Clarkson v Commissioner of Corrective Services, New South Wales [2007] NSWCA 58

Appeal Outcome: Special leave application dismissed by the High Court - 11 December 2007

New South Wales Court of Appeal

CITATION: Clarkson v Commissioner of Corrective Services, New South Wales [2007] NSWCA 58

HEARING DATE(S): 12 February 2006

JUDGMENT DATE: 22 March 2007

JUDGMENT OF: Beazley JA at 1; Sully J at 48; Howie J at 49

DECISION: 1. The Application to Show Cause and Summons are dismissed; 2. The Application for prerogative relief filed 13 October 2006 is dismissed; 3. The questions in the stated case are answered in the negative.

CATCHWORDS: Procedure – stated case – whether trial judge erred in failing to respite execution of judgment under section 72 Judiciary Act 1903 (Cth) – whether accused waived right to operation of Act

LEGISLATION CITED: Mental Health (Criminal Procedure) Act 1990 (NSW) s 10(2) Judiciary Act 1903 (Cth) s 72

Brown v The Queen (1986) 160 CLR 171 Commonwealth v Verwayen (1990) 170 CLR 394 Di Natale v Kelly (An officer of the RSPCA NSW) [2006] NSWCCA 201 CASES CITED: Gordon v Berowra Holdings Pty Limited (2005) 62 NSWLR 427; [2005] NSWCA 27 Graham v Ingleby (1948) 154 ER 277 Park Gate Iron Co v Coates (1870) LR 5 CP 634 Smyth & Co v Bailey & Co [1940] 3 All ER 60

Mark Alfred Clarkson (Appellant) Commissioner of Corrective Services, New South Wales (First Respondent) Regina (New South Wales) (Second Respondent) Commonwealth Director of Public Prosecutions (Third Respondent)

PARTIES: On the Remitter from the High Court

Mark Alfred Clarkson (Appellant) Commonwealth of Australia (First Respondent) Commonwealth Director of Public Prosecutions (Second Respondent) Commissioner of Corrective Services New South Wales (Third Respondent)