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. 14. He also said, "I've also been told that you, er, your wife, owns or runs a hotel in Sydney which has been used by your wife to launder money for organised crime syndicates. 15. I thanked him for letting me have that information and told him that I would take it on board. I said, "I don't think it's got anything to do with your appeal one way or the other". He then said whilst proffering his hand, "Is it O.K. if I shake a Judge's hand?" I said, "I think it is best not to do so." 8 This statement was tendered in evidence at the trial by the appellant, and there was no significant dispute about its accuracy. The statement went on to record the following opinion about the appellant's purpose in saying what he said: 18. I formed the immediate view that Mr CLARK wished to achieve one of several possible purposes: (a) That I would believe that Constable SMOOTHY had actually made the allegations to Mr. CLARK and I would thereby be heavily prejudiced against any evidence that SMOOTHY might offer. (b) That I would disbelieve that SMOOTHY had said anything of the sort and would be thereby so prejudiced against the appellant CLARK, that I would have to disqualify myself from hearing his appeal and possibly that of his son and adjourn them to the next sittings. Christie DCJ did then disqualify himself from hearing the appellant's appeal and that appeal then went over to be heard by another Judge. 9 At the trial before Dowd J the Crown Prosecutor explained the Crown case in the following way in opening to the jury: So what the Crown says in this case is the representations that were made, or the statements made by Mr Clark to the Judge about him being corrupt and taking bribes and his wife laundering money, were quite deliberate and calculated lies, false statements, to place the Judge in a difficult position. Here was a case where one party was making allegations and falsely attributing those allegations to a party in the case he had to decide, a party who was on the other side of the slate to Mr Clark. In this case the Judge considered his position, came back on to the bench and decided because of what had transpired he could not deal with the matter impartially and disqualified himself from hearing the matter and adjourned the matter to a future date. What happened to that matter or what happened to Mr Clark's appeal is not a matter you will hear evidence of in the prosecution case because it is not relevant at all. The Crown says that those false statements Mr Clark attributed to Senior Constable Smoothy were made in the context of Judge Christie having turned down his application to have the witnesses called and were done in the context when he well knew that the Judge could not continue to hear the matter. That is the ultimate that happened. The Judge disqualified himself, put it over to a future sittings before some other Judge. The charge the Crown brings against Mr Clark is that he did an act with intent to pervert the course of justice, the act being making these false statements to Judge Christie about his involvement in corruption and his wife being involved in the laundering of money. 10 The appellant, who was unrepresented at the trial, was also given an opportunity to open his case before the jury. The substance of the appellant's case was put in the following way in his opening: Judge Christie who is involved in this matter, Judge Christie and I got on really good and I believed in him and I thought: yeah, I'll get a fair trial. Then I got this information from Smoothy and I thought: do I tell Judge Christie in open court, "Senior Constable Smoothy has told me that you are corrupt and you accept bribes." - do I tell him in open court or do I tell him like you see on the TV. My experience is from watching programmes like The Practice. Do you tell him in chambers and I thought the best thing was to tell him so in future if he hears these allegations he can question Constable Smoothy. That was all my intention was and Judge Christie took that all on board and it was done back in chambers. I said: I insist the Crown is with me when I present this now in chambers. I said, "Can I have Mr Allison?" - I wanted him there. I didn't want it broadcast in open court that I had heard these rumours. That is simply all it comes down to, the reasoning behind all this. From hearing the evidence it is ridiculous. We were getting on really well. All those witnesses will point out is that it is clear from the transcript the Judge is joking with me. ... You will hear evidence which will be basically all fact. There is no contest with that. It is all straight forward. What you have to decide is what is the motive. There are no motives, except simply I was telling somebody I heard these rumours. The only way to stop rumours is to nip them in the bud by saying: I have heard this person saying something. This bloke is saying this about you, to nip it in the bud before it escalates. I don't want rumours floating around about me, that's why I discreetly mentioned this to the Judge in chambers but the police jumped on this to try and prevent me and break me before I can get my statement of claim against the corrupt policeman and the DPP in court. 11 In the prosecution case, Senior Constable Smoothy gave evidence that he did not say anything to the appellant of the nature of the allegation made by the appellant to Christie DCJ. The appellant, in cross-examination, put to Senior Constable Smoothy that he had said these things to the appellant, and this was denied by Senior Constable Smoothy. However, in the course of cross-examination Senior Constable Smoothy went a little further, and said words to the effect that there was no conversation with the appellant about Judge Christie. 