Director of Public Prosecutions (NSW) v Hamzy

Background

1. The first respondent, Mr Hamzy, is serving sentences of imprisonment in the New South Wales prison system for serious crimes. He has been designated an "extreme high risk restricted inmate" by the Commissioner of Corrective Services (Commissioner) pursuant to the Crimes (Administration of Sentences) Regulation 2014 (NSW) (Regulations), cl 15(3). He is currently housed in the High Risk Management Correctional Centre (HRMCC) at Goulburn.

The incident and the s 60A charge

1. On 30 August 2017 an incident occurred within the HRMCC involving Mr Hamzy. He was charged the following day with an offence contrary to s 60A of the Crimes Act 1900 (NSW). The particulars of the charge alleged that on 30 August 2017 Mr Hamzy assaulted Mr Poulsen, the Acting Manager of the Security High Risk Management Unit, Goulburn Correctional Centre, while escorting Mr Hamzy to another cell. The Court Attendance Notice (CAN) was created late on 31 August 2017 at 11.22 pm by Constable Piovesan, who was listed as the "OIC/prosecutor" on behalf of the NSW Police Force. It was filed in the Local Court at Goulburn. The maximum penalty for the s 60A(1) offence, when tried on indictment, is 5 years' imprisonment. Where, as in this case, the charge is dealt with summarily in the Local Court, the maximum penalty is 2 years' imprisonment and/or a fine of $5,500: Criminal Procedure Act 1986 (NSW), s 268(1A) and Sch 1, Table 2, cl 1.

Regression and review of Mr Hamzy under the Behaviour Management Plan

1. Also on 31 August 2017, Mr Hamzy was subjected to administrative action by the Goulburn Correctional Centre, involving the reduction in certain privileges as an inmate. That action was taken under a plan of management, styled the Behaviour Management Plan, which had been prepared and implemented by the Commissioner in respect of extreme threat inmates housed, relevantly, in the HRMCC at Goulburn. The Behaviour Management Plan is an incentive-based scheme of management, involving the progression and regression of inmates through specified stages by reference to a number of factors, including: • reduction (or cessation) of target problem behaviours; • increase in target "positive" or pro-social behaviours; • participation in assessment and intervention; • active participation in Individual Management Plans (IMPs). An inmate's level within the Plan dictates his access to certain privileges.
2. Mr Hamzy was regressed from Level 1.1 to Level 0.0 on 31 August 2017. In approving this action, the Manager of Security in the HRMCC at Goulburn commented: CCTV footage shows inmate attacking officer, police charges pending. This type of behaviour is unacceptable.
3. Mr Hamzy was informed of this decision on 1 September 2017. As a consequence of his regression to Level 0.0, certain of Mr Hamzy's privileges were reduced, including his telephone usage (reduction from 2 to 1 call per week); number of contact visits (reduction from 1 contact visit per week to 1 "box" visit per fortnight); exercise time (reduction from not less than 2 hours per day to not less than 1 hour per day); inmate association (reduction from 2 maximum (1 at any time) to nil); and the allowance for educational items, personal property and departmental property.
4. On 5 September 2017, a review meeting approved a recommendation that Mr Hamzy remain on Level 0.0 for a minimum of one month.
5. Weekly review meetings held on 12 and 19 September 2017 approved recommendations that Mr Hamzy remain on Level 0.0.
6. On 28 September 2017, a further weekly review meeting approved a recommendation that Mr Hamzy progress to Level 1.1.

Local Court proceedings

1. In the Local Court, Mr Hamzy applied for a permanent stay of the criminal proceedings on the ground that the charge under s 60A of the Crimes Act was an abuse of process because he "has already been punished for this matter within the Correctional Centre". The Local Court rejected that application and found Mr Hamzy guilty and convicted him on 30 July 2018.
2. In sentencing Mr Hamzy, the Magistrate took into account the reduction in his privileges under the Behaviour Management Plan as extra curial disadvantage. Mr Hamzy was sentenced to 20 months' imprisonment commencing on 30 July 2018 and ending on 29 March 2020. That sentence was to be served entirely concurrently with Mr Hamzy's existing sentences. He appealed against his conviction and sentence to the District Court: Crimes (Appeal and Review) Act 2001 (NSW) (CAR Act), s 11.

District Court proceedings

1. On 21 February 2019, the District Court allowed Mr Hamzy's appeal and made orders as indicated. The permanent stay of the criminal proceedings was made on the basis that the prosecution of the s 60A(1) charge was oppressive and that the proceedings would undermine the confidence of the community in the administration of justice within the Correctional system.
2. In reaching those conclusions, his Honour Acting Judge Graham found that the effect of the administrative action taken against Mr Hamzy on 31 August 2017 under the Behaviour Management Plan was an attempt by the Commissioner to subvert the proper penalty regime provided for within the Crimes (Administration of Sentences) Act 1999 (NSW) (CAS Act) and its Regulations by creating a parallel system of punishment for conduct involving correctional centre offences.

