NSWNSWSC

Gargan v Director of Public Prosecutions and anor

[2004] NSWSC 10

Supreme Court of NSW|2004-01-28|Before: O'Keefe J, Act J

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Source facts

Court

Supreme Court of NSW

Decision date

2004-01-28

Before

O'Keefe J, Act J

Catchwords

(1930-1931) 44 CLR 394

Source

Original judgment source is linked above.

Catchwords

(1930-1931) 44 CLR 394

Judgment (36 paragraphs)

[1]

Introduction 1 This is an application by Peter Alexander Gargan (the plaintiff) for an order in the nature of a writ of habeas corpus requiring the production to the court of Russell Bickford also known as Stratton (the prisoner), for his release from imprisonment and the quashing of his conviction for assault with intent to rob. 2 On 19 March 2003 the prisoner was convicted in the District Court at Penrith on one count of assault with intent to rob. The offence was alleged to have been committed on 16 March 2001 at the Blacktown Workers Club. On 25 July 2003 the prisoner was sentenced to a term of imprisonment of two years to commence on that date and to expire on 24 July 2005. The sentencing judge fixed a non-parole period of ten months commencing on 25 July 2003 and expiring on 24 May 2004. 3 The prisoner lodged a Notice of Intention to Appeal to the Court of Criminal Appeal against his conviction and sentence. The Notice of Appeal in the matter is to be filed by 30 January 2004. Since the Notice of Appeal has not been filed the precise grounds of appeal are not known, but during the course of argument it became clear that one of the grounds, probably the only ground, that was intended to be relied on was that the prisoner's trial had miscarried because the members of the jury were permitted to separate after they had retired to consider their verdict but before reaching such verdict.

[2]

History of Application 4 The original process filed in the court consisted of a Summons in which the Director of Public Prosecutions (the DPP) was the only defendant. The form of the Summons did not then make the identity of the plaintiff clear. It was said to be filed for Russell Bickford but was entitled Ex parte Peter Alexander Gargan. 5 The matter came before Dowd J on 8 September 2003. Orders were then made in relation to the filing of written submissions and the joinder of any additional parties. On 8 September 2003 the solicitor for the DPP filed written submissions contesting the plaintiff's claim. 6 The matter came before the court again on 18 September 2003. Leave was then given to the DPP to file an affidavit in court and the matter was adjourned until 19 September 2003. On that date leave was given to the plaintiff to add the Governor of Silverwater Prison as a party to the action and to the Notice of Motion that had been filed by the plaintiff on 15 September 2003. Directions were given in relation to the filing of further written submissions and, as the plaintiff had indicated that he proposed to take a point in relation to a matter arising under the Commonwealth Constitution or involving its interpretation, for more abundant caution (Re Application by Public Service Association of NSW (1947) 75 CLR 430 at 433 per Williams J; Australian Competition and Consumer Commission v CG Berbates Holdings Pty Ltd (1999) 167 ALR 303 at 308 para 14 per French J) a direction was given that any notices under s 78B of the Judiciary Act 1903 be served on the Attorneys-General of the Commonwealth and the other States by a date then nominated. Leave was also given to the plaintiff to effect any further amendments to his initiating process. 7 The Governor of Silverwater Correctional Centre was duly joined and, after some delay, served with the relevant process. Notices under s78B of the Judiciary Act 1903 were also served. When the matter was again before the court on 17 October 2003 a senior solicitor from the Office of the Crown Solicitor was given leave to intervene on behalf of the Attorney-General for New South Wales. He informed the court that the Attorneys-General of the Commonwealth and other States had indicated that they did not propose to seek to intervene in the matter. 8 The plaintiff filed a Statement of Claim on 11 November 2003. The relief claimed in it is in essence the same as that claimed in the Summons and in the Notice of Motion referred to above, however the plaintiff also sought "damages as a liquidated amount in accordance with the formula in the Crimes Act 1914 of $165,000" or alternatively "damages to be assessed as in trespass on a per day basis for the taking of the prisoner's body and the imprisonment thereof by the State of New South Wales acting as agent of the Crown". The hearing took place on 21 November 2003 and 6 January, 2004, on which date judgment was reserved.

