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2
Court of Criminal Appeal 29 March 2021

Clark v R (No 2)

[2021] NSWCCA 48

Public order & justice offences
CRIME APPEALS JURISDICTION TO RECONSIDER APPEAL

Citation: Clark v R (No 2) [2021] NSWCCA 48
Court: NSW Court of Criminal Appeal
Date: 29 March 2021
Judges: Payne JA; Johnson J; Wilson J

Background

The applicant had previously sought to have several earlier Court of Criminal Appeal judgments set aside, relying on doctrines including fraud, res judicata, and estoppel. That application was dismissed by the same bench in the principal decision, Clark v R [2021] NSWCCA 8, delivered on 5 February 2021.

Within 14 days of that judgment, the applicant filed a fresh notice of motion under r 50C of the Criminal Appeal Rules seeking to set aside the principal decision itself. He sought orders that the earlier judgments be quashed, that his conviction appeal be reheard de novo, and that a fresh panel of judges unconnected with his prior proceedings hear the motion.

The Court considered the application on the papers after receiving written submissions from both the applicant and the Crown.

  • Whether the Court had jurisdiction under r 50C(5) of the Criminal Appeal Rules to set aside or vary its own earlier orders
  • Whether the Court misapprehended the applicant's submissions or misapplied the law in the principal decision
  • Whether a denial of procedural fairness arose from the late provision of two High Court authorities cited by the Crown
  • Whether a denial of procedural fairness arose from annexures being omitted from the court book prepared by the Registrar
  • Whether the applicant's claimed misapprehension of fraud in earlier judgments warranted reopening those decisions
  • Whether apprehended bias arose from a member of the bench failing to disclose prior involvement in related matters and declining to recuse himself

Decision

The Court rejected the applicant's request for a differently constituted panel to hear the motion. Because the application was brought under r 50C, the rule required that the Court which made the original decision consider any application to reopen it.

On the jurisdictional question, the Court reiterated the principle it applied in the principal decision: r 50C(5) cannot be used where the application is, in substance, an appeal against the Court's own decision on the merits. The applicant's core argument, that subsequent decisions of the Court contradicted the ratio decidendi of R v PFC [2011] NSWCCA 117, had been examined and rejected on numerous prior occasions. The Court also noted that the passage from R v PFC on which the applicant relied was obiter, not ratio, and that the applicant had ignored qualifying paragraphs in that judgment.

On procedural fairness, the Court found no denial arose from the late provision of two High Court cases. Neither case had been referred to in the Crown's written submissions, neither was the subject of oral argument, and the Court did not rely on either in its reasons. Similarly, while it was not disputed that annexures to one of the applicant's documents were omitted from the court book, the Court found this caused no practical unfairness because the applicant had filed that document himself and was aware of its contents.

The apprehended bias claim was also rejected. The judge in question had been a member of the bench that heard the principal decision and the applicant had not raised any disqualification objection prior to that hearing. More broadly, the Court invoked the finality principle, drawing on the High Court's statements in Achurch v The Queen (2014) 253 CLR 141 and D'Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1. The Court observed that the applicant had extensively availed himself of the available statutory safeguards over many years and that the present application raised nothing requiring the Court to set aside or vary any order previously made.

Orders Made

  • The applicant's notice of motion dated 15 February 2021 was dismissed.

Key Takeaways

  • Rule 50C(5) of the Criminal Appeal Rules does not confer jurisdiction to reopen a final decision where the application is, in substance, a rehearing of the appeal on its merits.
  • No denial of procedural fairness arose from the late provision of High Court authorities where those authorities were not relied upon in oral submissions or in the Court's reasons.
  • A failure to include annexures in a court book does not constitute a procedural fairness breach where the applicant filed the underlying document and was independently aware of its contents.
  • The principle of finality, as restated by the High Court in Achurch v The Queen and D'Orta-Ekenaike, operates as a significant constraint on the power of courts below the court of final resort to reopen concluded proceedings.
  • Apprehended bias arguments advanced for the first time after judgment has been delivered, without any prior objection to the bench's composition, will not readily succeed.

Legislation and Cases Referenced

Legislation
- Crimes (Appeal and Review) Act 2001 (NSW), Part 7
- Criminal Appeal Act 1912 (NSW), s 5D
- Criminal Appeal Rules (NSW), r 50C
- Uniform Civil Procedure Rules 2005 (NSW), rr 36.15, 36.16

Cases
- Achurch v The Queen (2014) 253 CLR 141; [2014] HCA 10
- Application of Ainsley Whitney [2020] NSWCCA 146
- Clark v R [2015] NSWCCA 265
- Clark v R [2021] NSWCCA 8
- Corliss v R (No 2) [2020] NSWCCA 180
- D'Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1; [2005] HCA 12
- El Ali v R (No 2) [2019] NSWCCA 289
- Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427; [2011] HCA 48
- PFC v R [2011] NSWCCA 275
- R v PFC [2011] NSWCCA 117
- Rogers v The Queen (1994) 181 CLR 251; [1994] HCA 42
- The Queen v Storey (1978) 140 CLR 364; [1978] HCA 39