Judicial review proceedings

1. By summons filed 20 May 2019 the Director seeks relief quashing the orders made by the District Court on 21 February 2019, and consequential relief that the proceedings be returned to the District Court in its criminal jurisdiction to be dealt with according to law. The second respondent, the District Court of New South Wales, filed a submitting appearance.
2. The single ground of review asserts that the orders made by the District Court on 21 February 2018, in particular, the order permanently staying the criminal proceedings, involved jurisdictional error because Graham ADCJ misapprehended the nature and scope of the jurisdiction to stay proceedings for an abuse of process in each or all of the following ways: (i) permanently staying criminal proceedings where the circumstances said to give rise to the abuse of process, or to bring the administration of justice into disrepute, was not such as must have had some effect on, or implications for, the proceedings that the court was being asked to stay or the court's processes. (ii) posing, and answering, the wrong question (and thus also taking into account an irrelevant consideration) when concluding that "allowing [the] prosecution to continue would undermine the confidence of the community in the administration of justice within the Correctional system". (iii) permanently staying criminal proceedings by reference to a behavioural management plan imposed by the Commissioner of Corrective Services with respect to the first respondent ("BMP") in circumstances where the BMP was an irrelevant consideration in the determination of the first respondent's application for a permanent stay. (iv) erroneously giving weight to the notion of double jeopardy, including by reference to s 63(2) of the Crimes (Administration of Sentences) Act 1999 in circumstances where that provision had no relevant application.

The basis of the Director's application

1. There is no right of appeal from a decision of the District Court on appeal from the Local Court in a criminal matter. Any exercise of the supervisory jurisdiction of this Court is constrained by a privative clause in s 176 of the District Court Act 1973 (NSW), so that it is not sufficient to identify an error of law on the face of the record as a basis for quashing or setting aside an order of the District Court in its criminal appellate jurisdiction. For review under s 69 of the Supreme Court Act in a case such as the present, it is necessary for an applicant to demonstrate jurisdictional error: Director of Public Prosecutions v Emanuel [2009] NSWCA 42; (2009) 193 A Crim R 552 at [18] and [45]; Elias v Director of Public Prosecutions [2012] NSWCA 302; (2012) 222 A Crim R 286 at [5]; Yousaf v Director of Public Prosecutions [2012] NSWCA 397 at [12]; Garde v Dowd (2011) 80 NSWLR 620; [2011] NSWCA 115 at [10]; Templeton (a pseudonym) v Director of Public Prosecutions (NSW) [2018] NSWCA 335 at [3] and [15].
2. Accordingly, the only question that may be agitated in this Court on the matters raised by the summons is whether the decision of the District Court on appeal from the Local Court is affected by jurisdictional error.

Jurisdictional error

1. Central to the concept of jurisdictional error is the sometimes elusive distinction between errors of fact or law within jurisdiction, and jurisdictional error.
2. In Craig v South Australia (1995) 184 CLR 163; [1995] HCA 58 (Craig), the High Court recognised the difficulty of distinguishing between jurisdictional and non-jurisdictional errors, but maintained the distinction and gave a broad description of jurisdictional error at 177: An inferior court falls into jurisdictional error if it mistakenly asserts or denies the existence of jurisdiction or if it misapprehends or disregards the nature or limits of its functions or powers in a case where it correctly recognises that jurisdiction does exist. Such jurisdictional error can infect either a positive act or a refusal or failure to act. Since certiorari goes only to quash a decision or order, an inferior court will fall into jurisdictional error for the purposes of the writ where it makes an order or decision (including an order or decision to the effect that it lacks, or refuses to exercise, jurisdiction) which is based upon a mistaken assumption or denial of jurisdiction or a misconception or disregard of the nature or limits of jurisdiction. This statement was referred to with approval in Kirk v Industrial Court of New South Wales (2010) 239 CLR 531; [2010] HCA 1 (Kirk) at [72].
3. One of the examples given in Craig at 178 of an inferior court acting beyond its jurisdiction by entertaining a matter outside the limits of the inferior court's functions or powers was "misconstruction of the relevant statute thereby misconceiving the nature of the function which [it] is performing or the extent of its powers in the circumstances of the particular case".
4. In Kirk the joint judgment referred at [66] to the remarks of Hayne J in Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82; [2000] HCA 57 (Aala) at [163]: There is a jurisdictional error if the decision maker makes a decision outside the limits of the functions and powers conferred on him or her, or does something which he or she lacks power to do. By contrast, incorrectly deciding something which the decision maker is authorised to decide is an error within jurisdiction. (This is sometimes described as authority to go wrong, that is, to decide matters within jurisdiction incorrectly.) The former kind of error concerns departures from limits upon the exercise of power. The latter does not.

