Dacich v Commissioner of Corrective Services

Court of Appeal (NSW)|2020-12-22|Before: Bell P, Basten JA, Macfarlan JA, Button J

Solicitors: Crown Solicitor's Office (First Respondent) Office of the Director of Public Prosecutions (NSW) (Second Respondent) File Number(s): 2020/353442 Decision under appeal Court or tribunal: Supreme Court of New South Wales Jurisdiction: Common Law Citation: [2020] NSWSC 1714 Date of Decision: 27 November 2020 Before: Button J File Number(s): 2020/271829

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Judgment

THE COURT: The appellant, Clare Dacich (Kennedy), appealed from the refusal of a judge to issue a writ of habeas corpus and, which would have had the same effect, an order for her immediate release from her imprisonment. [1] The application, by way of notice of motion, was filed on 27 November 2020, and was heard the same day by Button J. The appeal, filed on 17 December 2020, was heard on 22 December 2020 and was dismissed at the conclusion of the hearing.
The reason for the dismissal was, in a nutshell, that the appellant is serving the non-parole period of a sentence imposed on her in the District Court on 9 September 2019 which does not expire until August 2021. The appellant resisted that conclusion on a number of bases which will be addressed below. When dismissing the appeal, the Court reserved its reasons, which are now provided.

Procedure and parties

The document filed by Ms Dacich on 17 December 2020 purported to be a summons seeking leave to appeal from the decision of Button J in the Common Law Division. (Ms Dacich was represented before Button J, but not in this Court.) To the extent that she seeks to appeal from a judgment made on an application for a writ of habeas corpus, leave is not required: Supreme Court Act 1970 (NSW), s 101(3). The summons was treated as a notice of appeal.
Invoking the ancient prerogative writ of habeas corpus ad subjiciendum gives rise to potential procedural issues. With respect to most other prerogative writs, these issues have been consigned to historical interest by s 69 of the Supreme Court Act, which continues the relevant jurisdiction but provides that relief shall be by way of judgment or order under that Act and the rules. Subject to the rules, that beneficial reform is said not to apply to the writ of habeas corpus ad subjiciendum: s 69(2)(a). Nevertheless, s 71 of the Supreme Court Act provides: 71 Habeas corpus (1) The Court may, on an application for a writ of habeas corpus, give such judgment or make such order disposing of the proceedings as the nature of the case requires. (2) Where an application for a writ of habeas corpus has been made in respect of any person, no application for a writ of habeas corpus shall again be made in respect of that person on the same grounds, whether to the same Judge or to any other Judge or to the Court of Appeal, unless fresh evidence is adduced in support of the application. (3) Subsection (2) applies notwithstanding anything in any Act or rule of law. Thus, s 71(1) has a similar effect to s 69(1)(e).
It is not clear whether s 71(2) precludes an appeal on the same grounds as the original application and subs (3) effectively provides otherwise than s 101(1), which, "[s]ubject to this and any other Act", grants an appeal from a judgment or order of the Court in a Division. Neither respondent contended that the appeal was incompetent, so the issue need not be explored further.
An order disposing of a writ of habeas corpus favourably to an applicant will be directed to the person having custody of the applicant, requiring that he or she be released. In the present case, that person is the governor of the correctional centre in which the appellant is being held at a particular time. Bearing that in mind, Button J determined that the correct respondent was the Commissioner of Corrective Services.
He did so, presumably, on the basis that s 232(1) of the Crimes (Administration of Sentences) Act 1999 (NSW) gave the Commissioner "the care, control and management of all offenders who are held in custody in accordance with Part 2 or Part 3 [of that Act]": s 232(1)(a1). The Commissioner also has the "care, direction, control and management of … correctional centres": s 232(1)(a). It may therefore be assumed that an order directed to the Commissioner would lead to the release of an inmate from any form of imprisonment under the Commissioner's control.
Nevertheless, the Crimes (Administration of Sentences) Act appears to make a distinction between the language of care, control and management, on the one hand, and "custody" on the other. Thus, s 72 provides: 72 Custody of inmates (1) While held in custody in a correctional centre, an inmate is taken to be in the custody of the governor of the correctional centre to which the inmate has been committed or (if the inmate has been transferred to another correctional centre in accordance with section 23 or 41C) the correctional centre to which the inmate has been transferred.
As an order for release of an inmate must be directed to the person in whose custody the inmate is to be found, arguably the correct respondent to the proceedings is the governor of the correctional centre in which the applicant is held. No doubt that causes a procedural difficulty as prisoners are transferred from one correctional centre to another. That happened in the present case, the appellant having been transferred from Silverwater to Wellington between the time of the hearing before the primary judge and the hearing in this Court.
In some cases, the identity of the person having custody may be of importance to the outcome. In Cowell v Corrective Services Commission (NSW) [2] this Court considered which party was liable in damages for detaining a prisoner beyond the term of his sentence. Applying the provisions of the Prisons Act 1952 (NSW), since repealed, the Court divided as to whether the governor of the gaol, the Corrective Services Commission, or both, had custody of a prisoner, and as to the application of a provision conferring immunity from liability on a person carrying out the provisions of the Act.
No party having taken any objection to the present form of the proceedings, they should be determined on the basis that the proper parties are before the Court. It is unfortunate that modern legislation has continued to use language which was apt in the context of earlier institutional structures, but no longer identifies with precision who is answerable to a writ of habeas corpus sought by a prisoner.
The appellant is detained pursuant to a conviction, and sentence imposed in the District Court. Those orders have been the subject of earlier judicial review proceedings, to which it will be necessary to refer, challenging their lawfulness. The respondent to the various judicial review proceedings was the Director of Public Prosecutions (NSW), the appellant having been convicted of offences under the Crimes Act 1900 (NSW).
As the Director noted, there is authority for the proposition that the Director is not a proper contravener, because the Director does not hold the person in custody and is not a party against whom a writ of habeas corpus could be directed. That view was taken in Gargan v Director of Public Prosecutions (NSW). [3]
Although either the Commissioner or the governor of the correctional centre should be able to provide a sufficient response to an order in the nature of habeas corpus by providing evidence of a warrant or the order of a court justifying the person's detention as a result of a conviction and sentence, if the applicant is entitled to go behind the conviction and sentence to demonstrate that either was unlawfully obtained, it will be the prosecutor in the criminal proceedings, rather than the custodian, who will be in a position to respond to such a claim. That in itself may be sufficient to cast doubt on the propriety of such a claim in proceedings by way of habeas corpus. In any event, although the Director was not a proper respondent to the application for a writ of habeas corpus, having been joined by the appellant, understandably no objection was taken to the Court hearing his submissions.

