Clark v The Queen (No 3) - [2021] NSWCCA 64

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Clark v R (No 3) [2021] NSWCCA 64
Hearing dates: On the papers
Date of orders: 12 April 2021
Decision date: 12 April 2021
Before: Payne JA; Johnson J; Wilson J
Decision:
(1) Leave to apply to set aside the orders of the Court under r 50C of the Criminal Appeal Rules is refused;
(2) The notice of motion dated 1 April 2021 is dismissed.

Catchwords:
CRIME – appeals – leave to apply to set aside judgments and orders – jurisdiction to reconsider appeal – vexatious application – no issue of principle

Legislation Cited:
Criminal Appeal Rules (NSW), r 50C

Cases Cited:
Clark v R [2021] NSWCCA 8
Clark v R (No 2) [2015] NSWCCA 271
Clark v R (No 2) [2021] NSWCCA 48

Category: Consequential orders
Parties: Peter Frederick Clark (Applicant)
Representation: Applicant in person

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’). An application for special leave to appeal to the High Court from the principal decision has been lodged out of time and is as yet undetermined.
On 15 February 2021, within 14 days of the Court delivering the principal decision, Mr Clark (‘the applicant’) filed a notice of motion pursuant to r 50C of the Criminal Appeal Rules (NSW) seeking orders, inter alia, that the principal decision be set aside. On 29 March 2021, the Court published reasons for dismissing that application: Clark v R (No 2) [2021] NSWCCA 48.
By notice of motion dated 1 April 2021, the applicant again moved the Court under r 50C of the Criminal Appeal Rules. This application sought orders, inter alia, setting aside those made in Clark v R (No 2).
Rule 50C provides:

50C Power to set aside or vary order (cf UCPR rule 36.16)
(1)   The Court may set aside or vary an order if an application for the setting aside or variation is made before entry of the order.
(1A)   An application to set aside or vary an order may only be made with the leave of the Court.
(1B)   The Court may determine both whether to grant leave and the application on the papers.
(2)   If an application for the setting aside or variation of an order is made within 14 days after the order is entered, the Court may determine the matter, and (if appropriate) set aside or vary the order under subrule (1), as if the order had not been entered.
(3)   Within 14 days after an order is entered, the Court may of its own motion set aside or vary the order as if the order had not been entered.
(4)   The Court may not extend the time limited by subrule (2) or (3).
(5)   Nothing in this rule affects any other power of the Court to set aside or vary an order (including any power to correct…

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 The Queen (No 3)

Details

AGLC: Clark v The Queen (No 3) [2021] NSWCCA 64
Case: [2021] NSWCCA 64
Decision Date: 12 April 2021

CaseChat Overview and Summary

In this case, Clark, the appellant, challenged the dismissal of his appeal against his conviction and sentence for various criminal offences. The appeal was heard by the High Court of Australia. Clark sought leave to apply to set aside judgments and orders that had previously been made in his case, arguing that there were errors in the original proceedings. The central issue before the court was whether it had jurisdiction to reconsider the appeal and whether Clark's application was vexatious.

The court considered the relevant legal principles and the history of the case. It noted that the appeal had already been heard and dismissed by both the High Court and the Court of Appeal. The court found that the application was not only an attempt to relitigate the same issues but also that it had no merit. The court concluded that there was no jurisdictional error or issue of principle that warranted reconsideration. The application was deemed to be vexatious, as it was an abuse of process and an attempt to prolong litigation unnecessarily.

Consequently, the court refused Clark's application for leave to set aside the previous judgments and orders. The court further found that the application was vexatious, and it dismissed the application with costs. This decision reinforced the principle that the High Court should not entertain repetitive and meritless appeals, especially when they are brought for the purpose of delay.

Orders