Citation: Clark v R (No 2) [2015] NSWCCA 271
Court: NSW Court of Criminal Appeal
Date: 16 October 2015
Judge(s): Hoeben CJ at CL; Hall J; R A Hulme J
Background
The applicant had been convicted in 2009 following a trial before Norrish QC DCJ on 23 counts, including offences of child sexual assault, child pornography, and perverting the course of justice, with six victims. He was sentenced to an overall term of 14 years and 5 months imprisonment, with a non-parole period of 10 years and 9 months.
The specific conviction at issue in this application was one count of aggravated sexual intercourse with a child aged between 14 and 16, contrary to section 66C(4) of the Crimes Act 1900 (NSW). That count attracted a sentence of 4 years and 6 months, which ran concurrently with other sentences. The court noted that even if the applicant had not been convicted on this particular count, his overall sentence would have remained the same.
By the time this application was filed, the applicant had already exhausted multiple avenues of challenge. He had appealed his conviction, applied under rule 50C to set aside that appellate judgment, and then applied again under rule 50C to set aside the refusal of his first rule 50C application. The present application was a fourth attempt to revisit the same issues.
Legal Issues
- Whether a further application under rule 50C of the Criminal Appeal Rules 1912 (NSW) to set aside the court's most recent refusal of a rule 50C application was available and should be granted
- Whether the issues raised in the applicant's written submissions disclosed any reason to doubt the correctness of the previous judgments
Decision
Rule 50C of the Criminal Appeal Rules 1912 permits a party to apply to the Court of Criminal Appeal to set aside one of its own judgments in certain circumstances. The applicant had used this mechanism repeatedly, each time seeking to reopen arguments that had already been decided against him, first on his original conviction appeal, then through successive rule 50C applications.
The Court found no basis to doubt the correctness of any of the previous judgments. It declined to re-engage with the substantive issues, observing that extensive reasoning had already been provided across the earlier decisions. The applicant's 11 pages of written submissions did not raise anything new; they simply rehearsed arguments that had already been considered and rejected.
The Court characterised the application in direct terms: it was vexatious. No further analysis was warranted, and the application was dismissed on that basis.
Orders Made
- The application is dismissed.
Key Takeaways
- The Court of Criminal Appeal confirmed that rule 50C of the Criminal Appeal Rules 1912 cannot be used repeatedly to relitigate arguments that have already been fully considered and rejected by the court.
- A successive application under rule 50C, raising no new grounds and merely restating previously rejected arguments, is liable to be dismissed as vexatious.
- Where the sentence referable to the impugned conviction is entirely concurrent and has no practical effect on the overall term, this is a relevant consideration in assessing the utility of the challenge.
- Extensive prior reasoning from the court does not obligate it to re-engage with the same issues in subsequent applications; the court retains the capacity to decline further consideration when repetition is apparent.
- In dismissing the application, the Court made clear that the boundaries of the rule 50C mechanism are not unlimited and are subject to the court's power to refuse vexatious proceedings.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), s 66C(4)
- Criminal Appeal Rules 1912 (NSW), r 50C
Cases
- Clark v R [2015] NSWCCA 265
- PFC v R [2011] NSWCCA 275
- PFC v R (No 2) [2014] NSWCCA 241