Issues on appeal

The appellant contended that: 1. she did not bear the onus of proving the invalidity of her detention: ground 7; 2. the validity of her detention required an appropriate and valid warrant; a court order did not provide sufficient authority: grounds 1, 6; 3. the warrant issued by the Registrar of the Court of Appeal following the judgment of this Court delivered on 19 November 2020 was invalid: grounds 1, 4; 4. there was a statutory stay in operation when she was taken into custody on 19 November 2020: ground 2; 5. the orders of this Court made on 19 November 2020 failed to specify a recommencement date for her sentence: ground 3; and 6. the custody records produced by the Department of Corrective Services purported to vary the sentence dates without a necessary court order: ground 5. It is convenient to address the grounds in the order set out above.

Onus of proof

There is no doubt that the primary judge accepted that the burden of justifying the appellant's detention fell on her gaoler; he said so in express words. [4] The judge noted the statement to that effect in the judgment of Isaacs J in Ex parte Walsh and Johnson; In re Yates. [5] However, where there is a court order or a warrant which, if regular, provides a sufficient justification, it is for the applicant to show some basis for casting doubt upon its regularity. In re Yates concerned the validity of certain deportation orders; both the process of issuing the orders and the constitutional validity of the law under which they were issued were challenged and were determined in the ordinary way.
The course taken by the primary judge placed no inappropriate burden on the appellant.

