R v. Clark [2002] NSWCCA 16

New South Wales Court of Criminal Appeal

CITATION : R v. Clark [2002] NSWCCA 16 FILE NUMBER(S) : CCA 60234/01 HEARING DATE(S) : 11 February 2002 JUDGMENT DATE : 11 February 2002

PARTIES : Regina - respondent Peter Frederick Clark - appellant JUDGMENT OF : Hodgson JA at 1; Levine J at 38; Howie J at 39

LOWER COURT JURISDICTION : Supreme Court LOWER COURT FILE NUMBER(S) : 70003/01 LOWER COURT JUDICIAL Dowd J OFFICER :

COUNSEL : Appellant in person Mr. G. Rowling for respondent SOLICITORS : S.E. O'Connor for respondent CATCHWORDS : CRIMINAL LAW - Act intending to pervert the course of justice - Statement to judge that police witness alleged judge was corrupt - Judge disqualifies himself - Whether truth of statement relevant to intent - Whether new trial should be ordered. LEGISLATION CITED : Crimes Act s.312, s.319 Evidence Act s.60, s.72 CASES CITED: King v. R (1986) 161 CLR 423 DECISION : Appeal upheld, conviction quashed and a verdict of acquittal entered.

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF CRIMINAL APPEAL 60234/01 HODGSON JA LEVINE J HOWIE J Monday 11th February 2002 REGINA v. Peter Frederick CLARK Judgment 1 HODGSON JA: On 18 April 2001 the appellant was indicted before Dowd J on a charge under s.319 of the Crimes Act 1900, that he, on 23 February 2000, at Taree in the State of New South Wales did an act, namely speak to a judicial officer, Christie DCJ, making adverse comments to him with intent to pervert the course of justice. 2 The appellant pleaded not guilty and was tried before Dowd J and a jury of twelve. On 24 April 2001 the jury returned a verdict of guilty, and on 25 June 2001 the appellant was sentenced to imprisonment for twelve months by way of periodic detention, to commence on 13 July 2001. 3 The appellant has appealed from that conviction. The relevant sections of the Crimes Act are ss.319 and 312 which are as follows: 319. A person who does any act, or makes any omission, intending in any way to pervert the course of justice, is liable to imprisonment for 14 years. 312. A reference in this Part to perverting the course of justice is a reference to obstructing, preventing, perverting or defeating the course of justice or the administration of the law. 4 The following circumstances giving rise to the charge are not in dispute. 5 The appellant had an appeal matter before the Taree District Court, and on 21 February 2000 the appellant, who was unrepresented on this appeal, made an application to Christie DCJ that witnesses be called in his appeal, and that application was refused. The appellant's appeal was set down for hearing on 2 March 2000. 6 On 23 February 2000 the matter again came before Christie DCJ for mention in relation to subpoenas served on various persons. After discussion in relation to the subpoenas the following exchange occurred CLARK: There's one other thing, your Honour. HIS HONOUR: I'm sure there would be. Why does that not surprise me? CLARK: Could Mr Allison and I approach you because I don't want to mention it in open Court. HIS HONOUR: You've got me bluffed now. Do you know what he's talking about, Mr Crown? ALLISON: I don't, your Honour. HIS HONOUR: All right. Well if you mention to Mr Crown when I leave the bench what it is you want to discuss I might see you both in chambers briefly, if it's something delicate, is it? CLARK: It is very delicate, your Worship. I don't know whether I should mention it or not but I think I should because it concerns you, sir. 7 Thereafter, Christie DCJ went to his Chambers with his Associate, and the appellant then came to the Judge's Chambers, together with the solicitor from the office of the Director of Public Prosecutions. A court attendant was at the open doorway to the Chambers. Conversation then occurred which, according to a written statement made by Christie DCJ shortly afterwards, went substantially as follows: 13. Mr CLARK said words to me paraphrased as follows: "During the last sittings when you were here, Constable SMOOTHY had a conversation with me and told me something about you; I have been told by Constable SMOOTHY that you are a corrupt judge and that you take bribes." I said, "How much are you offering Mr Clark" He said, "Nothing, your Honour.