Felons Act: application to judicial review proceedings
28In June 1950, Darcy Dugan was convicted of a capital offence and sentenced to death. The sentence was commuted to penal servitude for life. He was released on licence, but committed an armed robbery for which he was convicted and sentenced in May 1970. His licence was presumably revoked. Whilst back in custody, a Sydney newspaper published a series of articles concerning him, which he claimed were defamatory. He issued proceedings claiming damages for defamation. The newspaper defended the proceedings, pleading that a convicted felon still serving a sentence imposed upon him was precluded from bringing an action for damages at law. The defence was upheld by Yeldham J in Dugan v Mirror Newspapers Ltd [1976] 1 NSWLR 403. The judgment was upheld by this Court and, on further appeal, by the High Court: Dugan v Mirror Newspapers Ltd [1978] HCA 54; 142 CLR 583. The leading judgment with which all members of the Court agreed (other than Murphy J who dissented) was that of Jacobs J. He identified the issue at 602:
"The question as it arises is a narrow one. It is whether a man convicted of a felony in respect of which he had been sentenced to death and spared the penalty of death upon condition that he be kept in that penal servitude can maintain an action in New South Wales for a civil wrong."
29Noting that the death sentence resulted in attainder, pursuant to which a person was "disabled to bring any action", his Honour was satisfied that the defence was made good. He continued (at 602 and 603):
"Whether or not it was law (separate from the law of attainder) that a person convicted of a non-capital felony was disabled to bring an action either wholly or until he had endured the punishment to which he was adjudged appears to me uncertain. I can find no clear authority upon the question. ...
...
However, on such an important question of civil right, authority or principle would need to be found to support such a supposed rule when it cannot be based on attainder. I have not been able to find such authority or any principle from which it could be deduced. I would therefore expressly leave the question open."
30Given the limited scope of the doctrine, combined with the abolition of capital punishment in New South Wales in 1955, the issue might have been considered one of limited significance. However, in 1980, Cantor J held that the disability extended to a felon serving a sentence for a non-capital crime: Macari v Mirror Newspapers Ltd (unrep, NSWSC, 4 March 1980). A similar approach was accepted by Hunt J in Schneidas v Jackson [1982] 2 NSWLR 969 at 970, noting that that view had been "assumed generally". No issue was raised in this case as to the correctness of those decisions.
31On 1 January 1982, ss 3, 4 and 5 of the Felons Act commenced; as enacted they read:
"Felon may sue
3. Subject to this Act, a person shall not, by reason of his having been convicted of, or found to have committed, a felony, be incapable of instituting and maintaining any civil proceedings in any court.
Leave required in certain cases
4. A person who is in custody as a result of his having been convicted of, or found to have committed, a felony may not institute any civil proceedings in any court except by the leave of that court granted on his application.
Grant of leave
5. A court shall not, under section 4, grant leave to a person to institute proceedings unless the court is satisfied that the proceedings are not an abuse of process and that there is prima facie ground for the proceedings."
32The simplicity of the statutory scheme concealed a difficulty: did s 3 operate only in respect of persons who would otherwise have been incapable of instituting and maintaining civil proceedings? If so, was the leave requirement in s 4 also limited to such persons?
33The answers to these questions have been obscured by later statutory developments. On 1 January 2000 the distinction between felonies and misdemeanours was abolished. The Crimes Act no longer adopts that language: Crimes Legislation Amendment (Sentencing) 1999 Act (NSW), Sch 3, Pt 3 ("the 1999 Amendment Act"). Thus new s 580E stated:
"580E Abolition of distinction between felony and misdemeanour
(1) All distinctions between felony and misdemeanour are abolished.
(2) In all matters in which a distinction has previously been made between felony and misdemeanour, the law and practice in regard to indictable offences is to be the law and practice applicable, immediately before the commencement of this section, to misdemeanours."
34The Felons Act was also varied by repealing s 3 and amending s 4 so that it no longer refers to persons convicted of a "felony", that concept being replaced by the phrase "serious indictable offence". (Indeed, it may be that the title to the Act is the only legislative recognition of "felons" remaining on the statute books.)
35The 1999 Amendment Act also abolished the punishment of "penal servitude": Crimes Act, s 580F. However, s 580E(3) provided that any proceedings for an offence "that were commenced before the commencement of this section (being proceedings for an offence that was previously a felony or misdemeanour) are to continue to be dealt with, and to be disposed of, as if [the 1999 Amendment Act] had not been enacted". It may be for that reason that, in sentencing the applicant on 23 February 2000, Kirby J in fact imposed a sentence of penal servitude: Regina v Patsalis [No 22] [1999] NSWSC 1320 at [81].