Need for a valid warrant

The fact that a warrant may provide sufficient authority for the detention of a prisoner does not mean that it is a necessary source of authority. As explained by Windeyer J in The Queen v Turnbull; Ex parte Taylor: [6] "The so-called return of convictions, although carelessly compiled, is perhaps to be regarded as, in a sense, the equivalent of the record which at the end of a sittings of a court of gaol delivery is given to the gaoler so that he may know the sentences passed upon prisoners in his custody …. If so, it seems it is a mere memorial, not of its own force a warrant …. The document in the present case does however shew that the Sheriff of the Territory was aware of the sentence imposed on the applicant. He needed no direction to execute it. The sentence itself of a superior court is the authority for the execution of the punishment it orders."
This statement was applied by the High Court in Day v The Queen [7] as authority for the proposition that "the sentence being imposed by a superior court is itself sufficient authority for its execution", [8] stating further that the District Court of Western Australia was a superior court for that purpose.
The need for the gaoler to be informed of the sentence of imprisonment, and its length, is not to be doubted; there is, however, no general law requirement that the information be recorded in a particular form known as a warrant. There are statutory provisions for warrants of commitment following sentence, but they are not expressed to condition the validity or enforceability of a court order. As will appear below, there is no doubt that the appellant is serving a sentence of imprisonment imposed by the District Court on 9 September 2019 and that a warrant of commitment was issued by the District Court.
Consistently with these principles, s 244 of the Criminal Procedure Act 1986 (NSW) provides: 244 Defects in warrants of commitment A warrant to commit an accused person to a correctional centre or other place may not be held void because of any defect in the warrant if the warrant states that - (a) the accused person has been convicted or ordered to do or abstain from doing any act or thing required to be done or not done, and (b) there is a good and valid conviction or order to sustain the warrant.

Validity of warrant issued by the Registrar on 19 November 2020

The appellant alleged in the course of submissions that the only warrant on her gaol file was a warrant issued by the acting registrar of this Court following the delivery of judgment in judicial review proceedings on 19 November 2020, the effect of which was to lift the stay of her sentence. The appellant assumed that the warrant was issued pursuant to s 62 of the Crimes (Sentencing Procedure) Act 1999 (NSW) which provides, relevantly: 62 Warrant of commitment (1) As soon as practicable after sentencing an offender to imprisonment, a court must issue a warrant for the committal of the offender to a correctional centre. (2) The warrant must be signed by an authorised officer. (3) A warrant under this section is sufficient authority - (a) for any police officer to convey the offender to the correctional centre or police station identified in the warrant, and (b) for the governor of the correctional centre, or the person in charge of the police station, to keep the offender in his or her custody for the term of the sentence.
The appellant submitted that s 62 provided no authority for the issue of a warrant by the Registrar of the Court of Appeal, because, in dismissing an application for judicial review under s 69 of the Supreme Court Act, the Court did not sentence the offender. Section 62(1), she submitted, by use of the term "after sentencing an offender", clearly refers to the court which has imposed the sentence.
There may be an issue as to whether the power in s 62 does not extend to this Court which, when determining a judicial review application, is empowered to specify the day on which a sentence which has been stayed is to recommence. [9] Even if s 62 does not provide for this Court to issue a warrant of commitment, it does not follow that this Court has no other power to issue a warrant of commitment for a person to be returned to custody after unsuccessfully challenging the validity of a sentence of imprisonment.
To the extent that s 62 is in mandatory terms, it is not in doubt that it was complied with by the District Court which issued a warrant of commitment after sentencing the prisoner on 9 September 2019. The appellant was conveyed to a correctional centre and held for a number of days, before obtaining bail. That warrant remains sufficient authority to detain the appellant for the balance of her sentence after termination of her bail, the grant of which stayed the operation of the sentence. Once bail was granted and the running of the sentence stayed, the warrant no longer correctly identified the dates on which the non-parole period and the sentence period expired. It was appropriate for the registrar of this Court to take the administrative step of issuing a warrant authorising the return of the appellant to custody. The inherent power of this Court as a superior court to issue such a document to record and give effect to its orders may be found in s 23 of the Supreme Court Act, as the respondents submitted. The warrant recorded the appellant's convictions and sentence and, as amended on 26 November 2020, the date on which the appellant was granted post-conviction bail and the order for the sentence to recommence. The warrant was not invalid.

