Dacich v Director of Public Prosecutions

Court of Appeal (NSW)|2020-11-30|Before: Basten JA, Ms J

2020/328871 Clare Dacich/Kennedy (Applicant) Director of Public Prosecutions (NSW) (First Respondent) District Court of NSW (Second Respondent) Supreme Court of NSW (Third Respondent) State of New South Wales (Fourth Respondent) Commissioner of Corrective Services (Fifth Respondent) Representation: Counsel: Applicant in person Ms J Davidson (First Respondent)

Solicitors: Director of Public Prosecutions (NSW) (First Respondent) Crown Solicitor's Office (Second and Fifth Respondents) File Number(s): 2019/302523; 2020/328871 Decision under appeal Court or tribunal: District Court Jurisdiction: Criminal Date of Decision: 9 September 2019 Before: Colefax DCJ File Number(s): 2015/330425; 2016/9320; 2017/174438

[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

BASTEN JA: By summons filed as matter 2019/302523, the applicant, Clare Dacich (Kennedy), sought to engage the supervisory jurisdiction of the Court to review an aggregate sentence imposed by Judge Colefax in the District Court at Campbelltown. This Court's judgment was delivered on 19 November 2020. The summons was dismissed.
On 24 October 2019, shortly after filing her application for judicial review of the District Court judgment, the applicant was granted bail by Rothman J. The result of that order was to stay the operation of the sentence imposed by the District Court until the judicial review proceedings were determined. It was a condition of the applicant's bail that she attend at any hearing of the application in the supervisory jurisdiction, including for delivery of judgment. On delivery of judgment she was returned to custody to continue serving her sentence.
At 10:23pm on 18 November 2020, that is the evening before the Court delivered judgment in matter 2019/302523, the applicant e-filed a fresh summons seeking judicial review of Judge Colefax' judgment. The summons was given the matter no 2020/328871. At the time it was filed she was on bail. She submitted that filing the summons engaged the stay provided by s 69C(2) of the Supreme Court Act 1970 (NSW), which relevantly provides: 69C Stay of execution of conviction, order or sentence pending review (1) This section and section 69D apply to proceedings in the Court for judicial review of a determination made by the District Court in appeal proceedings relating to a conviction or order made by the Local Court (or part of such a conviction or order) or sentence imposed by the Local Court. (2) The execution of the following is stayed when proceedings seeking judicial review are commenced - (a) a sentence imposed as a consequence of a conviction, ... (3) Subsection (2) does not apply to a person (the claimant) who is in custody when proceedings seeking judicial review are commenced unless and until the claimant is entitled to be released on bail under the Bail Act 2013, or bail is dispensed with. (4) The stay of execution continues until the proceedings for judicial review are finally determined, subject to any order or direction of the Court.
Following the delivery of judgment, I gave the following order or direction: 1 At 22.23pm on 18 November 2020 Clare Dacich e-filed a document entitled "Summons Commencing an Appeal (Part 50)". In filling out details for the coversheet, the document was identified as a summons in the supervisory jurisdiction of this Court. The contents identified it as an appeal from the decision of Colefax DCJ in the District Court given on 9 September 2019 and three decisions of Ierace J in the Common Law Division. 2 The decision of Colefax DCJ given on 9 September 2019 was the subject of an earlier summons for judicial review which was listed for judgment at 09.45am on 19 November 2020. 3 The only role of Ierace J in the proceedings was to grant appeal bail with respect to the earlier summons. There is no power of judicial review in this Court of the bail decision, which had in any event been varied by this Court on 28 August 2020. Bail was revoked, to the extent that was necessary, when judgment was delivered in the earlier proceedings on 19 November 2020. 4 To the extent that the summons was not invalid, it sought to review a judgment given more than a year ago. Accordingly, absent an extension of time under Uniform Civil Procedure Rules 2005 (NSW) r 59.10(2), the summons was incompetent. 5 To the extent that there was a valid proceeding commenced on 18 November 2020, and to the extent that the applicant, whilst on bail, was not in custody at that time, the sentence imposed by the District Court is stayed pursuant to s 69C(2)(a) of the Supreme Court Act 1970 (NSW). The stay continues until the proceedings for judicial review are finally determined, 'subject to any order or direction of the court': s 69C(4). The court should remove the stay on the basis that the proceedings are (i) incompetent and (ii) an abuse of the process of the Court. 6 Accordingly, I make the following direction or order: To the extent that the purported summons filed in this matter on 18 November 2020 constituted the commencement of proceedings seeking judicial review for the purposes of s 69C(2), I direct and order that the stay of execution has had no effect, has and will have no effect until such time as this ex parte order may be varied by a judge of the Court.
Before moving to the notices of motion, I note that the applicant advised today that the purpose of the summons was not to review the orders of Ierace J in this Court but to review a decision made by Judge Colefax on 10 September 2020 to refuse to state a case arising out of the judgment the subject of the earlier proceedings.
In fact, the date 10 September 2020 did not appear on the summons, but did identify Ierace J. To the extent that the summons did seek to review a decision of the District Court judge within three months of it having been made, that matter will be dealt with in considering the notices of motion.
On 27 November 2020 the applicant filed a notice of motion, purportedly in proceedings 2019/302523. The notice of motion named the District Court and the Director of Public Prosecutions as respondents. The motion sought three orders which, in appropriate form, read as follows: 1. an order pursuant to the Uniform Civil Procedure Rules 2005 (NSW), r 36.16, to set aside or vary the judgment of 19 November 2020; 2. leave to file an amended summons to support claims made in the applicant's affidavit; 3. to reinstate bail on conditions imposed on 24 October 2020 pending determination of the proceeding.
On 20 November 2020 the applicant had filed a notice of motion, not in proper form, in which she claimed to be unlawfully detained and sought habeas corpus. That claim sought to rely upon the fact that the evening before the Court delivered judgment in matter 2019/302523, she had e-filed a fresh summons seeking judicial review of Judge Colefax' judgment.
When the matter was listed for hearing on 30 November 2020, the applicant sought an adjournment to allow her to raise further matters. In particular, she sought to identify the following orders, some of which had not been reproduced in the written documentation: 1. a writ of habeas corpus in relation to her current custody; 2. an order reopening this Court's judgment delivered on 19 November 2020; 3. a stay of her sentence pending determination of an application for special leave to appeal apparently lodged in the High Court today, 30 November 2020; 4. a stay of her sentence pending an application for an inquiry pursuant to s 78 of the Crimes (Appeal and Review) Act 2001 (NSW); 5. an application for lifting the stay ordered on 19 November 2020; 6. reinstatement of bail, and 7. a stay pending determination of the further judicial review proceedings.
The applicant also stated that she sought to (i) supply an amended summons seeking judicial review and (ii) provide further evidence.
Whilst it seems unlikely that further evidence would be of assistance and it was necessary to resolve the lawfulness of her current custody as expeditiously as possible, an adjournment was granted to allow the further material available to her to be provided to the Court and to the Director of Public Prosecutions. Unfortunately, despite her efforts within the gaol system, it has not been possible to obtain that material today.
The Director of Public Prosecutions filed a notice of motion which was listed for hearing today seeking to have the summons in matter 2020/328871 dismissed pursuant to r 13.4 of the Uniform Civil Procedure Rules. That was supported by an affidavit of Ms Langley for the Director which annexed material in the form of the warrant for the applicant's current detention and a copy of the record in the records of Corrective Services indicating the length of her sentence.
It is convenient to deal first with the consequences of the purported commencement of proceedings by the fresh summons filed on 18 November 2020, being matter number 2020/328871.