36There are aspects of the 1999 Amendment Act which are awkwardly expressed. Thus, s 580F provides that any sentence of penal servitude in force immediately before the commencement of the section is to be taken to be a sentence of imprisonment thereafter: s 580F(2). It does not in terms deal with a sentence of penal servitude imposed after the commencement of the provision.
37It follows from s 580E that any disability flowing from conviction for a felony, prior to the commencement of the section, was thereafter removed. That conclusion is consistent with the repeal of s 3 of the Felons Act by the same statute.
38Arguably, once the common law disability was removed, s 4 took on a freestanding operation, with the result that leave is required in order for any person in custody as a result of a conviction of a serious indictable offence to institute "any civil proceedings in any court". However, that reasoning ignores historical considerations.
39In construing the scope of s 4, it should also be accepted that it is permissible to look at the scope and purpose of a repealed provision to determine the scope of an unrepealed provision: Pearce and Geddes, Statutory Interpretation in Australia (7th ed, 2011) at [3.32]; The Queen v Lavender [2005] HCA 37; 222 CLR 67 at [31] (Gleeson CJ, McHugh, Gummow and Hayne JJ, Callinan J agreeing at [139] and Heydon J agreeing at [148]); see also at [116] (Kirby J). Thus, Lavender held, by reference to a repealed pleading provision (Crimes Act, s 376) that a statement in s 18, dealing with the offences of murder and manslaughter, did not require that a homicide be "malicious" for the purposes of manslaughter, although the section provided that no act or omission "which was not malicious" should be within the section: s 18(2)(a).
40In considering the operation of s 3, reference may be had to three propositions derived from the judgment of Jacobs J in Dugan v Mirror Newspapers at 602-603:
(a) attainder was the consequence of a capital sentence;
(b) the result of attainder was to disable a person from bringing a civil action, and
(c) there was no clear authority as to whether a person convicted of a non-capital felony was disabled from bringing a civil action.
41In these circumstances, s 3 should have been understood as operating broadly to remove the disability imposed by the general law against the bringing of any civil action. It did so on condition that the person thus enabled obtained leave from the court for such proceedings. The apparent purpose of s 4, read in its original statutory context, was to condition the removal of the disability on the need to obtain leave; there was no indication that it had any wider purpose, namely of imposing a leave requirement where there had been no disability.
42However, it is not necessary to reach a firm conclusion as to this point of construction because no party contended that the section did not apply to all persons who were, at the time they wished to institute civil proceedings, in custody as a result of conviction for a serious indictable offence. (It is not necessary for present purposes to consider persons found to have committed such an offence, but who had not been convicted for it.) The issue was whether the reference to "civil proceedings" included proceedings by way of judicial review in the supervisory jurisdiction of the Supreme Court. However, the history remains apposite to the construction of the term "civil proceedings" in s 4.
43The term "civil proceedings" has an apparent simplicity about it which may, on reflection, prove to be misleading. In the only case in which this issue appears to have been expressly addressed, Handley AJA held that the implication from the statutory text and the background to its enactment "is that proceedings are either civil or criminal, and proceedings which are not criminal are civil": Potier v Director-General, Department of Justice & Attorney General [2011] NSWCA 105 at [10]. Accordingly, he rejected a submission that proceedings seeking relief in the nature of mandamus against the Administrative Decisions Tribunal and seeking leave to appeal from a decision of the Appeal Panel of the Tribunal were not covered by s 4. In Schneidas, Hunt J assumed without discussion that the Felons Act applied to proceedings seeking such relief.
44There are undoubtedly cases in which a reference to "civil proceedings" is intended to be by way of distinction from criminal proceedings: see, eg, Civil Procedure Act 2005 (NSW), s 3, "civil proceedings means any proceedings other than criminal proceedings". On the other hand, in the Crown Proceedings Act 1988 (NSW), s 3, there is a rather different form of definition, namely "civil proceedings includes civil proceedings at law or in equity, and also includes proceedings by way of preliminary discovery, cross-claim, counterclaim, cross-action, set-off, third-party claim and interpleader". As counsel for the State correctly submitted, the language is apt to take its meaning from its context. In respect of the Felons Act, no assistance by way of definition has been provided.
