Clark v Attorney General for New South Wales [2022] NSWCA 231

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Clark v Attorney General for New South Wales [2022] NSWCA 231 Hearing dates: 14 April 2022 Decision date: 11 November 2022 Before: Macfarlan JA at [1]; White JA at [2]; Mitchelmore JA at [58] Decision: Summons dismissed with costs Catchwords: CRIME — Appeal and review — judicial review — statement made in decision dismissing a sentencing appeal not binding where it concerned an issue that did not need to be decided to determine the sentence — issue estoppel as it applies in civil proceedings inapplicable in the criminal law CRIME — Appeal and review — judicial review — judge did not misconstrue s 79(2) of the Crimes (Appeal and Review) Act 2001 (NSW) in suggesting that a new fact-finding process based on fresh evidence was not required — judge stated that the facts allegedly established were relied upon in previous proceedings and the relevant inquiry was whether the matters raised cause doubt as to guilt CRIME — Appeal and review — judicial review — whether judge erred in summarily dismissing an application under s 79(3) of the Crimes (Appeal and Review) Act 2001 (NSW) — judge did not proceed on material misapprehensions of fact and law — allegedly fresh evidence confirmed what was advanced in previous proceedings and did not relate to an element of the relevant offence Legislation Cited: Crimes (Appeal and Review) Act 2001 (NSW), ss 78, 79(1)-(4) Crimes Act 1900 (NSW), ss 66C(4), 319 Supreme Court Act 1970 (NSW), s 69(4) Supreme Court (Criminal Appeal) Rules 2001, r 50C Cases Cited: Blair v Curran (1939) 62 CLR 464; [1939] HCA 23 Clark v Attorney General of New South Wales [2019] NSWSC 1277 Clark v Attorney General of New South Wales [2020] NSWCA 70 Clark v R [2015] NSWCCA 265 Holland v Attorney General of NSW [2022] NSWCA 17 Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 PFC v R (No.2) [2014] NSWCCA 241 PFC v R [2011] NSWCCA 275 R v Davis [1982] 1 NZLR 584 REGINA v PFC [2011] NSWCCA 117 Rogers v The Queen (1994) 181 CLR 251; [1994] HCA 42 The Queen v Carroll (2002) 213 CLR 635; [2002] HCA 53 Category: Principal judgment Parties: Peter Frederick Clark (Applicant) Attorney General for New South Wales (First Respondent) The Supreme Court of New South Wales (Second Respondent) Representation: Counsel: Applicant unrepresented R McEwen (First Respondent)