Clark v R (No 2)

Case [2021] NSWCCA 48


Court of Criminal Appeal


Supreme Court


New South Wales

Medium Neutral Citation: Clark v R (No 2) [2021] NSWCCA 48
Hearing dates: On the papers
Date of orders: 29 March 2021
Decision date: 29 March 2021
Before: Payne JA; Johnson J; Wilson J
Decision:

The applicant’s notice of motion dated 15 February 2021 is dismissed.

Catchwords:

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

Legislation Cited:

Crimes (Appeal and Review) Act2001 (NSW), Part 7

Criminal Appeal Act 1912 (NSW), s 5D

Criminal Appeal Rules (NSW), r 50C

Uniform Civil Procedure Rules 2005 (NSW), rr 36.15, 36.16

Cases Cited:

Achurch v The Queen (2014) 253 CLR 141; [2014] HCA 10

Application of Ainsley Whitney [2020] NSWCCA 146

Clark v Attorney General of New South Wales [2019] NSWSC 1277

Clark v R [2015] NSWCCA 265

Clark v R [2021] NSWCCA 8

Clark v State of New South Wales (2006) 66 NSWLR 640; [2006] NSWSC 673

Corliss v R (No 2) [2020] NSWCCA 180

D’Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1; [2005] HCA 12

El Ali v R (No 2) [2019] NSWCCA 289

Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427; [2011] HCA 48

PFC v R [2011] NSWCCA 275

R v PFC [2011] NSWCCA 117

Rogers v The Queen (1994) 181 CLR 251; [1994] HCA 42

The Queen v Storey (1978) 140 CLR 364; [1978] HCA 39

Wentworth v Rogers (No 5) (1986) 6 NSWLR 534

Category:Consequential orders
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.

Judgment

  1. 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.

  2. 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:

PFC v R [2011] NSWCCA 275;

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

Clark v R [2015] NSWCCA 265, and

Clark v R…

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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.

Orders

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Background

Background to the litigation

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Evidence

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Decision

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