Kennedy v Director of Public Prosecutions (NSW) [2020] NSWCA 313
Dacich v Director of Public Prosecutions (NSW)
Source
Original judgment source is linked above.
Catchwords
Kennedy v Director of Public Prosecutions (NSW) [2020] NSWCA 313
Dacich v Director of Public Prosecutions (NSW)
Judgment (2 paragraphs)
[1]
EX TEMPORE Judgment
By summons that was filed late yesterday, Clare Dacich seeks the issue of a writ of habeas corpus along with associated relief; namely, her immediate release from custody, and an order that a certain period of pre-sentence custody be made referrable to certain nominated criminal proceedings and sentences. The defendant named in the summons is the Governor of Dillwynia Correctional Centre. The case was listed as a matter of urgency and heard this morning. Ms Dacich appeared for herself, while the defendant was represented by Ms McEwen, instructed by the New South Wales Crown Solicitors' Office.
The evidence was tendered either by agreement or provisionally, and included, on the part of the plaintiff, an affidavit of 6 October 2021 which was marked formally as exhibit A, a further affidavit of Ms Dacich dated 3 August 2021 which was marked as exhibit B, and finally an affidavit of 20 September 2021, along with a large number of exhibits or annexures, which was marked as exhibit C. The defendant tendered a bundle of documents and, in particular, a sentencing warrant issued out of the Local Court at Campbelltown, with a file number 2020/00321748, and sealed with a District Court seal. That document, along with the other documents in that small bundle, was marked as exhibit 1.
On one level, the case has a very long history going back to 2016, at which time Ms Dacich was subject to a sentence, or sentences, of imprisonment. There were appeals against those sentences. There were also applications under section 43 of the Crimes (Sentencing Procedure) Act 1999 (NSW), seeking correction of sentencing errors concerned with the commencement dates and periods of pre-sentence custody. That, in turn, led to applications for judicial review to the Court of Appeal, as well as an application for habeas corpus before a Judge of this Court, and an appeal from the refusal to grant that relief. There are a number of relevant decisions published on case law. [1]
Dacich v Governor of Dillwynia Correctional Centre [2021] NSWSC 1333 | Case summary | Zoe
The chronology of events, as established by those previous decisions, was also set out in various helpful documents annexed to Ms Dacich's affidavits. In particular, I refer to annexure A to exhibit C, being a document styled "Dacich Index", which goes through the chronology in some helpful detail. But there are other similar documents and chronologies, both of an official nature and otherwise, throughout the evidentiary material.
That chronology and the various decisions demonstrate that there has been confusion and dissatisfaction, on Ms Dacich's part, as to the extent to which her periods of pre-sentence custody from April 2016, have been taken into account properly and in accordance with the provisions of the Crimes (Sentencing Procedure) Act 1999 (NSW) and case law, such as Kaderavek v R [2018] NSWCCA 92. It was Ms Dacich's dissatisfaction that resulted, amongst other things, in an earlier application for habeas corpus, dealt with by Button J, [2] an appeal to the Court of Appeal from that decision, [3] as well as two applications (at least) for judicial review. [4] At one stage, in the course of this narrative history, bail was granted by Rothman J pending the outcome of the decisions in the Court of Appeal. [5]
However, on another level, the history of the matter is relatively short, and arises of out of a sentencing decision made by Magistrate Stewart on 5 February this year. Meanwhile, there have been appeals dealt with by the District Court, [6] and one or two applications under section 43 of the Crimes (Sentencing Procedure) Act. There is a decision, or decisions, of Judge Colefax SC, which are currently the subject of proceedings before the Court of Appeal, and which are before the Registrar of that Court this coming Monday.
I am also told, and believe, that there is a bail application pending before this Court. I gather that is an application for bail pending the outcome of the judicial review or habeas corpus proceedings currently extant in the Court of Appeal. It was bail of a similar nature that was granted by Rothman J, that I mentioned a moment ago, on a previous application for judicial review.