[3]

Habeas Corpus 9 Section 69 of the Supreme Court Act 1970 in effect abolishes the prerogative writs of prohibition, mandamus, certiorari or "of any other description". Where previously the court had jurisdiction to grant relief or remedy by way of writ the same jurisdiction is preserved, subject to the court not issuing a writ of the kind that would previously have been issued but in lieu thereof granting the same relief or remedy by way of judgment or order (s 69). Proceedings under s 69 should be commenced by summons (White v Grogan (1972) 2 NSWLR 347). 10 Section 71 provides that on an application for a writ of habeas corpus the court may give such judgment or make such order disposing of the proceedings as the nature of the case requires and s 71(3A) provides that "a writ of habeas corpus may be enforced in the ways in which a judgment or order of the court may be enforced". Section 71(4) provides that a writ of habeas corpus as referred to in s 71 means a writ of habeas corpus ad subjiciendum. From this it would appear that, notwithstanding s 69, relief by way of the writ of habeas corpus is preserved, at least in the form ad subjiciendum. 11 The purpose of the writ of habeas corpus is to secure the liberty of the subject. It provides a curial means for obtaining a person's release from unlawful detention. The Habeas Corpus Act 1679 (31 Car. II c. 2) mandates the prompt return to the writ (s ll and s V) and provides for monetary forfeitures by those who disobey it (s V). The Act provides that it extends to places beyond the "Kingdom of England" to "places beyond the Seas, which are or at any Time hereafter shall be within the Dominions of His Majesty" (s XII). In Smith v Collis (1910) 10 SR (NSW) 800, the incorporation of the Habeas Corpus Act 1679 as part of the law of New South Wales was confirmed. The writ requires the production of the detained person to the court by the individual or body that has the actual or constructive custody of such person. Thus, if the detention of the person is being effected by an individual or body "who is really the agent" of another "to continue … the unlawful detention", the writ may issue against such individual or body (Barnado v Ford (1892) AC 326 at 333 per Lord Halsbury LC). If there is no legal justification for the detention, his or her release will be ordered. 12 In Rex v Secretary of State for Home Affairs; Ex parte O'Brien (1923) 2 KB 361 the Home Secretary ordered that the applicant, O'Brien, be interned in such place in the Irish Free State as the Irish Free State Government should determine. The applicant was arrested in London and came into the custody and control of the Home Secretary. The Home Secretary transferred the custody of the applicant to the Governor of Mountjoy Prison in the then Irish Free State in purported reliance on regulation 14B of the Restoration of Order in Ireland Regulations 1920. That regulation was held to have been repealed by the Irish Free State Constitution Act, 1922, with the consequence that the internment of the applicant was bad. The applicant was in the Irish Free State in the custody of such Governor at the time the application for the writ of habeas corpus was made. The English Court of Appeal held that, notwithstanding that by surrendering the applicant to the Free State Government, the Home Secretary had parted with the actual custody of the applicant, the application was properly made so that the question of control might be determined. Atkin LJ said: "Actual physical custody is obviously not essential. 'Custody' or 'control' are the phrases used passim in the opinions of the Lords in Barnado v Ford … In this case it is plain that the applicant was at one time in the custody and control of the Home Secretary by an order which we have held to be illegal. There is, to say the least, grave doubt whether he is not still in the custody or control of the Home Secretary. The case of Barnado v Ford appears to me to afford ample ground for the conclusion that this court should order the writ to go addressed to the Home Secretary in order that he may deal fully with the matter, and if he has in fact parted with control to show fully how that has come about." (supra at 398-399) However: "… if the court is satisfied that the body whose production is sought is not in the custody, power or control of the person to whom it is sought to address the writ, a writ of habeas corpus is not the proper remedy..." (supra at 391 per Scrutton LJ) 13 An appeal to the House of Lords was dismissed as incompetent (1923) AC 603. The DPP

[5]

