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Clark v R

Clark v R

Case [2015] NSWCCA 265 6 October 2015

Appeal

Bias

Procedural Fairness

Adequacy of Trial Representation

Criminal Law

Administrative Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Clark v R [2015] NSWCCA 265
Hearing dates: 20 July 2015
Decision date: 06 October 2015
Before: Beazley P;
Hall J;
Button J
Decision:
1. Application to vary or set aside the orders entered by the Court of Criminal Appeal on 30 October 2014 in PFC v R (No 2) [2014] NSWCCA 241 dismissed;
2. Application to vary or set aside the orders entered by the Court of Criminal Appeal on 30 October 2014 in Clark v R [2014] NSWCCA 236 dismissed.
Catchwords:
CRIMINAL LAW – appeals – Criminal Appeal Rules, r 50C – meaning of “any other power” in r 50C(5)

CRIMINAL LAW – appeals – Criminal Appeal Rules, r 50C – whether material misapprehension of fact or law not due to applicant’s default

ADMINISTRATIVE LAW – apprehension of bias – bias from sitting on previous cases involving applicant

ADMINISTRATIVE LAW – procedural fairness – access to legal documents in custody – whether reviewable in r 50C application
CRIMINAL LAW – adequacy of trial representation – complaints fully litigated in prior proceedings – no claim specifying alleged misapprehension of fact or law
Legislation Cited: Criminal Appeal Act 1912 (NSW)
Criminal Appeal Rules
Criminal Appeal Rules (Amendment No 1) 2007 (NSW)
Cases Cited: Achurch v The Queen [2014] HCA 10; 236 A Crim R 427
Alramadan v DPP (NSW) (No 2) [2008] NSWCCA 69
Autodesk Inc v Dyason (No 2) [1993] HCA 6; 176 CLR 300
Burrell v The Queen [2008] HCA 34; 238 CLR 218
Gall v R (No 2) [2015] NSWCCA 152
Grierson v The King [1938] HCA 45; 60 CLR 431
Kauwenberghs v R [2009] NSWCCA 201
Miller v R [2015] NSWCCA 205
Re J.R.L; Ex parte C.J.L [1986] HCA 39; 161 CLR 342
SKA v The Queen [2011] HCA 13; 243 CLR 400
Category: Principal judgment
Parties: Peter Frederick Clark (Applicant)
Regina (Respondent)
Representation:
Counsel:
Applicant in person
J Girdham SC (Respondent)
Solicitors:
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2008/38112008/62317
Decision under appeal

Court or tribunal:

Court of Criminal Appeal

Citation:

Clark v R [2014] NSWCCA 236;
PFC v R (No 2) [2014] NSWCCA 241

Date of Decision:

30 October 2014;
30 October 2014

Before:

Leeming JA; Price J; McCallum J / Fullerton J; R A Hulme J; Garling J

File Number(s):

2008/62317;
2008/3811069

HEADNOTE

[This headnote is not to be read as part of the judgment]

The applicant was convicted, in two separate trials, of a number of counts of sexual offences committed against juvenile complainants, child pornography offences and offences of acting with the intention to pervert the course of justice. His appeals against convictions were dismissed and he was subsequently unsuccessful in an application to reopen the first of those appeals pursuant to the Criminal Appeal Rules, r 50C.

The applicant brought applications pursuant to r 50C to reopen the second of the appeals and the r 50C application relating to the first…

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 [2015] NSWCCA 265
Case: [2015] NSWCCA 265
Decision Date: 06 October 2015

CaseChat Overview and Summary

In this case, the applicant, Clark, sought leave to appeal against his conviction and sentence on the grounds of a material misapprehension of fact or law, and an apprehension of bias on the part of the trial judge due to their involvement in previous cases involving the applicant. The application was brought under rule 50C of the Criminal Appeal Rules. The primary judge dismissed the application, and Clark sought special leave to appeal that decision.

The key legal issues before the court were whether the phrase "any other power" in rule 50C(5) of the Criminal Appeal Rules could be used to grant leave to appeal in circumstances where there was no material misapprehension of fact or law due to the applicant's default, and whether an apprehension of bias arising from the trial judge's prior involvement in cases concerning the applicant was reviewable in a rule 50C application. Additionally, the court had to consider whether the lack of access to legal documents in the custody of the respondent during the trial was a ground for leave to appeal under rule 50C.

The court held that the phrase "any other power" in rule 50C(5) could not be used to grant leave to appeal in the absence of a material misapprehension of fact or law due to the applicant's default. The court further found that the apprehension of bias on the part of the trial judge was not a ground for leave to appeal under rule 50C, as it did not relate to a misapprehension of fact or law. The court also held that the lack of access to legal documents in the custody of the respondent during the trial did not constitute a ground for leave to appeal under rule 50C, as the applicant's complaints about the adequacy of trial representation had already been fully litigated in prior proceedings, and no specific misapprehension of fact or law was alleged. The court dismissed the application for special leave to appeal.

The final orders of the court were that special leave to appeal be refused, and that the applicant pay the respondent's costs of the application.

Orders