Potier v The State of New South Wales

Supreme Court of NSW|2014-09-18|Before: Garling J, Rothman J, McClellan CJ, Grove J, Fullerton J, McClellan J, Hidden J

Judgment 1By a Summons, together with a Notice of Motion, filed on 21 August 2014, the plaintiff, Malcolm Huntley Potier sought the issue by the Court of a Writ of Habeas Corpus. 2Although the proceedings ought to have been directed to the General Manager of the Junee Correctional Centre, who should have been the appropriate party, counsel for the Attorney General who appeared did not take any point on this matter of procedure. 3The proceedings were heard on 3 September 2014. At the conclusion of those proceedings, leave was given to counsel for the Attorney General to file further evidence to deal with an issue which had arisen in the course of argument, and about which no notice had been given. 4The plaintiff, Mr Potier, was given leave to respond to that evidence, either with further evidence or else with further submissions. 5As a consequence, judgment was reserved on 10 September 2014. 6For the reasons which follow, I have decided that it is appropriate to order that the Summons be dismissed.

History of Previous Application 7This is not the first application by Mr Potier for a Writ of Habeas Corpus. 8On 30 October 2007, Rothman J dismissed an application made by Mr Potier for habeas corpus: see Potier v General Manager & Governor, M.R.R.C [2007] NSWSC 1031. Mr Potier appealed against that judgment. 9The basis upon which Mr Potier made the application to Rothman J was that his custodial conditions were precluding his proper preparation of an appeal to the Court of Criminal Appeal from a trial which was conducted in 2006 before Shadbolt DCJ and a jury of 12. That trial resulted in a guilty verdict for an offence contrary to s 26 of the Crimes Act 1900, of soliciting to murder. 10On 10 March 2008, the Court of Appeal, comprising McClellan CJ at CL, Grove J and Fullerton J, dismissed the appeal against the decision of Rothman J. 11In his judgment, McClellan J said: "An examination of Justice Rothman's reasons indicates that his Honour in my opinion identified the relevant principles in relation to the issue of a writ and correctly applied those principles on the facts of this case. There is authority, but not from this court, which suggests that the court may respond to an application for a writ in circumstances where a person has been incarcerated under difficult or unusual circumstances within the prison system rather than held within the main body of that system. Whether or not that principle is available in NSW need not be determined ... In my opinion Justice Rothman, having applied the appropriate principles to the circumstances of this particular case, the appeal to the Court of Appeal should be dismissed." 12On 3 March 2008, Hidden J refused to grant leave under s 4 of the Felons (Civil Proceedings) Act 1981, for Mr Potier to pursue an application for a Writ of Habeas Corpus: see Potier v Ruddock & MRRC [2008] NSWSC 153. 13In that application for a Writ of Habeas Corpus, and for leave to commence the proceedings claiming the Writ, Mr Potier cited as a basis for his entitlement to a grant of the Writ, his inability to comply with the rules of the High Court of Australia, with respect to an application which he had lodged in the High Court registry for special leave to appeal against the dismissal of an appeal to the Court of Criminal Appeal in R v Potier [2005] NSWCCA 336, against his first convictions. 14Mr Potier also, in his affidavit evidence before Hidden J, asserted a difficulty of his custody that he had not been able to gain access to typing facilities to enable him to pursue the appeals and applications which he then had on foot. 15Hidden J, for the reasons which he gave, dismissed the application for leave under the Felons (Civil Procedures) Act because he was not satisfied that Mr Potier had established a prima facie ground for obtaining a Writ of Habeas Corpus in those proceedings. 16In January 2012, Mr Potier applied again for a Writ of Habeas Corpus. On 16 March 2012, I dismissed that application: see Potier v The General Manager, MSPC Area 2 Long Bay Correctional Centre [2012] NSWSC 233. 17The basis of that application was complex. However, at its heart was a complaint that Mr Potier's continued detention was a manifest injustice because such was the strength of his appeals with respect to the convictions for which he was sentenced to a term of imprisonment, and having regard to the fact that the likely time he would spend in custody awaiting the disposition of his appeals would exceed his minimum term of imprisonment, his continued detention ought be addressed by the issue of a Writ. 18For the reasons which I gave, I refused to issue a Writ. I concluded that there was no material before the Court which could suggest that either Mr Potier's convictions were a nullity, or that there was a high probability that his convictions would be set aside. I was not satisfied that his ongoing imprisonment was a manifest injustice against which the Court would grant relief.

