Plaintiff v Defendant

2 By reason of the extreme urgency of the matter, there was not complete compliance with the requirements of the Rules. For example, r 57.02(6) provides that the application for the writ shall be supported by an affidavit by the person restrained showing that it is made at his or her instance, and stating the nature of the restraint. No such affidavit was produced. Nonetheless, r 57.02(8) provides that in an urgent case the Court may dispense with compliance with any of the requirements of paragraphs (4) to (7) of that Rule. I was prepared to dispense with at least some of those requirements.

3 The application for habeas corpus was supported by an affidavit sworn by Sarah Tricarico, a solicitor acting on behalf of the plaintiff. In that affidavit, she deposed to having commenced acting on his behalf on 16 December 2014. She said that he had informed her, by way of a telephone conversation from Adelaide, that he had been due to be released on parole from a sentence that he was serving in South Australia, but had instead been taken into custody pursuant to an extradition warrant, supposedly for having breached his Victorian parole. He told her that he had been informed that he would be extradited to Melbourne on the following day.

4 Ms Tricarico at once made enquiries of the Corrections authorities. She was told that she should contact the Adult Parole Board ('the Board'). The person with whom she spoke could provide no explanation as to why the plaintiff's parole had been 'revoked'. Ms Tricarico then sent an email to the Board asking for clarification. She received no reply.

5 At 4.59pm on 16 December 2014, she telephoned the Board to see if someone had reviewed her email. She was told that there were a number of matters to attend to, and a response would be provided within seven days.

6 According to Ms Tricarico, on the following day, 17 December 2014, at about 2.30pm, she became aware of the fact that the plaintiff had been extradited to Melbourne and taken to the Melbourne Assessment Prison.

7 The plaintiff told Ms Tricarico that he had been sentenced on 22 May 2012 by Judge Parsons, in the County Court, to a term of four years' imprisonment with a non-parole period of 2 years and 6 months for various drug offences. He said that he had been granted parole in Victoria. Within about a week of having been released from prison, he had become aware that there was an extradition warrant seeking his arrest, and extradition to South Australia for several entirely unrelated matters. Those offences long predated any of the Victorian offences for which he had been dealt with by Judge Parsons.

8 The plaintiff told Ms Tricarico that he had pleaded guilty to the offences with which he was charged in South Australia.

9 It seems that the plaintiff had been sentenced, in South Australia, on 15 August 2014, to a term of 2 years' imprisonment with a non-parole period of 14 months. In accordance with South Australian law, that sentence was backdated to 17 October 2013. Accordingly, the South Australian non-parole period expired on 16 December 2014, the date upon which the plaintiff was taken into custody and the day before he was returned to this State.

10 Ms Tricarico said in her affidavit that she could not elicit from any of the authorities any information as to why the plaintiff had been detained. She said that she had only ever received a one page document from those authorities, stating simply that his parole had been cancelled.

11 That document was exhibited to Ms Tricarico's affidavit. It is, relevantly, in the following form:

CORRECTIONS ACT 1986

CORRECTIONS REGULATIONS 2009

SCHEDULE 7

WARRANT FOR APPREHENSION AND RETURN TO PRISON

To the Chief Commissioner of Police and to all members of the Police Force in the State of Victoria, and to the Governor of Her Majesty's Melbourne Assessment Prison or any other prison in the State which is more accessible or convenient.

Nicola MERCORELLA

D.O.B: 31/12/1963 - JAID: 893739823 - CRN: 195605

was convicted of:

and by the order of the Adult Parole Board dated 14th day of August 2013 was released on parole on 9th day of September 2013.

The Adult Parole Board cancelled that parole order on 12th day of September 2014.

This warrant authorises any member of the police force to break, enter and search any place where the person is reasonably believed to be and to arrest the person and return him or her to a prison, and this warrant requires the Governor of the Prison to receive that person into custody and detain him or her until released according to law.

Dated at CARLTON this 12th day of September 2014.

For and on behalf of the Adult Parole Board.