Fresh proceeding for judicial review

Although the applicant protested against being taken into custody on 19 November 2020, the basis for her resistance was unsound. The rules governing the commencement of proceedings in the Court's supervisory jurisdiction are to be found in the Uniform Civil Procedure Rules ("UCPR"), Pt 59. Rule 59.10 relevantly provides: 59.10 Time for commencing proceedings (1) Proceedings for judicial review of a decision must be commenced within 3 months of the date of the decision. (2) The court may, at any time, extend the time for commencing proceedings fixed by subrule (1).
The judgment of Judge Colefax sought to be made the subject of the fresh application filed on 18 November 2020 was assumed to be that delivered on 9 September 2019. The three month period fixed by r 59.10(1) expired on 9 December 2019, almost a year before the fresh proceeding was filed. Accordingly, absent leave to extend time, no proceeding was commenced at the time judgment was delivered in the first judicial review application. If on the contrary, there is some basis for thinking that there was a stated case decision which was made later than 18 September 2019, that matter can be considered in due course pursuant to a liberty to apply to which I will refer in due course.
Prior to today, no application for an extension of time was made either before or at the time the summons was filed. On that basis the summons was incompetent. However, today the applicant orally suggested that time might be extended by this Court. An application to extend time had it been made would have been refused and should now be refused.
The fresh application seeking to review the same decision that had been the subject of the earlier application was an abuse of process. Perhaps realising that factor, the motion now before the Court seeks in effect to amend the earlier summons to rely on additional grounds. That application might, if granted, provide a basis for an order staying the sentence pending determination of the substantive claim. Whether or not such a power is available need not be resolved today. However, a direction should be given to provide for an expedited determination of the application to reopen the judgment of this Court of 19 November 2020.
Further, if it were necessary to extend time in order to allow for a review of a decision with respect to a refusal to state a case, that application not having been made within 28 days of the date on which judgment was delivered on 9 September 2019, leave should be refused for that application also. Section 5B of the Criminal Appeal Act 1912 (NSW) provides a limited period (28 days) within which to obtain a stated case. That matter was considered by this Court recently in Forrest v Director of Public Prosecutions.1 Unless an application was made to the judge within that period, it would not be possible to contemplate an extension of time. If it had been made in time, the extension required for a judicial review application would now be a matter for discretionary judgment.