Criminal Proceedings 19As I have earlier mentioned, in 2006 a trial took place before Shadbolt DCJ and a jury with respect to an offence against s 26 of the Crimes Act. This was the offence of solicit to murder. The allegation was that Mr Potier, whilst in custody awaiting trial in respect of two earlier counts of soliciting to murder, again engaged in conduct which constituted this offence. 20In 2006, Mr Potier was in custody following his convictions after a trial before Hosking DCJ and a jury in the Sydney District Court in 2002. The jury returned verdicts of guilty on the two counts. The indictment alleged that in May 2000, Mr Potier had committed an offence against s 26 of the Crimes Act by soliciting an undercover police operative to murder two people. 21Mr Potier was sentenced in May 2002. The Crown appealed against the leniency of his sentence. The appeal was allowed. On both counts, the effect of the sentence imposed was that Mr Potier was sentenced to a non-parole period of 6 years and 3 months commencing on 8 May 2000 with a total period of imprisonment of 8 years and 8 months. 22On 3 October 2006, the jury returned its guilty verdict after a trial on the further custody-related charge. On 13 November 2006, Shadbolt DCJ sentenced Mr Potier to imprisonment for a period of 12 years to date from 7 August 2006, and to expire on 6 August 2018. His Honour fixed a non-parole period of 7 years, to date from 7 August 2006 and to expire on 6 August 2013. 23On 22 November 2006, a Notice of Intention to Appeal to the Court of Criminal Appeal was filed by Mr Potier with respect to his conviction. That appeal is fixed to be heard on 10 November 2014. Directions have been given in the course of that appeal for the provision of written submissions. In this appeal, Mr Potier appears for himself. 24For the sake of clarity, and the provision of adequate context, it is appropriate to record that in respect of his convictions on the two counts of offences contrary to s 26 of the Crimes Act for which he was charged and convicted on in October 2001, all possible appeals to the Court of Criminal Appeal and to the High Court have been concluded. Each of those conclusions has been adverse to Mr Potier. He has now served the entirety of his term of imprisonment with respect to those convictions. 25Mr Potier has also served the entirety of his non-parole period for his conviction in 2006. Accordingly, the question of whether he should or should not be paroled is presently before the State Parole Authority. 26In July 2013, the State Parole Authority declined to grant parole. It has recently considered the question again, and has deferred its consideration of the question until November 2014.

Current Application for Habeas Corpus 27Mr Potier accepted that his confinement to custody had been initially lawful, but he contended that his confinement to prison had become unlawful. In support, he advanced two bases for his current application. 28The first of these concerned the conditions of his imprisonment. Mr Potier submitted that in order to properly prepare for his appeal to the Court of Criminal Appeal in November 2014, it is necessary for him to have access to equipment which would enable him to listen to audio files, and audio tapes, which were part of the evidence in the 2006 trial upon which he was convicted. He submitted that although he had made an application for access to such equipment on 11 August 2014, that application had not yet resulted in sufficient access to these files and tapes with the result, he submitted, that through no fault of his own, he was in a position where he could not adequately prepare for his appeal. 29The second basis upon which he sought to have the Writ issued was that the conduct of the State Parole Authority in deferring any question of his parole until November 2014, in failing to have granted it by now, and in seeking further reports, was unlawful in that it was contrary to the limited statutory power which the State Parole Authority had. 30Mr Potier submitted that for either or both of these reasons, he was entitled to have the Court exercise its undoubted jurisdiction to issue a Writ.

