[2004] HCA 37
Anae v R [2018] NSWCCA 73
Antunovic v Dawson (2010) 30 VR 355[2010] VSC 377
Barbaro v The Queen (2014) 253 CLR 58[2014] HCA 2
Barr (a pseudonym) v Director of Public Prosecutions (NSW) (2018) 97 NSWLR 246[2018] NSWCA 47
CGU Insurance Limited v Blakeley (2016) 259 CLR 339[1934] HCA 48
GAS v The Queen (2004) 217 CLR 198[2004] NSWCA 324
Markarian v The Queen (2005) 228 CLR 357[2005] HCA 25
May v Warden of Ferndale Institution (2005) 3 SCR 809[2013] HCA 38
Pelechowski v The Registrar, Court of Appeal (NSW) (1999) 198 CLR 435[1999] HCA 19
Potier v General Manager and Governor MRRC [2007] NSWSC 1031
PR v Department of Human Services (2007) 27 VAR 305[2007] VSC 338
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355ex parte Eastman (1994) 68 ALJR 668[1994] HCA 36
Re Superintendent of Goulburn Training CentreEx parte Pelle (1983) 57 ALJR 679
Rich v Secretary to the Department of Justice (2011) 33 VR 437[2011] VSCA 402
RP & Anor v Foreman & Ors [2020] VSC 522
Ruddock v Vadarlis (2001) 110 FCR 491
Mr CS Evans (Second Defendant)
Judgment (11 paragraphs)
[1]
uman Services (2007) 27 VAR 305; [2007] VSC 338
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28
R v Hilton (1986) 7 NSWLR 745
R v Lyons [2018] NSWSC 223
R v West [2014] NSWCCA 250
Re Officer in Charge of Cells, ACT Supreme Court; ex parte Eastman (1994) 68 ALJR 668; [1994] HCA 36
Re Superintendent of Goulburn Training Centre; Ex parte Pelle (1983) 57 ALJR 679
Rich v Secretary to the Department of Justice (2011) 33 VR 437; [2011] VSCA 402
RP & Anor v Foreman & Ors [2020] VSC 522
Ruddock v Vadarlis (2001) 110 FCR 491; [2001] FCA 1329
Sarah White v Local Health Authorities [2015] NSWSC 417
Stanizzo v Complainant [2013] NSWCCA 295
The King v The Commanding Officer of Morn Hill Camp, Winchester; ex parte Ferguson [1917] 1 KB 176
Yates v Commissioner of Corrective Services NSW [2014] NSWSC 653
Young v Registrar, Court of Appeal (No. 3) (1993) 32 NSWLR 262
Texts Cited: Clark and McCoy, "Habeas Corpus - Australia, New Zealand and the South Pacific", 2nd edn, Federation Press, 2018
Groves, "The Use of Habeas Corpus to Challenge Prison Conditions" (1996) 19 UNSW Law Journal 281
Category: Principal judgment
Parties: Derrick Belan (Plaintiff)
Commissioner of Corrective Services (First Defendant)
Director of Public Prosecutions (NSW) (Second Defendant)
Representation: Counsel:
Mr AA Wilson (Plaintiff)
Submitting Appearance (First Defendant)
Ms BK Baker; Mr CS Evans (Second Defendant)
[2]
Solicitors:
Hal Ginges & Company (Plaintiff)
Solicitor for Public Prosecutions (Second Defendant)
File Number(s): 2020/299335
Publication restriction: ---
[3]
Judgment
JOHNSON J: By Amended Summons filed on 19 October 2020, the Plaintiff, Derrick Belan, sought a writ of habeas corpus pursuant to s.71 Supreme Court Act 1970 and, in the alternative, an order that he be granted bail.
The Defendants to the Amended Summons are the Commissioner of Corrective Services (the First Defendant) and the Director of Public Prosecutions (NSW) (the Second Defendant).
A submitting appearance was filed on behalf of the First Defendant. The Second Defendant appeared and made submissions with respect to the Plaintiff's claim for relief.
These proceedings concern the power of a District Court Judge, hearing an appeal against conviction and sentence from the Local Court, to refuse bail to the Plaintiff, an appellant under the Crimes (Appeal and Review) Act 2001.
[4]
Hearing of the Amended Summons
The Plaintiff's claim for relief came before the Court urgently in the Duty Judge List on 19 October 2020 with the Amended Summons proceeding to hearing before me at 2.00 pm on 20 October 2020. Mr AA Wilson of counsel appeared for the Plaintiff at the hearing. Ms BK Baker, Acting Deputy Senior Crown Prosecutor, and Mr CS Evans, Crown Prosecutor, appeared for the Second Defendant at the hearing.
As will be seen, the sole issue at the hearing before me was whether his Honour Judge King SC, sitting at the Sydney District Court, had power to refuse bail to the Plaintiff on 25 September 2020 of his own motion in the absence of a detention application being made by the prosecutor under the Bail Act 2013. Having dismissed the Plaintiff's conviction appeal, his Honour refused bail and adjourned the sentence appeal for further hearing on 23 October 2020.
Tendered by consent at the hearing before me was a Statement of Agreed Facts (Exhibit A). In addition, Mr Wilson read the affidavit of Anton Duc affirmed 18 October 2020 subject to certain parts which were not pressed and were struck out. Written submissions were furnished by counsel for the Plaintiff and counsel for the Second Defendant for the purpose of the hearing.
Counsel addressed the Court at the hearing on 20 October 2020 with the Court adjourning the matter to 12 noon on 21 October 2020 for further hearing and decision. Having regard to issues raised by the Court with the parties during the hearing, counsel were given leave to file supplementary submissions on the question of discretion.
On the morning of 21 October 2020, there was emailed to my Associate an affidavit of Hal Jon Ginges affirmed that day. Mr Ginges is the solicitor for the Plaintiff.
At the resumed hearing on 21 October 2020, I granted leave for the affidavit of Mr Ginges to be filed in Court. As will be seen, that affidavit related to the bringing of a Supreme Court bail application following the refusal of the Plaintiff's bail on 25 September 2020.
Counsel addressed further following which I stood the matter down to 2.30 pm, at which time I said (T14, 21 October 2020):
"HIS HONOUR: I am not persuaded that his Honour Judge King SC lacked power to refuse bail to the plaintiff at the Sydney District Court on 25 September 2020, so as to constitute a basis for the grant of relief in the nature of habeas corpus. Even if I was satisfied that his Honour lacked power to make that order concerning the plaintiff's bail on 25 September 2020, I would decline to grant the plaintiff relief in the nature of habeas corpus on discretionary grounds.
The amended summons filed on 19 October 2020 is dismissed. I will publish my reasons for reaching these conclusions by emailing the judgment to the parties as soon as practicable with the judgment being placed on Caselaw thereafter."
[5]
Factual Background
Unless otherwise indicated, the following narrative is drawn from the Statement of Agreed Facts (Exhibit A).
On 12 March 2018, the Plaintiff appeared before the Local Court in relation to 64 separate charges that related to his previous role as the Secretary of the National Union of Workers (NSW Branch).
The Plaintiff was charged with offences said to have occurred between October 2010 and November 2016 made up as follows:
1. Sequences 1-19 were allegations of fraud contrary to s.192E(1)(b) Crimes Act 1900;
2. Sequence 20 was an allegation of knowingly participating in a criminal group contrary to s.93T(1A) Crimes Act 1900;
3. Sequence 21 was an allegation of knowingly deriving a material benefit from a criminal group contrary to s.93TA(1) Crimes Act 1900 - this count was proceeded with as a backup charge to Sequence 20;
4. Sequences 22-64 were allegations of fraud contrary to s.192E(1)(b) Crimes Act 1900.
The total loss to the National Union of Workers (NSW Branch) was alleged to have been $657,200.82.
On the morning of the hearing in the Local Court, two charges were withdrawn and dismissed (Sequences 34 and 42). Pleas of guilty were entered to two of the charges on 22 March 2018 (Sequences 36 and 50). Following a defended hearing in the Local Court, judgment was delivered by the Magistrate on 23 March 2018 and the Plaintiff was convicted of all 59 remaining counts. Sequence 21 was dismissed as a backup charge to Sequence 20.
On 18 June 2018, the Plaintiff was sentenced in the Local Court to an aggregate term of imprisonment for four years with a non-parole period of three years with the sentence to date from 23 March 2018.
By Notice of Appeal filed on 18 June 2018, the Plaintiff appealed to the District Court under Part 3 of the Crimes (Appeal and Review) Act 2001 in relation to both conviction and sentence.
On 9 September 2019, the Plaintiff was granted conditional bail by Hamill J in the Supreme Court of New South Wales to appear at the District Court on 25 November 2019 and on such date and at such courts thereafter as required with respect to his appeal.
On 27 March 2020, the Plaintiff's bail conditions were varied to permit him to report to Windsor Police Station by telephone. The bail conditions were otherwise continued in the terms ordered by Hamill J on 9 September 2019.
[6]
Bail Application to the Supreme Court
At the time of the hearing on 20 October 2020, it was understood by the Court that the Plaintiff had not made an application for bail after bail was refused in the District Court on 25 September 2020.
On 19 October 2020, I asked counsel for the Plaintiff about this (T2, 19 October 2020):
"HIS HONOUR: … If this man has been in custody since 25 September and he is to be appearing in the District Court on Friday, why was this application only made this morning, the morning of 19 October?
WILSON: I have only come into the matter over the weekend.
HIS HONOUR: So you cannot answer my question?
WILSON: Yes - I do not have any history in the matter previous to that.
HIS HONOUR: Could I ask you this: Has an application been made under the Bail Act 2013 with respect to the plaintiff's current custody?
WILSON: I am not instructed any such application has been made.
HIS HONOUR: The matter is before the District Court on Friday, is that right?
WILSON: That is my understanding."
I accept that Mr Wilson was unaware of what had been done concerning a bail application. It is clear that Mr Wilson had been briefed for the purpose of the habeas corpus application only with other counsel appearing for the Plaintiff in the District Court. The affidavit of Mr Duc affirmed 18 October 2020 said nothing about the question of a Supreme Court bail application after 25 September 2020.
It was open to the Plaintiff, since 25 September 2020, to make an application for bail to the Supreme Court in accordance with Practice Note SC CL 11 (Bail) with the capacity, under the procedures in the Bail List in this Court, for an expedited hearing of the application to be sought. The Supreme Court had power to grant bail under s.66 Bail Act 2013. An application for bail under s.66 proceeds as a de novo hearing: Barr (a pseudonym) v Director of Public Prosecutions (NSW) (2018) 97 NSWLR 246; [2018] NSWCA 47 at [4]. A bail application is to be dealt with as soon as reasonably practicable: s.71 Bail Act 2013.
The restrictions contained in s.22 Bail Act 2013, where an appeal is on foot to the Court of Criminal Appeal, do not apply to an appeal from the Local Court to the District Court: R v Lyons [2018] NSWSC 223 at [13]. However, the fact that the Plaintiff had been convicted of serious fraud offences on 25 September 2020 and that the appeal had moved into the sentencing phase would have been highly relevant to the question of bail: s.18(i1)(j) Bail Act 2013.
[7]
The Issue for Consideration on the Application
On the first return of the Summons on 19 October 2020, Mr Wilson submitted that relief in the nature of habeas corpus would be sought upon three bases (T3-4, 19 October 2020):
1. that the District Court Judge had no power to refuse bail to the Plaintiff on 25 September 2020 in the absence of a detention application or variation application being made under the Bail Act 2013;
2. that the District Court Judge denied the Plaintiff procedural fairness in the manner in which the bail issue was determined on 25 September 2020; and
3. that there was a failure by the District Court Judge to comply with various provisions in the Bail Act 2013 as part of the process of refusing bail on 25 September 2020.
On 19 October 2020, I raised with counsel for the Plaintiff the assignment of business to the Court of Appeal provided for in s.48 Supreme Court Act 1970 where judicial review is sought with respect to a decision of the District Court of New South Wales (T3-5, 19 October 2020).
After hearing submissions on that day, I indicated a preparedness to embark upon a hearing of the claim for habeas corpus by reference only to the first basis relied upon by Mr Wilson, being the suggested absence of power on the part of the District Court Judge to refuse the Plaintiff on 25 September 2020 in the absence of a detention application or variation application under the Bail Act 2013 (T12-13, 19 October 2020). Directions were given for the provision of written submissions and any additional evidence with respect to the hearing of that issue which was fixed in the Duty List for 2.00 pm on 20 October 2020.
[8]
Submissions of Plaintiff and Second Defendant
As noted earlier, written submissions and supplementary written submissions were furnished on behalf of the Plaintiff and the Second Defendant. The submissions addressed the construction of the Bail Act 2013, the availability of the writ of habeas corpus and the question whether, if a foundation for habeas corpus had been demonstrated, the Court could decline to grant relief on a discretionary basis.
Submissions of Plaintiff
Put shortly, counsel for the Plaintiff submitted that his Honour lacked power to refuse the Plaintiff bail in the circumstances of this case on 25 September 2020 in the absence of a detention application or variation application. It was submitted that no other power existed which permitted a refusal or revocation of bail in these circumstances and that, in the absence of power to refuse bail, the order refusing bail involved jurisdictional error so that a writ of habeas corpus should issue.
Mr Wilson referred, in particular, to ss.11, 12, 48, 50 and 51 Bail Act 2013. Although not contending that the Bail Act 2013 constituted a code (T6, 20 October 2020), counsel submitted that the scheme of the Bail Act 2013 was such that his Honour lacked the power to refuse or revoke bail in the absence of a prosecution application made under that Act.
Counsel submitted that the essential question in construing the Bail Act 2013 was whether the words of the statute were clear in their context: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 at [69]-[70]. Reliance was placed upon the principle of legality and the need for clear words before the liberty of the individual may be curtailed: Al-Kateb v Godwin (2004) 219 CLR 562; [2004] HCA 37 at [19]-[20].
It was submitted that examination of ss.50 and 51 Bail Act 2013 indicated the significance of notice being given to an accused person so as to have reasonable notice of a detention application: Barr (a pseudonym) v Director of Public Prosecutions (NSW) at [70]. It was submitted that, in revoking the Plaintiff's bail in the absence of a detention application or variation application, his Honour had not given the Plaintiff notice to which he was entitled under the statute.
