Dacich v Picton Local Court & Anor

Background

1. The background can be stated succinctly as follows. The plaintiff was convicted of a number of offences in the Local Court, as I understand it chiefly pertaining to dishonesty. She was given a number of suspended sentences. They were ultimately "called-up". She was imprisoned by the learned Magistrate. I believe an aggregate head sentence of three and a half years was imposed.
2. An appeal was lodged to the District Court, at the least with regard to sentence. There were a number of delays. Eventually, the matter came before Colefax SC DCJ in the District Court at Campbelltown. Eventually, on 9 September 2019, Colefax DCJ upheld the appeal against sentence, to the extent of at least reducing the aggregate head sentence, and it became two years. The ultimate sentence imposed was a head sentence of two years with a non-parole period of one year: Dacich (No.2) v R [2019] NSWDC 620.
3. That kind of outcome, namely the resolution of an appeal from the Local Court to the District Court, is not amenable to further statutory appeal. But it is amenable to judicial review, as is well known. It is also well known that such matters are litigated not before a single judge, but before the Court of Appeal.
4. The plaintiff duly sought judicial review. After that she was bailed by Rothman J. Nothing turns on it, but I am not quite sure the extent to which the Bail Act 2013 (NSW) encompasses proceedings for judicial review in criminal matters as proceedings with regard to which bail can be granted; or whether perhaps in a theoretical sense it is better to think of a sentence being stayed somehow on condition. But there is no doubt that the plaintiff was bailed by Rothman J for an extended period.
5. She came back before Ierace J in circumstances where she was seeking a variation and the Director of Public Prosecutions (DPP) was seeking detention. In the event, Ierace J did not detain the plaintiff, and his Honour granted the variations.
6. It is said by her advocate that one can infer something from what Ierace J had to say on that occasion. But to my mind what Ierace J had to say is indeed what his Honour said: all his Honour said was that the detention was refused and the variations were granted (the unreported judgment is on the file).
7. Quite recently, the Court of Appeal resolved the application for judicial review on 19 November 2020 and dismissed it. The question was then what should become of the question of the plaintiff's liberty. Ultimately, to paraphrase, the Court of Appeal ordered that she be returned to custody, and that the sentence imposed by Colefax DCJ recommence: Dacich v Director of Public Prosecutions (No 2) [2020] NSWCA 298. It is that recent incarceration that has led to these proceedings today.

Habeas corpus

1. Speaking about habeas corpus applications generally, I have proceeded on the basis that there is an ancient right of any Australian citizen to, first, be at liberty unless there has been lawful interference with that liberty: Re Bolton; Ex parte Beane [1987] HCA 12; (1987) 162 CLR 514 at 547; see also Antunovic v Dawson [2010] VSC 377; (2010) 30 VR 555.
2. Secondly, on return of the writ, it is not incumbent upon the person who has been detained to demonstrate that that is happening unlawfully. It is incumbent upon the detainer to show on balance that the detention is lawful. If that cannot be demonstrated on balance, the plaintiff is entitled to immediate release: Ex parte Walsh and Johnson; In re Yates [1925] HCA 53; (1925) 37 CLR 36 at 79.
3. I might add that the proceedings as originally framed did not include the Commissioner of Corrective Services. But that was helpfully attended to, and there is no doubt in my mind that he or she is the proper respondent to such an application.
4. I have also borne in mind, speaking generally, that habeas corpus is a prerogative writ. Indeed, my understanding of the Supreme Court Act 1970 (NSW) (SCA) is that it is one of the few original writs that have not been replaced by proceedings analogous to them. As a prerogative writ, it cannot issue against a superior court. And it can only be issued by a superior court.
5. In other words, it is well established that it is not available, for example, from another judge of the Common Law Division with regard to a sentence that I might impose as a Common Law Division judge.
6. Here though, now that the parties have been regularised, I do not think that in any direct sense that stands in the way of the relief, because as I have said, the true respondent is what I shall call from now on the CCS.
7. I think there is an issue, though, about using habeas corpus as a collateral attack on orders made by courts: see Habeas Corpus: Australia, New Zealand and the South Pacific at 72-75. In particular, I have raised with the parties a note of caution about me, as a Common Law Division judge, indirectly or collaterally exercising some sort of "appellate power" over orders made by the Court of Appeal of New South Wales. Obviously, that would be inapposite. There is respectfully a great deal of authority to say that one cannot use habeas corpus as a collateral attack, including on a sentence that has been otherwise validly imposed: Habeas Corpus: Australia, New Zealand and the South Pacific at 89-90.
8. Here, it is true that the Court of Appeal did not impose a sentence; that much is agreed between the parties. Even so, I have approached my task today with a degree of diffidence, and with an intention to ensure that these proceedings could not become an entirely inapposite "appeal" from the Court of Appeal to me: see Young v Registrar, Court of Appeal (No 3) (1993) 32 NSWLR 262 at 285.