Judicial review of Local Court orders

The affidavit of the applicant, which bore the date 25 November 2020, was neither sworn nor properly executed. However, it may appropriately be treated as submissions, because it did not contain factual matters for determination.
It appears from the affidavit that the alleged unlawfulness of the applicant's current detention also flowed from a document filed on 16 September 2020 in the Common Law Division which purported to be a summons commencing an appeal from orders of Magistrate Cheetham made on 28 November 2018. The submissions in the affidavit stated that the summons commencing an appeal had been filed under s 62 of the Crimes (Appeal and Review) Act 2001 (NSW) ("the Appeal and Review Act"). That was not correct: the power to appeal as of right is to be found in s 52 of the Appeal and Review Act. Attention should be paid to the terms of that provision which reads as follows: 52 Appeals as of right (1) Any person who has been convicted or sentenced by the Local Court … may appeal to the Supreme Court against the conviction or sentence, but only on a ground that involves a question of law alone. (2) An appeal must be made within such period after the date of the conviction or sentence as may be prescribed by rules of court.
The relevant rules are found in Pt 51B of the Supreme Court Rules 1970 (NSW) which deals with appeals under Pt 5 of the Appeal and Review Act, being the part which includes s 52. Rule 6(1) prescribes a period of 28 days within which to appeal, subject to the power of the court to extend time. The judgment of Magistrate Cheetham having been delivered on 28 November 2018, the summons was apt to constitute an application for an extension of time, but was otherwise incompetent. No appeal was commenced until a relevant extension of time was granted.
Section 62 of the Appeal and Review Act was relevant for the applicant's purposes because it provided for a stay of the decision under appeal in the following terms: 63 Stay of execution of sentence pending determination of appeal (1) This section applies to - (a) any sentence, and (b) any penalty, restitution, compensation, forfeiture, destruction, disqualification or loss or suspension of a licence or privilege that arises under an Act as a consequence of a conviction, in respect of which an appeal or application for leave to appeal is made under this Act. (2) The execution of any such sentence, and the operation of any such penalty, restitution, compensation, forfeiture, destruction, disqualification or loss or suspension of a licence or privilege, is stayed - (a) except as provided by paragraphs (b) and (c), when notice of appeal is duly lodged, or (b) in the case of an appellant whose appeal is the subject of an application for leave, when leave to appeal is granted, or (c) in the case of an appellant who is in custody when the appeal is made or leave to appeal is granted, when the appellant is entitled to be released from custody on bail under section 14 of the Bail Act 2013 or bail is dispensed with under that Act.
The summons being two years out of time, no appeal was "duly lodged", for the purposes of s 63(2)(a), until the extension of time was granted.
No extension of time should be granted in this case because, like the purported second application in this Court's supervisory jurisdiction, the attempted appeal from the judgment of Magistrate Cheetham was an abuse of process. The sentences imposed by Magistrate Cheetham were those the subject of the appeal to the District Court. The resolution of that appeal resulted in sentences which were those of the District Court and superseded the sentences imposed by the magistrate. It has long been established that no appeal or application to review the Local Court judgment is available once an appeal to the District Court has been determined. The subject matter of the proposed appeal no longer exists: see Wishart v Fraser. [1]
The basis upon which the applicant contends that her current custody is unlawful either (i) because the proceedings she has filed have stayed the operation of the sentence or (ii) because no proceeding has stayed the operation of the sentence, which has therefore expired by the effluxion of time. There is a fundamental inconsistency between these propositions, but they may be viewed as alternatives.

