Citation: Clark v R (No 3) [2021] NSWCCA 64
Court: NSW Court of Criminal Appeal
Date: 12 April 2021
Judge(s): Payne JA; Johnson J; Wilson J
Background
The applicant had been the subject of a principal decision handed down by the NSW Court of Criminal Appeal on 5 February 2021. Within 14 days of that decision, he filed a notice of motion under r 50C of the Criminal Appeal Rules seeking to have the principal decision set aside. The Court dismissed that application on 29 March 2021 in Clark v R (No 2) [2021] NSWCCA 48.
Just days later, on 1 April 2021, the applicant filed a further notice of motion under the same rule, this time seeking to set aside the orders made in the No 2 decision. This was not the applicant's first attempt to relitigate his matter: a 2015 decision of the same Court had already dismissed an earlier application from him in similar circumstances.
A separate application for special leave to appeal to the High Court, lodged out of time, remained undetermined at the time of this decision.
Legal Issues
- Whether the applicant's notice of motion filed on 1 April 2021 raised any issue warranting leave under r 50C of the Criminal Appeal Rules to apply to set aside earlier orders of the Court.
- Whether repeated r 50C applications, following the exhaustion of prior applications on the same matter, could constitute a vexatious use of that procedural rule.
Decision
The Court considered the application on the papers and was not satisfied that the 1 April 2021 notice of motion raised any issue warranting leave. It declined to engage again with the substantive matters, relying heavily on the reasoning set out in the two 2021 judgments that had preceded this application.
The Court reinforced the principle of finality in litigation, drawing on High Court authority. In D'Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1, the High Court observed that a party who fails in litigation will often seek explanations elsewhere. In Achurch v The Queen (2014) 253 CLR 141, the High Court confirmed that the power of courts to reopen proceedings and vary orders is constrained by the finality principle, which the criminal justice system upholds alongside specific statutory safeguards such as r 50C.
The Court noted that the applicant had extensively availed himself of available safeguards over many years. Echoing its 2015 decision, the Court characterised the present application as simply vexatious and refused leave accordingly.
Orders Made
- Leave to apply to set aside the orders of the Court under r 50C of the Criminal Appeal Rules is refused.
- The notice of motion dated 1 April 2021 is dismissed.
Key Takeaways
- Rule 50C of the Criminal Appeal Rules does not provide an ongoing mechanism for parties to relitigate concluded appeals; leave is required and will be refused where no genuine issue is raised.
- The principle of finality applies in the criminal context, constraining the Court's power to reopen final orders even where a specific statutory provision such as r 50C exists.
- A successive r 50C application that seeks to set aside orders already made dismissing a prior r 50C application will not, without more, raise any matter warranting leave.
- Repeated procedural applications that raise no new issue of principle or substance may be characterised as vexatious, as was done here and in the Court's earlier 2015 decision in the same proceedings.
- The availability of an undetermined application for special leave to the High Court did not, on the facts of this case, alter the Court's approach to the finality of its own orders.
Legislation and Cases Referenced
Legislation
- Criminal Appeal Rules (NSW), r 50C
- Crimes (Appeal and Review) Act 2001 (NSW), Part 7
Cases
- Clark v R [2021] NSWCCA 8
- Clark v R (No 2) [2021] NSWCCA 48
- Clark v R (No 2) [2015] NSWCCA 271
- D'Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1; [2005] HCA 12
- Achurch v The Queen (2014) 253 CLR 141; [2014] HCA 10
- Burrell v The Queen (cited within Achurch)