16 The same section provides that the Director has the same functions as the Attorney General in relation to: "(a) finding a bill of indictment, or determining that no bill of indictment be found in respect of any indictable offence in circumstances where the person concerned has been committed for trial, (b) directing that no further proceedings be taken against the person who has been committed for trial or sentence, and (c) finding a bill of indictment in respect of an indictable offence, in circumstances where the person concerned has not been committed for trial." 17 Section 8 of the Act empowers the Director to institute and conduct committal proceedings for indictable offences, proceedings for summary offences and summary proceedings for indictable offences. The powers conferred by this section extend to conducting appeals, but are restricted in respect of summary offences. 18 Section 9 empowers the Director to take over prosecutions or proceedings, whether for an indictable or summary offence, where they have been instituted by some other person subject to a limitation similar to that provided for in s 8. 19 Other functions conferred on the Director include: (a) consenting to prosecutions (s 11); (b) assisting a coroner, but only with the consent of the coroner (s 12); (c) furnishing guidelines "to the Deputy Directors, the Solicitor and Crown Prosecutors" with respect to the prosecution of offences, including guidelines as to the exercise of specified functions (s 13); (d) recommending to the Commissioner of Police or any other person that proceedings be instituted in respect of any offence (s 14); (e) giving directions to the Commissioner of Police or any other person who institutes or conducts a prosecution requiring the provision of specified information for the purpose of enabling the Director to consider instituting or carrying on a prosecution, taking over proceedings or carrying on proceedings in connection with any function conferred on the Director (s 16); (f) requesting the Attorney General to grant indemnity from prosecution or to give an undertaking that certain material will not be used in evidence (s 19); (g) the exercise of "such functions as are prescribed" (s 20(1)(a)); (h) doing "anything incidental or conducive to the exercise of any functions of the Director" (s 20(1)(b)); (i) advising and assisting any Crown prosecutor or any member of the police force or if so directed by the Attorney General any other person in respect of the conduct of criminal proceedings (s 20(2)); (j) appearing in person or by counsel or a solicitor in any proceedings conducted or carried on by or to which the Director is a party, including any inquest or inquiry in which assistance is being given to a coroner (s 21). 20 From the foregoing it can be seen that no function of arresting, detaining, imprisoning or holding in imprisonment is expressly conferred on the DPP. Nor are any powers or functions in regard to such matters conferred by implication on the DPP. 21 Once a prosecution has been terminated by conviction and sentence, the detention of the person who has been convicted and sentenced is a consequence of the order of the relevant court. By s 62(1) of Crimes (Sentencing Procedure) Act 1999 the court is required to issue a warrant for the committal to a Correctional Centre of the person who has been convicted and sentenced. The warrant so issued is sufficient authority for the Governor of the Correctional Centre to keep such person in custody for the term of the sentence imposed. (s 62(3)(b)). 22 The DPP has argued that the relief sought against him is not available to the plaintiff. Insofar as the writ of habeas corpus is concerned this is because the DPP is not holding the prisoner in custody, either actual or constructive, is not responsible for his detention and would not be able to comply with an order of the nature sought, were such an order to be made. 23 The response by the plaintiff to this argument is somewhat obscure. It is not clearly addressed in the voluminous written submissions that he has filed in the matter. In oral submissions it was dealt with on the basis that the DPP was the Crown and since the Crown was one and indivisible, relief should be granted against the DPP. In my opinion such an argument is without substance.

[7]

The Governor of Silverwater Correctional Centre 26 In response to the plaintiff's application for a writ of habeas corpus the Governor of the Silverwater Correctional Centre has relied on a warrant of commitment pursuant to s 62 of the Crimes (Sentencing Procedure) Act 1999 and a further warrant under s 23 of the Crimes (Administration of Sentences) Act 1999. The first warrant was issued under the hand of the Deputy Registrar of the District Court at Penrith. It authorises and commands the delivery of the prisoner to the Governor of the Metropolitan Remand and Reception Centre (MRRC) and informs the Governor that the earliest date on which the prisoner is eligible for release is 24 May 2004. The second warrant authorises the transfer of the prisoner from the MRRC to the Silverwater Correctional Centre, where he has been held at all times material to the present application. 27 The warrants are valid on their faces. Pursuant to the Crimes (Sentencing Procedure) Act 1999 and the Crimes (Administration of Sentences) Act 1999 such warrants authorise the detention of the prisoner at the Silverwater Correctional Centre. This would be a sufficient response to the plaintiff's claim, at least for damages. In Smith v Collis (supra) the court, having held that the Habeas Corpus Act 1679 In his submissions the plaintiff referred to the Habeas Corpus Act 1640 (16 Car 1 c 10) in different contexts. The Act 16 Car 1 c 10 abolished the Court of Star Chamber and conferred a right to habeas corpus on any person who, after the passing of such Act, was "committed, reftrained of his liberty, or fuffer imprisonment, by the order of fuch court of ftar-chamber, or other court aforefaid" (s VIII). The other courts to which this section refers are other specified in s IV of such Act. They were courts constituted by "the prefident and council in the marshes of Wales" and "the northern parts", by the Chancellor and Council in the "duchy of Lancafter", and "in the court of exchequer of the county palatine of Chefter held before the chamberlain and council of that court." Such Act is not expressed to extend to parts beyond the seas and its form and content are not such as to extend to New South Wales by necessary intendment. The Act 16 Car 1 C. 10 is not part of the law of New South Wales. was part of the law of New South Wales, said that it is the duty of the Governor "simply to obey and not to question the warrant of commitment" (at 813 per Portus Cullen CJ); "to obey the process of the courts and to receive prisoners who are committed to his custody by them" (at 815 per Pring J) and that where a gaoler receives a prisoner under a warrant which is correct in form, no action will lie against him if it should turn out that the warrant was improperly issued (supra at 813; Demer v Cook 20 Cox CC at 448). However, as is clear from the authorities referred to in paragraphs 11 and 12 above, it is open to the court when considering whether or not to grant a writ of habeas corpus itself to determine the lawfulness or otherwise of the detention in question. The basis for the warrant of commitment is expressed on the face of the warrant to be the conviction of the prisoner for assault with intent to rob for which a sentence, with a non-parole period of 10 months to 24 May 2004, was imposed. The case made by the plaintiff is that such conviction was invalid. He contends that such invalidity flows from the fact that the members of the jury that found the prisoner guilty had been permitted to separate after they had retired to consider their verdict, but before reaching a verdict.