Conditions of Incarceration 31Mr Potier relied upon an affidavit which had been filed in his appeal proceedings, in which he asserted the following: "The present position as regards access to legal papers, is that I had a preliminary inspection on 2/8/14. However, I was not given the electronic material (which I am quite happy that the Commissioner retain overall control) there has been a further issue that is not yet resolved so I may refer to later: but as a result, I completed on the 11/8/14 an Inmates Request Form in the following terms: 'Due to my repeated requests to see the parole office being refused, it has now resulted in my need to access my stored electronic material provided by NSW Police and have facilities to inspect the same. This was previously denied me on 2/8/14.' " 32The material referred to by Mr Potier consists of sound files on which are contained intercepted, or recorded, conversations. As well, there a number of VHS video tapes, upon which there are audio recordings. There are no video recordings. 33In his appeal, Mr Potier contests the accuracy of the recordings which were tendered at his trial. He asserts that those recordings did not faithfully reflect the original recordings which were in fact made, but were rather a derivative, and much shortened, version thereof. 34Mr John Meyers, the Operations Manager at Junee Correctional Centre, swore an affidavit of 5 September 2014, with respect to the conditions of Mr Potier's custody. In summary, Mr Meyers states that no application was made by Mr Potier on 11 August 2014 requesting access to the VHS and other audio recordings. However, following a conversation with Mr Potier on 4 September 2014, adequate arrangements were subsequently made for Mr Potier to access the audio material. 35Mr Potier, on the other hand, in an affidavit dated 7 September 2014, asserts that the arrangements made have been less than adequate, from his perspective, to enable the proper preparation of his appeal. 36It is unnecessary for me to determine this factual dispute. 37As I indicated in my judgment of March 2012, there is an outstanding question of legal principle in this State, namely, whether an otherwise lawful imprisonment may be rendered unlawful by reason only of the conditions of detention. I put it this way at [24]: "24 There is an outstanding question whether an otherwise lawful imprisonment may be rendered unlawful by reason only of the conditions of detention. Alternatively put, the question is whether a writ of habeas corpus can extend to provide a remedy with respect to the conditions under which a person is held in otherwise lawful detention. In R v Deputy Governor of Parkhurst Prison; Ex Parte Hague [1992] 1 AC 58, Lord Bridge of Harwich said at 165: 'I sympathise entirely with the view that the person lawfully held in custody who is subjected to intolerable conditions, ought not to be left without a remedy against his custodian, but the proposition that the conditions of detention may render the detention itself unlawful, raises formidable difficulties.' 25 However, his Lordship was not persuaded in the circumstances of the particular case that a writ of habeas corpus extended to deal with such issue. 26 The Court of Appeal in Prisoners A-XX inclusive v State of New South Wales (1995) 38 NSWLR 622, found it unnecessary to decide whether: 'a prisoner enjoys a right of 'residual liberty' vis-a-vis the State and whether the writ of habeas corpus runs where a person is illegally held in a prison within a prison.' 27 Their Honours also did not determine whether there was any authority to support the submission that 'intolerable conditions' were sufficient to enable a court to issue a writ of habeas corpus." 38In the decision of the House of Lords to which reference is made in [37] above, Mr Hague and Mr Weldon, both of whom were prisoners, argued, unsuccessfully, that their conditions of imprisonment were such as to render their otherwise lawful detention, unlawful. 39Mr Hague was serving a sentence of 15 years imprisonment. Because he was thought to be a troublemaker, the Deputy Governor of Parkhurst Prison, acting pursuant to Prison Rules, ordered his transfer to Wormwood Scrubs, to be held there for 28 days in segregation from other prisoners. Mr Hague was thereby denied the benefit of association with other prisoners, and various other privileges enjoyed by other long term prisoners who were not in segregation. 