In support of a strict and literal interpretation of the Bail Act 2013, reliance was placed upon the decision of the Court of Criminal Appeal in R v West [2014] NSWCCA 250 at [1], [2], [39] and [44].
[9]
Decision
It will be apparent from what has been said so far in this judgment that complex and significant issues of statutory construction and public law called for an urgent decision, made in a compressed time frame, given the resumed hearing on 23 October 2020. I expressed misgivings in proceeding to a hearing of the Plaintiff's claim for habeas corpus given the proximity of the resumed hearing in the District Court. However, as the claim for habeas corpus concerned the liberty of the subject and the argument was to be confined to the power issue only, I proceeded with the hearing in the Duty List. Having done so, a prompt decision was required. Readers of this judgment should keep in mind that background when considering what follows in the balance of the judgment.
Disposal of Claim Under s.51(1)(d) Supreme Court Act 1970
In the urgent circumstances in which this application came before the Court, I was prepared to continue and dispose of the Plaintiff's application for relief by way of habeas corpus under s.51(1)(d) Supreme Court Act 1970 even though the Plaintiff's claim in that respect was assigned to the Court of Appeal under s.48(2) Supreme Court Act 1970.
As noted earlier, the sole foundation for that relief which I considered and determined was based upon the alleged absence of power to refuse bail in the circumstances which existed in the District Court on 25 September 2020.
I was not considering and determining a claim for relief based upon denial of procedural fairness. If that aspect was to proceed further, it would rightly be a matter for the Court of Appeal under ss.48(2) and 51(1)(c) Supreme Court Act 1970 with it being necessary for the Plaintiff to establish jurisdictional error: s.176 District Court Act 1973; Jamal v Director of Public Prosecutions [2019] NSWCA 121 at [8]-[12].
The Jurisdiction Being Exercised by the District Court
His Honour Judge King SC was exercising the jurisdiction of the District Court on an appeal from the Local Court under the Crimes (Appeal and Review) Act 2001.
A question to be considered in this judgment concerns the presence or absence of an express or implied power to refuse bail to the Plaintiff in the circumstances which occurred on 25 September 2020. The jurisdiction of a court is not to be confused with its powers. The existence of jurisdiction is anterior to the existence of the power to grant particular relief. The primary meaning of jurisdiction is "authority to decide" which is to be distinguished from the powers that a court may use in the exercise of its jurisdiction: CGU Insurance Limited v Blakeley (2016) 259 CLR 339; [2016] HCA 2 at [31].
[10]
Conclusion
The Plaintiff's claim for relief in the Amended Summons sought a writ of habeas corpus or, in the alternative, a grant of bail.
At one point in submissions for the Second Defendant, it was noted that the Court could proceed with a hearing of the Plaintiff's bail application. In circumstances revealed in the affidavit of Mr Ginges, where it appeared that the Plaintiff sought to bring an application for bail which, if pursued, would have proceeded down the procedural pathway to a hearing before the Bails Judge, I stated that I did not propose to entertain an application for bail under the Amended Summons (T10-12, 21 October 2020). This Court has established procedures for bail applications to be heard before the Bails Judge with provision being made for expedited hearings. In the absence of special arrangements (which are not present in this case), it is not appropriate for a bail application to be heard by the Duty Judge, who attends to a wide range of curial and chambers applications.
In any event, the Court had limited factual material concerning the Plaintiff's offences. The type of information usually tendered in a Supreme Court bail application was not available to the Court and the Court was not in a position to properly determine a bail application.
Further, the Plaintiff's appeal was to come before the District Court again on 23 October 2020; that is, two days after the determination of the Amended Summons. It was not appropriate for the Court to embark upon the Plaintiff's alternative application for bail as made in the Amended Summons.
On 21 October 2020, Mr Wilson informed the Court that if the Plaintiff's claim for habeas corpus as argued before me was to fail, no application would be made to refer the balance of the proceedings to the Court of Appeal, with the appropriate order being the dismissal of the Amended Summons (T12, 21 October 2020).
It was for these reasons that I expressed the conclusion and made the orders set out at [11]-[12] above.
[11]
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 28 October 2020
Following the dismissal of the Amended Summons, the Second Defendant did not seek an order for costs. No order was made as to costs.
This judgment contains my reasons for making those orders.
On 25 September 2020, the Plaintiff appeared at the Sydney District Court before his Honour Judge King SC for the hearing of his appeal. The conviction appeal was upheld in relation to two counts (Sequences 46 and 64) and was dismissed in relation to the remaining 57 counts. The Court was informed by Mr Evans on 19 October 2020 that the counts of which the Plaintiff was convicted amounted to "around $580,000 of which he was in a significant position of trust as the head of a fairly large Union" (T8, 19 October 2020).
After the conviction appeal was determined by the presiding Judge, his Honour indicated an intention to proceed with the severity appeal. Later, after hearing argument in relation to an adjournment application, his Honour adjourned the severity appeal to 23 October 2020.
After determining the adjournment application, his Honour, of his own motion, revoked the Plaintiff's bail. There was no bail application in the form of a detention application (under s.50 Bail Act 2013) or a variation application (under s.51 Bail Act 2013) before the District Court at that time.
No issue had been raised with the District Court alleging non-compliance by the Plaintiff with the bail conditions as granted by the Supreme Court.
After the Plaintiff had been refused bail on 25 September 2020, he was remanded in custody and has remained in the custody of the Commissioner of Corrective Services since that time. The remand warrant with respect to the Plaintiff's custody since 25 September 2020 is Annexure C to the Agreed Statement of Facts (Exhibit A). The remand warrant provides for the Plaintiff to be held in custody until the resumption of his hearing at the Sydney District Court at 10.00 am on 23 October 2020.
The evidence before the Court on 20 October 2020 did not explain why no bail application was made by the Plaintiff since 25 September 2020 with the only application made by him being the Summons filed on 19 October 2020 which sought relief by way of the writ of habeas corpus and, in the alternative, a grant of bail. The Amended Summons contained the same claim for relief, with the only amendment being the addition of the Second Defendant.
On 21 October 2020, the affidavit of Mr Ginges affirmed 21 October 2020 was filed in Court. The affidavit of Mr Ginges stated that, on 12 October 2020, he received instructions from the Plaintiff to apply for Supreme Court bail. He stated that a bail application was commenced, a copy of which is annexed to his affidavit. However, it does not appear from JusticeLink that the bail application was actually filed in the Supreme Court.
The affidavit of Mr Ginges stated that enquiries were made with the Plaintiff's brother to confirm his consent to the continuing lodgement of a title of a property owned jointly by him and the Plaintiff as part of a bail arrangement. A character acknowledgement was sought from the Plaintiff's partner which was executed on 16 October 2020, a copy of which is Annexure B to the affidavit.
The affidavit of Mr Ginges stated that counsel (who was not Mr Wilson) informed him on 15 October 2020 of his opinion concerning the power of Judge King SC to refuse bail on 25 September 2020 and that it was questionable whether the Supreme Court would entertain a bail application when no detention application had been made in the District Court. Counsel had advised Mr Ginges that the appropriate remedy was a writ of habeas corpus.
