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

1. 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.

2. 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.

3. 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).

4. 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 clerical mistakes or errors arising from accidental slips or omissions).

5. The proper operation of r 50C was addressed in ClarkvR and Clark v R (No 2). Having considered the applicant’s current application on the papers, the Court is not satisfied that the notice of motion dated 1 April 2021 raises any issue warranting leave.

6. In refusing leave to apply to set aside orders of the Court under r 50C of the Criminal Appeal Rules we note in particular what the Court said in Clark v R (No 2) at [37]-[39]:

“[37]   In D’Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1; [2005] HCA 12 Gleeson CJ, Gummow, Hayne and Heydon JJ observed at [37], in a passage with resonance in Mr Clark’s case:

‘[37]   Parties who fail in litigation, whatever its subject, may well consider the result of that litigation to be wrong, even unjust. Seldom will a party have contested litigation without believing, or at least hoping, that it will be resolved in that party's favour. If that party does not succeed, an explanation for failure may be sought in what are perceived to be the failures of others – the judge, the witnesses, advocates – anyone other than the party whose case has been rejected.’

[38]   Although D’Orta-Ekenaike was a civil case, the principle of finality still has work to do in the criminal context. In Achurch v The Queen (2014) 253 CLR 141; [2014] HCA 10, French CJ, Crennan, Kiefel and Bell JJ said at [14]-[16]:

‘[14]   Absent specific statutory authority, the power of courts to re-open their proceedings and to vary their orders is constrained by the principle of finality. That principle was stated succinctly in D’Orta-Ekenaike v Victoria Legal Aid and re-stated by the plurality in Burrell v The Queen:

“A central and pervading tenet of the judicial system is that controversies, once resolved, are not to be reopened except in a few, narrowly defined, circumstances.”

[15]   As was said in Burrell, the principal qualification to the general tenet of finality is the appellate system. Relevant to the position of the Court of Criminal Appeal of New South Wales, their Honours said:

“But in courts other than the court of final resort, the tenet also finds reflection in the restrictions upon reopening of final orders after they have been formally recorded.”

The principle protects parties to litigation from attempts to re-agitate what has been decided and serves as “the sharpest spur to all participants in the judicial process, judges, parties and lawyers alike, to get it right the first time.”

[16]   The principle of finality forms part of the common law background against which any statutory provision conferring power upon a court to reopen concluded proceedings is to be considered.’ (Footnotes omitted.)

[39] Our criminal justice system contains a number of important safeguards including r 50C and Part 7 of the Crimes (Appeal and Review) Act 2001 (NSW). As we have sought to demonstrate, Mr Clark has extensively availed himself of those safeguards over many years. The present application does not raise any matter which requires the Court to set aside or vary an order it has made.”

7. This Court in 2015,[1] in dismissing an earlier application by the applicant, said:

“[5]   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.”

1. Clark v R (No 2) [2015] NSWCCA 271.

8. Having regard to the reasoning of the Court in the two 2021 judgments mentioned above, the present application is, once again, simply vexatious.

9. The orders of the Court are:

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.

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Endnote

Decision last updated: 12 April 2021