Clark v R (No 3)

THE COURT: On 5 February 2021, this Court delivered judgment in Clark v R [2021] NSWCCA 8 (‘the principal decision’). An application for special leave to appeal to the High Court from the principal decision has been lodged out of time and is as yet undetermined.

On 15 February 2021, within 14 days of the Court delivering the principal decision, Mr Clark (‘the applicant’) filed a notice of motion pursuant to r 50C of the Criminal Appeal Rules (NSW) seeking orders, inter alia, that the principal decision be set aside. On 29 March 2021, the Court published reasons for dismissing that application: Clark v R (No 2) [2021] NSWCCA 48.

By notice of motion dated 1 April 2021, the applicant again moved the Court under r 50C of the Criminal Appeal Rules. This application sought orders, inter alia, setting aside those made in Clark v R (No 2).

Rule 50C provides:

The proper operation of r 50C was addressed in Clark v R and Clark v R (No 2). Having considered the applicant’s current application on the papers, the Court is not satisfied that the notice of motion dated 1 April 2021 raises any issue warranting leave.

In refusing leave to apply to set aside orders of the Court under r 50C of the Criminal Appeal Rules we note in particular what the Court said in Clark v R (No 2) at [37]-[39]:

This Court in 2015, [1] in dismissing an earlier application by the applicant, said:

Having regard to the reasoning of the Court in the two 2021 judgments mentioned above, the present application is, once again, simply vexatious.

The orders of the Court are: