Plaintiff v Defendant

Supreme Court of Victoria|2011-06-23|Before: BUCHANAN JA

Prerogative Writs - Habeas corpus - Imprisonment as a result of criminal trial - Appropriateness of remedy - Juries Act 2000.

1 After a trial in the Supreme Court, Hugo Alistair Rich ('the applicant') was found guilty on one count of murder and one count of armed robbery. He was sentenced to life imprisonment and a minimum term of 30 years' imprisonment was fixed before the applicant was to be eligible for parole.

2 The applicant has applied for a writ of habeas corpus. The respondent, the Secretary to the Department of the Justice, is the person who has the legal custody of the applicant pursuant to the provisions of s 6A of the Corrections Act 1986.

3 The applicant contends that his incarceration is unlawful because a judge at his trial failed to comply with the provisions of the Juries Act 2000.

4 Section 30 of the Act deals with the selection of jury panels. When a panel is required by a court, the pool supervisor is to select from a pool or pools a sufficient number of persons to empanel a jury. Sub-section (4) provides:

The trial judge must authorise a person to assist in the calling of a panel and the selection of the jury and the names of the persons constituting the panel must be delivered to that person.

5 In Exhibit HAR001 to the affidavit sworn by the applicant in support of his application for a writ of habeas corpus, the applicant has stated:

The trial judge did not announce in open court and also in the presence of the Crown and the accused to authorise a person to have received and thereafter assist in the calling of the panel and the selection of the jury and in consequence of that particular express failure of the non conformance of that condition, invalidated the dependant Act and that Act was to have been respected by the prescription of the language itself along with a full determination of the intention of legislature.

6 The statement continues by asserting that as a consequence of the failure, the names of the persons constituting the panel were not delivered to a person formally authorised to receive them from the pool supervisor. The applicant has stated that s 30(4) requires the person to be appointed by announcement in open court. The applicant placed reliance upon the word 'must' appearing in the subsection. The requirement was mandatory and, so it was said, the failure to comply with that mandatory requirement invalidated the trial and the conviction.

7 In oral submissions in support of his application, the applicant advanced further grounds upon which he contended the trial judge erred in the course of selecting a jury.

8 For present purposes I will accept the accuracy of the statements made in Court today by the applicant.

9 It would appear that two panels were chosen. The first was discharged. The applicant contends that the second panel was flawed in that four persons who had earlier been excused because of the anticipated length of the trial, were excluded from the panel resulting in a breach, so it was said, of the provisions of s 29 of the Juries Act. The applicant also says that the members of the first panel were functus officio and not available to participate in the second panel.

10 Another complaint of the applicant is that he was denied natural justice because his counsel failed or refused to advance arguments and materials upon which the applicant wished to rely in respect of the selection of the jury.

11 The argument based on s 30(4) propounded by the applicant does not appear to challenge the fact that the trial judge authorised a person to assist in the calling of the panel and the selection of the jury or that the names of the persons constituting the panel were delivered to that person. Rather, the complaint appears to be that the trial judge failed to announce the authorisation in open court. The requirement, if it exists, is implied rather than express.

12 A fundamental difficulty facing the application is that the applicant's detention is the result of a trial in court. In England, convictions on indictment have never been reviewed by habeas corpus. In the United States, on the other hand, the principal use of the writ is as a post conviction remedy.[1]

13 The position in Australia is that habeas corpus is not a substitute for an appeal against conviction or sentence. Habeas corpus cannot be used to challenge the detention of a prisoner held in execution under a criminal charge after judgment in due course of law.[2] The writ of habeas corpus cannot be granted when the prisoner is held under an order or sentence unless the court making the order exceeded its jurisdiction so that the order is a nullity.[3]

14 As Justice Deane said in Re Officer-in-charge of Cells ACT Supreme Court; Ex Parte Eastman:

The writ of habeas corpus is not available as a means of collaterally impeaching the correctness of orders made by a Court of competent jurisdiction which was not shown to be a nullity.[4]

15 In the present case, in my opinion, there is nothing in the material which discloses that the conviction of the applicant was vitiated by absence or excess of jurisdiction or was otherwise void.

16 I note that the applicant has sought leave to appeal against his conviction. A ground of that application is that 'the learned trial judge erred in that he failed to both accept and refer to the mandatory requirement renouncing that he had authorised the person to assist in the calling of the panel ... '. In my view the hearing of the application for leave to appeal is the appropriate setting in which to argue that point.

17 I am also of the view that if the trial judge did breach the provisions of s 30(4) of the Juries Act by failing to state in open court that he authorised a named person to assist in the calling of the panel and the selection of the jury, that did not vitiate the applicant's conviction.

18 Notwithstanding the use of the word 'must', I am of the opinion that the principle stated by the Privy Council in Montreal Street Railway Co v Normandin is applicable. The Board said:

When the provisions of a statute relate to the performance of a public duty and the case is such that to hold null and void acts done in neglect of this duty would work serious general inconvenience or injustice to persons who have no control over those entrusted with the duty and at the same time would not promote the main objects of the legislature, it has been the practice to hold such provisions to be directory only and the neglect of them, though punishable, not affecting the validity of the acts done.[5]

The same principle, in my view, disposes of the contentions advanced by the applicant founded upon s 29 of the Juries Act.

19 The jurisdiction to issue a writ of habeas corpus is found upon the common law supplemented by the statutes listed in s 3 and the schedule to the Imperial Acts Application Act 1980. The procedure in Victoria is regulated by rules of Court. I will treat this application as an application for a writ of habeas corpus pursuant to the provisions of rule 57.02 of the Rules of Court and refuse the application, for I am satisfied that there is no arguable case for the issue of the writ.

20 Accordingly, the order of the Court is that the application is refused.

[1] Sharpe. The Law of Habeas Corpus, 141.

[2] Young v Registrar (1993) 32 NSWLR 262, 287 (Handley JA).

[3] Ex Parte Williams [1934] HCA 48; (1934) 51 CLR 545, 549-50 (Dixon J).

Acts Application Act 1980

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