[1993] HCA 6
Burrell v The Queen (2008) 238 CLR 218
[1938] HCA 45
Miller v R (No 2) [2016] NSWCCA 158
Source
Original judgment source is linked above.
Catchwords
[1993] HCA 6
Burrell v The Queen (2008) 238 CLR 218[1938] HCA 45
Miller v R (No 2) [2016] NSWCCA 158
Judgment (4 paragraphs)
[1]
Judgment
THE COURT: Following a trial before Norrish QC DCJ and a jury which took place between 11 May 2009 and 19 June 2009, the applicant, Mr Clark, was convicted of 23 offences comprising of sexual offences against six male complainants who were at the time of the offending under 16 years of age, together with child pornography offences and acting with the intent to pervert the course of justice.
The applicant was sentenced to a non-parole period of 10 years and 9 months and a balance of term of 3 years and 8 months. The applicant's non-parole period expired on 7 June 2020. The total sentence expires on 7 March 2024. The applicant is also currently serving a sentence of imprisonment in relation to a further conviction, the non-parole period of which expires on 6 June 2021.
An appeal brought by the Crown pursuant to s 5D of the Criminal Appeal Act 1912 (NSW) against the sentence imposed on the applicant by Norrish QC DCJ was dismissed on 25 May 2011: R v PFC [2011] NSWCCA 117.
The applicant filed an appeal against conviction. The conviction appeal was dismissed by this Court on 15 December 2011: PFC v R [2011] NSWCCA 275.
The applicant sought to reopen the conviction appeal pursuant to r 50C of the Criminal Appeal Rules (NSW), seeking orders setting aside or varying the order of the Court of Criminal Appeal dismissing his appeal against conviction. That application was dismissed on 30 October 2014: PFC v R (No 2) [2014] NSWCCA 241.
On 11 November 2014, the applicant made a second application pursuant to r 50C of the Criminal Appeal Rules. The application was heard on 20 July 2015 together with another r 50C application filed by the applicant in relation to the decision of this Court in Clark v R [2014] NSWCCA 236 which involved an appeal by the applicant against his conviction for an offence of perverting the course of justice in a trial presided over by Freeman DCJ. On 6 October 2015, both applications were dismissed: Clark v R [2015] NSWCCA 265.
On 13 October 2015, the applicant made a third application under r 50C seeking to set aside the judgment of this Court delivered on 6 October 2015. That application was dismissed on 16 October 2015: Clark v R (No 2) [2015] NSWCCA 271.
The applicant filed an application for special leave to appeal to the High Court from this Court's judgment in the conviction appeal and applications for special leave from the three judgments in relation to applications made under r 50C. Each of those applications was dismissed by the High Court: Peter Frederick Clark v The Queen [2016] HCASL 79.
On 17 May 2016, the applicant petitioned the Governor under s 76 of the Crimes (Appeal and Review) Act 2001 (NSW) for a review of his convictions. On 6 September 2017, that application was rejected.
On 10 October 2017, the applicant filed an application under s 78 of the Crimes (Appeal and Review) Act seeking a review of his convictions and sentence. That application was dismissed on 24 September 2019: Clark v Attorney General of New South Wales [2019] NSWSC 1277.
On 25 September 2020, the applicant filed a notice of motion (dated 21 September 2020) seeking to set aside the judgments of this Court in relation to the conviction appeal and the first, second, and third r 50C applications. The orders sought by the notice of motion are:
"1. The motion is expedited.
2. The significance of order 3 necessitates the Notice of Motion to be heard by a panel of five justices unconnected with the proceedings.
3. Under Rule 50C(5) of the Criminal Appeal Rules, or other authority, the subsequent decisions by the Court of Criminal Appeal in this matter are set aside as ultra vires:
PFC v R [2011] NSWCCA 275;
PFC v R (No 2) [2014] NSWCCA 241;
Clark v R [2015] NSWCCA 265, and
Clark v R (No 2) [2015] NSWCCA 271.
4. The learned trial Judge Stephen Norrish QC is requested to furnish to the Registrar a copy of his Honour's notes of the trial, and also a report giving his opinion on the case, or upon any point in the case.
5. The Applicant's conviction appeal is to be heard de novo by the same panel of justices hearing this Notice of Motion.
6. A 77 order is issued for the Applicant's appearance in person at the hearing.
7. Any further or other order this Court deems fit and proper.
8. Costs."
On 9 October 2020 Beech-Jones J made the following orders in relation to the notice of motion:
"1. The applicant's Notice of Motion dated 21 September 2020 is dismissed;
2. The appeal sought to be filed by the applicant against his convictions following a trial before Norrish QC DCJ between 11 May and 19 June 2009 is dismissed as incompetent, pursuant to s 22(k) of the Criminal Appeal Act 1912."
