Clark v R

[2021] NSWCCA 8

NSW Court of Criminal Appeal

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Interrogate

Catchwords

1. Criminal Law
2. › Appeals
3. › Court of Criminal Appeal
4. › Finality of decisions
5. › Whether court has jurisdiction to reopen appeal already heard and determined
6. › Whether further appeal may be entertained about same convictions
7. › Criminal Appeal Act 1912 (NSW), ss 5, 22
1. Criminal Law
2. › Appeals
3. › Court of Criminal Appeal
4. › Application to set aside or vary orders
5. › Rule 50C Criminal Appeal Rules (NSW)
6. › Whether r 50C(5) confers free-standing power to set aside orders
7. › Time limits for applications under r 50C(2) and (3)
8. › Whether rule provides backdoor method to reargue cases
1. Practice and Procedure
2. › Setting aside judgments
3. › Fraud
4. › Whether UCPR r 36.15 applies to Court of Criminal Appeal
5. › Preconditions for setting aside judgment for fraud
6. › Uniform Civil Procedure Rules 2005 (NSW), r 36.15

Quick Take

Rule 50C(5) of the Criminal Appeal Rules (NSW) does not confer a free-standing power on the Court of Criminal Appeal to set aside or vary its orders; it merely preserves any other power that may exist. The rule cannot be used as a vehicle to reargue cases or rehear appeals on their merits. UCPR r 36.15 (fraud) requires more than mere assertion and cannot succeed where the matters relied upon have already been considered and rejected by the Court.