[9]

29 The grounds on which the applicant contends that this was unlawful and invalidated the conviction of the prisoner are numerous and far reaching. They all involve the proposition that the trial miscarried because the separation of the jury after it had retired to consider its verdict was contrary to law. The applicant's first argument was that such a separation was contrary to the common law as stated in the decisions of the English Court of Criminal Appeal in Rex v Ketteridge (1915) 1 KB 467 and Rex v Neal (1949) 2 KB 590. 30 In Rex v Ketteridge (supra) it was said that: "If a juror, after the judge has summed up, in any criminal trial separates himself from his colleagues and, not being under the control of the Court, converses or is in a position to converse with other persons, it is an irregularity which, in the opinion of the Court, renders the whole proceedings abortive …" (supra at 460 per Lush J with whom Darling and Atkin JJ agreed). See also Rex v Twiss (1918) 2 KB 853 at 858. 31 This statement of the common law was approved in Rex v Neal (supra). In delivering the judgment of the court Lord Goddard CJ said: "… there is no case to be found in the books where a jury, once given in charge of the bailiff have been allowed to leave the building for any purpose whatever. It was laid down in Coke on Littleton p 227b, that a jury must not, until they are agreed, separate or leave the place appointed for their deliberations … Blackstone's Commentaries Vol 4, p 360, the edition of 1826 by Joseph Chitty, says 'the jury cannot be discharged … till they have given their verdict.'" (at 594-595) 32 The common law as stated in Rex v Ketteridge (supra) and Rex v Neal (supra) was applied in Regina v Chaouk (1986) 23 A Crim R 463. In addition, Kaye J, with whom Fullagar and Hampel JJ agreed, expressly approved of the statement by Sir John Barry J in his article "On the Segregation of Jurors" ((1953) 6 Res Judicatae 139, that the common law rule applicable in Victoria was as follows: "(i) it is within the discretion of the trial judge in any criminal trial to allow the jury to separate up to the stage when the summing up is concluded and they retire to consider their verdict; (ii) if the judge orders the jury to be segregated it is unlawful for them to separate. If separation does occur before the conclusion of the summing up, a conviction would not necessarily be invalidated, but the juror or jurors disregarding the order may be punished for contempt of Court; (iii) the discretion of the judge, if he permits the trial to proceed, will not be reviewed without very substantial reason; (iv) if the jurors unlawfully separate after retiring to consider their verdict, a verdict of guilty by them is bad and the conviction based on it must be quashed. What constitutes a separation is a question of fact to be decided in each case as it arises; (v) where a conviction is quashed because of an unlawful separation, the Full Court… may order a new trial." (at 155-156) 33 The Victorian Court of Criminal Appeal had previously approved Sir John Barry's statements as to the nature of the discretion conferred on a trial judge as being "completely accurate" (Regina v Gay (1976) VR 577 at 582, 583) and the strict rule that jurors may not separate after they had embarked on their deliberations was accepted as the common law of Western Australia in Ah Poh Wai v The Queen (1995) 15 WAR 404 at 422 per Malcolm CJ. 34 However, the common law is an evolutionary body of law. It evolves over time to meet and accord with social conditions and community standards. This was recognised by the Victorian Court of Criminal Appeal in Regina v Chaouk (supra) in relation to trials by jury when it said: "In the passage of time, and with changed social conditions and facilities, it was possible to relax some of the rigidity of the rule. This was achieved by legislation … It is now an exceptional case where jurors are kept together from commencement of the trial until their discharge after verdict …". (at 466) 35 The nature of social conditions, education, means of communication and like factors has changed significantly since the strict common law rule against separation of jurors came into being. These changes have themselves given rise to an amelioration of the harshness of the rule of the old common law. Statute too has stepped in to break down the severity of the rule prohibiting jurors in criminal proceedings from separating. Several States have legislated to permit the separation of juries. For example, Western Australia did so in 1898 (Jury Act 1898 (WA) s 25). New South Wales did so in 1924 (Crimes (Amendment) Act 1924, s 34) when it added such a provision to the Jury Act 1912. As a consequence in Brownlee v The Queen (2001) 207 CLR 278 Gleeson CJ and McHugh J said: "It is not an essential requirement of trial by jury that there be an inflexible general rule forbidding separation during the whole or any part of a trial." (at 290) 36 In the same case Gaudron, Gummow and Hayne JJ examined the common law of England and the statutory provisions in Australia as they existed at the time of Federation. They concluded that: "The state of affairs at the time of federation which is thus disclosed suggests that absolute sequestration of the jury was no longer regarded as an essential element of trial by jury." (at 301)

[12]