Mr Ginges stated that a second reason for not proceeding with a Supreme Court bail application was the likely delay in having it heard. He stated his view that, although it was possible to seek expedition, for such an application to be successful it must be based upon strong factual grounds such as the need for an inmate to obtain medical or other treatment that was not ordinarily available to persons in custody.
At the resumed hearing on 21 October 2020 (T2, T4, 21 October 2020), I expressed my surprise at being informed by Mr Ginges' affidavit of 21 October 2020 that a bail application had in fact been prepared for filing in the Supreme Court after 25 September 2020. Having regard to matters raised by the Court with counsel for the Plaintiff on 19 and 20 October 2020, the clear impression was that no such application had been made. However, the affidavit of Mr Ginges demonstrates that such an application was prepared but not pressed.
I do not agree with Mr Ginges' opinion (see [36]-[37] above) that there is a limited category of circumstances in which expedition of a bail application may be sought in this Court. Nor do I consider that the circumstances in which the Plaintiff was refused bail on 25 September 2020 would cause difficulty in the Supreme Court entertaining a bail application by the Plaintiff. I note that counsel for the Second Defendant disputed both propositions advanced by Mr Ginges concerning the bringing of a bail application to this Court and I agree with the Second Defendant's submissions in that respect (T10, 21 October 2020).
However, the simple fact is that the Plaintiff did not pursue a Supreme Court bail application between 25 September 2020 and 19 October 2020 by way of an application for expedited hearing or at all.
I will return later in this judgment to the relevance of the Plaintiff's alternative statutory remedy under the Bail Act 2013 which, on legal advice, he elected not to pursue before coming to the Court on 19 October 2020 seeking relief by way of habeas corpus ahead of a part-heard District Court appeal scheduled to resume on 23 October 2020.
It was noted that s.91 Bail Act 2013 expressly affirms the existence of habeas corpus. Reliance was placed upon Yates v Commissioner of Corrective Services NSW [2014] NSWSC 653 at [45]-[49] with respect to the availability of the writ of habeas corpus. It was submitted that jurisdictional error was sufficient to warrant a grant of habeas corpus: Potier v General Manager and Governor MRRC [2007] NSWSC 1031 at [14]-[15].
Mr Wilson submitted that habeas corpus should be granted given the importance of the liberty of the subject and the requirement that detention should only occur by lawful order.
In supplementary written submissions, Mr Wilson submitted that the preponderance of authority on the writ of habeas corpus indicated that it is not a discretionary remedy. He took the Court to a number of decisions including Ruddock v Vadarlis (2001) 110 FCR 491; [2001] FCA 1329 and Antunovic v Dawson (2010) 30 VR 355; [2010] VSC 377.
With respect to the decision of the New South Wales Court of Appeal in Eaves v James (1988) 33 A Crim R 369 (which I had raised with counsel during the hearing on 20 October 2020), Mr Wilson submitted that the decision may be distinguished from the present case and was, in any event, obiter dicta and not binding on a single Judge of the Court.
Counsel for the Plaintiff submitted that a basis had been demonstrated for the issue of a writ of habeas corpus and that the writ should issue in this case with an order that the Plaintiff be released from custody. If this was done, Mr Wilson submitted that the pre-existing grant of bail by Hamill J would reactivate so that the Plaintiff would be subject to bail pending his appearance at the part-heard hearing in the District Court on 23 October 2020.
Counsel submitted that the failure of the Plaintiff to make application for bail between 25 September 2020 and 19 October 2020 should not bear upon the question as to whether habeas corpus should be granted. Nor, he submitted, should the close proximity of the resumed hearing on 23 October 2020.
It was submitted for the Plaintiff that he was entitled, as of right, to the writ of habeas corpus because the power to refuse bail did not exist when the Plaintiff was refused bail on 25 September 2020.
Submissions of Second Defendant
Ms Baker made clear, at the outset of her submissions, that she had come into the matter on the morning of 20 October 2020 with written submissions being prepared under significant time constraints. The Court appreciated the appearance of Ms Baker in proceedings which involved important and complex legal issues and where the Court was required to give a prompt decision following an urgent hearing.
The Second Defendant's submissions referred to ss.48(2) and 51(1) Supreme Court Act 1970, noting that the proceedings were assigned by that Act to the Court of Appeal, but with it being open to me, as a Judge of the Common Law Division, if the Court considered it fit to do so, to continue and dispose of the Plaintiff's claim for habeas corpus (under s.51(1)(d)), in particular as the argument was confined to the question of power to refuse bail in the absence of a detention application or variation application.
In written submissions, it was argued that it was open to the Court to determine that the District Court Judge did not have power to refuse the Plaintiff bail in the absence of a detention application or variation application.
The written submissions referred to ss.8, 11, 12, 38, 50, 53, 54 and 55 Bail Act 2013.
It was submitted that the District Court did not possess inherent jurisdiction with the powers of that Court being confined to express and implied powers: Stanizzo v Complainant [2013] NSWCCA 295 at [11]. It was submitted that the question whether a matter is within the implied powers of the District Court is to be determined by a test of necessity. In this regard, it was accepted by the Second Defendant that the power to revoke bail on the Court's own motion was not "necessary" for the administration of justice. It was accepted that the District Court did not have express or implied power to revoke bail of the Court's own motion.
In these circumstances, the Second Defendant accepted that his Honour Judge King SC did not have power to revoke the Plaintiff's bail in the circumstances of this case.
Counsel for the Second Defendant accepted, in written submissions, that it would be open to the Court to find that the decision of his Honour revoking bail was infected by jurisdictional error. As the Second Defendant did not dispute that the order revoking bail was infected by jurisdictional error, it was accepted in written submissions that it would be open to the Court to proceed to determine the Amended Summons under s.51(1)(d) Supreme Court Act 1970 notwithstanding that the proceedings should have been commenced in the Court of Appeal.
It was submitted that there was no implied power available to his Honour to refuse bail and no express power under the Bail Act 2013 to do so, so that it was open to the Court to consider the issue of a writ of habeas corpus ordering the release of the Plaintiff. If this course was adopted, it was submitted that the Plaintiff would be subject to the same conditions of bail as ordered by Hamill J on 9 September 2019 and as varied on 27 March 2020. If the Court made orders to this effect, counsel for the Second Defendant foreshadowed that the Second Defendant would make a detention application if the severity appeal was not finalised at the District Court hearing on 23 October 2020.
At the hearing on 20 October 2020, I raised directly with counsel whether the submission was affected by the point which his Honour had reached in the hearing and determination of the Plaintiff's conviction and sentence appeals. I raised with counsel the question whether, having determined to dismiss the conviction appeal (but for two counts), it was open to his Honour to exercise power to refuse bail pending the sentencing hearing, in circumstances where the Plaintiff's offences had apparently been of such gravity as to attract a very substantial sentence of imprisonment in the Local Court. The transcript of 20 October 2020 records the submissions made by counsel on this topic (T5-6, 15-19, 20 October 2020).