40In bringing proceedings, Mr Hague sought to identify and reply upon a right to residual liberty as a species of freedom of movement within the prison, the breach of which gave rise to his claim. Lord Bridge of Horwich described such a right as "... quite illusory". Counsel for Mr Hague also relied upon a proposition that a sufficiently "fundamental" breach of prison rules and ordinary standards of custody would be sufficient to convert an otherwise lawful imprisonment to an unlawful imprisonment against which a public law remedy would lie. 41This proposition was seemingly based upon some observations of Ackner LJ in Middleweek v Chief Constable of Merseyside [1990] 3 WLR 481. At 487, Ackner LJ said: "We agree with the views expressed by the Divisional Court that it must be possible to conceive of hypothetical cases in which the conditions of detention are so intolerable as to render the detention unlawful and thereby provide a remedy to the prisoner in damages for false imprisonment." 42Lord Ackner (as he had become) participated in the decision of the House of Lords in Hague, and in his speech acknowledged that this dictum was erroneous. 43Lord Jauncey of Tullichettle (with whose speech Lord Ackner agreed) said, with reference to Ackner LJ's remarks in Middleweek: "To say that detention becomes unlawful when the conditions thereof become intolerable is to confuse conditions of confinement with the nature of confinement ... I am therefore of the opinion that the above quoted dictum of Ackner LJ in Middleweek is an incorrect statement of the law." 44It is appropriate to note that this decision of the House of Lords also extended to another plaintiff, Mr Weldon, a prisoner serving a sentence, who asserted that he had been kept naked in a segregated cell overnight, which detention amounted to intolerable conditions. 45Each of the members of the House of Lords rejected the claims of Mr Hague and Mr Weldon as being unsoundly based. 46Sheller JA (with whom Meagher and Powell JJA agreed) in his judgment in Prisoners A-XX inclusive v State of New South Wales (1995) 38 NSWLR 622, considered Hague in detail and concluded that this decision precluded the use of a Writ of Habeas Corpus to review conditions of imprisonment on either of the bases advanced in Hague: see 630C. 47Sheller JA also considered Canadian authorities and decisions of various courts in the United States of America. He expressed this conclusion at 633E: "There is no such compelling authority to support the 'intolerable conditions' submission. Le Dain J did not go so far and the question remains open in the United States. The difficulties of the proposition, to which Lord Bridge and Lord Jauncey refer, are indeed formidable ... . In Australia authority dictates that this Court cannot go so far." 48Whilst, in my 2012 judgment, I referred to the issue of whether the concept of intolerable conditions as a basis for the issue of a Writ of Habeas Corpus as being "an open one", it must be said that there is no binding or even persuasive authority which supports the existence of such a concept. 49Having regard to the reservations expressed by Lord Bridge about the absurd results which could follow from a recognition that intolerable conditions may give rise to an entitlement for a sentenced prisoner, who is lawfully detained to go free, and in the absence of any support at all in Prisoners A-XX Inclusive for the existence of such a proposition, I am quite unable to accept as Mr Potier submits I should, that the law recognises the existence of such a path to relief by way of the issue of a Writ of Habeas Corpus. 50To adopt the example used by Lord Bridge in Hague, I cannot be satisfied that the law would or does recognise the right of a prisoner serving a lengthy term of imprisonment for a serious offence of murder, to walk free from prison because had not been supplied with proper clothing. I cannot accept that for the want of a shirt and a pair of trousers, the purpose for which a sentence of imprisonment had been lawfully imposed in accordance with s 3A of the Crimes (Sentencing Procedure) Act 1999, would be entirely subverted. 51Nor, in the absence of authority to the contrary, can I accept that the conduct of a prison authority in only providing access to devices capable of playing audio files and tapes, which is regarded as inadequate by a prisoner, would allow a lawfully sentenced prisoner to be set free. 52In any event, on any view of the facts, the limitation in accessing the audio recordings is not capable of giving rise to a description of intolerable conditions of the kind referred to even as a hypothetical example, in the authorities. 53Even if a Writ of Habeas Corpus does run as Mr Potier submits, and I am not at all persuaded that it does, any view of the facts falls far short of any legitimate basis for this Court to grant a Writ of Habeas Corpus. 54It is to be remembered that, after all, Mr Potier is serving a sentence of lawful imprisonment. He does not suggest that his original imprisonment is unlawful, merely that his conditions are so inappropriate in circumstances where he has to prepare for and present his own appeal, that his imprisonment is now unlawful.