Although this decision and the decisions in Regina v Gay (supra), Regina v Chaouk (supra) and Regina v Ah Poh Wai (supra) were handed down before Brownlee v The Queen (supra). I am of opinion that I should accept the common law to be as stated by the courts of the several States in the cases to which I have referred. 38 However, the provisions of s 54(b) of the Jury Act 1977 confer a discretion on a trial judge to permit such a separation. That section provides: "The jury in criminal proceedings: (a) shall, unless the court otherwise orders, be permitted to separate at any time before they retire to consider their verdict, and (b) may, if the court so orders, be permitted to separate at any time after they retire to consider their verdict." 39 The plaintiff's response to this provision was to submit that it is invalid. As a consequence, so the argument ran, the warrant of commitment pursuant to which the applicant is held is a nullity. 40 The invalidity of s 54(b) of the Jury Act 1977 was said to come about for a number of reasons. The first was that it was contrary to the Juries Detention Act 1897 (UK 60 Vic c 18). That Act of the Parliament at Westminster, it was argued, had effect in New South Wales because the provisions of the Colonial Laws Validity Act 1865 (28 & 29 Vic c 63) which struck down s 54 (b) of the Jury Act 1977, notwithstanding that the Juries Detention Act, 1897 (UK) had been repealed by the Criminal Justice Act, 1948 (UK). 41 The Colonial Laws Validity Act 1865 was not intended as a general mandate for colonial judges to strike down the legislation of colonial legislatures on the basis that it was contrary to the law of the United Kingdom. Some writers have suggested that it was in essence a response to the zeal of Boothby J in South Australia who declared many enactments of the South Australian Parliament invalid on the basis that they were contrary to the law of the United Kingdom. The preamble to the Colonial Laws Validity Act 1865 describes it as "an Act to remove doubts as to the validity of colonial laws". It provides that an Act of the Parliament of the United Kingdom should be regarded as extending to a colony "when it is made applicable to such colony by the express words or necessary intendment of (the) Act …". Whilst it restated the supremacy of English law, the Colonial Laws Validity Act 1865 provided in s 2 that: "Any colonial law which is or shall be in any respect repugnant to the provisions of any act of parliament extending to the colony to which such law may relate… shall be read subject to such act… and shall, to the extent of such repugnancy, but not otherwise, be and remain absolutely void and inoperative." And in s 3 affirmatively enacted that: "No colonial law shall be, or be deemed to have been, void or inoperative on the ground of repugnancy to the law of England, unless the same shall be repugnant to the provisions of such Act of parliament… as aforesaid."

[13]

Thus the Act provides that two conditions be met before a colonial law will be struck down. The first is that the Act of the Parliament of Westminster must be such as by express words or necessary intendment to apply to the colony in question. The second is that there must be a repugnancy between the two provisions. 42 In the celebrated case of Phillips v Eyre (1870) LR 6 QB 1 Willes J in delivering the judgment of the Court of Exchequer Chamber (Kelly CB, Martin, Channell, Pigott and Cleasby BB, Willes and Brett JJ) made it clear that the repugnancy ground of invalidity was quite narrow. He said: "… it is clear that the repugnancy to English law which avoids a colonial Act means repugnancy to an imperial statute or order made by authority of such statute applicable to the colony by express words or necessary intendment" (supra at 20-21). 43 An examination of the Juries Detention Act 1897 (UK) shows that it is not expressed to apply to any colony. Furthermore the clear intendment of the Act is that it should apply only to England and Wales. It expressly provides that it should "not apply to Scotland or Ireland" (s 3). Furthermore the Juries Detention Act 1897 was repealed by s 83(3) and the Tenth Schedule to Criminal Justice Act 1948 (UK). It was replaced by a provision that was in essentially the same terms (s 35(4)). That Act is not expressed to apply to New South Wales, or any other colony, and an examination of its provisions makes it clear that there is no intendment that it should so apply. The very restrictions on its application to Scotland and Northern Ireland make this abundantly clear. 44 On their proper construction neither the Juries Detention Act 1897 (UK) nor the Criminal Justice Act 1948 (UK) have any application to New South Wales, nor do they form part of the law of New South Wales. Such a conclusion is supported by the fact that the Juries Detention Act 1897 (UK) is not included as one of the imperial statues in force in New South Wales in the work of that name by HB Bignold (1914 edition). It should also be noted that the Colonial Laws Validity Act 1865 (UK) expressly provides that: "Every colonial legislature shall have, and be deemed at all times to have had full power within its jurisdiction to establish courts of judicature… and to make provision for the administration of justice therein."