The relevant statutory provisions

1. The provisions of the CAS Act and Regulations potentially relevant to whether criminal proceedings for an act or omission that gives rise to a correctional centre offence are an abuse of process are: Division 6 Correctional centre discipline 51 Definitions In this Division - correctional centre offence means any act or omission by an inmate (whether or not it is also a criminal offence) - (a) that occurs while the inmate is within a correctional centre or correctional complex or is taken to be in the custody of the Governor of a correctional centre, and (b) that is declared by the regulations to be a correctional centre offence for the purposes of this Division. criminal offence means an act or omission that constitutes an offence otherwise than as a consequence of its having been declared by the regulations to be a correctional centre offence for the purposes of this Division. withdrawable privilege means a privilege or amenity that is declared by the regulations to be a withdrawable privilege for the purposes of this Division. 52 Hearing of charges by Governor (1) If it is alleged that an inmate of a correctional centre has committed a correctional centre offence, the Governor of the correctional centre may charge the inmate with the offence and conduct an inquiry into the allegation. (2) The following provisions apply to any such inquiry - (a) the inquiry must be conducted with as little formality and technicality, and with as much expedition, as fairness to the inmate charged, the requirements of this Act and the regulations and the proper consideration of the charge permit, (b) the Governor is not bound by the rules of evidence, but may inform himself or herself of any matter in such manner as the Governor thinks fit, (c) the inmate is entitled to be heard at any hearing during the inquiry and to examine and cross-examine witnesses, (d) except as provided by paragraph (e), the inmate is not entitled to be represented by an Australian legal practitioner or by any other person, (e the Governor must allow a person (other than an Australian legal practitioner) to represent or assist the inmate if the Governor is satisfied - (i) that the inmate does not sufficiently understand the nature of the inquiry, or (ii) that the inmate does not understand English or is otherwise unable to properly represent himself or herself during the inquiry, (f) if the inmate refuses or fails to attend at any hearing during the inquiry, the Governor may hear and determine the matter in the inmate's absence, (g) evidence is not to be given on oath or by affidavit at any hearing during the inquiry, (h) the Governor may allow any correctional officer or other person to be present, and to be heard, at any hearing during the inquiry, (i) the Governor may transfer the conduct of an inquiry to the Governor of another correctional centre to which the inmate has been transferred. 53 Penalties Governor may impose (1) If, after conducting an inquiry, the Governor is satisfied beyond reasonable doubt that the inmate is guilty of a correctional centre offence, the Governor may impose one (but not more than one) of the following penalties - (a) reprimand and caution, (b) deprivation, for up to 56 days, of such withdrawable privileges as the Governor may determine, (c) confinement to a cell for up to 7 days, with or without deprivation of withdrawable privileges, (d) cancellation of any right to receive payments under section 7 for up to 14 days, but to the extent only to which those payments are additional to the payments made at the base rate to inmates generally or to inmates of a class to which the inmate belongs. (Emphasis added.) … 54 Reference of offences to Visiting Magistrate (1) The Governor may refer a correctional centre offence with which an inmate is charged to a Visiting Magistrate for hearing and determination if the Governor considers that, because of the serious nature of the offence, it should be referred to a Visiting Magistrate. (2) A charge may be referred to a Visiting Magistrate without any inquiry being conducted by the Governor, or may be so referred during or after any such inquiry. 55 Hearing of charges by Visiting Magistrate (1) This section applies to proceedings on a charge that is referred to a Visiting Magistrate under this Division. (2) Subject to this section - (a) the Criminal Procedure Act 1986 applies to and in respect of the proceedings in the same way as it applies to and in respect of proceedings on a court attendance notice issued for a summary offence before the Local Court, and (b) any order or decision that is made by the Visiting Magistrate in or in connection with any such proceedings is taken to have been made under that Act. (3) ... (4) An inmate is entitled to be represented by an Australian legal practitioner in the proceedings. … 56 Penalties Visiting Magistrate may impose (1) If, after hearing the charge, the Visiting Magistrate is satisfied beyond reasonable doubt that the inmate is guilty of the correctional centre offence, the Visiting Magistrate may make an order imposing one (but not more than one) of the following penalties - (a) reprimand and caution, (b) deprivation, for up to 90 days, of such withdrawable privileges as the Visiting Magistrate may determine, (c) confinement to a cell for up to 28 days, with or without deprivation of withdrawable privileges, (d) cancellation of any right to receive payments under section 7 for up to 14 days, but to the extent only to which those payments are additional to the payments made at the base rate to inmates generally or to inmates of a class to which the inmate belongs, (e) extension, by up to 6 months at a time, of - (i) the term of the inmate's sentence, and (ii in the case of an offence occurring during a non-parole period of the inmate's sentence, the non-parole period of the sentence, (f) the imposition of a sentence of imprisonment for a period not exceeding six months. (Emphasis added). 58 Certain offences may be dealt with by Local Court If, during proceedings on a charge relating to a correctional centre offence, the Visiting Magistrate is of the opinion that the act or omission giving rise to the offence constitutes a criminal offence for which proceedings should be taken before a court, the Visiting Magistrate must terminate the proceedings and order that the inmate be brought before the Local Court to be dealt with according to law. … 62 Appeals against decisions of Visiting Magistrates (1) An appeal against a penalty imposed by a Visiting Magistrate under section 56 (1) (e) or (f) may be made to the District Court under Part 3 of the Crimes (Appeal and Review) Act 2001 as if that penalty were a sentence arising from a court attendance notice dealt with under Part 2 of Chapter 4 of the Criminal Procedure Act 1986. … 63 Double jeopardy (1) For the purpose of determining whether proceedings for a criminal offence may be brought for the act or omission giving rise to a correctional centre offence, the decision of a Visiting Magistrate in proceedings for the correctional centre offence is taken to be the decision of a court in proceedings for a criminal offence. (2) Proceedings for a correctional centre offence are not to be commenced or continued under this Division if proceedings for a criminal offence have been commenced in a court for the act or omission giving rise to the correctional centre offence. (Emphasis added.) 64 False or misleading statements (1) A person must not, in or in connection with any proceedings under this Division, make any statement that the person knows to be false or misleading in a material particular. (2) This section does not apply to a statement verified by statutory declaration.