Statutory stay when taken into custody on 19 November 2020

By ground 2, the appellant contended that an application for judicial review filed at 10:23pm on the evening before the earlier judicial review proceeding was dismissed, namely on 19 November 2020, operated to effect a continuation of the stay then in force. That document was filed at a time when the appellant was still at large, so as to engage, in the appellant's submission, the stay provided by s 69C(2)(a) of the Supreme Court Act.
There are three answers to that proposition. First, as noted by Button J, absent an extension of time, the summons was not apt to commence proceedings by way of judicial review. Secondly, as Button J further noted, the operation of a stay was subject to any order or direction of the Court, and the order that the appellant be taken into custody on 19 November 2020 was effective to vary the statutory stay. Thirdly, as noted in the judgment of this Court delivered on 30 November 2020, to the extent necessary, the Court ordered that the stay of execution has had no effect and has and will have no effect ([2020] NSWCA 313).
Accordingly, the judge was not in error in concluding that the filing of a document, being an incompetent application for judicial review, on 18 November 2020 did not stay the operation of the sentence.

Failing to specify date on which sentence recommenced

Ground 3 in the notice of appeal complained that the Court's order of 19 November 2020 failed to specify a date because it identified the date as the date upon which the appellant was returned to custody. She was in fact returned to custody when the order was made.
There appear to have been two strands to the appellant's challenge in this respect. First, to identify a date by reference to a future event contravened the express terms of s 69D(1), which required that the day be "the day the order is made or an earlier day". In fact, that requirement was not contravened. Had the appellant not been present on that day, it would have been open to the Court to not make the order until she was available to be returned to custody, as can occur in the Court of Criminal Appeal when an offender fails to attend for resentencing. Secondly, the appellant submitted that the reference to a contingency was not the specification of a date. The term "specify" must be construed in its statutory context; it is necessary that the order provide a single date which must be clearly identifiable to the person affected when it occurs. The order specified such a date.
Further, prior to the making of the order, on 27 October 2020, s 69D(1) was amended to remove the final words precluding the fixing of a future date and replacing them with "including a day specified by reference to a future event." [10] That language made clear, not only that the date might be in the future, but that identification of a future event would suffice to "specify" a date. The order was not invalid. In any event being the order of a superior court, it is effective until set aside.

Alteration of dates by Department of Corrective Services

Ground 5 relied upon a custody record prepared in the office of the Department of Corrective Services, which was said to unlawfully vary the dates for which the sentence imposed by the District Court was to run, with the result that it was not consistent with the warrant of commitment initially issued by the District Court.
The primary judge, correctly, held that an electronic record prepared within the Department of Corrective Services did not provide authority to detain the appellant. Further, it was not correct to rely upon the dates recorded in the warrant of commitment defining the running of the sentence in circumstances where judicial orders and statute had intervened to suspend the running of the sentence.
While the dates calculated by the Department do not determine the lawfulness of the appellant's current custody, there was no reason to doubt the correctness of the appellant's custody record in evidence before this Court which recorded a parole date of 12 September 2021. [11] The sentence being less than three years in length, the appellant is entitled to release on a statutory parole order on that date. She stated that there was no such order on her prison file, but that, if true, has nothing to do with the validity of her current detention.

Conclusion

No error being demonstrated in the judgment of the primary judge refusing to issue a writ of habeas corpus, or otherwise declare that the appellant's continuing custody was unlawful and direct her release from custody, the appeal was dismissed.

Endnotes

Dacich v Picton Local Court [2020] NSWSC 1714. The naming of a court as defendant derived from the application being made, inappropriately, by way of a motion in judicial review proceedings.
(1988) 13 NSWLR 714.
[2004] NSWSC 10; 144 A Crim R 296 (O'Keefe J).
Dacich v Picton Local Court at [12].
(1925) 37 CLR 36 at 79; [1925] HCA 53.
(1968) 123 CLR 28 at 45; [1968] HCA 88.
(1984) 153 CLR 475; [1984] HCA 3.
Day at 479 (Gibbs CJ, Mason, Wilson and Dawson JJ).
Supreme Court Act, s 69D(1).
Stronger Communities Legislation Amendment (Miscellaneous) Act 2020 (NSW), Sch 1, [1.10].
Affidavit of Helen Langley, 26 November 2020, annexure "B". 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: 23 December 2020

Prisons Act 1952(NSW)

Stronger Communities Legislation Amendment (Miscellaneous) Act 2020(NSW)

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