12 The appellant did not give evidence before the jury. However, he called as witnesses his two daughters. One of them gave evidence that she saw the appellant talking to Senior Constable Smoothy outside the Taree courthouse, and that she heard the Constable say, in the course of conversation, the words "Judge Christie", and that this attracted her attention because her own name was Kristie. 13 In final addresses, the prosecution made this submission in relation to intent: The Crown says that this was quite deliberate conduct by Mr Clark. Smoothy has denied that he ever said these things to Mr Clark. That is the only evidence in relation to any such conversation, apart from Ms Kristie Clark this morning hearing some reference to a judge, Judge Christie. There is no suggestion she heard any conversation about a corrupt judge or bribes or hotels or anything like laundering money. The evidence from that comes from only one person, from Senior Constable Smoothy and he denies saying anything of the kind. He denies that he knew anything about the judge's family life or anything of the kind. So the Crown in this case says that those comments by Mr Clark in the judge's chambers were uttered by him with a particular intent, that is, to raise these false allegations to place the judge in an untenable position where he could not proceed to hear the case. This was in a context where this judge had already made a preliminary ruling refusing Mr Clark's initial application to call additional witnesses. That is the allegation the Crown relies upon. His Honour will tell you about the elements that go to make up this charge. The fact that the judge ultimately disqualified himself is simply evidence to place the matter in context. The real issue in this case you might think is what was Mr Clark's intent at the time. I reiterate that you decide this case on the evidence, the eight witnesses you have heard and the nine exhibits. That is the totality of the evidence in this case. 14 The appellant, in his final address, made these submissions: The discussion in chambers with Judge Christie was like you see on the tv; Perry Mason, Law and Order. You say something here - let's go into chambers, and that is exactly what happened on that day. Not in open court. Right? And the evidence there is I didn't want to broadcast, "Hey, I have been told you are a corrupt judge, Judge Christie". I don't want to broadcast that out there. HIS HONOUR: What you did or didn't want to - - ACCUSED: I apologise, but the evidence speaks to that. Right. I wanted it mentioned in chambers, not in open court, right? That is most important. Where does he - if you are told something, and it is serious about somebody else, did you keep it to yourself or if the person you think, you respect that person, do you ask to talk to them discreetly in the presence of the Prosecutor, right? So there can be no misconceptions or anything, you discuss it in chambers with the Prosecutor there, and the Prosecutor, if I had asked to see the judge without the Prosecutor, then there could be reasons there, but because I specifically said with Mr Allison present, the Police prosecutor - well, the DPP. It is very important you look at those things. I think a normal person would look at those things and think Mr Clark is trying to do the right thing. He is trying to get a fair trial. I left school when I was 15. 15 In his summing up to the jury, the trial judge explained the offence in the following terms: The offence itself is defined in the Crimes Act 1900, so the meaning of 'Pervert the Course of Justice' can be, and I will give you all of the possibilities - a reference to obstructing, preventing, perverting or defeating the course of justice or the administration of the law. So the full definition is 'obstructing, preventing, perverting or defeating the course of justice or the administration of the law'. That is the definition of 'Pervert the Course of Justice'. 16 In relation to intent, the trial judge gave the following directions: 36 The second element of the offence is that he did it with intent in any way to pervert the course of justice. I have told you about pervert the course of justice. So what you have to determine here is the intent of the accused. Now, proof of an intent to do an act where an act has an obvious or manifest tendency to pervert the course of justice may be readily inferred. 37 The Crown case is that the statement made to the judge about what Sen. Const. Smoothy said is such as would cause the judge inevitably to disqualify himself. Now, whether or not the statement was made by Sen. Const. Smoothy, is not relevant to this offence. You have heard evidence from Constable Smoothy unchallenged that he did not say what he is alleged to have said but whether or not he said it is not an element of the offence. The offence is the act of the accused in relation to what Sen. Const. Smoothy is supposed to have said to the judge. 17 Subsequently in the summing up the trial judge said: "It does not matter what Senior Constable Smoothy said". He went on to say this: The issue that that leaves is what was the accused's intent, and, remember the evidence is that the utterances were false and, as I have said, it does not matter whether or not they were false - there is no challenge to that evidence - that it was deliberate in placing the Judge in the position that he was whereas, inevitably, as you have heard, he had to disqualify. 