District Court's reasons

1. After noting that the application for a permanent stay was advanced on the basis that pursuit of the charge against Mr Hamzy was oppressive and hence, constituted an abuse of process, Graham ADCJ observed: In this case, the application is not based so much on the conduct of the prosecution case but rather on what is said to lie behind it and provides a context for it, arising out of the application by the Commissioner of Corrective Services of a behaviour management plan. The argument being that that plan impermissibly subverts the statutory relationship between prison misconduct offences, on the one hand, and criminal charges dealt with in the court, on the other. (Judgment, 3)
2. His Honour considered the features of the Behaviour Management Plan and remarked that, by increasing or withholding or removing privileges, the Plan is "clearly capable of being seen by those who are subject to it as creating some form of punishment" (Judgment, 11). His Honour contrasted those aspects of the Behaviour Management Plan with the concept of "withdrawable privileges" and the penalties which may be imposed by the Governor after conducting an inquiry into a correctional centre offence under s 53 of the CAS Act or the penalties which may be imposed by a Visiting Magistrate under s 56 of the CAS Act. (Judgment, 12-13) His Honour found that the withdrawal of privileges involves punishment and that such withdrawal is only available in the exercise of the powers of a Governor or a Visiting Magistrate.
3. His Honour summarised his findings and conclusions as follows (Judgment, 28-29): The question being whether the true purpose, solely or substantially, as to punish the prisoner under the guise of exercising some other function and power. Here, it seems to me, that test is fulfilled in that the manner in which the management of inmates is intended to be dealt with is by way, among other things, of what are clearly punishments and which involve a withdrawal of privileges which otherwise are withdrawable only in the exercise of a power of a Governor or visiting magistrate under pt 2 div 6 of the Act. Accordingly, the Court has reached the following conclusions: The behaviour management plan, at least in circumstances where the regression provisions are triggered due to an act or omission constituting a correctional centre offence, is inconsistent with, and repugnant to, the Act and Regulations, particularly pt 2 div 6 of the Act. Secondly, the regression of an inmate in those circumstances constitutes an impermissible departure from the requirements of the Act and Regulations and purports to create a parallel punishment system to that provided for in pt 2 div 6 of the Act. Thirdly, further, it amounts to a clear attempt to circumvent the protections of the Act and Regulation, especially the double jeopardy provisions in s 63 subs (2) of the Act. It is clear, as the appellant submitted, that the Commissioner cannot create a parallel punishment system by giving it another name, in this case by calling it a 'behaviour management plan'. In those circumstances, bringing and continuing the prosecution is oppressive and amounts to an abuse of process in that the appellant has been punished impermissibly under colour of implementation of the 'behaviour management plan' and has been deprived of the protection of the double jeopardy principle in s 63(2) of the Act … [T]his constitutes an extreme or exceptional case of oppression …".

The Director

1. The Director submitted that whether or not the Behaviour Management Plan is characterised as administrative rather than punitive in nature, or indeed is unlawful, being issues raised in separate proceedings between Mr Hamzy and the Commissioner in the Common Law Division, the action taken by the Commissioner under the Behaviour Management Plan could not properly constitute an abuse of process that could found the exercise of the Court's power to permanently stay the criminal proceedings.
2. In support of this submission, the Director challenged two aspects of his Honour's reasoning. The first was the finding that the criminal proceedings are oppressive because by punishing Mr Hamzy under the Behaviour Management Plan, he has been deprived of the protection of the double jeopardy principle in s 63(2) of the CAS Act. The second was the finding that the continuation of the proceedings "would undermine the confidence of the community in the administration of justice within the Correctional system".
3. As to the finding of oppression, the Director submitted that his Honour erred in giving weight, indeed primacy, to the notion of double jeopardy, including by reference to s 63(2) of the CAS Act when, according to the submission, that provision had no relevant operation.
4. The Director submitted that there was no fundamental difficulty or defect in the process leading to the trial in the Local Court and that the prosecutor did not employ any objectionable or blameworthy means of securing a conviction.
5. The Director further submitted that the criminal proceedings did not amount to an abuse of process because the double jeopardy provision in s 63(1) of the CAS Act was not engaged, since there has been no decision of a Visiting Magistrate arising out of the incident on 30 August 2017. Nor, it was submitted, was s 63(2) engaged since no proceedings for a correctional centre offence have been commenced against Mr Hamzy.
6. As to the second finding relating to the administration of justice "within the Correctional system", the Director submitted that his Honour posed and answered the wrong question and also took into account an irrelevant consideration.

Mr Hamzy

1. Counsel for Mr Hamzy submitted that the abuse of process argument primarily relied on unjustifiable oppression, being the second category of abuse of process referred to by McHugh J in Rogers v The Queen (1994) 181 CLR 251; [1994] HCA 42 (Rogers) at 286. The third category in Rogers - the use of the Court's procedures would bring the administration of justice into disrepute - was relied upon "to some degree". Counsel accepted that no reliance was placed on the first category in Rogers - where the court's procedures are invoked for an illegitimate purpose, such as in Williams v Spautz (1992) 174 CLR 509; [1992] HCA 34.
2. It was submitted that Mr Hamzy had been "prosecuted essentially internally and now I've been prosecuted externally again" and s 63(2) of the CAS Act does not allow that. According to the submission, once the criminal proceedings were commenced by the police, any internal action by the Governor must be stayed.
3. It was further submitted that the maintenance of the criminal proceedings against Mr Hamzy brought the administration of justice into disrepute because the court was being used "for a purpose of punishing someone who has already been punished". The inevitable result of the conviction in the Local Court was said to be double punishment.
4. Counsel for Mr Hamzy submitted that the present case is a very unique situation and distinguishable from the statements in Jago v District Court (NSW) (1989) 168 CLR 23; [1989] HCA 46 (Jago) by Brennan J at 47-48 and Gaudron J at 76 to the effect that unfairness to the accused caused by extraneous circumstances is not an abuse of the court's process. It was submitted that the present case involves a particular legislative framework which provides for the way in which an inmate such as Mr Hamzy should be dealt with.
5. Counsel for Mr Hamzy also submitted that any errors of law by Graham ADCJ did not involve jurisdictional error.

