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Court of Criminal Appeal 6 October 2015

Clark v R

[2015] NSWCCA 265

Sexual offencesPublic order & justice offences
CRIMINAL LAW APPEALS CRIMINAL APPEAL RULES, R 50C APPEALS CRIMINAL APPEAL RULES, R 50C APPREHENSION OF BIAS

Citation: Clark v R [2015] NSWCCA 265
Court: NSW Court of Criminal Appeal
Date: 6 October 2015
Judges: Beazley P; Hall J; Button J

Background

The applicant had been convicted in two separate trials of 23 counts of sexual offences against juvenile complainants, child pornography offences, and perverting the course of justice offences. Both conviction appeals were dismissed by the Court of Criminal Appeal, and a prior attempt to reopen the first appeal under rule 50C of the Criminal Appeal Rules had also failed.

The applicant then brought two fresh applications under rule 50C: one seeking to reopen the second appeal, and another seeking to reopen the earlier (failed) rule 50C application relating to the first appeal. The second of these was, in effect, an application to reopen a reopening application.

The applicant raised a range of grounds, including apprehended bias by a judge who had sat on a previous application, the failure to convene an enlarged bench, restrictions on his access to legal documents while in custody, inadequacy of his trial representation, and a challenge to one conviction on factual impossibility grounds.

  • Whether rule 50C(5), which preserves "any other power" to set aside or vary an order, provides a freestanding or residual power allowing the Court to develop new precedent to remedy perceived injustice
  • Whether the judge who had previously sat on one of the applicant's matters gave rise to apprehended bias sufficient to enliven rule 50C
  • Whether the composition of the appeal bench (specifically the absence of an enlarged bench) was reviewable under rule 50C
  • Whether the applicant's restricted access to legal documents while in custody could ground a rule 50C application
  • Whether the conviction relating to complainant SB was factually impossible and therefore contrary to the High Court's authority in SKA v The Queen
  • Whether complaints about the adequacy of trial representation satisfied the requirements for rule 50C relief

Decision

The scope of rule 50C. The Court confirmed that rule 50C is a limited mechanism. It permits the Court to reconsider its orders only where it proceeded under a material misapprehension of fact or law not due to the applicant's neglect or default, and where the Court failed to consider a ground of appeal. It may also correct a slip in a judgment or order. The rule must be read against the strong principle of finality, which is fundamental to the rule of law. Rule 50C(5) preserves other existing powers to set aside or vary orders but does not itself create a freestanding or general power. Because the applicant identified no recognised "other power" under which the Court might act, there was no basis for the Court to develop a new precedent.

Apprehended bias and bench composition. The Court found no misapprehension of fact or law in the earlier finding that a judge sitting on one of the applicant's prior matters did not give rise to apprehended bias. The test for apprehended bias requires a reasonable apprehension that a fair-minded observer might think the judge would not decide the case impartially; the mere fact of prior involvement did not satisfy that test. The question of whether an enlarged bench should hear an appeal rests with the Chief Justice of New South Wales and is not amenable to review under rule 50C.

Access to documents and trial representation. The applicant's complaint about restricted access to legal documents was, in substance, an attempt to reopen the appeal to remedy perceived deficiencies in the material placed before the Court at the original hearing. This approach is not permissible in rule 50C applications. Equally, the complaints about trial representation had been extensively litigated in prior proceedings, including through the cross-examination of former solicitor and counsel. The applicant pointed to no specific misapprehension of fact or law beyond the Court's refusal to overturn his convictions on that ground.

The SB conviction. The evidence about when complainant SB came to live with the applicant was disputed at trial. It was open to the jury to accept the Crown's account rather than the applicant's version of events. None of the applicant's claims on this issue raised a misapprehension of fact or law sufficient to enliven rule 50C, and the authority of SKA v The Queen did not assist him in the circumstances.

Orders Made

  • Application to vary or set aside the orders in PFC v R (No 2) [2014] NSWCCA 241 dismissed.
  • Application to vary or set aside the orders in Clark v R [2014] NSWCCA 236 dismissed.

Key Takeaways

  • Rule 50C of the Criminal Appeal Rules provides a narrow, limited power to reopen concluded appeals. It is confined to cases of material misapprehension of fact or law not due to the applicant's default, where a ground of appeal was not considered, or to correct a slip in a judgment or order.
  • Rule 50C(5) preserves pre-existing powers to set aside or vary orders but does not itself create a new or freestanding power. A party who cannot identify an existing "other power" cannot ask a court to invent one.
  • The principle of finality in criminal appeals carries significant weight. Repeated attempts to reopen concluded proceedings, even where genuine grievances are articulated, do not satisfy the rule's requirements absent a demonstrable misapprehension.
  • Attempting to use rule 50C to supplement or remedy evidentiary deficiencies from the original appeal is impermissible. The rule is not a vehicle for adducing material that could have been placed before the Court at the original hearing.
  • Bench composition decisions, including whether to convene an enlarged bench, are a matter for the Chief Justice and fall outside the scope of rule 50C review.

Legislation and Cases Referenced

Legislation
- Criminal Appeal Act 1912 (NSW)
- Criminal Appeal Rules (NSW), rule 50C
- Criminal Appeal Rules (Amendment No 1) 2007 (NSW)

Cases
- Achurch v The Queen [2014] HCA 10; 236 A Crim R 427
- Alramadan v DPP (NSW) (No 2) [2008] NSWCCA 69
- Autodesk Inc v Dyason (No 2) [1993] HCA 6; 176 CLR 300
- Burrell v The Queen [2008] HCA 34; 238 CLR 218
- Gall v R (No 2) [2015] NSWCCA 152
- Grierson v The King [1938] HCA 45; 60 CLR 431
- Kauwenberghs v R [2009] NSWCCA 201
- Miller v R [2015] NSWCCA 205
- Re J.R.L; Ex parte C.J.L [1986] HCA 39; 161 CLR 342
- SKA v The Queen [2011] HCA 13; 243 CLR 400