The application for habeas corpus having been brought results in the defendant acquiring an onus to establish that the custody of Ms Dacich is lawful. To discharge this onus, the defendant relies on exhibit 1, which includes the sentencing warrant indicating that the applicant is subject to a non-parole period which is not due to expire until 1 December 2021. That document is in line with the transcript of the sentencing proceedings before Magistrate Stewart which was annexed to Ms Dacich's affidavit of 20 September 2021 (exhibit C). The transcript of proceedings before Magistrate Stewart is annexure T to that affidavit. The sentencing order is at page 11 of the transcript, and it is only necessary to refer to that part of the orders which reads:
"The non-parole period is 10 months from 2 February 2021 to 1 December 2021".
The decision of Magistrate Stewart was subject to a severity appeal to the District Court and was confirmed on appeal by Judge Colefax on 5 March 2021. His Honour said at [10] of his judgment that he did not propose to alter the start date of the sentence and concluded:
"It follows, from what I have said, that the appeal is dismissed and the orders of the Local Court are confirmed." [7]
In my assessment, this evidence constitutes a complete answer to the application for habeas corpus and the associated orders sought in the summons. The defendant is holding Ms Dacich lawfully in accordance with the orders of the Local and District Court, and with the authority of the sentencing warrant that was executed in consequence of those judicial decisions.
Insofar as the application seeks to canvass the full history of the matter and identify error in the District Court's conduct of the section 43 applications, and, in its more ambitious aspects, to impeach the decision of the Court of Appeal in Dacich v Director of Public Prosecutions (No 2) [2020] NSWCA 298, it constitutes an inappropriate collateral attack on those decisions and cannot succeed while legitimate avenues of redress are available. [8]
In the course of her cogent oral submissions, Ms Dacich asked me to hear an urgent bail application should her application for habeas corpus and immediate release be denied. That is not possible or appropriate in circumstances where the Director of Public Prosecutions is not presently a party to the proceedings. The Crown Solicitor does not act for the Director or on the bail application that has been lodged. What I will do, is direct the Registrar of this Court - and I emphasise this Court, not the Registrar of the Court of Appeal - to list any bail application brought by Ms Dacich as a matter of urgency.
Nothing I have said in this judgment should be interpreted as an adverse finding in relation to the matters raised by Ms Dacich as matters of fact. Those are not matters that the Court hearing the current application is really in a position to come to any final conclusion on, and it would be inappropriate to do so. Otherwise, I am simply unable, lawfully, to make any order that will relieve Ms Dacich of her current burden, and for those reasons the summons is dismissed.
[2]
Endnotes
Including R v Dacich [2019] NSWSC 1517, Dacich v Picton Local Court & Anor [2020] NSWSC 1714, Dacich v Director of Public Prosecutions [2020] NSWSC 1179, Dacich v Director of Public Prosecutions (No 2) [2020] NSWCA 298, Dacich v Director of Public Prosecutions (No 1) [2020] NSWCA 297, Dacich v Director of Public Prosecutions (NSW); Kennedy v Director of Public Prosecutions (NSW) [2020] NSWCA 313, Dacich v Director of Public Prosecutions (NSW); Kennedy v Director of Public Prosecutions (NSW) (No 2) [2020] NSWCA 346.
Dacich v Picton Local Court & Anor [2020] NSWSC 1714.
Dacich v Commissioner of Corrective Services [2020] NSWCA 359.
Dacich v Director of Public Prosecutions (NSW); Kennedy v Director of Public Prosecutions (NSW) [2020] NSWCA 313, Dacich v Director of Public Prosecutions (No 2) [2020] NSWCA 298.
R v Dacich [2019] NSWSC 1517.
Dacich (No.2) v R [2019] NSWDC 620, Dacich (No.1) v R [2019] NSWDC 621.
Assuming there is no administrative explanation, the orders made by Judge Colefax no doubt explain why the warrant was issued out of the Local Court but bears the District Court seal.
Dacich v Picton Local Court & Anor [2020] NSWSC 1714 at [17]-[18].
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Decision last updated: 19 October 2021