Relevant principles - Abuse of process

1. It is only necessary to refer to some matters of principle. The power of a superior court to stay its own proceedings as an abuse of process is a power to protect the integrity of its own processes: Strickland (a pseudonym) v Director of Public Prosecutions (Cth) [2018] HCA 53; (2018) 272 A Crim R 69; (Strickland) at [106] (Kiefel CJ, Bell and Nettle JJ) and [113] (Gageler J). As Gageler J emphasised at [113] "[t]he power is … a power to 'safeguard the administration of justice'".
2. In Walton v Gardiner (1993) 177 CLR 378; [1993] HCA 77, Mason CJ, Deane J and Dawson JJ said at 392-393: The inherent jurisdiction of a superior court to stay its proceedings on grounds of abuse of process extends to all those categories of cases in which the processes and procedures of the Court, which exist to administer justice with fairness and impartiality, may be converted into instruments of injustice or unfairness.
3. What amounts to abuse of court process is insusceptible of a formulation comprising closed categories: Batistatos Roads and Traffic Authority of New South Wales (2006) 226 CLR 256; [2006] HCA 27 at [9]; Moti v The Queen (2011) 245 CLR 456; [2011] HCA 50 (Moti) at [10]. However, a convenient starting point is the observation of McHugh J in Rogers at 286: Although the categories of abuse of procedure remain open, abuse of procedure usually fall into one of three categories: (1) the Court's procedures are invoked for an illegitimate purpose; (2) the use of the Court's procedures is unjustifiably oppressive to one of the parties; or (3) the use of the Court's procedures would bring the administration of justice into disrepute. This summary was referred to with approval in Batistatos at [15] and Moti at [10].
4. Although in dissent in Strickland, Gageler J uncontroversially explained at [154] that the focus of the court's power is on prevention of the court's procedures being used in a manner that is inconsistent with the due administration of justice by the court. His Honour continued at [154]: … In a case where use of the court's procedures would be substantially unfair, the inconsistency lies in the administration of justice by the court being converted into an instrument of that substantial unfairness. In a case where use of the court's procedures would bring the administration of justice into disrepute, the inconsistency lies correspondingly in the tendency of the court, in permitting that use of its procedures to occur, to erode public confidence in the court's administration of justice in that and other cases.

Consideration

1. When conducting a summary trial, the Local Court has power to permanently stay criminal proceedings in a proper case on the ground of abuse of process: Director of Public Prosecutions v Shirvanian (1998) 44 NSWLR 129 at 134-5 (Mason P; Beazley JA agreeing); Local Court Act 2007 (NSW), s 64(1). See also Grassby v The Queen (1989) 168 CLR 1 at 16-17; [1989] HCA 45 (Dawson J) in relation to the implied power of an inferior court. Likewise, the District Court, on an appeal against conviction, also has that jurisdiction. The CAR Act, s 28(2), provides that in determining an appeal, the District Court may exercise any function that the Local Court could have exercised in the original Local Court proceedings.
2. It is convenient first to address his Honour's finding in relation to the third category of abuse of process referred to by McHugh J in Rogers.

(a) Whether use of the Court's procedures would bring the administration of justice into disrepute

1. The power of the Local Court, and in turn the District Court exercising criminal appellate jurisdiction, to stay criminal proceedings in the Local Court as an abuse of process, is a power to protect the integrity of its own processes: Strickland at [106] and [154]; Walton v Gardiner at 393. Plainly, the finding by his Honour that the continuation of the criminal proceedings against Mr Hamzy would undermine the confidence of the community in the administration of justice "within the Correctional system" addressed the wrong issue.
2. The error in this finding was to conflate public confidence in the administration of justice "within the Correctional system" with public confidence in the administration of justice in this case and other cases: Strickland at [154].
3. That error by his Honour went to the jurisdiction of the District Court to make the permanent stay order which was in fact made because "the Court, through misconceiving the jurisdiction with which it was entrusted, addressed itself to the wrong issue and therefore exceeded its jurisdiction": R v Dunphy; ex parte Maynes (1978) 139 CLR 482 at 496; [1978] HCA 19, cited in Craig at 178.
4. In finding abuse of process on this ground, his Honour committed jurisdictional error.