12 Section 6A of the Corrections Act 1986 ('the Act') provides that once an order of imprisonment is made in relation to a person, and that person has been taken into physical custody, he or she is deemed to enter the legal custody of the Secretary to the Department of Justice. It was said that it was for that reason that this application for habeas corpus was brought against the Secretary, rather than the person in charge of the Melbourne Assessment Prison, where the plaintiff was being physically detained.

13 On 17 December 2014, Ms Tricarico contacted the Board on no fewer than three occasions during the course of the afternoon. At 12.25pm, she was told that the relevant persons with knowledge of the matter were at a meeting. At 4.24pm, she was told that the Operations Manager was looking into the matter, and that she would receive a written response either that evening or early the following morning. At 4.54pm, she sent an email to the Board confirming the conversation that had taken place earlier that afternoon between herself and the person with whom she had previously spoken.

14 On 18 December 2014, at 1.16pm, having still heard nothing in response to her various requests for an explanation as to the plaintiff's having had his parole cancelled, Ms Tricarico emailed the Board advising that she would be making an urgent application for habeas corpus.

15 As at 22 December 2014, when she swore her affidavit, Ms Tricarico had still been provided with no information as to why the plaintiff's parole had been cancelled. She was simply told, on several occasions, that the Board would take up to seven days to respond to her correspondence. She was given that answer notwithstanding having explained to the person with whom she was dealing that the plaintiff may have been unlawfully detained.

16 Ms Tricarico's affidavit, and the various assertions made therein regarding the Board's failure to provide any explanation for the plaintiff's detention, beyond that of providing her with a copy of the warrant of apprehension, was not controverted before me.

17 The position then was that the plaintiff was in custody, detained against his will, pursuant to that warrant, and nothing more. No additional information was forthcoming from the Board as to the basis upon which he had been detained.

18 When the application for habeas corpus came before me on 23 December 2014, at about midday, the defendant produced the warrant as the return to the application for habeas corpus. When the solicitor representing the defendant was asked how it was that the plaintiff's parole was said to have been cancelled, her first response was telling. She suggested that the plaintiff may have breached his parole by failing to comply with the conditions under which it had been granted, particularly those involving supervision. I indicated that this was a doubtful basis upon which to cancel parole, given that the plaintiff was in custody, a matter that must at all relevant times have been known by the Board. The plaintiff could hardly, in those circumstances, be expected to comply with specific conditions set out by the Board as the basis upon which he had been released.

19 I said that I regarded that particular submission as redolent of the infamous case of R v Larsonneur.[1] I added that if that were the sole basis upon which parole had been 'cancelled', I would have treated this application as one for certiorari, based upon unreasonableness, and perhaps even Wednesbury unreasonableness,[2] and I would have quashed the warrant.

20 It was then submitted, on behalf of the Secretary, after some prompting from myself, that the warrant may have been cancelled pursuant to s 77(6A) of the Act . That is a new provision, introduced earlier this year by the Corrections Amendment (Further Parole Reform) Act 2014, which came into force on 24 June 2014.

If a prisoner is sentenced to another prison sentence while on parole, the prisoner's parole is taken to have been cancelled on the sentence being imposed.

22 The term 'prison sentence' is defined in s 55 of the Act as follows:

prison sentence in relation to a person means the total of the following sentences or non-parole periods which have been imposed or determined in relation to the person, reduced as provided for under this or any other Act -

(a) if a non-parole period has not been fixed in relation to a sentence of imprisonment - the sentence of imprisonment;

(b) if a non-parole period has been fixed in relation to a sentence of imprisonment and the prisoner has not served the nonparole period - the non-parole period;

(c) if a non-parole period has been fixed in relation to a sentence of imprisonment and the prisoner has served the nonparole period and is not on parole - so much of the sentence as the board determines for the purposes of this definition.