Effect of stay

The second argument, based on effluxion of time may be stated briefly. Its premise is that no stay of the sentence was ordered when the applicant was granted bail by Rothman J on 24 October 2019. [2] In the absence of a stay, the non-parole period imposed in the District Court, of one year commencing on 17 August 2019, terminated on 16 August 2020. As the full term of the sentence was two years, the applicant was, as she correctly noted, entitled to a "statutory parole order" directing her release on parole at the end of the non-parole period pursuant to the Crimes (Administration of Sentences) Act 1999 (NSW), s 158(1).
However, the submission that the grant of bail did not result in a stay of the sentence was erroneous. Indeed, there are two provisions which have that effect, with the result that any order for a stay would have been otiose. First, s 69A(3) of the Supreme Court Act provides that "[t]he time during which a claimant is at liberty on bail (pending the determination of the proceedings for review) does not count as part of any term of imprisonment under the claimant's sentence."
If there were any doubt about it, s 69C(2), which provides for a stay of a sentence the subject of review, "does not apply to a person (the claimant) who is in custody when proceedings seeking judicial review are commenced unless and until the claimant is entitled to be released on bail": s 69C(3) (emphasis added). Once Rothman J granted bail, the stay provided for under s 69C(2) took effect.
Most of the non-parole period imposed by Colefax DCJ remains to be served. When the sentence was imposed on 9 September 2019 it was backdated to 17 August 2019 to allow for a period of time served with respect to the offences the subject of the aggregate sentence.
Time therefore commenced on 17 August 2019. The stay commenced immediately Rothman J granted bail on 24 October 2019. Accordingly, the applicant served some 68 days before the statutory stay took effect, which stay continued until 19 November 2020. A period of some 297 days remains unserved on the one year non-parole period, running from 19 November 2020.
The applicant relied in part for the proposition that the sentence continued to run following the grant of bail, in the absence of a judicial order for a stay, on the decision of the High Court in Whan v McConaghy. [3] Whan is indeed authority for the proposition which the applicant derived from it. However, it predated the current legislation providing for statutory stays in the terms set out above. The joint reasons in Whan stated: [4] "Notwithstanding that, in its modern garb, bail may operate more as a form of conditional liberty than as a form of alternative custody … and thereby assume a character more akin in effect to a stay of execution of an order, it does not of itself interfere with the operation of the order …. A stay of execution, as its name implies, operates directly on the judgment or order the subject of the stay. Bail, in the absence of the exercise of any associated or supplementary powers that may be available, merely authorises the accused person to be at liberty notwithstanding the operation of the sentence."
That reasoning is, of course, subject to the statutory amendments which have since occurred. It is important, however, to note in the passage from Whan, that what needs to be stayed is the judgment or order which gives rise to the sentence of imprisonment.
The applicant also took issue with the power of the Registrar to issue a warrant for her continued custody, following the determination of this Court on 19 November 2020. That challenge, however, was also based on the premise that the sentence had in fact run its course by that time. The power to issue a warrant is of no continuing consequence. As also stated in Whan, the authority of the custodial officers to detain the applicant turned on the order of the Court, subject to statutory variation.
The applicant also relied upon the fact that records obtained from the Department of Corrective Services still at that time identified the non-parole period imposed on the applicant as one year commencing on 17 August 2019 and terminating on 16 August 2020. That the records contain such material may be accepted: the records of the Department do not, however, constitute the authority to detain the applicant - they cannot vary the court order read in accordance with the statutory scheme.
On one view, it might be preferable if every warrant issued for the detention of a person sentenced to imprisonment were to state the date of termination as subject to any variation by way of suspension or stay, pursuant to statute or court order. The present form of warrant is no doubt intended to reflect the changes effected by the Sentencing Act 1989 (NSW), referred to at the time as "truth-in-sentencing". That was because, prior to the commencement of that legislation, every sentence was subject to reduction on account of remissions, of a number of varieties. Ordinary remissions reduced the sentence by one-third in the case of a first offender and one-quarter in the case of a recidivist. Accordingly, the length of the sentence imposed by the sentencing court was most unlikely to be the sentence in fact served. The release date would vary depending upon grants and losses of remissions throughout the period of the sentence. The same is true today with respect to stays and suspensions which apply automatically when sentences imposed by a magistrate are the subject of appeal to the District Court and, as this case illustrates, when proceedings by way of judicial review are commenced, and in either case the offender is not in custody.
It follows that the applicant's challenges to the lawfulness of her current custody are without substance and, subject to what follows, both notices of motion must be dismissed. (Last Friday the applicant's motion for habeas corpus in the Common Law Division was dismissed by Button J.)

