory evidence from the jury and fresh or new evidence. The exculpatory evidence the applicant refers to appears to be the letter he wrote to Wood CJ at CL, which he set out in his submissions. It is quite clear from the trial proceedings that that letter was not concealed from the jury, at all, or by the Crown who, as I have noted, referred to that letter in his closing address to the jury. 4. The applicant also relies on a submission that in 2019, "long after the Freeman DCJ trial and conviction appeal was dismissed", Corrective Services found a voluminous amount of his documents which had been misplaced when he first came into custody, which included a copy of the letter that he sent to Wood CJ at CL. As I have noted that letter and the substance of it, and the effect of it for the applicant's defence of the charge in the trial, was well and truly before the jury, whatever difficulties he may have encountered preparing and conducting his trial from custody, which difficulties he sometimes adverted to in his trial before Freeman DCJ. 5. This is the applicant's first application under s 78 in respect of this conviction but he did appeal against his conviction to the Court of Criminal Appeal. His appeal was heard in July 2014. He represented himself in the appeal. His grounds of appeal were wide ranging. His appeal was dismissed: Clark v R [2014] NSWCCA 236. The Court considered, inter alia, the issue at his trial of whether the applicant had been present in court when Wood CJ at CL made directions about the tape and enhancements of it. The Court noted that during his evidence in the trial the applicant was cross-examined and maintained he was not aware of the orders because he had left the court room, and was cross-examined about the discrepancy in his letter to the Judge in which he said he destroyed the tape in the elevator in the Supreme Court building and the letter to his solicitor, in which he said he destroyed them on his way back to Taree. The Court of Criminal Appeal noted that at his trial the applicant maintained he crushed the mini cassette and CD, and maintained that in the face of the Crown suggesting that his evidence was false. The Court of Criminal Appeal also considered an affidavit which in part addressed the applicant's conditions in custody. 6. These grounds do not raise a doubt or question about the applicant's conviction or any procedural step in the trial or any other matter upon which the finding of guilt is dependent: Sinkovich v Attorney General (NSW) (2013) 85 NSWLR 783; [2013] NSWCA 383. 7. The other grounds the applicant relies on in support of his application in respect of his conviction for the charge of intentionally engaging in conduct to pervert the course of justice, are that he asserts the trial was a miscarriage of justice, that he was denied procedural fairness and natural justice and that the proceedings were in breach of the principles of double jeopardy, issue estoppel, res judicata, and thus an abuse of process. The applicant asserts that the Court, the applicant and his legal representatives had a "binding agreement" with the Crown in that the Crown had agreed to permanently discontinue all outstanding charges other those in the amended indictment of 29 counts presented before Norrish QC DCJ in 2009. The applicant contends that his trial on the charge of perverting the course of justice was in breach of that agreement. He relies on the statement of the Court of Appeal in Sinkovich that a doubt or question as to a person's guilt could involve a doubt or question as to the "procedural steps in the trial or any other matter". 8. In support of those grounds the applicant set out in his written submissions a portion of the trial before Norrish QC DCJ and attached three documents. One was a letter from his solicitors, in February 2009, instructing Dr Stephen Allnutt to examine the applicant in respect of his fitness for trial and mental state. The letter mentioned that the applicant was due to stand trial on an indictment charging him with offences of sexual and indecent assault of young males and that the Crown proposed to adduce tendency and coincidence evidence from a number of other complainants. The letter also referred to a further charge of perverting the course of justice relating to the applicant's destruction of the audio cassette tape said to record a conversation between him and a police officer, the latter soliciting a bribe. The second document the applicant attached to his written submissions was written instructions to his legal representatives in respect of the trial before Norrish QC DCJ, referring to 55 counts of sexual offences and perverting the course of justice offences, that the Crown had six complainants and intended to adduce tendency and coincidence evidence, that he had been given firm advice that he should oppose the Crown presenting all witnesses, including tendency and coincidence witnesses, in one trial and should seek separate trials in respect of each complainant, but that despite strong advice in those terms he instructed his legal representatives to run all complainants and tendency and coincidence evidence in one trial. The third document is a handwritten document which the applicant says is, and appears to be, a note of a conference between him and his solicitor and counsel in the Downing Centre cells in which he is recorded as having instructed them that all the complainants and tendency witnesses should be run together, the note recording the legal advice that the counts should be severed. 