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Court of Criminal Appeal 5 February 2021

Clark v R

[2021] NSWCCA 8

Sexual offences
CRIME APPEALS JURISDICTION TO RECONSIDER APPEALS

Citation: Clark v R [2021] NSWCCA 8
Court: NSW Court of Criminal Appeal
Date: 5 February 2021
Judge(s): Payne JA; Johnson J; Wilson J

Background

Following a trial in mid-2009, the applicant was convicted of 23 offences including sexual offences against six male complainants under the age of 16, child pornography offences, and acting with intent to pervert the course of justice. He was sentenced to a total term with a non-parole period of 10 years and 9 months.

Since his conviction, the applicant pursued a lengthy sequence of appeals and review applications. These included a conviction appeal (dismissed in 2011), three separate applications under r 50C of the Criminal Appeal Rules seeking to set aside earlier decisions (each dismissed between 2014 and 2015), a failed application for special leave to the High Court, a petition to the Governor under s 76 of the Crimes (Appeal and Review) Act 2001 (NSW) (rejected in 2017), and an application under s 78 of that Act (dismissed in 2019).

In September 2020, the applicant filed a further notice of motion seeking to set aside four earlier Court of Criminal Appeal decisions and to have his conviction appeal reheard from scratch. A single judge dismissed the motion and the purported fresh appeal in October 2020. The applicant then sought to have those rulings reconsidered by a bench of three judges.

  • Whether the Court of Criminal Appeal has jurisdiction to set aside its own final orders in a criminal appeal, in particular under r 50C of the Criminal Appeal Rules, where those orders were entered years earlier.
  • Whether a further conviction appeal could be entertained in respect of convictions that had already been the subject of a determined appeal.
  • Whether the applicant's claims of "fraud" in the earlier proceedings provided any basis for reopening the finalised decisions.

Decision

The Court confirmed the foundational principle that, subject to any statutory right of appeal, decisions of the Court of Criminal Appeal are final. Once an appeal under s 5 of the Criminal Appeal Act 1912 (NSW) has been heard and determined and final orders entered, the Court has no power to reopen the appeal and cannot entertain a further appeal about the same convictions. The Court relied on the High Court authorities in Grierson v The King (1938) and Burrell v The Queen (2008) in support of this position.

The Court examined r 50C(5) of the Criminal Appeal Rules, the only exception to this general rule identified by the applicant. The Court affirmed that the purpose of r 50C is not to provide a "backdoor" mechanism for unsuccessful litigants to reargue their cases, and that the provision does not confer jurisdiction to reopen appeals finally determined and entered years earlier.

On the applicant's fraud argument, the Court identified four reasons for rejecting it. The applicant's allegations were mere assertion without adequate evidentiary foundation. The same material had already been closely examined and rejected by the Court in earlier proceedings, including in Clark v R [2015] NSWCCA 265. Executive review processes had also considered and rejected the same material. The Court concluded the allegations did not satisfy any of the recognised preconditions for reopening a final decision.

The Court expressed complete agreement with the single judge's reasons and confirmed the orders made in October 2020 dismissing both the notice of motion and the purported fresh appeal as incompetent under s 22(k) of the Criminal Appeal Act 1912.

Orders Made

  • The applicant's notice of motion dated 21 September 2020 is dismissed.
  • The applicant's revised application dated 22 December 2020 is dismissed.
  • The applicant's amended notice of motion dated 27 January 2021 is dismissed.
  • The orders made by Beech-Jones J on 9 October 2020 are confirmed (including dismissal of the purported appeal as incompetent under s 22(k) of the Criminal Appeal Act 1912).

Key Takeaways

  • Once final orders dismissing a criminal conviction appeal have been entered, the Court of Criminal Appeal has no jurisdiction to reopen the appeal or entertain a further appeal about the same convictions, absent a statutory right to do so.
  • Rule 50C of the Criminal Appeal Rules does not provide a mechanism for reopening finalised appeals entered years earlier; its purpose is not to give unsuccessful parties a second opportunity to reargue decided matters.
  • Allegations of "fraud" in earlier proceedings will not enliven jurisdiction to reopen final decisions unless adequately supported by evidence. Mere assertion is insufficient.
  • Where the same factual complaints have already been considered and rejected across multiple rounds of appeal and executive review, a court will be slow to treat those complaints as a fresh basis for reopening.
  • Under s 22(2) of the Criminal Appeal Act 1912, a bench of three judges may confirm orders made by a single judge, as occurred here with the dismissal of the purported fresh appeal as incompetent.

Legislation and Cases Referenced

Legislation:
- Crimes (Appeal and Review) Act 2001 (NSW), ss 76, 78
- Criminal Appeal Act 1912 (NSW), ss 5, 5D, 22
- Criminal Appeal Rules (NSW), r 50C
- Uniform Civil Procedure Rules 2005 (NSW), rr 36.15, 36.16

Cases:
- Grierson v The King (1938) 60 CLR 431; [1938] HCA 45
- Burrell v The Queen (2008) 238 CLR 218; [2008] HCA 34
- D'Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1; [2005] HCA 12
- Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300; [1993] HCA 6
- Miller v R (No 2) [2016] NSWCCA 158; (2016) 260 A Crim R 554
- El Ali v R (No 2) [2019] NSWCCA 289
- Alramadan v Director of Public Prosecutions (NSW) (No 2) [2008] NSWCCA 69
- Clark v Attorney General of New South Wales [2019] NSWSC 1277
- Clark v R [2015] NSWCCA 265; Clark v R (No 2) [2015] NSWCCA 271
- PFC v R [2011] NSWCCA 275; PFC v R (No 2) [2014] NSWCCA 241
- Corliss v R (No 2) [2020] NSWCCA 180
- Application of Ainsley Whitney [2020] NSWCCA 146
- Dickson v R (No 2) [2018] NSWCCA 183
- Wentworth v Rogers (No 5) (1986) 6 NSWLR 534