Submissions of the plaintiff, and their resolution

1. Really, four arguments were made in support of the argument that the plaintiff is simply unlawfully detained today. I will deal with them briefly in turn. My concision is not a sign of disrespect. I appreciate the importance of this issue to the plaintiff and indeed to everyone in Australia. Even so, I think that the issues have been helpfully boiled down by the advocates, and I think that I can answer them simply.

Sentence expired?

1. The first is the proposition that, while the plaintiff was on the bail granted by Rothman J and Ierace J, in truth the sentence imposed by Colefax DCJ continued to run. Because she was on bail for an extended period, and in custody for a short time, and that period is beyond the non-parole period of one year, and bearing in mind that the head sentence is less than three years, the proposition is that she is entitled to immediate release, pursuant to the Crimes (Sentencing Procedure) Act 1999 (NSW) (the CSPA).
2. I respectfully reject that. I think that the SCA speaks clearly in s 69A(3) to the effect that time spent on bail pending an application for judicial review "does not count as part of any term of imprisonment under the claim of sentence".
3. In other words, I think that Parliament has explicitly reflected on the very issue that has arisen here. I believe that Parliament has spoken directly to the contrary.
4. As well as that, whilst I appreciate that in the past there was a real measure of difficulty about the circumstances in which a person could get the benefit of a sentence continuing to run whilst they were on bail: see Whan v McConaghy [1984] HCA 22; (1984) 153 CLR 631, I think the position here is now clear. And I do not think that there was any need for a specific order, whether made by Rothman J, Ierace J or anyone else, to say that the sentence was not counting as served.
5. I should also say with regard to the first ground, namely the sentence running, that I believe that s 69C(3) of the SCA is also apposite. Without descending to a level of detail about it, I believe that s 69C(3) captures the position that the plaintiff was in, before and after she was granted bail. In other words, I believe that s 69C(3) bolsters what I have said with regard to s 69A(3) of the SCA.
6. I believe the statute has spoken. So I respectfully reject that argument.

Stay pending further judicial review?