23 Section 77(6A) represents a radical, and perhaps even remarkable, change to the law relating to cancellation of parole. Previously, each and every trigger for such cancellation within s 77 operated upon the basis that the person on parole had done something, whilst on parole, that merited this drastic course. Any offence committed by that person had to be an offence committed during the parole period.[3]

24 Significantly, there was, at all relevant times, a provision dealing with a person sentenced to another prison sentence for an offence committed whilst on parole. Subsection (7), which is not new, provides:

If the prisoner is sentenced to another prison sentence in respect of one or more offences committed during the parole period, whether in Victoria or elsewhere, the Board may by order cancel the prisoner's parole, even though the parole period may already have elapsed.

25 Although s 77(1) allows the Board, at any time before the end of the parole period, to cancel parole, it does so 'subject to this section'. Accordingly, the Board does not have, and so far as I am aware, never has had, an unfettered discretion to cancel parole for any reason, at its whim. Cancellation of parole is a most serious matter. Wrongful cancellation of parole has always been recognised as a basis upon which habeas corpus would lie.[4]

26 There are a number of examples of cases where courts have granted habeas corpus in circumstances where the parole authority is said to have acted unlawfully.[5] Of course, the courts do not assume the role of the Board, which is the body upon whom the discretion to grant parole has been conferred. There is no entitlement to release until the Board has so directed. It is not for the Court to second guess the Board in that respect. Nonetheless, habeas corpus does lie where parole has been granted, and for some reason the prisoner was not released in accordance with the terms of a parole order,[6] or where he has been released and now challenges the legality of termination of parole.[7]

27 The issue that presents itself in the present case is whether s 77(6A), upon its proper construction, requires the cancellation of the plaintiff's parole simply because he was sentenced for an unrelated offence committed long before the offence or offences that gave rise to his Victorian parole to another prison sentence, by a South Australian court, while on that Victorian parole. In other words, although his parole would unquestionably be cancelled if he were to be sentenced to another prison sentence by a Victorian court while on parole (even if the offence giving rise to that prison sentence predated the matter for which he was granted parole) does the same result follow if the sentencing takes place outside this jurisdiction?

28 The point is one of construction, pure and simple. There is nothing in the Explanatory Memorandum or other extrinsic material that sheds any light upon the issue. One could legitimately infer that the Parliament sought to impose more stringent conditions upon parole, such that anyone sentenced to a term of imprisonment, even for unrelated offending, occurring years earlier, lost the benefit of parole without any further action having to be taken by the Board. That might make sense, given that a person who is imprisoned cannot, sensibly, benefit from the rehabilitative aspects of parole, or supervision.

29 The problem is that the language of sub-s (6A) goes much further than this. For example, a person sentenced to a wholly suspended term of imprisonment is,

nonetheless, sentenced to 'another prison sentence'.[8] Precisely why a suspended sentence of that order should trigger a cancellation of parole, in circumstances where the suspended sentence has been imposed in respect of a much earlier offence, is by no means obvious.

30 The problem becomes even more acute when one considers questions of extraterritoriality. Assume, hypothetically, that a person on parole in Victoria is sentenced, in absentia, to a term of imprisonment by an overseas regime, for offences committed years earlier. Can it be that this would have the automatic effect of cancelling that person's parole, possibly rendering him or her liable to years of additional incarceration? Would a sentence of imprisonment of perhaps several days, in a foreign jurisdiction, lead automatically to cancellation of Victorian parole?

31 It is not the role of this Court to question the wisdom of the legislature in enacting provisions of this kind. If such provisions have the potential to operate harshly, but that is still an expression of legislative will, then this Court will give effect to that legislative intent. However, that does not relieve the judicial arm of government from the task of construing a provision, such as s 77(6A), in accordance with ordinary canons of interpretation.[9]

32 In an application for habeas corpus, it is for the party detaining the plaintiff to demonstrate clearly and convincingly the basis upon which the detention is lawful.[10] If it be that s 77(6A) does not, upon its proper construction, extend to a sentence of imprisonment imposed extraterritorially, then the Board, by cancelling parole, and issuing the warrant of apprehension, has acted beyond power. If that is so, the warrant is bad, and can be quashed. So too is the decision cancelling parole. That is because no trigger, of the kind provided for in s 77(6A), can be invoked. The Board has simply proceeded on a mistaken view of its powers, and the law.

