Clark v The King - [2023] HCASL 93

CLARK
v
THE KING
[2023] HCASL 93
A8/2023

This application for special leave to appeal from a decision of the Court of Appeal of the Supreme Court of South Australia (Livesey P, Bleby and David JJA), handed down on 23 February 2023, was filed out of time on 30 May 2023. The application for special leave requires an extension of time.
On 31 May 2023, the applicant filed an application in this Court for a temporary stay of his criminal trial (pending the determination of his application for special leave to appeal) which is listed to commence on 5 June 2023 in the District Court of South Australia. On 15 May 2023, the applicant had applied to the trial judge for what amounted, in effect, to a temporary stay of his criminal trial pending the resolution of his application for special leave to appeal. That application was refused on 15 May 2023. No appeal was brought to the Court of Appeal from that decision and there is nothing to suggest that the applicant sought permission of the trial judge to appeal against that decision: Criminal Procedure Act 1921 (SA), s 157(1)(d)(i)).
The special leave application is for a permanent stay of part of the applicant's criminal trial. It requires consideration of novel applications of statutory concepts such as "consent" and "serious encroachment" to unusual facts. It is not in the interests of justice that the criminal process be fragmented further by this Court determining those issues without reference to actual evidence or findings and by assuming facts by taking the prosecution case at its highest. It is also not suggested in the applicant's special leave application that there are any other criminal cases pending in South Australia that raise the same issues of statutory interpretation or that these issues of interpretation arise or are pending in any jurisdiction other than South Australia. If the applicant is convicted at trial of the counts in which he presently seeks special leave to appeal, or any of the other counts, he has rights of appeal under s 157 of the Criminal Procedure Act 1921 (SA). In these circumstances, the special leave application is premature and special leave should not be granted with the effect of further fragmenting the criminal process. It would therefore be futile to grant an extension of time for special leave to appeal.
The dismissal of the application for special leave to appeal requires the dismissal of the application for a temporary stay of the applicant's criminal trial pending the determination of that special leave application. Nevertheless, it is necessary to repeat the remarks of Brennan J in Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd [No 1] (1986) 161 CLR 681 at 684, where his Honour said:
"When an application for special leave to appeal is made to this Court, a jurisdiction to stay may be exercised by the court below and it is to that court — the court in which the matter is pending and which…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Clark v The King

Details

AGLC: Clark v The King [2023] HCASL 93
Case: [2023] HCASL 93
Decision Date

CaseChat Overview and Summary

Clark applied for special leave to appeal a decision of the Supreme Court of South Australia. The application was filed out of time, necessitating an extension of time. Clark also applied for a temporary stay of his criminal trial pending the determination of his application for special leave to appeal, but this application was also refused by the trial judge. Clark did not appeal this decision to the Court of Appeal.

The legal issues that the Court had to decide were whether to grant an extension of time for Clark's special leave application and whether to grant a temporary stay of his criminal trial. The Court considered whether it was in the interests of justice to grant a stay of the criminal process and whether Clark had rights of appeal under s 157 of the Criminal Procedure Act 1921 (SA) if he was convicted at trial. The Court also considered the usual course of seeking a stay from the lower court and appealing the decision to an intermediate appellate court.

The Court dismissed Clark's application for special leave to appeal and the application for a temporary stay. The Court held that it was not in the interests of justice to grant a stay of the criminal process and that Clark had rights of appeal under s 157 of the Criminal Procedure Act 1921 (SA) if he was convicted at trial. The Court also held that the usual course of seeking a stay from the lower court and appealing the decision to an intermediate appellate court should be followed unless there were exceptional circumstances. The Court found that there were no exceptional circumstances in this case. Pursuant to rr 13.03.1 and 41.08.1 of the High Court Rules 2004 (Cth), the Registrar was directed to draw up, sign and seal orders dismissing the application for special leave to appeal and the application for a temporary stay.

Orders