Beech-Jones J held that the basis of the motion was that the four CCA decisions were somehow inconsistent with findings made by the decision of this Court in the Crown appeal against sentence referred to at [3] above, which was dismissed on 25 May 2011.
Beech-Jones J concluded that the Court had no jurisdiction to entertain a fresh notice of appeal for convictions already the subject of a determined appeal. Accordingly, Beech-Jones J determined to exercise the power conferred by s 22(k) of the Criminal Appeal Act as a single judge to dismiss the purported appeal as incompetent.
The applicant also relied upon a revised application dated 22 December 2020 seeking that the Court constituted by three judges determine the September 2020 motion pursuant to s 22(2) of the Criminal Appeal Act.
By an amended notice of motion dated 27 January 2021, the applicant seeks to have his notice of motion dated 21 September 2020 determined by the Court pursuant to s 22(2) of the Criminal Appeal Act.
[2]
Consideration
Subject to any right of appeal conferred by statute, decisions of this Court are final: Miller v R (No 2) [2016] NSWCCA 158; (2016) 260 A Crim R 554; D'Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1; [2005] HCA 12 at [34]-[35] (Gleeson CJ, Gummow, Hayne and Heydon JJ).
Once an appeal under s 5 of the Criminal Appeal Act has been heard and determined, and final orders entered, the Court has no power to reopen the appeal, nor can a further appeal be entertained: Grierson v The King (1938) 60 CLR 431; [1938] HCA 45; Burrell v The Queen (2008) 238 CLR 218; [2008] HCA 34. In Burrell, the plurality held at [24]:
"[24] In Grierson v The King, this Court held that the jurisdiction of the Court of Criminal Appeal of New South Wales 'is statutory, and the court has no further authority to set aside a conviction upon indictment than the statute confers'. More particularly, this Court held that the Court of Criminal Appeal had no jurisdiction to reopen an appeal which it had heard upon the merits and finally determined. Grierson has been followed in this Court on a number of occasions, most recently in Elliott v The Queen (2007) 82 ALJR 82 at 85 [7]; 239 ALR 651 at 654."
In the applicant's motion and in his written submissions the only relevant power to reopen the appeal that was identified as an exception to this general rule was r 50C(5) of the Criminal Appeal Rules. Rule 50C provides:
50C Power to set aside or vary order (cf UCPR rule 36.16)
(1) The Court may set aside or vary an order if an application for the setting aside or variation is made before entry of the order.
(1A) An application to set aside or vary an order may only be made with the leave of the Court.
(1B) The Court may determine both whether to grant leave and the application on the papers.
(2) If an application for the setting aside or variation of an order is made within 14 days after the order is entered, the Court may determine the matter, and (if appropriate) set aside or vary the order under subrule (1), as if the order had not been entered.
(3) Within 14 days after an order is entered, the Court may of its own motion set aside or vary the order as if the order had not been entered.
(4) The Court may not extend the time limited by subrule (2) or (3).
(5) Nothing in this rule affects any other power of the Court to set aside or vary an order (including any power to correct clerical mistakes or errors arising from accidental slips or omissions).
The history of this provision, and the addition in 2016 of r 50C(1A), (1B) and the reference in parentheses in (5) to the power to correct clerical mistakes or errors arising from accidental slips or omissions, was explained in El Ali v R (No 2) [2019] NSWCCA 289.
The requirement for leave, and the ability to deal with applications on the papers, are each significant. They underline and support a central proposition which had been adopted in the construction of r 50C prior to the 2016 changes; the purpose of the jurisdiction is not to provide a backdoor method by which unsuccessful litigants can seek to reargue their cases: Alramadan v Director of Public Prosecutions (NSW) (No 2) [2008] NSWCCA 69 at [6] quoting Mason CJ in Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300; [1993] HCA 6 at 303; see also Dickson v R (No 2) [2018] NSWCCA 183.
Rule 50C cannot be used where the application amounts to an appeal against the decision of the Court in the appeal and does not confer jurisdiction to rehear an appeal on its merits: Application of Ainsley Whitney [2020] NSWCCA 146; Corliss v R (No 2) [2020] NSWCCA 180.
The orders in each of the cases the subject of this application have been entered. If evidence were necessary supporting that conclusion it is contained in the affidavit of Ms Ey affirmed 22 January 2021 which was read on the application. Thus, no question of r 50C(1) applying arises in this case.