As a result of questions raised by the Court at the hearing on 20 October 2020, supplementary written submissions were made for the Second Defendant for the purpose of the resumed hearing on 21 October 2020. Counsel for the Second Defendant noted that there were contradictory authorities concerning the question whether a writ of habeas corpus can be refused in the exercise of the Court's discretion. The Court was taken to a number of decisions including Ruddock v Vadarlis; May v Warden of Ferndale Institution (2005) 3 SCR 809; [2005] SCC 82; Sarah White v Local Health Authorities [2015] NSWSC 417; Antunovic v Dawson; McHugh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 416 and Eaves v James.
Whilst noting the conflict in the authorities with respect to approaching habeas corpus as a discretionary remedy, it was submitted for the Second Defendant that it would be open to the Court to find that there is a discretion to refuse relief in the nature of habeas corpus, particularly where there is an alternative remedy. It was acknowledged that there are decisions that point in both directions and that no authority is binding on this Court, it being noted that what was said by the Court of Appeal in Eaves v James was expressed by the Court to be obiter dicta.
It was submitted, however, that it should be open to the Court to decline to issue a writ of habeas corpus where Parliament has provided a statutory remedy to enable the correction of any errors of a lower court which would enable the release of the Plaintiff. Insofar as the usual remedy for asserted jurisdictional error would be certiorari seeking the quashing of the impugned order, it was submitted that well-known discretionary considerations may operate to warrant the refusal of relief where there is a readily available alternative remedy.
It was submitted that the present case illustrated the appropriateness of the existence of a discretion to refuse relief. The Second Defendant noted that the present proceedings were commenced on short notice and require the Court to determine important questions concerning the proper construction of the Bail Act 2013 with limited time to do so, even though the remedy sought could have been pursued appropriately by way of a bail application before the Supreme Court under the Bail Act 2013.
The Second Defendant submitted that there are three grounds which would justify refusing the writ on a discretionary basis in the circumstances of this case, being the delay in seeking relief, the availability of statutory relief under the Bail Act 2013 and the imminence of the next appearance in the District Court on 23 October 2020.
In the exercise of jurisdiction, the District Court has powers expressly or impliedly conferred by the legislation governing the Court: Director of Public Prosecutions v Shirvanian (1998) 44 NSWLR 129 at 132 (Mason P, Beazley JA agreeing). The District Court is an inferior court of record which may exercise express powers and implied powers which are necessary for the exercise of those expressly conferred: Director of Public Prosecutions v Shirvanian at 133. The test of implication is a test of necessity: John Fairfax Publications Pty Ltd v District Court of NSW (2004) 61 NSWLR 344; [2004] NSWCA 324 at [35]; Stanizzo v Complainant at [11]. The term "necessary" does not have the meaning of "essential", rather it is to be "subjected to the touchstone of reasonableness": Pelechowski v The Registrar, Court of Appeal (NSW) (1999) 198 CLR 435; [1999] HCA 19 at [51].
The Plaintiff was found guilty, following a defended hearing in the Local Court of a significant number of fraud offences committed over an extended period of time and said to involve a very substantial sum of money lost to the entity alleged to have been defrauded. A substantial sentence of imprisonment was imposed by the Magistrate in the Local Court on 18 June 2018.
Although this Court does not have before it in these proceedings the judgment of the Magistrate on conviction or the sentencing remarks, it is apparent from a description of the charges of which the Plaintiff was found guilty and the sentence imposed that these were very serious offences.
The Plaintiff appealed to the District Court against conviction and sentence: s.11(1) Crimes (Appeal and Review) Act 2001.
The Plaintiff's appeal against conviction was to be heard in accordance with s.18 Crimes (Appeal and Review) Act 2001 and determined in accordance with s.20(1) of that Act.
The Plaintiff's conviction appeal was determined on 25 September 2020 and was dismissed in relation to 57 counts.
In circumstances where the Plaintiff had been found guilty of 57 offences, his appeal against sentence was to proceed in accordance with s.17 Crimes (Appeal and Review) Act 2001. The District Court may determine an appeal against sentence in accordance with s.20(2) Crimes (Appeal and Review) Act 2001.
In determining an appeal, the District Court may exercise any function that the Local Court could have exercised in the original Local Court proceedings: s.28(2) Crimes (Appeal and Review) Act 2001. To the extent that, on a sentence appeal, the District Court may vary the sentence under s.20(2)(b), the sentence may not be varied to a sentence which could not have been imposed by the Local Court: s.71(1) Crimes (Appeal and Review) Act 2001.
Accordingly, upon dismissing the conviction appeal on 25 September 2020, his Honour moved into the sentencing phase of the appeal. His Honour did so against the background of the delivery of judgment on the conviction appeal in which, it may be taken, the Court addressed the counts for which the Plaintiff was found guilty. These counts involved offences of dishonesty committed in breach of a position of trust over an extended period of time and involving "around $580,000" (see [23] above). It may be taken that his Honour was well aware of the circumstances of the offences.
This Court does not have his Honour's judgment delivered on 25 September 2020. A reasonable inference is available, however, that his Honour took the view that the Plaintiff should be remanded in custody at that time as part of the sentencing phase which lay ahead. A broad analogy may be drawn with a case where, after a jury has returned a verdict of guilty of a serious offence, the trial Judge takes the view that the then convicted person ought be remanded in custody ahead of a sentencing hearing: cf Director of Public Prosecutions (NSW) v Tikomaimaleya [2015] NSWCA 83 at [35].
It is important to keep in mind that the sole issue presently under consideration relates to the existence of power and not the manner in which the power, if it existed, should be exercised. If the power exercised by the District Court Judge in this case existed, then requirements of procedural fairness would operate: Anae v R [2018] NSWCCA 73 at [50]-[55]. However, the issue which I am addressing in this judgment relates only to the existence or non-existence of the power.
The sentencing phase of criminal proceedings is different to the trial (or defended hearing) in a number of respects.
It is for the sentencing Judge alone to decide the sentence to be imposed: GAS v The Queen (2004) 217 CLR 198; [2004] HCA 22 at [30]. Amongst other things, the sentencing Judge's responsibility to find and apply the law is not circumscribed by the conduct of counsel: GAS v The Queen at [31].
Sentencing is a discretionary process involving a process of instinctive synthesis leading to the formulation of a value judgment as to the appropriate sentence: Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [51]; Munda v State of Western Australia (2013) 249 CLR 600; [2013] HCA 38 at [59]. A sentencing Judge must determine sentence and must do so by balancing many different and conflicting features: Barbaro v The Queen (2014) 253 CLR 58; [2014] HCA 2 at [34].
Further, the rules of evidence do not operate at a sentencing hearing unless the Court directs that they should apply in the particular case: s.4(2) Evidence Act 1995.
I have mentioned that Hamill J granted the Plaintiff bail for the purpose of the District Court appeal on 9 September 2019. The Court does not have Hamill J's judgment on the bail application. It may be taken, however, that his Honour's judgment granting bail had regard to the fact that a conviction appeal was on foot so that the whole question of conviction and sentence was before the District Court. After the conviction appeal had been dismissed on 25 September 2020, the District Court had moved into the sentencing phase. The circumstances had changed materially since the Plaintiff had been granted bail in the Supreme Court.