Other bases of stay

The applicant also sought a stay on two further grounds. The first involved the filing of an application for special leave to appeal to the High Court which, although it was said to have occurred last Friday, the court was now told occurred today. That matter is a proceeding in another court but it is appropriate that this Court consider in the first instance whether a stay should be granted pending determination of that proceeding, in accordance with the direction given in Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd [No 1]. [5]
Although it is likely, as the applicant says, that a large proportion of her sentence will have been served prior to determination of the proceeding in the High Court, it would nevertheless not be appropriate to grant a stay of a criminal sentence unless the Court were persuaded that the application for special leave was attended by reasonable prospects of success. In making that assessment, it is necessary to have regard to the reasons of this Court in dismissing the judicial review proceeding before it, together with the criteria for granting special leave to appeal set out in s 35A of the Judiciary Act 1903 (Cth). The test to be imposed on an application for a stay pending a special leave application refers to the need for exceptional circumstances. The judgment of this Court does not reveal any issue of general public importance. The determination of the issues were largely disposed of on the basis of factual matters which were necessary to be established, but were not. At present there is nothing before this Court to suggest that the application for special leave to appeal has reasonable prospects of success. Certainly there is no exceptional circumstance which has been identified. Accordingly it is not appropriate to grant a stay on that basis at the present time.
Secondly, the applicant sought a stay pending determination of her request for an inquiry pursuant to s 78 of the Crimes (Appeal and Review) Act. However, such an inquiry is not a judicial proceeding and it is by no means clear on what basis the Court can stay a sentence validly imposed by a court exercising criminal jurisdiction, on the basis that an application has been made for such an inquiry.
The applicant referred in the course of her submissions to s 23 of the Supreme Court Act. However, I am not persuaded that that has relevant operation to stay the operation of a criminal sentence properly imposed. Absent a clear basis for such a power, no such order should be made regardless of discretionary considerations.

Reopening application

The final issue concerns the application to reopen the judgment of 19 November 2020. The basis of that application is not apparent from any material presently before the Court. Given that the offender is in custody serving her sentence, it is desirable that the matter be resolved expeditiously. Accordingly, the Court should direct the applicant to file any material in support of her application within seven days and the Director of Public Prosecutions may have seven days to respond. Unless there is a request for a further hearing to be justified, if sought, in the written submissions, then the matter will be dealt with on the papers.
It should also be acknowledged that other matters which have been raised today, including the question of when the application for a stated case was determined and the possible bases of the application for special leave to appeal (which are said to be in papers which have been sent to the Court but have not arrived), may provide a further basis for submissions. To the extent that that is so the parties should have the same leave to apply to file material or to respond to material which is filed.
The Director's motion to dismiss summarily the summons in matter no 2020/328871 has not been determined. That step can be addressed in the proposed further written submissions. It may require that Ms Dacich have an opportunity to reply to the Director's submissions in support of his motion. A further direction will be made to that effect if necessary.
Accordingly, I make the following orders: 1. Direct that the applicant e-file and serve the amended summons in matter 2020/328871 and affidavit in support and the application for special leave to appeal to the High Court within 7 days. 2. Direct the applicant to file and serve within 7 days any further written submissions in support of her applications for relief in this Court raised by the documents referred to in order 1, not addressed in the hearing on 30 November 2020. 3. Direct the Director of Public Prosecutions to file any response to the applicant's further written submissions within 14 days. 4. Stand over determination of the Director's notice of motion filed 30 November 2020 (seeking dismissal of the summons in matter 2020/328871), pending filing of the material referred to in order 1. 5. Direct that any outstanding matters on the motions be dealt with on the papers, subject to any application for a further hearing, which will be dealt with on the basis of the further written submissions. 6. Otherwise dismiss the applicant's notices of motion filed 20 November 2020 and 27 November 2020 and the further applications made orally in the course of the hearing on 30 November 2020. 7. Join the Commissioner of Corrective Services as the Fifth Respondent.

Endnotes

[2020] NSWCA 162.
(1941) 64 CLR 470; [1941] HCA 8.
Affidavit, 25 November 2020, par 6/7.
(1984) 153 CLR 631; [1984] HCA 22.
Whan at 638. 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: 04 December 2020

Sentencing Act 1989(NSW)

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