Clark v R [2012] NSWCCA 252

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Clark v R [2012] NSWCCA 252 Hearing dates: 4 September 2012 Decision date: 04 September 2012 Before: McClellan CJ at CL at [1] McCallum J at [10] Garling J at [11] Decision: Application refused Legislation Cited: Criminal Appeal Rules Cases Cited: Burrell v The Queen [2008] HCA 34; (2008) 238 CLR 218 Clark v R [2008] NSWCCA 122 Category: Principal judgment Parties: Peter Frederick Clark (Applicant) Crown Representation: Counsel: Applicant in person F Veltro (Crown) Solicitors: Applicant in person Solicitor for Public Prosecutions (Crown) File Number(s): 2007/2948 Decision under appeal Citation: [2008] NSWCCA 122 Date of Decision: 2008-05-30 00:00:00 Before: Bell JA; Barr & Buddin JJ File Number(s): 2007/2948

Judgment 1MCCLELLAN CJ AT CL: Mr Peter Clark was convicted following trial of various sexual offences. He brought an appeal against his conviction to this Court: Clark v R [2008] NSWCCA 122. The matter was recorded as CCA matter number 122/2008. Judgment was delivered on 30 May 2008 and the orders of the Court were formally entered on that day. 2Mr Clark subsequently brought an application for leave to re-open the appeal. That application was heard and determined by this Court in December 2008. The application was dismissed. He seeks to make a further application which was heard by this Court today. The application has been accompanied by a volume of material, including detailed written submissions. He seeks to raise three points. 3His first point is that although he was provided with a notice pursuant to r 50C of the Criminal Appeal Rules that judgment had been delivered, he was not provided with a copy of the judgment within the fourteen day period after the orders had been entered. He says for that reason he has been denied procedural fairness and should be granted leave to re-open the appeal. 4He seeks to advance two further propositions which he says are important. Firstly, he says there is fresh evidence in relation to the reliability or veracity of the evidence given in relation to his alleged tendency by one CB. 5Secondly, he says that his solicitors, and as a consequence those who appeared for him at the appeal, failed to discharge their professional responsibilities in an appropriate way by reason of the manner in which they represented him in the appeal. 6Apart from those matters he points to what he says is an error in the original judgment which describes the complainant, MH, as giving his evidence by closed-circuit television. Mr Clark says that the evidence was in fact given by MH from the body of the court. He says that for that reason he was embarrassed by the presence of MH's parents and was unable to effectively put his case because of inhibitions in the cross-examination of MH, which might disclose his sexual preferences to his parents. 7Irrespective of whether or not the Court made an error in identifying where MH gave his evidence from, the point Mr Clark seeks to raise is of no substance. Whether he gave his evidence in court or by closed-circuit television, the cross-examination of MH would have had to have covered the same ground. The fact that he was outside the courtroom could not have made any difference to the issues that were raised with him. 8In relation to the other matters, I am not persuaded that they are matters of any substance or matters which would justify this Court granting leave to re-open the appeal. The capacity of this Court to re-visit decisions which it has made was comprehensively considered by the High Court in Burrell v The Queen [2008] HCA 34; (2008) 238 CLR 218. As the High Court made plain, this Court's jurisdiction to re-open an appeal after orders have been entered, if it exists at all, is confined. It does not extend to the matters which Mr Clark seeks to raise. Furthermore, I am not persuaded that any of those matters have any substance which, even if leave was granted, could justify this Court intervening to review the decision which was made in 2008. 9Accordingly, in my opinion, the application for leave to re-open the appeal should be refused. 10MCCALLUM J: I agree with the Chief Judge of Common Law. 11GARLING J: I agree. 12MCCLELLAN CJ AT CL: Accordingly, the orders of the Court are as I have indicated.