33 There are several reasons why I consider that s 77(6A) does not apply to a sentence of imprisonment imposed extraterritorially, in respect of an offence not committed during the parole period.

34 The first is based upon the maxim expressio unius est exclusio alterius (sometimes said to be a valuable servant, but a dangerous master in the construction of statutes). It is significant, in my view, that s 77(7), which deals with cancellation of parole for persons sentenced to imprisonment in respect of one or more offences committed during the parole period, has attached to it the expanded notion 'whether in Victoria or elsewhere'.[11] In other words, the Parliament specifically considered what consequences should flow from the commission of an offence during the parole period, and made the power to cancel parole operate, relevantly, upon an extraterritorial fact.

35 Section 77(6A), which is the analogue of s 77(7), but deals with offences not committed within the parole period, is singularly silent on the question whether the other prison sentence to which the prisoner has been sentenced while on parole extends to a prison sentence imposed outside Victoria.

36 It is possible to read s 77(6A) as confined to a Victorian prison sentence, in order to avoid at least some of the consequences of the wider reading to which I have previously referred.[12] The fact that suspended sentences have been abolished in this State, though not in other parts of Australia, lends some support to this interpretation. Otherwise, the imposition of a suspended sentence in another State would have the effect of automatically cancelling Victorian parole, an extraordinary outcome, one might think.

37 There is a second reason why s 77(6A) should be read as confined to a Victorian prison sentence. It arises from s 48 of the Interpretation of Legislation Act 1984 ('Interpretation Act'), which is in the following terms:

In an Act or subordinate instrument, unless the contrary intention appears-

(a) a reference to an officer or office shall be construed as a reference to such an officer or office in and for Victoria; and

(b) a reference to a locality, jurisdiction or other matter or thing shall be construed as a reference to such locality, jurisdiction or other matter or thing in and of Victoria.

38 It can be argued with some force that the expression 'another prison sentence' in s 77(6A) is, relevantly, a reference in the Act to a 'matter or thing' within the meaning of s 48(b), and should therefore be construed as a matter or thing 'in and of Victoria'. In other words, it is a Victorian prison sentence, and not an extraterritorial prison sentence to which s 77(6A) refers.[13]

39 That conclusion is fortified by the definition of 'prison sentence' in s 55 of the Act and, in particular, the reference in that definition to such prison sentences being 'reduced as provided for under this or any other Act'. By reason of s 38 of the Interpretation Act, the expression 'any other Act' must be taken to be limited to Acts passed by the Parliament of Victoria, unless a contrary intention can be discerned.[14] That being the case, it is difficult to see how the definition of prison sentence in s 55 (which applies to the use of that term in s 77(6A)) could be said to encompass prison sentences imposed outside of Victoria, the reduction of which would necessarily be governed by Acts passed in a different jurisdiction.

40 One could also point to the definition of 'prison' in s 3 of the Act as further support for my preferred construction of s 77(6A). There the term is defined as a prison under Part 3. Part 3 deals with the establishment of prisons, and provides that the Governor in Council may by Order appoint any premises or place to be a prison. Self-evidently, unless the context otherwise requires, as for example in s 77(7), the term 'prison' in the Act does not include a prison in another place outside Victoria.

41 Finally, this is a penal provision, which can operate harshly indeed. In those circumstances, there is some room for the maxim that any ambiguity should be resolved in favour of the liberty of the subject.[15]

42 I note that the conclusion I have reached in respect of the construction of s 77(6A) is somewhat different to that which was arrived at in Bartels v Hughes.[16] In that case, the Supreme Court of South Australia (in banco) considered the proper construction of s 42(m)(2) of the Prisons Act 1936 (SA), which provided:

Where a person is sentenced to imprisonment for any offence committed during the period of his probationary release, his probationary release shall, by virtue of this subsection, be cancelled whether or not at the time of his conviction for that offence, the period of his probationary release had elapsed.