The Issue of Parole 55The evidence before the Court satisfies me as to the following. 56Mr Potier is presently serving a sentence and is being detained in custody pursuant to a lawful warrant of commitment issued pursuant to s 62 of the Crimes (Sentencing Procedure) Act 1999 on 13 November 2006. The warrant contains the following statement addressed to the Governor of the Correctional Centre at Metropolitan Remand and Reception Centre: "YOU ARE DIRECTED to receive the offender (called the inmate in this warrant) into your custody and, subject to the Crimes (Administration of Sentences) Act 1999, and to any order under it, there to detain him or her for the term of imprisonment." 57The term of imprisonment specified on the warrant is a term of imprisonment for 12 years commencing on 7 August 2006, and expiring on 6 August 2018. The warrant also notes the existence of a non-parole period of 7 years, commencing on 7 August 2006 and expiring on 6 August 2013. The warrant notes that the earliest day the inmate is eligible for release is 6 August 2013. 58It must immediately be said that Mr Potier is presently held lawfully, and will continue to be held lawfully pursuant to that warrant, until his term of imprisonment expires on 6 August 2018. There has been no order made under the Crimes (Administration of Sentences) Act 1999 which contradicts the warrant which makes Mr Potier's present detention lawful. 59Mr Potier however contends that his ongoing detention is unlawful because upon a proper construction of the Crimes (Administration of Sentences) Act, the State Parole Authority ("the Authority") was obliged to order his release on parole. 60The evidence with respect to the conduct of the Authority was given by Mr Robert Cosman, who is the Secretary of the Authority. I accept Mr Cosman's evidence. Mr Cosman noted that Mr Potier is the subject of management and oversight by the Serious Offenders Review Council ("SORC"). In considering whether or not a serious offender should be released on parole, the opinion of SORC is a relevant matter for the Authority. 61On 30 April 2013, SORC prepared an initial report pursuant to s 197 and s 198 of the Crimes (Administration of Sentences) Act. That report recorded that SORC was of the view that it was not appropriate for Mr Potier to be considered for release to parole. 62On 7 June 2013, the Authority formed an intention to refuse parole. 63By letter dated 19 July 2013, the Authority notified the General Manager of Parklea Correctional Centre that it had refused parole. The formal decision was notified in this way: "Parole is refused for the following reason(s), as stated on 7 June 2013: .... The Parole Authority is not satisfied, on the balance of probabilities, that the release of the offender is appropriate in the public interest. In deciding that the release of the offender is not appropriate in the public interest, the State Parole Authority has regard to the following matters: .... Conclusion: Mr Potier is serving a custodial sentence for serious crimes. Although his conduct in custody has been satisfactory and free of incident, he is not eligible for programs in custody and his deportation status remains unknown. The Serious Offenders Review Council do not support the offender's release to parole. The offender must not be released from a correctional centre until further review by the State Parole Authority or until the expiry of the offender's full time sentence." 64The Authority noted that there could be an application by Mr Potier for reconsideration for possible release "... on the anniversary of the parole eligibility date 6 August 2014". 65The letter of 19 July 2013 includes a statement that Mr Potier had made an application dated 7 June 2013, for a review hearing. That statement must be erroneous because the Authority only formed an intention to refuse parole on 7 June 2013. At some later point, either that day or within a couple of days, Mr Potier was notified of that intention. It appears that he first signed an acknowledgement of that notification on 19 June 2013. It follows that he could not have lodged any application for review earlier than 19 June 2013. 66Mr Potier denies ever applying for a review. Mr Cosman's evidence was that he had not sighted any written application for a review. However, he had concluded that because of the process which the Authority had followed, there must have been an application for review. 67I am not satisfied that there was any application for a review made by Mr Potier in 2013. However, that is of no present consequence. The fact is that SORC did not recommend Mr Potier's release on parole, and the Authority determined that it was not satisfied on the balance of probabilities that releasing Mr Potier was appropriate in the public interest. 68As well, subsequent events of the Authority dealing with Mr Potier's parole would have overridden whatever the consequence of that earlier decision was. 69On 30 April 2014, SORC prepared a supplementary report in relation to Mr Potier. It expressed the view that it should defer forming any opinion until after a further report was received from the Community Corrections Officer. On 29 May 2014, a report was prepared by a Community Corrections Officer. That report concluded that Mr Potier was recommended for parole subject to certain conditions. 