The present application is made years after the orders were entered in each of the cases. The application was made nearly nine years after orders in the first of the challenged judgments were entered and almost five years after the orders in the most recent challenged judgment were entered. The time limit prescribed by r 50C(2) is 14 days. The same is true of the power granted to the Court of its own motion in r 50C(3). The Court may not extend the time limit contained in r 50C(2) or (3): r 50C(4). Rules 50C(2) or (3) do not apply in the present circumstances.
The applicant does not contend that any of the issues said to justify setting aside the four challenged judgments were clerical mistakes or errors arising from accidental slips or omissions. In any event, the slip rule, either as a rule of Court or as part of the Court's inherent jurisdiction, is directed at correcting the record so that it accords with what the Court did or intended to do. The rule does not permit the reconsideration or alteration of the substance of a decision reached and recorded: Miller v R (No 2) [2016] NSWCCA 158; (2016) 260 A Crim R 554.
The applicant in his written and oral submissions relied upon r 50C(5). It is well established, however, that r 50C(5) does not itself confer a free-standing power on the Court to set aside or vary an order made by this Court. Rule 50C(5) provides that nothing in the rule affects any other power of the Court to set aside or vary an order. Rule 50C(5) does not provide a basis in the present case to set aside or vary earlier orders made by this Court.
In oral address, the applicant pointed to a quote extracted in his written submissions from the separate remarks of Kirby J in Burrell at [63]. It was submitted that r 36.15 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) provided the power for this Court to entertain the application, namely the power to set aside a judgment or order for what the applicant asserts is "fraud".
There are four difficulties with the applicant's reliance upon UCPR r 36.15 in the present case. Collectively, those difficulties are insurmountable. First, the decision of this Court in Miller v R (No 2) at [19] is inconsistent with the existence of the jurisdictional basis which is asserted by the applicant to permit the reopening of earlier decisions of this Court. Secondly, assuming (without deciding) that the contrary conclusion about the application of a different rule (UCPR r 36.16) suggested by a differently constituted Court in El Ali v R (No 2) is correct and extends to r 36.15, we are not persuaded that any arguable basis has been shown to conclude that any judgment has been given or entered, or any order made, irregularly, illegally or against good faith. That is, assuming the power to be available, the preconditions to the exercise of the power in UCPR r 36.15 to set aside a judgment for fraud explained by Kirby P in Wentworth v Rogers (No 5) (1986) 6 NSWLR 534 at 537-540 have not been satisfied by the applicant. Shortly put, the applicant's claim of "fraud" does not rise above mere assertion. Thirdly, this Court has already closely considered what is now asserted by the applicant to be evidence of "fraud" in its earlier decisions and rejected the applicant's assertions: see, for example, Clark v R [2015] NSWCCA 265 at [35]-[46] where this Court explained at length the issue concerning conflicting evidence about count 12 in the indictment and the way that issue had been dealt with at trial and on appeal. The Court rejected the applicant's complaints about count 12. No reason has been shown to doubt that conclusion. The evidence concerning count 12 remained the central aspect of the applicant's complaint in the present application. Fourthly, the applicant's attempts to engage the power of the Executive and the Court to review his convictions on the basis of the same material now proffered by the applicant as evidence of "fraud" have all been unsuccessful: see, for example, Clark v Attorney General of New South Wales [2019] NSWSC 1277 at [69]-[115].
The application, whether as originally framed or as reframed on 22 December 2020 and 27 January 2021, must be dismissed.
The applicant also seeks to agitate a further conviction appeal by proposed order 5 of the notice of motion dated 21 September 2020. The proposed appeal is in respect of the applicant's conviction following the trial before Norrish QC DCJ. Those convictions have already been the subject of an unsuccessful conviction appeal: PFC v R [2011] NSWCCA 275. The Court having heard and determined that appeal, in circumstances where orders made dismissing the appeal have been entered some years ago, has no jurisdiction to entertain a further appeal about those same convictions. We express our complete agreement with the reasons of Beech-Jones J for dismissing the applicant's purported notice of appeal as incompetent. Pursuant to s 22(2) of the Criminal Appeal Act we confirm his Honour's orders.
[3]
Orders
For the foregoing reasons the Court makes the following orders:
1. The applicant's notice of motion dated 21 September 2020 is dismissed.
2. The applicant's revised application dated 22 December 2020 is dismissed.
3. The applicant's amended notice of motion dated 27 January 2021 is dismissed.
4. The orders made by Beech-Jones J on 9 October 2020 are confirmed.
[4]
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 05 February 2021