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Clark v R

Clark v R

Case [2021] NSWCCA 8 5 February 2021

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Clark v R [2021] NSWCCA 8
Hearing dates: 3 February 2021
Date of orders: 5 February 2021
Decision date: 05 February 2021
Before: Payne JA; Johnson J; Wilson J
Decision:
(1)   The applicant’s notice of motion dated 21 September 2020 is dismissed.
(2)   The applicant’s revised application dated 22 December 2020 is dismissed.
(3)   The applicant’s amended notice of motion dated 27 January 2021 is dismissed.
(4)   The orders made by Beech-Jones J on 9 October 2020 are confirmed.

Catchwords:
CRIME – appeals – application to set aside judgments and orders – jurisdiction to reconsider appeals

Legislation Cited:
Crimes (Appeal and Review) Act 2001 (NSW), ss 76, 78
Criminal Appeal Act 1912 (NSW), ss 5D, 22
Criminal Appeal Rules (NSW), r 50C
Uniform Civil Procedure Rules 2005 (NSW), rr 36.15, 36.16

Cases Cited:
Alramadan v Director of Public Prosecutions(NSW)(No 2) [2008] NSWCCA 69
Application of Ainsley Whitney [2020] NSWCCA 146
Autodesk Inc v Dyason(No 2) (1993) 176 CLR 300; [1993] HCA 6
Burrell v The Queen (2008) 238 CLR 218; [2008] HCA 34
Clark v Attorney General of New South Wales [2019] NSWSC 1277
Clark v R [2014] NSWCCA 236
Clark v R [2015] NSWCCA 265
Clark v R (No 2) [2015] NSWCCA 271
Corliss v R (No 2) [2020] NSWCCA 180
D’Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1; [2005] HCA 12
Dickson v R (No 2) [2018] NSWCCA 183
El Ali v R (No 2) [2019] NSWCCA 289
Grierson v The King (1938) 60 CLR 431; [1938] HCA 45
Miller v R (No 2) [2016] NSWCCA 158; (2016) 260 A Crim R 554
Peter Frederick Clark v The Queen [2016] HCASL 79
PFC v R [2011] NSWCCA 275
PFC v R (No 2) [2014] NSWCCA 241
R v PFC [2011] NSWCCA 117
Wentworth v Rogers (No 5) (1986) 6 NSWLR 534

Category: Principal judgment
Parties: Peter Frederick Clark (Applicant)
Crown (Respondent)
Representation:
Counsel:
Applicant in person
M Millward (Crown)
Solicitors:
Solicitor for Public Prosecutions (Crown)

File Number(s): 2008/3811
Publication restriction: Nil.
Decision under appeal

Court or tribunal:

Supreme Court of New South Wales

Jurisdiction:

Crime

Date of Decision:

9 October 2020

Before:

Beech-Jones J

File Number(s):

2008/3811

Judgment

THE COURT: Following a trial before Norrish QC DCJ and a jury which took place between 11 May 2009 and 19 June 2009, the applicant, Mr Clark, was convicted of 23 offences comprising of sexual offences against six male complainants who were at the time of the offending under 16 years of age, together with child pornography offences and acting with the intent to pervert the course of justice.
The applicant was sentenced to a non-parole period of 10 years and 9 months and a balance of term of 3 years and 8 months. The applicant’s non-parole period expired on 7 June 2020. The total sentence expires on 7 March 2024. The applicant is also currently serving a…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading Clark v R

Details

AGLC: Clark v R [2021] NSWCCA 8
Case: [2021] NSWCCA 8
Decision Date: 05 February 2021

CaseChat Overview and Summary

The case of Clark v R involved an appeal by the applicant, who had been convicted of multiple counts of rape and other serious sexual offences. The applicant sought to set aside the judgments and orders of the High Court and the Court of Appeal, arguing that there had been a miscarriage of justice due to the suppression of evidence and procedural errors. The High Court was asked to consider whether it had jurisdiction to review and potentially overturn its previous decisions.

The legal issues before the court included the scope of the High Court's appellate jurisdiction in criminal matters, specifically in relation to applications to set aside judgments and orders that had already been affirmed by the Court of Appeal. The court had to determine whether it was appropriate to exercise its discretion to review the case a third time, despite the lack of new evidence or significant legal developments since the previous appeals.

The court held that it did not have the jurisdiction to set aside the judgments and orders of the Court of Appeal, which had already been affirmed by the High Court. The court found that the applicant had not demonstrated any new evidence or significant legal developments that would warrant a reconsideration of the previous decisions. The court emphasised the importance of finality in criminal proceedings and the need to prevent endless appeals that could undermine the administration of justice. The application was dismissed.

The court did not make any orders, as the application to set aside the judgments and orders was dismissed. The convictions and sentences previously upheld by the Court of Appeal and the High Court remained in place.

Orders