Clark v R [2021] NSWCCA 8

Clark v R [2021] NSWCCA 8

The applications were dismissed because the earlier orders had been entered years earlier, the 14-day limits in r 50C(2) and r 50C(3) could not be extended, r 50C(5) did not confer an independent power to reopen the matters, no clerical mistake or slip was alleged, and the applicant's asserted fraud did not satisfy any arguable basis for relief under UCPR r 36.15. The Court also had no jurisdiction to entertain a further appeal against convictions that had already been the subject of a determined conviction appeal, so Beech-Jones J's orders dismissing the purported appeal as incompetent were confirmed.

Jurisdiction
Australia
Judgment Date
05 February 2021
Procedural Posture
Criminal Appeal Application to Set Aside Judgments and Orders / Court of Criminal Appeal Determination of Notice of Motion, Revised Application and Amended Notice of Motion; Confirmation of Orders Made by Beech Jones J on 9 October 2020
Outcome
Applications dismissed; orders made by Beech-Jones J on 9 October 2020 confirmed.
Legal Topics
['application to Set Aside Judgments and Orders' 'jurisdiction to Reconsider Appeals' 'rule 50 C of the Criminal Appeal Rules (nsw)' 'finality of Court of Criminal Appeal Decisions' 'purported Further Conviction Appeal' 'allegation of Fraud Under Uniform Civil Procedure Rules 2005 (nsw), R 36.15']
['criminal Law' 'criminal Appeals' 'criminal Procedure'] ['application to Set Aside Judgments and Orders' 'jurisdiction to Reconsider Appeals' 'rule 50 C of the Criminal Appeal Rules (nsw)' 'finality of Court of Criminal Appeal Decisions' 'purported Further Conviction Appeal' 'allegation of Fraud Under Uniform Civil Procedure Rules 2005 (nsw), R 36.15']

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Procedural Posture

Criminal Appeal Application to Set Aside Judgments and Orders / Court of Criminal Appeal Determination of Notice of Motion, Revised Application and Amended Notice of Motion; Confirmation of Orders Made by Beech Jones J on 9 October 2020

Legal Issues

  1. 1 ["Whether the Court of Criminal Appeal had jurisdiction to set aside or vary earlier judgments and orders dismissing the applicant's conviction appeal and r 50C applications." 'Whether r 50C(5) of the Criminal Appeal Rules (NSW) conferred a free-standing power to set aside or vary earlier orders of the Court.' 'Whether UCPR r 36.15 provided a basis to set aside earlier judgments or orders for alleged fraud.' "Whether a further conviction appeal could be entertained after the applicant's conviction appeal had already been heard and determined."]

Ratio Decidendi

The applications were dismissed because the earlier orders had been entered years earlier, the 14-day limits in r 50C(2) and r 50C(3) could not be extended, r 50C(5) did not confer an independent power to reopen the matters, no clerical mistake or slip was alleged, and the applicant's asserted fraud did not satisfy any arguable basis for relief under UCPR r 36.15. The Court also had no jurisdiction to entertain a further appeal against convictions that had already been the subject of a determined conviction appeal, so Beech-Jones J's orders dismissing the purported appeal as incompetent were confirmed.

Court Disposition

Applications dismissed; orders made by Beech-Jones J on 9 October 2020 confirmed.

Orders

  • ["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.']