NSWNSWCA

Clarkson v Commissioner of Corrective Services, New South Wales

[2007] NSWCA 58

Court of Appeal (NSW)|2007-12-11|Before: Beazley JA, Sully J, Howie J

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Source facts

Court

Court of Appeal (NSW)

Decision date

2007-12-11

Before

Beazley JA, Sully J, Howie J

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

Source

Original judgment source is linked above.

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

Judgment (7 paragraphs)

[1]

The Application to Show Cause and Summons in the High Court 34 By Summons filed on 17 January 2007, in the High Court of Australia, the appellant sought an order by way of a prerogative relief uplifting the record of the proceedings in the District Court of New South Wales and quashing the convictions entered, the sentences imposed and warrants executed together with an order to show cause why a writ of habeas corpus should not issue and an order directing Hosking DCJ to state a case. The appellant also filed an Application for an Order to Show Cause, seeking by way of relief the orders sought in the Summons. The grounds upon which relief was claimed were based upon the failure of the trial judge to state a case in accordance with s 72 of the Judiciary Act. The grounds were pleaded in these terms: "1. The imprisonment of the [Appellant] unlawful ab initio is now demonstrably unlawful.

[2]

The procedure prescribed by section 72, of the Judiciary Act 1903 [Cth] was regularly invoked by the Plaintiff, the provisions are mandatory and there has been a corrupt and willful refusal to state the case demanded." 35 On 14 February 2007, Gummow J remitted the Summons to the Supreme Court of New South Wales, Common Law Division, pursuant to s 44 of the Judiciary Act. His Honour directed that steps in the proceedings in the High Court be treated as steps in the proceedings in the Supreme Court and ordered that costs in the High Court be costs in the Supreme Court proceedings. 36 It was common ground that the Application to Show Cause and the High Court Summons raised the same questions as were raised in the Application for prerogative relief. For the reasons given in the determination of that issue, the Application to Show Cause and the Summons should be dismissed. It should also be added that to the extent that the Application to Show Cause sought an order that Hosking DCJ state a case, that relief would have been unnecessary if the appellant had otherwise made out his case as his Honour stated the case to the Court on 22 December 2006.

The application for prerogative relief in the Supreme Court 37 On 13 October 2000, the appellant filed an Application in the Supreme Court seeking orders by way of prerogative relief which in substance was the same as the relief sought in the Application to Show Cause made to the High Court. The Application was supported by an affidavit sworn by the appellant on 9 June 2006, and was accompanied by written submissions. 38 In his written submissions, the appellant said that 3 principal questions arose on the stated case. He described those questions as: fitness for trial (good faith); jurisdiction of the District Court; and jurisdiction of the Supreme Court. 39 The first question, namely, fitness for trial, has been dealt with in relation to grounds 1 to 6 and to some extent in grounds 7 to 8 in the appeal in the Court of Criminal Appeal. Nothing more needs to be said on this issue, save for one matter. The appellant submitted that when the question of fitness for trial is raised, the trial judge would ordinarily be expected to accept that the issue had been raised in good faith. 40 The appellant developed this submission in a number of ways including by reference to the audi alteram partem rule. The appellant also submitted that it appears that the trial judge accepted that the application was raised in good faith and the question for determination was whether his health problems were such that he was not "fit for trial in the legal sense". 41 It may be that the reference to "good faith" derives from s 10(2) of the Mental Health (Criminal Procedure) Act 1990 (NSW). It has not been necessary to deal with that provision as the question of fitness to plead in this case, if it arose at all arose prior to arraignment. That question has been dealt with fully on the appeal. 42 The second question, namely the jurisdiction of the District Court was posed in these terms: "… the issue of fitness for trial once joined, as it was, must be determined by a special jury. In fact, Blanch DCCJ and Hosking DCJ (who followed Blanch DCCJ) decided the issue. Neither had jurisdiction to do so. There were not only errors of law apparent on the fact (sic) of the record, but they are areas that go to jurisdiction." 43 This question has already been answered in substance in the determination of grounds 1 to 6 and in particular, at [138]ff. 44 The argument should be rejected. 45 The third question raised was the jurisdiction of the Supreme Court. The appellant's submissions are not easy to follow and in part, at least, seek his release on bail pending the determination of his appeal and application for prerogative relief. The point it appears that the appellant wishes to make is perhaps better set out in paragraph 27 of his affidavit in which he asserts that the sentences imposed upon him for the state sentences were imposed other than according to "due process of the law" and are therefore void. He refers to his written submissions in support of appeal ground 10. That has been dealt with in the Court of Criminal Appeal matter and is rejected. 46 It follows that this application should also be dismissed. 47 The orders I propose therefore are as follows:

Clarkson v Commissioner of Corrective Services, New South Wales

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Judgment (7 paragraphs)

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