9. The applicant set out in his written submissions extracts of the commencement of his trial before Norrish QC DCJ and the Crown Solicitor provided the transcripts of the proceedings before Norrish QC DCJ on 11 May 2009, 12 May, 14 May and 18 May 2009. Those transcripts reveal the following. 10. On Monday 11 May, the Crown Prosecutor advised Norrish QC DCJ that there was an indictment containing 55 counts, containing allegations of child sexual assault and perverting the course of justice allegations, the latter of which would remain on what was envisaged between the parties would be an indictment with a reduced number of counts. Counsel for the applicant foreshadowed an application for separate trials in respect of each complainant and to oppose the Crown relying on tendency and coincidence witnesses. The Crown indicated that whatever his Honour's rulings on those applications, the Crown would likely remove some counts of child sexual assault from the indictment. 11. On the next day, 12 May 2009, counsel for the applicant told Norrish QC DCJ that despite his advice to the contrary, the applicant wished to face all complainants and all alleged tendency and coincidence evidence in one trial. Norrish QC DCJ directly asked the then accused, Mr Clark, to confirm that he wished "all the counts that the Crown is to present against you be tried together so all matters can be litigated at the same time", "to have all the matters tried together" which the then accused, Mr Clark, confirmed. When the matter resumed on Thursday, 14 May 2009, the Crown indicated that the finalised indictment contained 29 counts. That was the indictment which was the subject of the trial before Norrish QC DCJ and a jury. 12. The applicant contends that at the time of his 2009 trial before Norrish QC DCJ he had been charged with the offence of engaging in conduct that had a tendency to pervert the course of justice, relating to the mini-cassette tape, that he had instructed his legal representatives that there was to be one trial involving all outstanding charges and all tendency and coincidence evidence, that in the letter in which his legal representatives requested a report from psychiatrist Dr Allnutt there was a reference to that charge, that when his trial commenced before Norrish QC DCJ he gave written instructions to his lawyers to run all the trials together, that the Crown agreed and presented an indictment containing 29 counts, that based on "agreement" with the Crown, Norrish QC DCJ, and his lawyers, that the Crown would not proceed on any of the other outstanding charges, he agreed to be arraigned on the 29 counts, and by the Crown "enlivening" one of the outstanding charges, in presenting him for trial before Freeman DCJ in August 2011, the Crown breached that agreement. The applicant submits that the Crown therefore obtained his conviction of that offence by "breaching an enforceable agreement, a fraud" and breached the doctrine of double jeopardy that a "man shall not be twice vexed for one and the same cause". The applicant contends further that because the outstanding charge of engaging in conduct with a tendency to pervert the course of justice had "terminated in the applicant's favour before Norrish QC DCJ in 2009, then that issue became issue estoppel – res judicata" and the Crown proceeding with the charge in 2011 was an abuse of process. 13. In response, the Attorney General submitted that at the time of the commencement of the trial before Norrish QC DCJ the perverting the course of justice charge, which had been laid on 15 September 2008, was still before the Local Court, that the applicant was committed for trial on the perverting the course of justice charge on 7 September 2009, after the conclusion of the trial before Norrish QC DCJ in June 2009. 14. The Attorney General submits that the perverting the course of justice charge that was dealt with before Freeman DCJ was not contained on the 55 count indictment initially presented at the trial before Norrish QC DCJ, and submits that from the transcript of proceedings before Norrish QC DCJ it is apparent that what was being discussed in that trial was all of the sexual assault related charges and charges of perverting the course of justice which alleged the applicant had sought to persuade complainants in a previous trial of sexual assault charges to give false evidence. The Attorney General submitted that although the letter from the applicant's solicitors to Dr Allnutt referred to the pervert the course of justice charge, it contained no reference to any agreement with the Crown about that charge. The Attorney General submitted that the applicant has produced no evidence that there was an agreement by the Crown that any charge other than those in