43 The applicant in Bartels had been granted probationary release in respect of offences he had committed in South Australia. Whilst on probationary release, the applicant committed a number of offences in New South Wales for which he was sentenced to a further term of imprisonment to be served in that State. The issue before the Court was whether, in those circumstances, s 42(m)(2) applied so as to automatically cancel the applicant's probationary release in South Australia.

44 The Court concluded that it did. On the question of whether the words 'sentenced to imprisonment' encompassed prison sentences imposed outside South Australia, Sangster J said:

I find it sufficient to look at the provisions of Part IVA of the Prisons Act, and at the provisions of s 42m(2) in particular, and to ask myself what is the ordinary meaning of the opening passage of that lastmentioned sub-section and whether there are any considerations which compel me to give to those words any meaning other than their ordinary meaning. In my opinion, the ordinary meaning of the words in question have no territorial limitation at all, and far from other considerations leading to a cutting down of the ordinary meaning of those words, I find the only considerations which, to me, appear to be relevant support the ordinary meaning of the words, namely, an unlimited geographical application. In my opinion, the obvious intention of Part IVA of the Prisons Act is to provide a machinery whereby a prisoner who has not yet earned sufficient remissions to qualify him for an absolute release from the prison term which he is currently serving, may be granted a probationary release an essential term of which being that he should, by his conduct, earn the confidence reposed in him by the Parole Board, both in general terms and in any particular term or condition imposed upon him by the particular order applying to him. The key, in my opinion, is that a person released on a probationary release under the provisions in question must be of good behaviour and must be so wherever he happens to be at any time during the period of his probationary release. This, in my opinion, is so even if he happens to be in a place where his presence is, in itself, a breach of some particular term or condition of the order such as, in this case, the applicant being outside the boundaries of the State of South Australia without the prior written permission of a parole officer.[17]

45 The legislation considered in Bartels was repealed and replaced by the Correctional Services Act 1982 (SA). In R v Romeo,[18] the Court of Criminal Appeal confirmed that the construction of s 42(m)(2) adopted in Bartels continued to apply with equal force to the corresponding provision[19] in the Correctional Services Act 1982 (SA).

46 In my opinion, these authorities do not stand in the way of my conclusion as to the geographical reach of s 77(6A) of the Act. As the passage quoted above is apt to demonstrate, the issue before this Court stands to be determined through the application of ordinary principles of statutory interpretation. The particular provisions considered in Bartels and Romeo, as well as the broader statutory context, are materially different to the legislation with which this Court is concerned. For one thing, the provisions there considered dealt with offences committed by a prisoner whilst on parole. In that sense, they are properly seen as the analogues of s 77(7) of the Act, rather than s 77(6A).[20] As I have mentioned, s 77(7) does expressly extend to prison sentences imposed outside of Victoria. As regards s 77(6A), several of the considerations I have referred to earlier which, in my view, compel the conclusion that it was not intended to encompass prison sentences imposed outside of Victoria, would not have applied in the South Australian context. Accordingly, those authorities can be of little assistance.

47 It was for these reasons that I ordered on 24 December 2014 that the plaintiff be released forthwith.

[1] (1933) 24 Cr App R 74.

[2] Associated Provincial Picture Houses Ltd v Wednesbury [1947] EWCA Civ 1; [1948] 1 KB 223.

[3] See, eg, Corrections Act 1986 ss 77(2), 77(4), 77(6), 77(7).

[4] In Canada, a privative clause precluding review of the revocation of parole cannot deprive a prisoner of resort to habeas corpus: see Re Cadeddu and The Queen (1982) 4 CCC (3d) 97 (Ont. HC).