[14]

In my opinion this provision reinforces the conclusion to which I have come in relation to the inapplicability of the Juries Detention Act 1897 to New South Wales. 45 The first argument of the plaintiff fails. 46 When, in the course of argument, the question was raised as to the inapplicability of the Colonial Laws Validity Act 1865 (UK) to the Juries Detention Act 1897, and hence to the Jury Act 1977 (NSW) the plaintiff contended that the Australia Acts 1986 were invalid. I am unable to see how this submission fits into the scheme of the plaintiff's argument. However he pressed the submission. One reason for such invalidity was because, it was said, the plaintiff had seen a copy of the Letters Patent relating to the Office of Governor General that were dated 21 August 1984. The copy he viewed had "LS" printed on it rather than the impression of the Great Seal. The effect of this was, it was submitted, to render the Australia Act 1986 (C'wlth) void. 47 The basis on which this argument rests is without substance. The initials "LS" are merely an abbreviation of locus sigilli and indicate the place at which the relevant seal has been placed. Furthermore, the Australia Acts 1986 consist of a comprehensive legislative scheme adopted by the Parliament of the United Kingdom, the Parliament of the Commonwealth and the Parliaments of the several States. That legislative scheme, so far as Australia and the States are concerned, was inacted pursuant to the provisions of s 51(xxxviii) of the Commonwealth Constitution. In my opinion there is no basis on which the validity of this legislative scheme can be successfully challenged. The scheme is valid and the effect of that scheme is to sever the legislative power of Australia and its several States on the one hand from the legislative power of the Parliament of the United Kingdom in relation to Australia and its several States on the other. 48 Section 1 of the Australia Act 1986 (C'wlth) denies efficacy to statutes of the Parliament of Westminster as part of the law of the Commonwealth or of the States and the Territories (Sue v Hill (1999) 199 CLR 462). It negates the applicability of any Act of the Parliament of the United Kingdom passed after the commencement of the Australia Act 1986 to Australia, its States or Territories. The legislative powers of each State is declared to include "full power to make laws for the peace, order and good government of the State" (s 2(1)) and the States are authorised by s 3 of the Australia Acts 1986 (C'wlth and UK) to legislate repugnantly to the laws of the United Kingdom. 49 In Sue v Hill (supra), in which the High Court was called upon to determine whether a citizen of the United Kingdom was a subject or a citizen of a foreign power within the meaning of s 44(i) of the Constitution and thus incapable of being elected as a Senator, Gleeson CJ, Gummow and Hayne JJ said that: "… s 1 of the Australia Act was validly enacted under that ( s 51 (xxxviii) paragraph" (at 492; parenthesis added)

[18]