(b) Whether unjustifiable oppression

1. In the second category of abuse of process - unjustifiable oppression - attention is directed to whether use of the court's procedures would be substantially unfair to the accused: Strickland at [154]; Jago at 28 (Mason CJ), 74 (Deane J), 77 (Gaudron J); Walton v Gardiner at 393-394 (Mason CJ, Deane and Dawson JJ).
2. However, as Mason CJ explained in Jago at 30, fairness to the accused is not the sole criterion when a court decides whether a criminal trial should proceed. Mason CJ cited with approval the statement of Richardson J of the New Zealand Court of Appeal in Moevao v Department of Labour [1980] 1 NZLR 464 at 482: The yardstick is not simply fairness to the particular accused. It is not whether the initiation and continuation of the particular process seems in the circumstances to be unfair to him. That may be an important consideration. But the focus is on the misuse of the Court process by those responsible for law enforcement. It is whether the continuation of the prosecution is inconsistent with the recognised purpose of the administration of criminal justice and so constitutes an abuse of the processes of the Court. (Emphasis added.)
3. Mason CJ also observed in Jago at 33-34 that the test of fairness involves a balancing process and that a permanent stay should be ordered only in an extreme case, and continued at 34: To justify a permanent stay of criminal proceedings, there must be a fundamental defect which goes to the root of the trial, "of such a nature that nothing that a trial judge can do in the conduct of the trial can relieve against its unfair consequences": Barton v The Queen (1980) 147 CLR 75 at 111 (Wilson J).
4. Brennan J emphasised in Jago that whilst there are often obstacles to a fair trial, it is necessary to distinguish between unfairness to the accused caused by extraneous circumstances, which does not call for a permanent stay, and abuses of the court's process. As to extraneous circumstances, his Honour said at 47: "[u]nfairness occasioned by circumstances outside the court's control does not make the trial a source of unfairness", before continuing at 47-48: An abuse of process occurs when the process of the court is put in motion for a purpose which, in the eye of the law, it is not intended to serve or when the process is incapable of serving the purpose it is intended to serve … When process is abused, the unfairness against which a litigant is entitled to protection is his subjection to process which is not intended to serve or which is not capable of serving its true purpose. But it cannot be said that a trial is not capable of serving its true purpose when some unfairness has been occasioned by circumstances outside the court's control unless it be said that an accused person's liability to conviction is discharged by such unfairness. (Emphasis added.)

Whether the District Court misconceived the nature of double jeopardy envisaged by s 63 of the CAS Act?

1. Section 63 of the CAS Act is headed "Double jeopardy". Whilst the heading is not to be taken to be part of the Act (Acts Interpretation Act 1987 (NSW), s 35(2)(a)), it is plain that the subject matter of s 63 is multiplicity of proceedings under Div 6 and in criminal courts for acts or omissions constituting a correctional offence. That directs attention to the nature of double jeopardy at the different stages of the criminal justice process.

The nature of double jeopardy

1. In Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57 (Pearce), McHugh, Hayne and Callinan JJ explained at [9] that the expression "double jeopardy" is not always used with a single meaning: ... Sometimes it is used to refer to the pleas in bar of autrefois acquit and autrefois convict; sometimes it is used to encompass what is said to be a wider principle that no one should be "punished again for the same matter".. Further, "double jeopardy" is an expression that is employed in relation to several different stages of the criminal justice process: prosecution, conviction and punishment. (Citations omitted.)
2. After referring to the rationale for the rule against double jeopardy and other (sometimes competing) forces, the joint judgment in Pearce observed at [15] that issues of double prosecution should be considered separately from issues of double punishment: In this case it is helpful to consider the stages in the criminal justice process separately, and to deal with issues of double prosecution separately from issues of double punishment. At the stage of prosecution, it is necessary to consider first whether the appellant was entitled to enter a plea in bar to one or more counts on the indictment, and secondly whether he was entitled to a stay of proceedings on one or more counts. At the stage of punishment, it is necessary to consider whether he was entitled to be sentenced in some way differently from the sentences imposed upon him.
3. In Pearce at [59], Gummow J said of the pleas in bar, autrefois convict and autrefois acquit: A starting point for a doctrinal consideration of the pleas is the statement in Spencer Bower, Turner and Handley, The Doctrine of Res Judicata: There is a crucial distinction between pleas of autrefois acquit and autrefois convict though the two are often associated. Autrefois acquit is the species of estoppel by which the Crown is precluded from reasserting the guilt of the accused when that question has previously been determined against it. Autrefois convict, on the other hand, is akin to merger. It is the application to criminal proceedings of the maxim transit in rem judicatam. The learned editor also points out, with respect to autrefois convict, that "[i]t is the conviction, and not the harassment, which constitutes the bar". (Citations omitted.)
4. The pleas of autrefois convict and autrefois acquit are recognised in, but unchanged by, s 156 of the Criminal Procedure Act 1986 (NSW): R v Stone (2005) 64 NSWLR 413; [2005] NSWCCA 344 at [23] (Hunt AJA). These defences are available in summary proceedings: State Pollution Control Commission v Tallow Products Pty Ltd (1992) 29 NSWLR 517 at 530-532; R v McGarritty (Court of Criminal Appeal (NSW), 10 June 1994, Grove, Studdert and Blanch JJ, unrep., at 13-14).

Division 6 of the CAS Act

1. Division 6 of Pt 2 of the CAS Act deals with correctional centre discipline. The Governor of the correctional centre may deal with an allegation of a "correctional centre offence" in two ways. The Governor may charge the inmate with the offence and conduct an inquiry into the allegation: s 52(1).
2. Alternatively, having charged the inmate with a correctional centre offence, the Governor may refer the matter to a Visiting Magistrate for hearing and determination, if the Governor considers that such a referral should be made because of the serious nature of the offence: s 54(1). And, the Governor may either refer a charge to a Visiting Magistrate without the Governor conducting any inquiry, or during or after any such inquiry by the Governor: s 54(2).
3. Where the Visiting Magistrate forms the opinion that the act or omission giving rise to the offence constitutes a criminal offence for which proceedings should be taken before a court, the Visiting Magistrate must terminate the proceedings and order that the inmate be brought before the Local Court to be dealt with according to law: s 58.
4. Division 6 makes separate provision for the manner in which the Governor is to conduct any such inquiry (s 52(2)), and a Visiting Magistrate is to conduct proceedings on a charge (s 55(2)).
5. Division 6 also distinguishes between the penalties that may be imposed by a Governor (s 53(1)), and those penalties which a Visiting Magistrate may impose (s 56(1)).
6. No right of appeal is conferred by Div 6 in relation to penalties imposed by a Governor; however, there is a limited right of appeal in respect of certain penalties imposed by a Visiting Magistrate, relevantly: penalties involving an extension by up to six months, at a time, of the term of the inmate's sentence and, where relevant, a non-parole period of the sentence (s 56(1)(e)), or the imposition of a sentence of imprisonment for a period not exceeding six months (s 56 (1)(f)).