70On 13 June 2014, the Authority met. Amongst other inmates' applications for parole, it considered whether Mr Potier should be released on parole. It decided to stand over its consideration of that question until 7 August 2014, because it required an updated SORC report. 71Mr Potier submitted that it was not open to the Authority to stand over the consideration of his application for parole, nor was it open to the Authority to seek a further report from SORC. The basis for that submission is an interpretation which Mr Potier submits the Court should place upon the provisions of ss 143, 143A and 148 of the Crimes (Administration of Sentences) Act. 72The construction for which Mr Potier contended was, on its face, artificial. However, as the Crown pointed out in its submissions, there is a complete answer to Mr Potier's construction, which is to be found in the statutory provisions of Schedule 1 to the Crimes (Administration of Sentences) Act. 73Clause 11 of Schedule 1 is in the following form: "11. General procedure (1) Except as otherwise provided by this Act or the regulations: (a) meetings of the Parole Authority are to be held at such times and places as are fixed by the Chairperson, and (b) the procedure for the convening of meetings of the Parole Authority and for the conduct of business at those meetings is to be as determined by the Chairperson. (2) The Parole Authority may from time to time adjourn its proceedings to such times, dates and places and for such reasons as it thinks fit. (3) The Parole Authority is not bound by the rules of evidence, but may inform itself of any matter in such manner as it thinks appropriate. (4) Proceedings before the Parole Authority: (a) are to be open to the public, unless the Parole Authority determines in a particular case that the proceedings are to be conducted wholly or partly in the absence of the public, and (b) are not to be conducted in an adversarial manner, and (c) are to be conducted with as little formality and technicality, and with as much expedition, as fairness to any affected person and the requirements of this Act permit. (5) A decision of the Parole Authority is not vitiated merely because of any informality or want of form. ..." 74It can be seen that the Authority has the express power in Cl 11 of Schedule 1 to adjourn its consideration of Mr Potier's matter, and since it may inform itself of any matter in such manner as it thinks appropriate, it was fully entitled to seek one or more further reports. 75On 8 July 2014, SORC prepared the supplementary report which was requested, and concluded in that report that it was appropriate for Mr Potier to be released on parole. 76On 7 August 2014, the Authority met. Amongst other matters, it considered whether Mr Potier ought to be granted parole. It determined that it would stand over the further consideration of Mr Potier's parole until 13 November 2014. The Authority determined that it required a psychiatric report, and a psychological report which included a risk assessment. It also determined that those reports should be sent to SORC for their consideration. 77Mr Potier contends that it was beyond power for the Authority to further adjourn the consideration of his matter and to seek further reports. 78In my view this submission cannot be sustained because of the existence of the express power to which I have earlier referred with respect to the earlier adjourned meeting. 79I should record that Mr Potier also submitted that since there were no proper minutes of the meeting of the Authority the Court should find that there had not been a proper meeting. I reject that submission. 80The evidence of Mr Cosman made it plain that the Authority had met on the days specified, and that a note of its decisions with respect to Mr Potier was kept and recorded in the Authority's database. 81Notwithstanding Mr Potier's submissions, I am not satisfied that there is any reason on the evidence before me to hold that the Authority has not acted in accordance with its statutory power and authority. 82However, there is a more important point. 83Even if, and this is not the case here, the Authority had acted beyond power, and had failed to properly consider the release on parole of Mr Potier, any such failure does not convert a lawful imprisonment into unlawful imprisonment thereby providing grounds for a Writ of Habeas Corpus. 84It simply means that no order has been made under the Crimes (Administration of Sentences) Act, and accordingly, the original warrant, the terms of which I have set out above in [56], remain in place. Mr Potier's detention remains lawful. Thus, there is no basis for the issue of any Writ.

Summary 85The whole of Mr Potier's habeas corpus application depends on a principle of law that detention in custody, which is otherwise lawful, may become unlawful either because of inappropriate conditions of detention, or the failure of authorities to consider and make a discretionary determination as to his release on parole. 86There is no legal authority which supports the propositions for which Mr Potier contends. 87The facts do not establish the propositions for which he contends. 88Mr Potier's detention in custody is entirely lawful, and there is no basis for this Court to issue a Writ of Habeas Corpus.

Orders 89I make the following order: (1)Application for the issue of a Writ of Habeas Corpus is dismissed. (2)Applicant to pay the respondent's costs.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 18 September 2014

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