Clark v The King

[2023] HCASL 93

CLARK

v

THE KING

[2023] HCASL 93
A8/2023

1. 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.

2. 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)).

3. 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.

4. 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 is familiar with the matter — that an application to stay should first be made."

5. Where a stay is sought in relation to a proceeding in a lower court, the usual course requires not merely that a stay is sought from that court but also, including with leave, by an appeal from the decision to refuse a stay to an intermediate appellate court. That usual course should be followed other than in the most exceptional circumstances. Nothing about the circumstances of this temporary stay application justified deviation from the usual course.

6. Pursuant to rr 13.03.1 and 41.08.1 of the High Court Rules 2004 (Cth), we direct the Registrar to draw up, sign and seal orders dismissing the application for special leave to appeal and the application for a temporary stay.

M.M. Gordon	J.J. Edelman
2 June 2023