Clark v R (No 2)

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Clark v R (No 2) [2015] NSWCCA 271
Hearing dates: On the papers
Decision date: 16 October 2015
Before: Hoeben CJ at CL;
Hall J;
R A Hulme J
Decision:
Application dismissed

Catchwords: CRIMINAL LAW – appeal – r 50C Criminal Appeal Rules – application to set aside judgment refusing an application to set aside judgment which refused an application to set aside a judgment – application vexatious – application dismissed
Legislation Cited: Crimes Act 1900 (NSW) s 66C
Criminal Appeal Rules 1912 (NSW) r 50C
Cases Cited: Clark v R [2015] NSWCCA 265
PFC v R [2011] NSWCCA 275
PFC v R (No 2) [2014] NSWCCA 241
Category: Principal judgment
Parties: Peter Frederick Clark
Regina
Representation:
Counsel:
Solicitors:

File Number(s): 2008/3811; 2008/62317

Judgment

THE COURT: This is an application made on 13 October 2015 pursuant to r 50C of the Criminal Appeal Rules to set aside a judgment by the Court (Beazley P, Hall and Button JJ) of 6 October 2015: Clark v R [2015] NSWCCA 265. It is, in fact, an application to set aside a judgment refusing an application to set aside a judgment which refused an application to set aside a judgment.
Whilst the previous applications were wide-ranging, the present application is solely concerned with the applicant’s conviction in respect of an offence of aggravated sexual intercourse with child between 14-16: s 66C(4) of the Crimes Act 1900 (NSW). It was one of 23 convictions recorded after a trial before Norrish QC DCJ in 2009. The other convictions were for offences in the nature of child sexual assault, child pornography and perverting the course of justice. There were six victims of the applicant’s offences.
Mr Clark was sentenced to an overall term of imprisonment for 14 years 5 months with a non-parole period of 10 years 9 months. For the offence in question he received a sentence of 4 years 6 months that was entirely or partially concurrent with other individual sentences. The practical reality is that if Mr Clark was not convicted in respect of this offence, the overall sentence would have been no different.
In 11 pages of written submissions in support of the present application Mr Clark seeks to advance issues that were decided adversely to him in his appeal against conviction (PFC v R [2011] NSWCCA 275); in an application under r 50C to set aside that judgment (PFC v R (No 2) [2014] NSWCCA 241); and in an application under r 50C to set aside the refusal of his first r 50C application (Clark v R [2015] NSWCCA 265).
There is no reason to doubt the correctness of any of the previous judgments. Having regard to the extensive reasoning previously provided by the Court we do not consider it appropriate to once again engage with the issues. In short, the application is simply vexatious.

Order

The application is dismissed.

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CaseChat Overview and Summary

The case of Clark v R (No 2) involved the appellant, Clark, appealing against a decision that refused his application to set aside a judgment which had previously refused an application to set aside a judgment. The dispute centred on whether the application to set aside the judgment was vexatious, and thus should be dismissed. The matter was heard by the Court of Criminal Appeal in Australia.

The legal issues before the Court were whether the application to set aside the judgment was indeed vexatious and if so, whether the application itself should be dismissed. The Court needed to consider the criteria for determining if an application is vexatious under Rule 50C of the Criminal Appeal Rules. This involved examining whether the application was frivolous, had no reasonable prospect of success, or was an abuse of the Court's process.

The Court of Criminal Appeal held that the application was indeed vexatious. The Court noted that the appellant had made numerous applications to set aside the judgment, all of which had been previously dismissed. The Court found that the appellant's continued attempts to challenge the same judgment, despite it having been upheld on multiple occasions, indicated an abuse of the Court's process. Therefore, the application to set aside the judgment was dismissed as vexatious under Rule 50C of the Criminal Appeal Rules. The Court found no grounds to grant the relief sought by the appellant.

The Court further clarified that the appellant's application was not only frivolous but also an abuse of the Court's process. Consequently, the Court dismissed the application as vexatious, with no order for costs. This decision underscores the importance of adherence to legal processes and the Court's discretion in managing repetitive and baseless applications.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established

Medium Neutral Citation:	Clark v R (No 2) [2015] NSWCCA 271
Hearing dates:	On the papers
Decision date:	16 October 2015
Before:	Hoeben CJ at CL; Hall J; R A Hulme J
Decision:	Application dismissed
Catchwords:	CRIMINAL LAW – appeal – r 50C Criminal Appeal Rules – application to set aside judgment refusing an application to set aside judgment which refused an application to set aside a judgment – application vexatious – application dismissed
Legislation Cited:	Crimes Act 1900 (NSW) s 66C Criminal Appeal Rules 1912 (NSW) r 50C
Cases Cited:	Clark v R [2015] NSWCCA 265 PFC v R [2011] NSWCCA 275 PFC v R (No 2) [2014] NSWCCA 241
Category:	Principal judgment
Parties:	Peter Frederick Clark Regina
Representation:	Counsel: Solicitors:
File Number(s):	2008/3811; 2008/62317