[5] See, eg, Re Rowling and The Queen (1978) 45 CCC (3d) 199 (failure of parole board to comply with statutory provisions regarding revocation of parole rendered the detention unlawful); Re Moore and The Queen (1983) 4 CCC (3d) 206 (habeas corpus granted where parole board unlawfully suspended prisoner's release on mandatory supervision); Chiu v Canada (National Parole Board) 2007 BCCA 171 (habeas corpus granted where parole board denied prisoner statutory right to an oral hearing in relation to revocation of parole); Kurariki v Singh, Manager of Mt Eden Prison [2008] NZHC 1218 (habeas corpus granted to challenge unlawful recall to prison of prisoner on parole).

[6] R v Acting Governor of Her Majesty's Prison, Pentridge; Ex parte Butterly [1974] VicRp 76; [1974] VR 634 (Governor did not have power to delay release already ordered by the parole board); cf Commissioner of Corrective Services v Wedge [2006] NSWCA 271; (2006) 68 NSWLR 334 (continuing detention of the applicant in circumstances where his non-parole period had expired, and a parole order had been made in his favour, was impliedly authorised under the Mental Health Act 1990 (NSW)).

[7] Chiu v Canada (National Parole Board) 2007 BCCA 171; Woodhouse v Elbow Lake Institution 2000 BCSC 78; contra Manuel v The Superintendent, Hawkes Bay Regional Prison [2005] 1 NZLR 161, leave to appeal refused [2004] NZSC 6 but see Kurariki v Singh, Manager of Mt Eden Prison [2008] NZHC 1218. See generally Judith Farbey, R J Sharpe and Simon Atrill, The Law of Habeas Corpus (Oxford University Press, 3rd ed, 2011) 168.

[8] See Members of the Sentence Administration Board of the Australian Capital Territory v Gomez [2002] FCAFC 261 (where the Full Court of the Federal Court held that a 'suspended sentence' fell within the meaning of the expression 'term of imprisonment' in the Parole Act 1976 (ACT) so as to trigger an automatic cancellation of parole). See also Meehan v Lawrence (1974) 3 ALR 44 (where the same conclusion was reached in respect of analogous legislation in the Northern Territory). Unlike the present case, however, the relevant provisions there considered only had the effect of cancelling parole where a further term of imprisonment was imposed in respect of an offence committed by the prisoner during the parole period.

[9] See Commissioner of Corrective Services v Wedge [2006] NSWCA 271; (2006) 68 NSWLR 334, 359 [117] (Bryson JA).

[10] Antunovic v Dawson (2010) 30 VR 355, 381 [117].

[11] The expression 'in Victoria or elsewhere' also attaches to the reference to offences committed during a prisoner's parole period in s 76.

[12] See [29]-[30] above.

[13] See, eg, R v Nationwide News Pty Ltd [2008] VSC 526; (2008) 22 VR 116, [71].

[14] Interpretation of Legislation Act 1984, s 38 (definition of 'Act').

[15] Beckwith v The Queen [1976] HCA 55; (1976) 135 CLR 569.

[16] (1981) 27 SASR 173 (King CJ, Sangster and Legoe JJ) ('Bartels').

[17] Ibid 176. The reference to the "ordinary meaning" of the particular words employed in the Prisons Act 1936 (SA) should be understood, of course, in the light of later observations regarding that expression: see, eg, Duffy v Da Rin [2014] NSWCA 270; (2014) 312 ALR 340, [27], citing Mainteck Services Pty Ltd v Stein Heurtey SA [2014] NSWCA 184; (2014) 310 ALR 113, [75]; Charter Reinsurance Co Ltd v Fagan [1997] AC 313, 391, approved in Dale v R [2012] VSCA 324; (2012) 272 FLR 275, [73]; Campbell v R [2008] NSWCCA 214; (2008) 73 NSWLR 272, [48].

[18] (1996) 89 A Crim R 149, 150 ('Romeo').

[19] Correctional Services Act 1982 (SA) s 75(1).

[20] In South Australia, the imposition of a term of imprisonment for an offence committed before a prisoner's release on parole does not have the effect of automatically cancelling that prisoner's parole: Correctional Services Act 1982 (SA) s 74A.