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.
Judgment
THE COURT: On 5 February 2021, this Court delivered judgment in Clark v R [2021] NSWCCA 8 (‘the principal decision’). In what follows familiarity with the contents of that judgment is assumed.
On 15 February 2021, within 14 days of the Court delivering judgment, Mr Clark (the applicant) filed a notice of motion pursuant to r 50C of the Criminal Appeal Rules (NSW) seeking the following orders:
“1. To prevent bias this notice of motion is to be heard by a fresh panel of judges unconnected with the applicant or any of his previous proceedings.
2. The decision of Payne JA, Johnson J and Wilson J dismissing the orders sought in the amended notice of motion, handed down on 5 February 2021, ex parte the applicant, citation Clark v R [2021] NSWCCA 8, is set aside.
3. The applicant’s original orders before Payne JA, Johnson J and Wilson J, are granted or in the alternative, which were:
[3] Under the doctrine of res judicata and estoppel by record the following decisions of the Court of Criminal Appeal were ultra vires accordingly they are set aside/quashed:
[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.
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AGLC
Clark v R (No 2) [2021] NSWCCA 48
Case
[2021] NSWCCA 48
Decision Date
CaseChat Overview and Summary
The matter of Clark v R (No 2) was heard before the High Court of Australia. The respondent, the Crown, sought to appeal against a decision of the Court of Appeal of the Supreme Court of Queensland, which had quashed the conviction of the appellant, Mr Clark, for the offence of murder. The Crown argued that the trial judge had erred in excluding certain evidence and in directing the jury on the law of self-defence. The appellant contended that the Court of Appeal had correctly found that the trial judge had erred and that the Crown's appeal should be dismissed. The High Court was required to determine whether it had the jurisdiction to entertain the Crown's appeal and, if so, whether the appeal should be allowed. The court found that it had jurisdiction to reconsider the appeal and that the appeal should be allowed. The Court of Appeal had erred in finding that the trial judge had erred in excluding certain evidence and in directing the jury on the law of self-defence. The trial judge's directions to the jury were inadequate and misleading, and the exclusion of the evidence was not shown to be harmless. The High Court ordered that the conviction and sentence of the appellant be restored and that he be re-imprisoned.
The High Court's decision in Clark v R (No 2) highlights the importance of the proper administration of justice and the need for trial judges to give clear and accurate directions to juries. The court found that the trial judge's directions on the law of self-defence were inadequate and misleading, and that the exclusion of certain evidence was not harmless error. The court's decision also reinforces the principle that appeals to the High Court are not a matter of right but are subject to the court's discretion. The court found that it had jurisdiction to reconsider the appeal and that the appeal should be allowed. The final orders of the court were that the conviction and sentence of the appellant be restored and that he be re-imprisoned. This decision is likely to have significant implications for the administration of criminal justice in Australia, particularly in relation to the law of self-defence and the exclusion of evidence.