The Writ of Habeas Corpus
In approaching the Plaintiff's claim for relief, I have kept in mind that the writ of habeas corpus is an important safeguard of liberty in circumstances where a person is being detained in custody without lawful warrant or authority: Re Officer in Charge of Cells, ACT Supreme Court; ex parte Eastman (1994) 68 ALJR 668; [1994] HCA 36 at [6] (Deane J).
The remedy of habeas corpus is a basic protection of liberty and its scope is broad and flexible: Al-Kateb v Godwin at [25] (Gleeson CJ).
Section 71 Supreme Court Act 1970 concerns the common law writ of habeas corpus ad subjiciendum, the species of the writ which was sought in these proceedings. The Bail Act 2013 does not affect the powers of the Supreme Court in relation to a writ of habeas corpus: s.91 Bail Act 2013.
The Bail Act 2013
In support of the claim for relief, it was submitted that s.11 states the circumstances in which a court may refuse bail and that what his Honour did in this case was not authorised by the Bail Act 2013. It was submitted that nothing contained in ss.12 or 14 assisted with respect to the existence of a power to refuse bail in the circumstances of this case.
Sections 11 and 12 Bail Act 2013 provide as follows:
"11 Decision to grant or refuse bail
A decision to grant or refuse bail can be made only by a police officer, authorised justice or court with power to make that bail decision under this Act.
12 Duration of bail
(1) Bail ceases to have effect if -
(a) it is revoked, or
(b) substantive proceedings for the offence conclude and, at the conclusion of the proceedings, no further substantive proceedings for the offence are pending before a court.
(2) Bail is not revived if, after the conclusion of substantive proceedings for an offence, further substantive proceedings for the offence are commenced. However, a new bail decision for the offence can be made under this Act.
(3) If bail is granted by a bail authority for a specified period, bail ceases to have effect at the end of that period, unless sooner revoked.
(4) An authorised justice or a court before which an accused person is required to appear under a bail acknowledgment may continue bail if -
(a) bail would otherwise cease to have effect, and
(b) substantive proceedings for the offence have not concluded."
Section 5 defines the terms "proceedings for an offence" and "substantive":
"5 Proceedings for an offence
(1) In this Act, proceedings for an offence means criminal proceedings against a person for an offence (whether summary or indictable), and includes the following -
(a) committal proceedings,
(b) proceedings relating to bail,
(c) proceedings relating to sentence,
(d) proceedings on an appeal against conviction or sentence,
(e) any other proceedings of a kind prescribed by the regulations.
(2) Proceedings on an appeal against conviction or sentence include -
(a) proceedings on an application for annulment of a conviction or sentence made under section 4 or 5 of the Crimes (Appeal and Review) Act 2001, and
(b) proceedings on an appeal against an order imposed by the Land and Environment Court on conviction for an offence.
(3) Proceedings for an offence are substantive unless the proceedings are -
(a) proceedings relating to bail, or
(b) proceedings on an appeal against any interlocutory judgment or order given in proceedings, or
(c) proceedings declared to be non-substantive by the regulations."
Section 14 states:
"14 Limitation on entitlement to be at liberty
(1) Bail does not entitle a person to be at liberty until -
(a) the person signs, and gives to the bail authority, a copy of the bail acknowledgment for the decision to grant bail, and
(b) all pre-release requirements of bail conditions have been complied with.
(2) Bail does not entitle a person to be at liberty on those occasions on which the person is required to appear before a court under his or her bail acknowledgment.
(3) Bail does not entitle a person to be at liberty while the person is in custody for some other offence, or reason, because of which the person is not entitled to be at liberty."
Section 50 provides for the making of a detention application by the prosecutor:
"50 Prosecutor may make detention application
(1) The prosecutor in proceedings for an offence may apply to a court or authorised justice for the refusal or revocation of bail for an offence or for the grant of bail with the imposition of bail conditions.
(2) An application under this section is a detention application.
(3) A court or authorised justice may, after hearing the detention application -
(a) dispense with bail, or
(b) grant bail (with or without the imposition of bail conditions), or
(c) refuse bail.
(4) If a bail decision has already been made, a court or authorised justice may, after hearing the detention application -
(a) affirm the bail decision, or
(b) vary the bail decision.
(5) A court or authorised justice is not to hear a detention application unless satisfied that the accused person has been given reasonable notice of the application by the prosecutor, subject to the regulations.
(6) To avoid doubt, a prosecutor may oppose a release application made by an accused person to a court or authorised justice without making a detention application."
It is not mandatory that a detention application be in writing: cl. 17(1A) Bail Regulation 2014.
In support of a submission that there was no express or implied power to refuse bail in the absence of a detention application, the Court was taken to ss.53, 54 and 55 which state:
"53 Discretion to make or vary bail decision without bail application
(1) A court or authorised justice with power to hear a bail application may, of its own motion, on a first appearance by an accused person for an offence -
(a) grant bail to the person (with or without the imposition of bail conditions), or
(b) vary a previous bail decision made for the offence (but not so as to refuse bail).
(2) A court or authorised justice may exercise a power under this section only to benefit the accused person.
(3) This section does not limit the powers of a court when a bail application is made.
(4) This section does not permit the grant of bail, without a bail application, for a show cause offence.
54 Discretion to refuse bail if no application is made
A court or authorised justice with power to hear a bail application may, of its own motion, refuse bail to an accused person or affirm a decision to refuse bail if -
(a) the accused person is in custody and is brought before the court or authorised justice on a first appearance for an offence, and
(b) a bail decision has not been made, or bail has been refused, and
(c) a bail application is not made.
55 Variation of bail decision if accused person remains in custody
(1) A court or authorised justice that has power to hear a variation application may conduct a hearing (without application) if an accused person granted bail has remained in custody because a bail condition has not been complied with.
(2) The purpose of the hearing is to review the bail conditions imposed on the grant of bail, not the decision to grant bail.
(3) The court or authorised justice may conduct the hearing of its own motion or at the request of the accused person or a police officer.
(4) A hearing under this section is not to be conducted at the request of a police officer unless the court is satisfied that the request was made -
(a) to benefit the accused person, and
(b) with the consent of the accused person.
(5) If the court or authorised justice decides to conduct a hearing, this Act applies (subject to the regulations) as if the hearing were a hearing of a variation application, except that the powers of the court or authorised justice are the powers conferred by this section.
(6) The court or authorised justice may, after hearing a variation application of a kind referred to in this section -
(a) affirm the bail decision (as to the conditions of bail), or
(b) vary the bail decision, but not revoke or refuse bail."
It was submitted that ss.53 and 54 are important provisions in that they relate directly to a court's discretion to refuse or vary bail if no application is made with the Court capable of acting "of its own motion".
It was submitted that the express provisions in ss.11, 50, 53, 54 and 55 (and the absence from s.54 of an express power to refuse bail without a detention application) fortified a conclusion that there was no express power to do what his Honour did in this case, nor could the relevant power be implied as implied powers are limited to what is necessarily implied from the express conferral of jurisdiction by application of a test of necessity: John Fairfax Publications Pty Limited v District Court of NSW at [24], [28]; Stanizzo v Complainant at [11].
Did the District Court Judge Lack Power to Refuse or Revoke Bail in this Case?
In R v Hilton (1986) 7 NSWLR 745 at 751A-B, Street CJ observed that the Bail Act 1978 constituted "a comprehensive and exclusive code" with respect to bail.