the 55 count indictment initially presented would not be proceeded with. 15. The Attorney General submitted that the applicant raised no issue about any asserted agreement or abuse of process in relation to the pervert the course of justice charge which came before Freeman DCJ, at any time in the trial before Norrish QC DCJ, when he was committed for trial on that charge on 7 September 2009, or in the trial before Freeman DCJ or before the Court of Criminal Appeal. The Attorney General noted that in one of his initial grounds of appeal filed on 20 September 2011, though ultimately not pursued, the applicant complained "the trial miscarried in that this count of intent to pervert the course of justice should have been included with the other counts of inter alia perverting the course of justice that were heard before Norrish QC DCJ in mid 2009 because the evidence was so intrinsically interwoven." The Attorney General submits that there was no mention in that proposed ground of any agreement with the Crown or any issue estoppel or asserted abuse of process, and the applicant did not raise that issue in his written or oral submissions in the hearing of his appeal before the Court of Criminal Appeal. 16. The Attorney General submitted that the applicant has produced no evidence of the agreement with the Crown that he asserts, that there is nothing from which it could be inferred that such an agreement existed, that there is nothing which could be said to give rise to an issue estoppel, unfairness or an abuse of process. The Attorney General submitted that the applicant is not assisted by the principle of double jeopardy because the charge remained pending against him from the time it was laid until it was determined by the jury's verdict. 17. It is noteworthy that at no time before this application has the applicant made this assertion that the perverting the course of justice charge for which was tried before Freeman DCJ had been the subject of any previous agreement with the Crown that the Crown would not proceed with it. 18. An examination of the transcript of the proceedings before Norrish QC DCJ, in which the discussion of the reduction of the 55 counts in the indictment and the issue of whether the trial would proceed as one trial or separately in respect of each complainant occurred, does not persuade me that there was any agreement understood or contemplated by any of the parties to those proceedings, that the perverting the course of justice charge which was then in the Local Court had any relationship to the proceedings before Norrish QC DCJ or was the subject of any agreement that it would not proceed. That charge was not referred to expressly in those discussions, and since it was still before the Local Court it would have needed to be referred to if it was the subject of the agreement the applicant asserts existed. It is clear from a reading of the transcripts that what was being considered before Norrish QC DCJ was a proposed trial of allegations of indecent and sexual assaults of young men and related allegations that the applicant had pressured some of the complainants or some other complainants to change or falsify their evidence, that being the subject of the perverting the course of justice charges in that trial. 19. The asserted agreement, and the Crown's breaching it and thus engaging in an abuse of process by putting the applicant on trial before Freeman DCJ on the perverting the course of justice charge, was not mentioned by him before Freeman DCJ. Although the applicant represented himself in that trial and although he was not legally qualified, a reading of the trial proceedings shows that he was assertive in raising legal issues and what he believed to be his rights in respect of the trial. He raised other issues of what he considered to be improper conduct by police, lawyers and Corrective Services staff. If the applicant was then conscious that he was being prosecuted in breach of a prior agreement with the Crown, his conduct of the trial suggests he would have raised it. He did not. 20. Nor did he raise it in his wide-ranging grounds of appeal or his wide-ranging submissions before the Court of Criminal Appeal against his conviction for the perverting the course of justice charge. 21. I have referred to the principles in relation to issue estoppel, which the applicant raised, relying on the decision of Wood v The State of New South Wales and the decisions cited therein, above. The applicant's prosecution on the perverting the course of justice charge before Freeman DCJ did not breach any principle of double jeopardy, issue estoppel or res judicata because it had not been previously determined. 22. There is not a doubt raised about the procedural step in the Crown having prosecuted the applicant for this offence before Freeman DCJ. The matters the applicant has raised do not raise a doubt or question about his guilt of that offence. Therefore there is no basis on which I may direct an inquiry into the applicant's conviction for that offence and therefore his application for such is dismissed. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 29 May 2023