45Contrary to the intimation in Potier, the historical background does not support the proposition that all legal proceedings are necessarily either criminal proceedings or civil proceedings. Nor as a matter of policy does there seem to be any good reason why a prisoner should be able to bring criminal proceedings without leave, but not civil proceedings. In Ex parte Waldron [1986] QB 824, the English Court of Appeal considered whether a protective provision stating that no person should be "liable ... to any civil or criminal proceedings ... in respect of any act purporting to be done in pursuance of this Act ... unless the act was done in bad faith or without reasonable care", extended to proceedings for judicial review by way of certiorari or a declaration challenging the applicant's compulsory admission to hospital. The Court held the provision did not preclude such proceedings. Further, it held that such proceedings were not precluded by a provision that "[n]o civil proceedings shall be brought against any person ... without the leave of the High Court". That provision, which is closer in form to s 4 of the Felons Act, was construed by reference to its purpose which, in common with most protective provisions, was designed to avoid liability on the part of officers exercising statutory functions in good faith: see also Vezitis v McGeechan [1974] 1 NSWLR 718 (Taylor J), holding that a protective provision in s 46 of the Prisons Act 1952 (NSW) would not prevent proceedings for relief in respect of a legitimate complaint that the Commissioner had acted in breach of the Act or Regulation.
46Proceedings may be classified according to (a) the nature of the relief sought, (b) the court in which the relief is sought or (c) the subject matter of the relief. Thus, an appeal may be civil if challenging an order in civil proceedings or criminal, if challenging an exercise of criminal jurisdiction. Like an appeal, judicial review proceedings can be instituted in respect of orders made in the exercise of civil or criminal jurisdiction.
47Proceedings in the supervisory jurisdiction of the Supreme Court may be brought in the Common Law Division or the Court of Appeal, even though they involve a challenge to a conviction or other order made in the exercise of criminal jurisdiction. As a matter of principle, where an appeal lies by statute from a Local Court conviction to the District Court, the appeal would be classified as a criminal proceeding. Similarly, if a stated case were taken from the District Court to the Court of Criminal Appeal, the jurisdiction would be classified as criminal. On the other hand, if the same orders were challenged by way of summons in the Court of Appeal, the subject matter would remain criminal, although the place in which the proceedings were brought and their form might be characterised as civil.
48The characterisation may be seen as somewhat arbitrary if it depends upon the form of the proceedings rather than the subject matter in question. For example, an accused may seek to challenge the legality of a search warrant which has provided evidence the prosecution seeks to tender at a criminal trial. That may be done by way of proceedings for judicial review or by a collateral attack in the course of the criminal proceedings. Similarly, as explained in Smith v Commissioner of Corrective Services, proceedings could be brought, in principle, either before a civil court or before a criminal court in respect of conditions of incarceration which had the potential to interfere with a fair trial. As explained by Beech-Jones J in one of the applications more fully discussed below, the criminal court may have greater powers to investigate factual matters and may have a broader range of relief available to it than would a civil court, in order to ensure a fair trial.
49As a matter of history, the present distinction between civil and criminal proceedings post-dated the introduction of English law to this State in 1828. Prior to the Criminal Appeal Act 1907 (UK) and the Criminal Appeal Act 1912 (NSW), challenges to convictions for felonies were by way of writ of error, being a form of prerogative relief and having more in common with judicial review than with other forms of modern procedure: The Oxford History of the Laws of England, Vol XIII, p 129 (K Smith). Thus, when Blackstone wrote his Commentaries on the Laws of England in 1769, the only judicial procedure available to challenge a conviction for a felony (with the possible exception of a question reserved) was by way of writ of error. He stated (Book 4, Ch 30, p 385):
"But writs of error to reverse attainders in capital cases are only allowed ex gratia; and not without express warrant under the king's sign manual, or at least by the consent of the attorney general. These therefore can rarely be brought by the party himself, especially where he is attainted for an offence against the state: but they may be brought by his heir, or executor, after his death, in more favourable times; which may be some consolation to his family."
50Once a right of appeal was conferred by statute various consequences followed. There was no general law disability against bringing proceedings to challenge a criminal conviction, whether by way of appeal under the Criminal Appeal Act, or by way of proceedings in the supervisory jurisdiction of the Supreme Court. Similarly, prisoners held in custody were entitled to bring habeas corpus to challenge the legality of their detention. To the extent that other laws conferred rights in respect of the term, nature and conditions of their imprisonment, the presumption of access to the courts in respect of those rights was co-extensive with the rights. None of the rights presently in dispute was conditioned on the nature of the offence for which the prisoner was sentenced.