Section 63(1)

1. The subject matter of s 63(1) is the status of a decision of a Visiting Magistrate on a charge for a correctional centre offence for the purposes of criminal proceedings for an act or omission that gives rise to the correctional centre offence. Section 63(1) provides that for the purposes of such criminal proceedings, the decision of a Visiting Magistrate is taken to be the decision of a court in proceedings for a criminal offence.
2. That is, where a charge against an inmate is dealt with by a Visiting Magistrate and the inmate is either convicted or the charge is dismissed (see s 202 of the Criminal Procedure Act 1986 (NSW), which is made applicable to such proceedings by s 55(2) of the CAS Act), the decision of a Visiting Magistrate is to be treated as a decision of a competent court of criminal jurisdiction for the purposes of a plea in bar of autrefois convict and autrefois acquit to proceedings for a criminal offence for an act or omission that gives rise to a correctional centre offence.
3. By contrast, s 63(1) says nothing about the decision of a Governor on an inquiry under s 52(1). If the Governor finds the inmate guilty of a correctional centre offence, the decision is an administrative decision; it is not a conviction. And, if the Governor finds an inmate not guilty of the charge, the decision is not a discharge since the inmate could never stand in jeopardy on a charge before a Governor on an inquiry: Island Maritime Limited v Filipowski; Kulkarni v Filipowski (2006) 226 CLR 328; [2006] HCA 30 at [11]-[12] (Gleeson CJ, Heydon and Crennan JJ). In either case, the decision of the Governor does not have the status of a judicial determination.

Section 63(1) was not engaged

1. It is not in dispute that an offence contrary to s 60A(1) of the Crimes Act answers the description of an act or omission giving rise to a "correctional centre offence" as declared by the Regulations for the purposes of Div 6, relevantly, an assault: Regulations, Sch 2, cl 141.
2. At the stage of prosecution, the relevant questions are first whether the accused was entitled to enter a plea in bar to the s 60A charge, and second, whether the accused was entitled to a stay of proceedings on that charge: Pearce at [15]. In the present case the answer to each question is in the negative.
3. No plea of autrefois acquit or autrefois convict was entered to the s 60A charge, nor could there have been such a plea. There had been no previous judicial determination in favour of Mr Hamzy to found a plea of autrefois acquit and no conviction upon which the doctrine of merger could operate to found a plea of autrefois convict: Pearce at [62]. So much was accepted by counsel for Mr Hamzy who did not place any reliance on s 63(1) of the CAS Act as supporting the abuse of process argument.

Section 63(2)

1. Section 63(2) places no restriction or constraint on the commencement of the proceedings for a criminal offence for an act or omission giving rise to the correctional centre offence. Rather, it imposes a statutory bar on the commencement or continuation of proceedings for a correctional centre offence once proceedings for a criminal offence are commenced in a court.
2. The statutory bar imposed by s 63(2) on disciplinary proceedings under Div 6 is automatic once such criminal proceedings are commenced. The effect of s 63(2) is to give primacy to the criminal proceedings over the commencement or continuation of disciplinary proceedings for a correctional centre offence.
3. The statutory bar in s 63(2) is not engaged if the disciplinary proceedings by the Governor have concluded at the time the criminal proceedings are commenced. Thus s 63(2) allows a temporal sequence of events whereby the Governor may conduct an inquiry and impose punishments within the Governor's power under s 53 of the CAS Act, and the inmate may be punished a second time in criminal proceedings commenced after the conclusion of an inquiry by the Governor. So much was correctly accepted by counsel for Mr Hamzy.
4. There is a question of construction as to whether the statutory bar in s 63(2) on "proceedings for a correctional centre offence" is limited to proceedings on a charge before a Visiting Magistrate or also includes an inquiry before a Governor. The word "proceedings" is not defined in the CAS Act or the Regulations, nor is it defined in the Acts Interpretation Act or the Criminal Procedure Act 1986 (NSW) insofar as the latter statute is made applicable to proceedings on a charge that is referred to a Visiting Magistrate by a Governor: CAS Act, s 55(2). Accordingly, the meaning of the word "proceedings" is to be derived from the statutory context and the objects of the legislation.
5. As to context, one indicator that a broad meaning should be given to the word "proceedings" in the phrase "proceedings for a correctional centre offence" is that s 63(1) expressly qualifies the same phrase by limiting it to proceedings before a Visiting Magistrate, whereas s 63(2) contains no such limitation.
6. As to purpose, the scheme of Div 6 provides a procedure for dealing with a correctional centre offence depending on the seriousness of the offence. Thus, the Governor may refer a correctional centre offence to a Visiting Magistrate under s 54(1) because of the serious nature of the offence; and, a Visiting Magistrate may order that an inmate be brought before the Local Court to be dealt with according to law under s 58, when of the opinion that the act or omission giving rise to the offence constitutes a criminal offence. It would be odd if the primacy given in s 63(2) to criminal proceedings over disciplinary proceedings before a Visiting Magistrate did not extend to a disciplinary inquiry before a Governor.

