Citation: Clark v R [2012] NSWCCA 252
Court: Court of Criminal Appeal, NSW
Date: 4 September 2012
Judge(s): McClellan CJ at CL; McCallum J; Garling J
Background
The appellant had been convicted at trial of various sexual offences and appealed to the Court of Criminal Appeal. That appeal was determined and orders formally entered in May 2008. A subsequent application to re-open the appeal was heard and dismissed in December 2008.
The appellant then brought a further application to re-open the appeal. He relied on several grounds, supported by detailed written submissions and accompanying material.
Legal Issues
- Whether a failure to provide the appellant with a copy of the judgment within 14 days of the orders being entered amounted to a denial of procedural fairness, justifying re-opening.
- Whether alleged fresh evidence concerning the reliability of tendency evidence warranted re-opening the appeal.
- Whether the conduct of the appellant's legal representatives during the appeal was sufficiently deficient to justify re-opening.
- Whether an asserted factual error in the original judgment, concerning the manner in which a complainant gave evidence, provided a basis for re-opening.
Decision
McClellan CJ at CL, with McCallum J and Garling J agreeing, dismissed all grounds and refused leave to re-open the appeal.
On the asserted factual error, the Court found that whether the complainant gave evidence in the courtroom or by closed-circuit television made no difference to the substance of what had to be covered in cross-examination. The physical location of the witness was irrelevant to the issues in dispute, and this ground was characterised as having no substance.
On the remaining grounds, the Court drew on the High Court's analysis in Burrell v The Queen [2008] HCA 34, which comprehensively addressed the jurisdiction of the Court of Criminal Appeal to re-open an appeal after orders have been entered. The Court emphasised that such jurisdiction, if it exists at all, is confined in scope. It does not extend to the matters the appellant sought to raise, namely complaints about legal representation and fresh evidence going to tendency evidence reliability.
The Court also noted that it was not persuaded that any of the grounds had substantive merit. Even if leave had been granted, none of the matters raised could have justified revisiting the 2008 decision.
Orders Made
- The application for leave to re-open the appeal was refused.
Key Takeaways
- The Court of Criminal Appeal confirmed that its jurisdiction to re-open an appeal after orders have been entered is confined, following the High Court's analysis in Burrell v The Queen (2008) 238 CLR 218.
- A second application to re-open a concluded appeal will not succeed merely because the applicant raises multiple grounds; each ground must have substantive merit capable of justifying intervention.
- Complaints about legal representation during an earlier appeal, and fresh evidence going to the reliability of tendency evidence, were held to fall outside the confined jurisdiction to re-open after entry of orders.
- Where an alleged factual error in a judgment is shown to have no material bearing on the outcome, it will not provide a basis for re-opening the appeal.
- Procedural fairness arguments based on delayed receipt of a judgment are not, of themselves, sufficient to enliven the jurisdiction to re-open where the substantive grounds raised lack merit.
Legislation and Cases Referenced
Legislation
- Criminal Appeal Rules, r 50C
Cases
- Burrell v The Queen [2008] HCA 34; (2008) 238 CLR 218
- Clark v R [2008] NSWCCA 122