18 At the request of the appellant, the trial judge subsequently corrected the statement that there was no challenge to Senior Constable Smoothy's evidence that he had not said the matters reported by the appellant, and the trial judge reminded the jury that the appellant did challenge Senior Constable Smoothy's evidence in cross-examination. 19 This appeal is brought on the following grounds. 20 One, at the trial the appellant said he would like to have a barrister, but was intimidated by the trial judge and the trial proceeded with the appellant unrepresented. 21 Two, the appellant requested that all Crown witnesses be in attendance to give evidence in chief. 22 Three, the appellant called on a subpoena to give evidence served on Sergeant Griffith, but his attendance was not obtained. 23 Four, the appellant raised a question of conflict of interest between the trial judge and Christie DCJ. 24 Five, the appellant alleged that the trial judge "nodded off" whilst the accused was cross-examining the DPP solicitor. 25 Six, in relation to Senior Constable Smoothy's evidence, questions were wrongly disallowed and there were errors in the summing up. 26 Seven, as regards sentence, the appellant was unable to get a report from Dr Westmore. 27 Eight, the trial judge failed to give directions to the jury concerning possible mental illness of the appellant. 28 I believe there is no substance in any of the grounds, except ground 6. Since I believe that the appeal should be allowed on ground 6, I need not review the other grounds in detail. 29 The appellant's case, as outlined in his opening, was that he believed at the time the right thing to do was to bring to Christie DCJ's attention allegations that had been made against him. This case was clearly raised in the appellant's opening and, to some extent, although less clearly, put in his final address. This case involved the proposition that Senior Constable Smoothy had made the allegations against Christie DCJ, but not any suggestion that the allegations themselves were or might be true. 30 In his cross-examination of Christie DCJ, the appellant sought to make out the proposition that he was getting on well with Christie DCJ and so would not want him disqualified. The appellant did not himself give evidence that his belief and intention were as he put in his opening address, but the onus of proof lay on the Crown to prove beyond reasonable doubt intention to pervert the course of justice, and what the appellant raised was a hypothesis that could possibly negative that intention. It may be that the hypothesis was not a very plausible one, but nevertheless, it was a hypothesis that had to be negatived beyond reasonable doubt. 31 In my opinion, the truth or otherwise of what the appellant said to Christie DCJ about what Senior Constable Smoothy had said, although not an element of the offence, was of central relevance to the appellant's defence. If it was untrue, then that would be a very powerful consideration in favour of finding the intent alleged by the prosecution. However, if the jury thought that what the appellant had said to Christie DCJ about Senior Constable Smoothy might be true, there was a reasonable possibility that they might not be satisfied beyond reasonable doubt that the appellant had the intention to pervert the course of justice. The trial judge, in his summing up, not only said that the truth or otherwise of what the appellant said was irrelevant, but also did not put to the jury the substance of the appellant's defence, to which I have adverted. 32 For the Crown, it is put that there is no evidence that what the appellant said about Senior Constable Smoothy was true. In my opinion, that is not correct. The representation made by the appellant to Christie DCJ was admissible as some evidence of its truth (see Evidence Act 1995 s.60) and was also some evidence that the appellant believed it to be true (Evidence Act s.72). Furthermore, the evidence of the appellant's daughter was capable of being considered evidence contradicting an important aspect of Senior Constable Smoothy's evidence. So in that sense, it is not wholly correct to say that Senior Constable Smoothy's evidence was uncontradicted at the trial. 33 For these reasons, I think there were errors in the summing up concerning the evidence of Senior Constable Smoothy. I think also that these errors may well have affected the result of the trial and that, accordingly, the appeal should be upheld. 34 The question arises whether a new trial should be ordered pursuant to s.8(1) of the Criminal Appeal Act 1912. The Court has a wide discretion whether or not to make such an order: see King v R (1986) 161 CLR 423. 35 Mr Rowling for the Crown has submitted that the interests of justice do require that there be a new trial. He submitted that the case was one which could very well succeed on a new trial. The offence was a serious one, striking at the administration of justice, and involved the publication of very serious allegations against a judge and his wife. The sentence imposed was a light one, and only 23 weeks had been served of the 12 month sentence. 36 I accept that the offence of attempting to pervert the course of justice is a serious one. However, in the particular circumstances of this case, having regard to the fact that what was done was done openly, and having regard to the fact that nearly half of the sentence has been served, on the whole, I am not persuaded that the interests of justice require that there be a further trial. 37 In my opinion, the appropriate orders are that the appeal be upheld, that the conviction be quashed and that a verdict of acquittal be entered. 38 LEVINE J: I agree. 39 HOWIE J: I also agree. 40 HODGSON JA: So those are the orders of the Court. *********** 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.