and "… the fact that a jury may, and has, separated will not necessarily impair or destroy the essential character of the jury as a jury." (supra at 342) 53 The prisoner in the present case was tried for an offence against a law of New South Wales. Had he been tried for an offence against a law of the Commonwealth, his conviction would not have been avoided as a consequence of the jury being permitted to separate after it had retired to consider its verdict. Although the issue in Brownlee v The Queen (supra) was whether s 54(b) of the Jury Act, 1977 was inconsistent with s 80 of the Commonwealth Constitution, the general considerations dealt with by the various members of the High Court in relation to the trial by a jury of an accused person for an offence against a law of the Commonwealth apply at least with equal force, and perhaps a fortiori, to the trial of an accused person by a jury for an offence against a law of the State of New South Wales. As a consequence the conviction of the prisoner would not be avoided by the mere fact that the jury separated after it had retired to consider, but before it reached, its verdict. 54 The plaintiff then argued that even if the Australia Act 1986 (C'wlth) and associated legislation permitted the State of New South Wales to make laws with respect to the conduct of criminal trials within the State of New South Wales, including provisions in relation to juries, nonetheless s 54(b) of the Jury Act 1977 was invalid because it was contrary to the decision of the High Court in Kable v DPP (1996) 189 CLR 51. 55 The Parliament of New South Wales has full and plenary power to legislate for the "peace, welfare and good government" of the State of New South Wales (Union Steam Ship Co of Australia Pty Limited v King supra at 9). The power of the Parliament of the State of New South Wales is, however, subject to the limitations that are contained in the Commonwealth Constitution and in those provisions of the Constitution of New South Wales that prescribe the manner and form in which such constitution may be changed (Attorney General for New South Wales v Trethowan (1932) AC 526; (1930-1931) 44 CLR 394; Trethowan v Peden (1931) 31 SR (NSW) 183). Sections 106 and 107 of the Commonwealth Constitution confirm both the Constitutions of the several States and the powers conferred by such Constitutions. The only provision in the Commonwealth Constitution that deals expressly with juries is s 80 and, as already discussed, the High Court held in Brownlee v The Queen (supra) that there is no inconsistency between s 80 of the Constitution on the one hand and s 54(b) of the Jury Act 1977 on the other. The plaintiff, however, argued that Brownlee v The Queen (supra) was wrongly decided. He contended that the argument that succeeded in Kable v DPP (supra) had been overlooked in the later case and that this Court should decline to follow the later case of Brownlee v The Queen (supra) and prefer the decision in Kable v DPP (supra). 56 There are a number of reasons why this submission should be rejected. The first reason is that it is not open to a single judge of this court to determine that a decision of the High Court in relation to a particular enactment is wrong. The judicial hierarchy that exists in this country is inconsistent with such an approach where the decision impugned has not been held by the High Court to be wrong or no longer applicable. A second reason relates to the decision in Kable v DPP (supra) itself. 57 In Kable v DPP (supra) the High Court was called on to consider the validity of the Community Protection Act 1994 (NSW). That Act empowered the Supreme Court of New South Wales to make an order for the detention in prison for a specified period of a specified person if it was satisfied on reasonable grounds that such person was more likely than not to commit a serious act of violence and that it was appropriate, for the protection of a particular person or the community generally, that the person be held in custody for a maximum period of six months. The Act authorised the making of a detention order against one person and one person only, namely, Kable. 58 Hayne J said in Regina v Moffatt (1998) 2 VR 229 at 249, it is "not easy to identify the principle that underlies the decision" in Kable v DPP (supra). I respectfully agree. In Kable v DPP (supra) Brennan CJ and Dawson J dissented. They were of opinion that the legislation under attack was valid. Toohey, Gaudron, McHugh and Gummow JJ were of opinion that it was not valid, but their reasons for so concluding were expressed separately and were not the same. 59 Toohey J was of the view that as points under the Commonwealth Constitution had been raised in the proceedings, the Supreme Court was exercising Federal jurisdiction and in the exercise of such jurisdiction could not act in a manner that was incompatible with Chapter III of the Commonwealth Constitution. He held that the function conferred by the Act on the Supreme Court offended Chapter III "because it require(d) the Supreme Court to participate in the making of a preventive detention order where no breach of the criminal law is alleged and where there has been no determination of guilt" (at 98). That constituted "the performance of non judicial functions of such a nature that public confidence in the integrity of the judiciary as an institution … is diminished." (at 98; see also Grollo v Palmer (1995) 184 CLR 348 at 365). 60 Gaudron J was of the opinion that the power conferred on the Supreme Court by the Community Protection Act 1994 (NSW) was "the antithesis of the judicial process" (at 106) and was "not a power that is properly characterised as a judicial function" (at 107). The effect of this was to "compromise the integrity of the Supreme Court of New South Wales and, because that court is not simply a State court but a court that also exists to exercise the judicial power of the Commonwealth, it also has the effect of compromising the judicial system brought into existence by Ch III of the Constitution" (at 107) and further that "public confidence cannot be maintained in a judicial system which is not predicated on equal justice" (at 107). 61 McHugh J reasoned that as State courts could be invested with Federal jurisdiction such courts must be and be perceived to be independent of the legislature and of executive government in the exercise of Federal jurisdiction. He said: "Public confidence in the impartial exercise of federal judicial power would soon be lost if federal or State courts exercising federal jurisdiction were not, or were not perceived to be, independent of the legislature or the executive government. (at 116);

[19]

and "… whatever else the Parliament of New South Wales may be able to do in respect of the preventive detention of individuals who are perceived to be dangerous, it cannot, consistently with Ch III of the Constitution, invoke the authority of the Supreme Court to make the orders against the appellant by the methods which the Act authorises. This is because the Act and its procedures compromise the institutional impartiality of the Supreme Court". (at 121) 62 Gummow J approached the determination of the matter on the basis that the making of a detention order by the Supreme Court pursuant to the Community Protection Act 1994 (NSW): "… in the exercise of what the statute purports to classify as an augmentation of its ordinary jurisdiction, to the public mind, and in particular to those to be tried before the Supreme Court for offences against one or other or both of the State and federal criminal law, is calculated to have a deleterious effect. That is that the political and policy decisions to which the Act seeks to give effect, involving the incarceration of a citizen by court order but not as punishment for a finding of criminal conduct, have been ratified by the reputation and authority of the Australian judiciary. The judiciary is apt to be seen as but an arm of the executive which implements the will of the legislature. Thereby a perception is created which trenches upon the appearance of institutional impartiality …" (at 134) 63 The Community Protection Act 1994 (NSW) was not an Act of general application. It applied to only one individual. It was "an extraordinary piece of legislation" (Kable v DPP supra at 134 per Gummow J). The nature of the function that was conferred on the Supreme Court was not judicial and was such as to undermine public confidence in the integrity of the judicial system - a system that envisaged the investing of the Supreme Court with federal jurisdiction. None of those factors operates in the instant case. The Jury Act 1977 is of general application. The discretionary power conferred on the court by s 54(b) is by no means extraordinary, nor would the exercise of such power undermine public confidence in the integrity of the judicial system. 64 The decision in Kable v DPP (supra) has been unsuccessfully relied on in a number of cases as a basis for invalidating the law of a State. In HA Bachrach Pty Limited v The State of Queensland (1998) 195 CLR 547 the High Court held that an Act of the Queensland Parliament that permitted a proposed development was valid, being neither an impermissible interference with the judicial process nor incompatible with Chapter III of the Constitution. In Nicholas v The Queen (1998) 193 CLR 173 it was distinguished and the court held that a challenged evidentiary provision of the Customs Act 1901 (Cth) was valid since it did not affect the judicial function of fact finding nor the judicial power to be exercised in the determination of the matter and did not bring or tend to bring the administration of justice into disrepute. The only occasion on which a reliance on Kable v DPP (supra) has been successful in invalidating legislation of a State is in Re Criminal Proceeds Confiscation Act 2003 (Qld) (2003) QCA 249. In that case the legislation that conferred particular functions on the Supreme Court of Queensland was held to be an interference with the judicial process and to give rise to an incompatibility with the court's exercise of the judicial power of the Commonwealth. None of these decisions suggests that a provision like s 54(b) of the Jury Act 1977 would come within the ambit of the decision in Kable v DPP (supra). Furthermore there is, in my opinion, no inconsistency between the decision in Kable v DPP (supra) on the one hand and Brownlee v The Queen (supra) on the other and the argument that the decision in Kable v DPP (supra) was overlooked by the High Court when it decided Brownlee v The Queen (supra) is without substance. It is appropriate to apply Brownlee v The Queen (supra) and I propose to do so. 65 A number of other arguments were raised in relation to the asserted invalidity of s 54(b) of the Jury Act 1977. They included:

[32]

(iv) the legislation of other States permits the separation of juries during the course of a criminal trial. The timing and circumstances in which such separation may occur varies according to the place in Australia in which such trial takes place. However, the principle of separation of a jury is enshrined in legislation elsewhere in Australia and the fact that there is variation between the legislation in different States and parts of the Commonwealth does not operate to invalidate s 54(b) of the Jury Act 1977 . 67 For the foregoing reasons, I am of the opinion that s 54(b) of the Jury Act 1977 is a valid enactment of the Parliament of New South Wales and that the fact that the jury in the prisoner's trial separated after it had retired to consider its verdict but before reaching a verdict does not invalidate the plaintiff's trial or his conviction. In my opinion, the detention of the prisoner is lawful and a writ of habeas corpus should be refused. 68 The plaintiff also sought bail pending the determination of his appeal by virtue of the Habeas Corpus Act 1679 (31 Car II c. 2). That application should have been made in accordance with the Bail Act 1978 and the Bail Regulations, since the detention of the prisoner was lawful and the Bail Act 1978 limits the provision of bail "out of the use of the prerogative or the inherent jurisdiction of the Court" (Regina v Wilson (1994) 34 NSWLR 1 at 4 per Kirby P at 7 per Hunt CJ at CL; Regina v Kissner ((1992) NSWSC, Hunt CJ at CL, unreported) in other cases. The present application has been made by Summons and by Statement of Claim. That is inappropriate. Furthermore, the prisoner has not made the application. That is also inappropriate under the Bail Act 1978. It has been made on his behalf. Those grounds would be sufficient to dismiss the application for bail that has been made. However, for more abundant caution I propose to consider matters of merit in addition to the procedural matters to which I have referred. 69 No question has been raised as to whether the situation of the prisoner in relation to his appeal falls within s 30AA of the Bail Act 1978. Section 30AA requires that there should be "an appeal… pending" in the Court of Criminal Appeal. Whilst the applicant has given notice of intention to appeal he has not filed a notice and grounds of appeal. For the purposes of determining this matter, however, I have assumed, without deciding, that this is adequate to bring the prisoner within the ambit of s 30AA. 70 It has been contended on behalf of the DPP that there is no jurisdiction for this court to entertain an application for bail because of the provisions of s 17 of the Supreme Court Act 1970 and clause (d) of the Third Schedule to the Act. Reliance is placed on s 5 of the Criminal Appeal Act 1912 and Rules 3, 3A and 23 of the Criminal Appeal Rules. However nothing in the Bail Act 1978 affects the powers of the Supreme Court in connection with writs of habeas corpus (s 55). As the applicant appeared in person the interrelation between the provisions of the Supreme Court Act 1970, the Criminal Appeal Act 1912 and the Bail Act 1978 was not argued nor was the question of jurisdiction argued in any detail. In the circumstances I do not think it appropriate to determine the matter on the issue of jurisdiction, particularly in view of the conclusion to which I have come in relation to the outcome of the bail application. This was the approach adopted by Kirby P, with whom Sheller JA and Hunt CJ at CL agreed, in Regina v Wilson (supra at 4).

Gargan v Director of Public Prosecutions and anor - [2004] NSWSC 10 - NSWSC 2004 case summary — Zoe

Gargan v Director of Public Prosecutions and anor

At a glance

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Judgment (36 paragraphs)

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Legislation Cited (12)

Cases Cited (17)