Clark v R [2015] NSWCCA 265

Clark v R [2015] NSWCCA 265

Rule 50C does not provide a freestanding power to vary or set aside orders apart from correcting slips or where the Court proceeded under a material misapprehension of fact or law not due to the applicant's default. No such misapprehension was established in respect of any ground raised by the applicant; complaints regarding bias, bench constitution, access to documents, adequacy of representation and the timing of the complained offence were either found to lack substance, to have been fully litigated previously, or not to constitute a legitimate ground for reopening under r 50C.

Parties
Applicant: Peter Frederick Clark; Respondent: Regina
Jurisdiction
Australia
Judgment Date
06 October 2015
Procedural Posture
Criminal Appeal / Application to Reopen Judgments Pursuant to Criminal Appeal Rules, R 50 C
Outcome
Applications dismissed
Legal Topics
Criminal Appeals, Finality of Litigation, Recusal and Bias, Procedural Fairness, Access to Legal Documents in Custody, Adequacy of Trial Representation
Criminal Law Administrative Law Criminal Appeals Finality of Litigation Recusal and Bias Procedural Fairness Access to Legal Documents in Custody Adequacy of Trial Representation

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Parties

Peter Frederick Clark

Applicant

Regina

Respondent

Procedural Posture

Criminal Appeal / Application to Reopen Judgments Pursuant to Criminal Appeal Rules, R 50 C

Legal Issues

  1. 1 Whether applications to reopen earlier appeal decisions should be allowed under Criminal Appeal Rules, r 50C
  2. 2 Whether there was a material misapprehension of fact or law not due to the applicant's neglect or default
  3. 3 Whether there was a reasonable apprehension of bias due to judges' participation in earlier matters

Ratio Decidendi

Rule 50C does not provide a freestanding power to vary or set aside orders apart from correcting slips or where the Court proceeded under a material misapprehension of fact or law not due to the applicant's default. No such misapprehension was established in respect of any ground raised by the applicant; complaints regarding bias, bench constitution, access to documents, adequacy of representation and the timing of the complained offence were either found to lack substance, to have been fully litigated previously, or not to constitute a legitimate ground for reopening under r 50C.

Court Disposition

Applications dismissed

Orders

  • Application to vary or set aside the orders entered by the Court of Criminal Appeal on 30 October 2014 in PFC v R (No 2) [2014] NSWCCA 241 dismissed
  • Application to vary or set aside the orders entered by the Court of Criminal Appeal on 30 October 2014 in Clark v R [2014] NSWCCA 236 dismissed