1. Secondly, the proposition is that, on the evening before the orders were made as proposed by Basten JA, the plaintiff filed a further application for judicial review. To be clear, I am speaking of the summons that was filed at 10.23pm on 18 November 2020. It can be seen that that was a critique of Colefax DCJ, also of the jurisdiction of the Local Court, and also a critique, to an extent, of the DPP. Again I make no criticism of that, it having been prepared by the unrepresented plaintiff.
2. The proposition is that, by way of s 69C(2)(a) of the SCA, the sentence of Colefax DCJ was stayed by way of the filing of that document. It is simply said that: it pertained to "judicial review"; it was commenced on that date; and the sentence of Colefax DCJ was simply stayed. It was also said that s 69C(3) is really of no moment, because the plaintiff was not then in custody.
3. As for s 69C(2) and its effects, I think that there are, with respect, three answers to that.
4. The first is that the application for judicial review filed on 18 November 2020 pertained to things that happened, at the latest, on 9 September 2019, because those were the orders of Colefax DCJ that were being impugned. It can be seen that that was well over a year since Colefax DCJ had made those orders. It can also be seen that, pursuant to Rule 59.10 of the Uniform Civil Procedure Rules (UCPR) applying to this Court, there is a mandatory time limit, whereby "proceedings for judicial review of a decision must be commenced within three months of the date of the decision".
5. It is quite true that there can be an extension of time granted, pursuant to another part of the Rule. But there was nothing placed before me so far to suggest that an order of this Court had been made in that regard.
6. In other words, in a nutshell what I am saying is I think that there is a real question as to whether the filing of that document on 18 November engages, by way of the word "commenced", the stay that is spoken of in s 69C(2) of the SCA.
7. The second thing is that the stay that is spoken of there is subject to s 69C(4); namely, to paraphrase, it continues until the proceedings are concluded "subject to any orders or direction of the Court". I think that on balance - bearing in mind that the plaintiff's affidavit is to the effect that she did bring these new proceedings to the attention of the Court of Appeal - it should be understood that the orders made by the Court of Appeal fall within the category spoken of in s 69C(4).
8. The third and final aspect is: as I raised with the advocate for the plaintiff, on a strict reading of s 69C(2), I believe extrapolated to its logical extension, a person on bail with regard to a District Court appeal pertaining to orders in the Local Court could forestall ever returning to custody simply by, on a day by day basis, filing an application for judicial review of the District Court judge's decision.
9. In other words, I think that there is a sense in which the words of Parliament have to be read in a sensible way. I do not accept that s 69C is to be interpreted in such a way as to permit people to frustrate the operation of the criminal justice system.
10. I hasten to add, I am not suggesting for a moment that that is what happened here. But I do believe that there comes a point where - even if I am quite wrong in my other analysis with regard to s 69C - a truly literal reading would need to give way to a common-sense purposive reading, in accordance with the Interpretation Act 1987 (NSW).

Warrant defective?

1. Other points that were made relate to the warrant that was relied upon by the DPP. As is commonly done in habeas corpus proceedings, the so-called gaoler simply produces the warrant from the Court, in order to show his or her literal "warrant" for detaining someone, lawfully.
2. The point was made that the Court of Appeal is not a sentencing court. The point was also made that the warrant that was issued, in particular the amended warrant of 26 November 2020, does not speak of a specific expiry date for the head sentence or for the non-parole period.
3. I accept that the Court of Appeal is not a sentencing court. I also accept that, although the failure of judicial review of orders in a criminal matter can lead, as here, to a person being incarcerated, it is not as if the Court of Appeal imposes sentences. Rather, the Court of Appeal simply, if dismissing proceedings for judicial review and if a person is on bail, brings that latter situation to an end.
4. I respectfully think that the orders proposed by Basten JA were in accordance with how Parliament has envisaged courts are to deal with this situation; namely, in particular, in s 69D of the SCA. Without reciting it chapter and verse, the orders made by the Court of Appeal are very much in conformity with the kind of orders that Parliament has spoken of there.
5. As well as that, I think that, respectfully, there is an issue about warrants, whereby persons are being in a practical sense sentenced, not being utterly clear. This case is a good example, because of course Colefax DCJ's "dates" are well out of date, because of the effluxion of time. And the warrant from the Court of Appeal does not on its face set out the dates upon which the components of the sentence will expire.
6. The advocate for the plaintiff referred to the requirements of the CSPA. But I think that the answer to that is that the requirements of the CSPA certainly applied to Colefax DCJ, but they do not apply to the Court of Appeal, because it is not a sentencing court.
7. The final aspect is that I must confess that, when I first saw the custody printout from the Department of Corrective Services (DCS), I wondered whether it was quite incorrect. I have come to the view that, without calculating it to the day, it seems to be correct, if one factors in the time the plaintiff spent in custody, the time that she spent at liberty on bail, (which, as I have found, does not count), the date upon which she was reincarcerated, and the two components of the sentence imposed by Colefax DCJ.
8. In other words, as I said during useful discussion with the advocates, it is not a matter for me today to determine whether down the track there may be a wrong calculation. It is a matter of me determining today whether the plaintiff should be released today. Even so, to satisfy myself I have looked at the calculations, and for the time being they do not seem to be incorrect.
9. Further, with regard to the warrant, I also do not accept that there needs to be some emendation by the District Court to its warrant. It is true to say that in Lazarus, Sandra v Director of Public Prosecutions (NSW) [2019] NSWCA 125, declarations were ultimately made by the Court of Appeal to clarify the situation. As I said, I think there is arguably an issue about warrants that are not capable of telling an incarcerated person with certainty precisely when his or her date of release will be.
10. But in Lazarus v DPP the problem was that the authorities simply felt uncomfortable about incarcerating the plaintiff because, on the face of the District Court warrant, the sentences had already expired. In other words, I think that the declarations were made by the Court of Appeal for abundant caution.