Section 63(2) was not engaged

1. In the present case, it is not necessary to determine the ambit of the reference to disciplinary "proceedings" in s 63(2), as it makes no difference to Mr Hamzy's argument based on oppression. The automatic stay in s 63(2) on proceedings for a correctional centre offence was never engaged because Mr Hamzy was never charged by the Governor with a correctional centre offence; hence there was never an inquiry by the Governor, let alone the referral of any charge to a Visiting Magistrate.
2. Mr Hamzy's essential complaint relying upon s 63(2) is that any internal action by the Governor, including action under a plan for the management of inmates, must be stayed once the criminal proceeding was commenced. But that is not what s 63(2) says. It only provides for an automatic stay of proceedings for a correctional centre offence, not a stay of action under a plan of management, such as the Behaviour Management Plan. Even if it be assumed that the action taken against Mr Hamzy under the Behaviour Management Plan was unlawful (which it is not necessary to decide on this application), s 63(2) of the CAS Act does not make the commencement and continuation of the criminal proceedings on the s 60A charge an abuse of process.
3. One further matter should be mentioned for completeness. Counsel for Mr Hamzy accepted that the actions taken against Mr Hamzy under the Behaviour Management Plan following the incident on 30 August 2017 could have been imposed by a Governor without referral to a Visiting Magistrate, had the matter been dealt with as a correctional offence.
4. That concession is correct insofar as the reduction of privileges under the Behaviour Management Plan on 30 August 2017 mirrored the deprivation of withdrawable privileges which the Governor could impose as a penalty under s 53(1)(b) of the CAS Act.
5. However, the concession requires further consideration insofar as Mr Hamzy's daily exercise in the open air was reduced under the Behaviour Management Plan on 31 August 2017 from 2 hours to 1 hour per day, and that reduction in daily exercise was maintained on the weekly review decisions on 5, 12 and 19 September 2017 until Mr Hamzy was progressed back to Level 1.1 on 28 September 2017.
6. Regulation 53 provides that an inmate's entitlement to daily exercise in the open air of 2 hours per day can only be reduced to 1 hour per day if the inmate is confined to cell under ss53 or 56 of the CAS Act. Under s 53(1)(c), the Governor can impose a penalty of confinement to cell for up to 7 days, whereas under s 56(1)(c) a Visiting Magistrate can impose a penalty of confinement to cell for up to 28 days. Mr Hamzy was not confined to cell under ss53 or 56 of the CAS Act. And even if Mr Hamzy had been charged with a correctional centre offence, a decision to impose a penalty by confining Mr Hamzy to cell for a period in excess of 7 days and up to 28 days, subject to the mandatory daily exercise of 1 hour per day, could only have been made by a Visiting Magistrate under s 56(1)(c). This did not occur here.

Conclusion and orders

1. The Director has established that the District Court committed jurisdictional error when making the order for the permanent stay of the criminal proceedings. The appropriate orders are in the nature of certiorari setting aside the orders of the District Court on 21 February 2019, and an order in the nature of mandamus that the District Court determine Mr Hamzy's appeal according to law.
2. I propose the following orders: 1. Set aside orders 1, 2 and 3 made by his Honour Acting Judge Graham in the District Court on 21 February 2019. 2. Order that the District Court determine Mr Hamzy's appeal filed on 9 August 2018 against his conviction and sentence in the Local Court in Goulburn in July 2018 according to law.
3. PAYNE JA: I have read the judgment of Gleeson JA in draft. I agree with his Honour's reasons. These additional remarks are not intended to be inconsistent with anything his Honour has written.
4. The subject matter of s 63(1) of the Crimes (Administration of Sentences) Act 1999 (NSW) is a "correctional centre offence" dealt with to finality by a visiting magistrate. In such a case the inmate concerned is able to raise any decision by the visiting magistrate as a plea in bar in any subsequent criminal proceedings. Mr Hamzy was not dealt with for a "correctional centre offence" by a visiting magistrate. Section 63(1) was not engaged. Had the Governor in fact dealt with Mr Hamzy for a "correctional centre offence" (rather than under the Behaviour Management Plan), s 63(1) would still not have been engaged.
5. If the argument accepted by the primary judge about the validity of the Behaviour Management Plan is ultimately found to be correct, then the action taken internally in relation to Mr Hamzy under that Plan may be held to be unlawful. Even assuming that the action taken here under the Behaviour Management Plan was unlawful, s 63(1) of the Crimes (Administration of Sentences) Act would still not be engaged. Much less would the criminal prosecution conducted in the Local Court here be an abuse of process. There was no basis to stay those criminal proceedings.
6. Section 63(2) of the Crimes (Administration of Sentences) Act was also not engaged. The subject matter of subsection (2) is the grant of a stay of a "correctional centre offence" once proceedings for a criminal offence have been commenced in a court. Even assuming, contrary to the fact, that Mr Hamzy had been dealt with for a "correctional centre offence", that dealing had been completed prior to the commencement of the criminal case. It would be quite inconsistent with the clear intention of s 63(2) to stay criminal proceedings in circumstances where proceedings for a "correctional centre offence", however defined, had already been dealt with.

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