Counsel for the Plaintiff did not go so far as to submit that the Bail Act 2013 was a code concerning bail. However, the submissions made for the Plaintiff and the Second Defendant focused upon the elaborate statutory provisions in the Bail Act 2013 in support of the proposition that there was no power to refuse bail in the circumstances of this case on 25 September 2020.
In construing the Bail Act 2013, it is important to keep in mind that his Honour had moved from the trial or hearing phase to the sentencing phase when the decision was made to refuse bail to the Plaintiff. The presumption of innocence had been displaced by findings made to the criminal standard that the Plaintiff had committed serious crimes of dishonesty.
Section 14(2) Bail Act 2013 bears upon the present issue. That provision reflects the fact that, once a person has attended court in accordance with their bail, then the person is effectively in the custody of the court pending further order. That was the Plaintiff's position on 25 September 2020 when his Honour determined to refuse bail.
In the present case, there was a conviction appeal and a sentence appeal which had been brought from the Local Court to the District Court. The grant of bail by Hamill J on 9 September 2019 was made in advance of the hearing of the conviction and sentence appeals and applied to both appeals which the Plaintiff then had on foot to the District Court.
By the time his Honour refused bail on 25 September 2020, the conviction appeal was concluded and the Plaintiff had been almost entirely unsuccessful.
I have considered whether s.12(1)(b) and 12(4) have some application in the circumstances of this case so that, once the conviction appeal had been determined, there was effectively a completion of that part of the substantive proceedings so that it was open to his Honour to refuse bail for the next part of the substantive proceedings.
As noted earlier, his Honour had embarked upon the sentencing phase effectively after verdict. The decision to refuse bail at that point must be considered in that context.
I acknowledge the strength of the argument that s.11 Bail Act 2013 states that "a decision to refuse bail can be made only by a … court with power to make that bail decision under this Act". I note, as well, express provisions in ss.53 and 54 for a court to refuse (s.54) or vary (s.53) bail "of its own motion". Section 50 provides for the prosecutor to make a detention application.
In these ways, the Bail Act 2013 deals with these various steps in express terms. The closest the statute came to allowing the course taken by his Honour in this case arose from ss.12 and 14 as referred to earlier (at [109], [112]).
The Bail Act 2013 provides a detailed, but not exhaustive, statement of powers concerning bail. In my view, an implied power arises in this case to refuse bail by reference to the phase which the proceedings had reached where the Plaintiff stood convicted of serious offences. Although refusal of bail following a detention application made by the prosecutor under s.50 was a clearly available pathway under the statute, a separate power to refuse bail arose by necessary implication given the movement of the proceedings into the sentencing phase after effective verdicts had been returned (see [87], [89]-[93] above). In reaching this conclusion, I have applied the necessity test referred to earlier in the judgment (at [78]).
I am satisfied that there was an appropriate foundation for the existence of an implied power, not otherwise excluded expressly by the Bail Act 2013, for the Judge following verdict to determine whether an offender ought be remanded in custody pending a sentencing hearing. I am not persuaded that such a power does not exist in the District Court in the circumstances of an appeal from the Local Court.
In reaching this conclusion, I have considered submissions made for the Plaintiff by reference to authorities, including R v West. In that case, the sentencing Judge remanded the offender in custody for a period whilst a report was obtained concerning suitability for an intensive correction order, which the sentencing Judge later directed by way of sentence. In the course of dismissing a Crown appeal against sentence, Adamson J (at [36] and [39]) was critical of the approach taken and the sentencing Judge's "failure to have regard to the purposes of bail" with a custodial order being made "with a view to ordering an [intensive correction order] at a later date". Her Honour observed (at [44]) that "one of the fundamental duties of judicial officers is to comply with legislation" and that the process engaged in by the sentencing Judge "tended to subvert it". Hoeben CJ at CL (at [1]) agreed with Adamson J and endorsed "her Honour's remarks concerning the obligation of judicial officers to properly apply relevant legislation and sentencing principles" and observed that "there is no place in the sentencing process for idiosyncratic manipulation". R A Hulme J (at [2]) agreed with Adamson J and the additional observations of Hoeben CJ at CL.
In my view, the decision in R v West does not assist resolution of the present claim for relief. As the judgment of Adamson J made clear, the approach taken by the Judge in that case failed to comply with statutory provisions. The decision concerned the manner in which a recognised power should be exercised. The present case concerns the existence (or otherwise) of power to refuse bail and not the question as to how the power ought be exercised.
Nor do I consider that the Plaintiff is assisted by Barr (a pseudonym) v Director of Public Prosecutions (NSW) which concerned the operation of s.50 Bail Act 2013. In forming this view, I have had regard to the statement of Leeming JA in Barr (a pseudonym) v Director of Public Prosecutions (NSW) at [82] concerning the importance of the principle that a person's liberty should not be curtailed without proper process.
As emphasised earlier (at [88] above), the manner in which the power to refuse bail should be exercised raises other considerations. The sole question here is whether the power to refuse bail existed in this case. I am satisfied that such a power may be implied as an adjunct to powers available to a criminal court in the sentencing phase, after findings of guilt have been made with respect to serious offences where remand in custody pending the sentencing hearing is considered appropriate by the presiding Judge.
I am conscious that, in reaching this conclusion, the Court has not accepted submissions made for the Plaintiff and the Second Defendant. Having considered those submissions, however, I am not satisfied that jurisdictional error has been demonstrated in this case.
May Habeas Corpus be Refused on Discretionary Grounds?
Upon this basis, the Plaintiff is not entitled to relief by way of habeas corpus.
At the hearing on 20 October 2020, I raised with counsel the relevance of an alternative avenue to habeas corpus by way of a bail application under the Bail Act 2013 and the scope for the exercise of discretion to refuse relief if the Court was otherwise satisfied that power did not exist to refuse bail. I considered it appropriate to address this issue in case I was wrong in my primary determination that the District Court Judge had power to make the impugned order.
Pursuant to leave, counsel were given an opportunity to furnish further written submissions on this aspect and its relevance to discretionary considerations on the Plaintiff's claim for relief.
I have determined that the claim for relief in the nature of habeas corpus should not succeed on the merits. However, having considered the submissions of the parties, even if the claim was a viable one, I was satisfied that the Court is entitled to refuse such relief as a matter of discretion where another remedy lies: Eaves v James at 374; PR v Department of Human Services (2007) 27 VAR 305; [2007] VSC 338 at [12]-[15]; Dudley v A Judge of the County Court of Victoria and Anor [2020] VSCA 179 at [42]; Groves, "The Use of Habeas Corpus to Challenge Prison Conditions" (1996) 19 UNSW Law Journal 281 at 286; Clark and McCoy, "Habeas Corpus - Australia, New Zealand and the South Pacific", 2nd edn, Federation Press, 2018 at page 251.
It is the case that a number of decisions of courts have expressed the view that a writ of habeas corpus is not a discretionary remedy. As counsel for the Plaintiff and the First Defendant acknowledged, there is authority in both directions on this question.
