Clark v Attorney General of New South Wales [2023] NSWCA 208

Clark v Attorney General of New South Wales [2023] NSWCA 208

The further amended summons was dismissed because it was open to Sweeney J to determine that the factual issue raised by the applicant concerning count 12 had already been fully dealt with by the Court of Criminal Appeal and in earlier Pt 7 applications, and there were no special facts, special circumstances, or new credible and persuasive material justifying further action. The existence of conflicting evidence at trial was a matter for the jury, and the applicant established neither error of law on the face of the record nor jurisdictional error, including legal unreasonableness.

Jurisdiction
Australia
Judgment Date
06 September 2023
Procedural Posture
Application for Judicial Review / Court of Appeal Review of Supreme Court Decision Refusing to Consider or Otherwise Deal With an Application Under Pt 7 of the Crimes (appeal and Review) Act 2001 (nsw)
Outcome
Further amended summons dismissed; leave granted to file the further amended summons; applicant ordered to pay the Attorney General's costs in this Court.
Legal Topics
['judicial Review' 'jurisdictional Error' 'error of Law on the Face of the Record' 'legal Unreasonableness' 'inquiry Into Conviction' 'pt 7 Applications Under Crimes (appeal and Review) Act 2001 (nsw)' 'child Sexual Offence Conviction']
['administrative Law' 'criminal Procedure'] ['judicial Review' 'jurisdictional Error' 'error of Law on the Face of the Record' 'legal Unreasonableness' 'inquiry Into Conviction' 'pt 7 Applications Under Crimes (appeal and Review) Act 2001 (nsw)' 'child Sexual Offence Conviction']

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Procedural Posture

Application for Judicial Review / Court of Appeal Review of Supreme Court Decision Refusing to Consider or Otherwise Deal With an Application Under Pt 7 of the Crimes (appeal and Review) Act 2001 (nsw)

Legal Issues

  1. 1 ["Whether the judge erred in refusing to consider or otherwise deal with the applicant's Pt 7 application on the basis that the matter had previously been dealt with." 'Whether the decision involved jurisdictional error or error of law on the face of the record.' "Whether the decision was legally unreasonable because insufficient weight was given to the applicant's contention about the evidence on count 12." 'Whether there were special facts or special circumstances justifying further action under s 79(3)(b) of the Crimes (Appeal and Review) Act 2001 (NSW).' 'Whether allegations of fraud or fraudulent misrepresentation provided a basis to set aside the decision.']

Ratio Decidendi

The further amended summons was dismissed because it was open to Sweeney J to determine that the factual issue raised by the applicant concerning count 12 had already been fully dealt with by the Court of Criminal Appeal and in earlier Pt 7 applications, and there were no special facts, special circumstances, or new credible and persuasive material justifying further action. The existence of conflicting evidence at trial was a matter for the jury, and the applicant established neither error of law on the face of the record nor jurisdictional error, including legal unreasonableness.

Court Disposition

Further amended summons dismissed; leave granted to file the further amended summons; applicant ordered to pay the Attorney General's costs in this Court.

Orders

  • ['Grant the applicant leave to file the further amended summons for judicial review dated 21 August 2023.' 'Dismiss the further amended summons.' "Order that the applicant pay the Attorney General's costs in this Court."]