51The scope and operation of the Felons Act may be illustrated by reference to the applicant's claim for access to legal documents. That is said to be based upon his right of access to the courts and, by extrapolation, his right to petition the Governor under s 76 of the Crimes (Appeal and Review) Act 2001 (NSW) "for a review of [his] conviction or sentence or the exercise of the Governor's pardoning power". The significance of the applicant's claim, in considering the question of statutory construction, is that whatever consequences may have flowed from attainder under the common law, they have been greatly reduced by the effects, whether intended or not, of modern statutory reforms.
52Raymond v Honey [1983] AC 1 involved a complaint that prison authorities had opened a letter from the respondent to his solicitors, believing it contained matter not relating to pending proceedings. Upon finding that it contained an allegation against a prison governor, the letter was stopped. The respondent then prepared an application to the High Court for leave to apply for an order of committal of the officer stopping the letter for contempt of court: at 10B. The application, including a statement, a draft affidavit and exhibits was also stopped. The proceedings before the House of Lords were concerned with both the original letter and the application to the High Court. The question was whether the conduct of the prison officers was "calculated to obstruct or interfere with the due course of justice, or the lawful process of the courts, [which] is a contempt of court": per Lord Wilberforce at 10D. Lord Wilberforce then identified a second principle that "under English law, a convicted prisoner, in spite of his imprisonment, retains all civil rights which are not taken away expressly or by necessary implication: see Reg v Board of Visitors of Hull Prison, Ex parte St Germain [1979] QB 425, 455 and Solosky v The Queen (1979) 105 DLR (3d) 745, 760, Canadian Supreme Court, per Dickson J."
53Thus, where a prisoner has a legal right enforceable by a court under the general law, conduct calculated to obstruct or interfere with his or her access to the courts will constitute a contempt, for which, in turn, there will be a right of access to the courts for relief in respect of the contempt. Such a right may be removed or conditioned by statute, but the intention in that respect must be clear. While the imposition of a leave requirement, which vests control of access to the courts within the courts themselves, will involve a lesser intrusion on civil rights than other forms of restraint, the presumption in favour of non-interference will mean that the leave requirement will not be given an expansive construction.
54Further examples could be given of circumstances where relief may be sought from either a civil or criminal court. Thus, the validity of a transfer from one prison to another was challenged (without application for leave under the Felons Act) in Kelleher v Corrective Services Commission (NSW) (1987) 8 NSWLR 423, and in criminal jurisdiction in a case involving an escape from custody, where the issue was whether the custody was lawful or not: Powch v The Queen [1987] HCA 41; 163 CLR 496. There are also a number of cases where applications have been made to review decisions relating to the circumstances of imprisonment, or release on parole or licence, without invoking the Felons Act: see Baba v Parole Board (NSW) (1986) 5 NSWLR 338; Johns v Release on Licence Board (1987) 9 NSWLR 103 and Rendell v Release on Licence Board (1987) 10 NSWLR 499. Other cases, both reported and unreported, involving single judges may also be found: see Patsalis v State of New South Wales [2011] NSWCA 364 at [14]. Some may, of course, be cases where the need for leave was overlooked or simply not insisted upon by the various respondent authorities. There are other cases in which leave was apparently sought, at least from single judges, without the issue being agitated: Patsalis at [17].
55Read in accordance with these principles, and to the extent that the applicant sought to assert a right for which relief was available in accordance with public law principles, s 3 of the Felons Act had no application; nor, read in context, did s 4 impose a leave requirement in respect of such proceedings. There being no suggestion that the scope of s 4 was intended to be extended by the repeal of the distinction between misdemeanours and felonies, s 4 in its present form should not be construed as having some wider operation than when enacted.
56A statutory regime where there has been a conscious attempt to be comprehensive in terms of the proceedings for which leave is required may be seen in the Vexatious Proceedings Act 2008 (NSW), ss 4 and 5. The Felons Act is, by contrast, a simple statute directed to a particular mischief, being the feudal notion of civil death for capital offences which was out of tune with modern attitudes to punishment, including rehabilitation, even of offenders convicted of most serious crimes. The mischief was alleviated by removing the disability, but subject to the qualification to be found in the requirement for leave. The requirement for leave is itself a constraint on access to the courts, being an important civil right which is no longer removed from those convicted of serious indictable offences. Accordingly, it is appropriate to adopt an approach to the question of statutory construction which limits the civil rights in question only to the extent necessary to give effect to the statutory provision.
57For these reasons, the State's concession that the applicant did not need leave under the Felons (Civil Proceedings) Act, s 4, to bring the proceedings instituted by way of summons, was correct and should be accepted.