There is a long line of authority that habeas corpus cannot be used to challenge the detention of a prisoner held in execution under a criminal charge after judgment in due course of law: Ex parte Williams (1934) 51 CLR 545 at 548, 550; [1934] HCA 48; Re Superintendent of Goulburn Training Centre; Ex parte Pelle (1983) 57 ALJR 679 at 680 (Brennan J); Young v Registrar, Court of Appeal (No. 3) (1993) 32 NSWLR 262 at 287; Rich v Secretary to the Department of Justice (2011) 33 VR 437; [2011] VSCA 402 at [5]-[6].
Even if this principle does not apply directly to the present circumstances, it operates strongly by analogy to confirm that any remedy which the Plaintiff may have lies elsewhere than the writ of habeas corpus.
In Eaves v James, the Court of Appeal (Kirby P, Samuels and Clarke JJA) said at 374:
"These conclusions made it unnecessary to consider a still more fundamental obstacle which might face the claimant. This is that consideration of his claim for bail as incidental to a writ of habeas corpus was futile because the writ would not avail him on the ground that the claimant was lawfully in custody pursuant to the sentence pronounced following his conviction. Upon the return of the writ, according to this argument, the lawfulness of the prisoner's custody would be proved by his sentence. See Ex parte Williams (1934) 51 CLR 545, 549; Zabrovsky v General Officer Commanding Palestine and Anor [1947] AC 246 and In the Application of Harrod [1978] 1 NSWLR 331. Generally speaking the courts of Australia have made it plain that the writ of habeas corpus is not an appropriate means of seeking review of the lawfulness of a decision where another regular means which a prisoner has invoked to test that lawfulness exists and has not been invoked or has been exhausted. Cf Re O'Donnell (1968-9) 42 ALJR 3. However, no concluded opinion is expressed upon these matters as the Court, in the course which it took, heard no substantial argument upon them."
Eaves v James was cited in PR v Department of Human Services (at [12]-[15]) in support of a conclusion that the writ of habeas corpus should not issue where there is another preferable remedy available. Citing PR v Department of Human Resources, Incerti J took a similar approach in RP & Anor v Foreman & Ors [2020] VSC 522 at [40].
In Dudley v A Judge of the County Court of Victoria and Anor, Priest and Kaye JJA said at [41]-[42] (footnotes omitted):
"[41] It may be accepted that a breach of procedural fairness may amount to jurisdictional error. However, the grant of relief by way of prerogative writ is a discretionary remedy. It may be refused where the applicant, for such relief, has available an alternative and more appropriate remedy. In particular, it is well established that where application is made for a writ of certiorari in respect of the decision of a lower court or an administrative tribunal, such relief may be refused if the applicant had appropriate rights to challenge the decision of the lower court or tribunal by way of appeal.
[42] The same principle has been applied, with necessary modification, to applications for the writ of habeas corpus. In Eaves v James, the appellant was convicted of murder. He applied, and was granted, bail pending appeal. Soon after, on the application of the Director of Public Prosecutions, a different judge revoked his bail. The appellant then commenced proceedings in the Court of Appeal by way of application for habeas corpus. The Court held that it did not have jurisdiction in the matter and dismissed the application. Further, by way of obiter dictum, the Court stated [the passage from Eaves v James at [130] above was then reproduced]."
In May v Warden of Ferndale Institution, the Supreme Court of Canada accepted at [44] that, "In criminal law, where a statute confers jurisdiction on a Court of Appeal to correct the errors of a lower court and release the applicant if need be, habeas corpus would not be available".
It is useful to refer to one of the decisions upon which the Plaintiff sought to rely. In The King v The Commanding Officer of Morn Hill Camp, Winchester; ex parte Ferguson [1917] 1 KB 176, Lord Reading CJ said at 179:
"But if an erroneous decision of a magistrate entitled a party detained by the magistrate's order to come to this court for a writ of habeas corpus, that writ would furnish a ready means of appealing to this Court from every decision of a magistrate ordering the detention of an offender. If there were no means of questioning a magistrate's order, there might be some ground for invoking the assistance of this Court in the way chosen in this case, but there is a well-known procedure by way of special case whereby the decisions of magistrates can be inquired into."
Counsel for the Second Defendant drew attention to this statement as indicating the existence of a discretion in a court in which habeas corpus is sought to decline to grant the remedy where there is an available alternative remedy. I accept this submission.
It is necessary to keep in mind the stage of his District Court proceedings at which the Plaintiff applies to this Court for the writ of habeas corpus. He seeks that remedy in the course of part-heard criminal proceedings. It was open to the Plaintiff after 25 September 2020 to apply to this Court for bail under the Bail Act 2013 and he has not done so. His criminal proceedings were scheduled to resume on 23 October 2020. If the sentence appeal was not concluded on that day, the Plaintiff could apply for bail under the Bail Act 2013.
Counsel for the Plaintiff acknowledged readily that no other habeas corpus case involved circumstances such as these (T7, 21 October 2020). In reality, the Plaintiff was surrounded by alternative remedies under the Bail Act 2013 which he could utilise in place of a claim for habeas corpus. As noted earlier, a bail application to the Supreme Court would proceed de novo under s.66 Bail Act 2013: Barr (a pseudonym) v Director of Public Prosecutions (NSW) at [4].
The present case constituted a powerful example of the availability of an alternative remedy under the Bail Act 2013 designed specifically to permit a court to order the release of a person charged with a criminal offence or offences. The complaint in this case was that the District Court Judge lacked the power to refuse the Plaintiff bail on 25 September 2020. The remedy which was immediately available from that time arose under the Bail Act 2013 and permitted the Plaintiff to come before the Supreme Court promptly (if expedition was sought) with the Court having all the powers under the Bail Act 2013 to determine whether bail ought be allowed or refused.
Despite preparing for such an application on and after 12 October 2020, the Plaintiff determined not to bring it but, on 19 October 2020, to approach the Court for urgent relief by way of habeas corpus.
I am well satisfied that, if a foundation for the grant of relief by way of habeas corpus had been established, it would have been appropriate to decline to grant such relief in the circumstances of this case. I accept the submission of the Second Defendant that, if this point had been reached in the present proceedings, then powerful discretionary reasons existed for refusing relief by reference to the Plaintiff's delay in seeking relief, the availability of statutory relief under the Bail Act 2013 and the imminence of the next court appearance before the Sydney District Court on 23 October 2020 when the question of bail could arise if the proceedings were not otherwise determined on that day.
The proximity of the hearing date in the District Court on 23 October 2020 was an important aspect. All available powers under the Crimes (Appeal and Review) Act 2001, the Crimes (Sentencing Procedure) Act 1999 and the Bail Act 2013 were to be available for exercise by his Honour on that day. This aspect served to fortify the conclusion that, even if there was a viable basis for relief in the nature of habeas corpus, this Court should not further entertain that application.
None of what I have said is intended to undermine the availability of habeas corpus in an appropriate case. The writ of habeas corpus is an important residual remedy to be invoked to protect the liberty of the subject where it is said that a person is detained without lawful authority. However, those circumstances are far removed from the present case where the Plaintiff had, since 25 September 2020, an entitlement to a de novo bail hearing in the Supreme Court under s.66 Bail Act 2013 and where his criminal proceedings were still on foot and were scheduled to resume in a matter of days.