Stay pending statutory appeal

1. The fourth and final basis upon which it is said that release by habeas corpus should be granted is that, on the date upon which the applicant was incarcerated, she had other proceedings on foot; namely, an appeal to the Common Law Division. That had been filed on 16 September 2020, and it purported to be an appeal raising a question of law pursuant to the Crimes (Appeal and Review) Act 2001 (NSW) (the CARA) with regard to the decision of Magistrate Cheetham back on 28 November 2018.
2. The submission was made, that pursuant to s 63 of the CARA, in a nutshell, there was a stay of the execution of the sentence, pending determination of the appeal.
3. I think the immediate problem there is that that was an appeal lodged on 16 September 2020, with regard to a decision of a Magistrate from late 2018, that had been superseded by way of the orders of Colefax DCJ about 10 months later, on 9 September 2019.
4. To describe that appeal as therefore patently futile is not to be critical of the plaintiff personally, yet again because she is not a person expert in the law. But I completely reject the proposition that that futile appeal, by way of s 63 of the CARA, could stand in the way of the orders made by the Court of Appeal. Contingently, even if it did, the only sentence that would be stayed would be the sentence of Magistrate Cheetham, and that was not the sentence pursuant to which the plaintiff returned to custody quite recently.

Other matters

1. Quite apart from the arguments made on behalf of the plaintiff that I have respectfully rejected, to my mind the warrant is an order of the Court commanding the CCS to keep the plaintiff in custody. Unless and until the orders upon which that warrant is based are withdrawn or overruled, I think, to a very large extent, the production of the warrant is an answer to the claim for habeas corpus: see Young v Registrar; also Re Stanbridge's Application (1996) 70 ALJR 640 at 643.
2. I also think that, even if I am wrong in that, and the warrant is, in some way that I have not perceived, invalid or defective, even so the pronouncement of the orders of the Court of Appeal at the end of its judgment of 19 November 2020 also provides, as it were, an oral warrant for the incarceration.
3. I think that the real remedy, if there be one for the plaintiff, is to seek to make an appeal to the High Court of Australia; and having made it, to seek appeals bail. Or, if she asserts that there is some slip or legal error in the orders of the Court of Appeal, re-agitate that proposition in that forum.

Conclusion

1. In short, the writ having been agitated before me (it was commenced by notice of motion, but no point was taken about that), I am affirmatively satisfied that the plaintiff is lawfully detained as at today.
2. Accordingly, I do not propose to make an order pursuant to the writ of habeas corpus ordering her release.
3. Accordingly, the notice of motion is dismissed.
4. [Counsel for the DPP did not seek costs against the unsuccessful plaintiff.]

Orders 1. The Commissioner of Corrective Services be joined as a party to these proceedings. 2. The Notice of Motion is dismissed. 3. No order as to costs.

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