1 The appellant was found guilty by a Supreme Court jury of one count of murder and one count of armed robbery. The trial judge sentenced him to life imprisonment, and set a non-parole period of 30 years.

2 The appellant has exercised his statutory right, under s 274 of the Criminal Procedure Act 2009 (Vic), to apply to this Court for leave to appeal against his conviction. Conviction appeals are, of course, a routine part of this Court's work. Subject to the priority which is given to cases of particular urgency, and subject to compliance with the procedural requirements, applications for leave to appeal against conviction are heard in the order in which they are filed. Mr Rich's conviction application will be heard in its turn.

3 Mr Rich has, however, taken the exceptional course of making a separate application for a writ of habeas corpus. Whereas the right to appeal against conviction is wholly statutory in origin, that ancient writ is, of course, a creature of the common law. The respondent to the application is the Secretary to the Department of Justice, being the person who has legal custody of Mr Rich pursuant to s 6A of the Corrections Act 1986 (Vic).

4 The application came on for hearing before Buchanan JA, sitting in his capacity as a Judge of the Supreme Court, not as a Judge of Appeal. (Every member of the Court of Appeal holds dual commissions.[1]) Buchanan JA refused the application for a writ of habeas corpus. Mr Rich now appeals, as of right, from that refusal. For reasons which follow, the appeal must be dismissed.

5 Quite simply, the application for habeas corpus is misconceived. It is a principle of very long standing that 'a writ of habeas corpus does not lie where a person is in execution on a criminal charge after judgment in due course of law.'[2] That this is the established position is confirmed by the most recent (2011) edition of Justice Robert Sharpe's work 'The Law of Habeas Corpus', extracts of which were included by Mr Rich in his submissions.[3] The learned authors put the position very clearly: 'The writ of habeas corpus has never been used with effect where convictions or orders of courts of general common law jurisdiction are concerned'.[4]

6 In Ex parte Williams,[5] Dixon J held that the writ of habeas corpus 'cannot be granted when the prisoner is held under an actual order or sentence, unless the court making the order exceeded its jurisdiction so that the order is a nullity.'[6] Mr Rich submitted that, because of what he contends was non-compliance (in various respects) with the Juries Act 2000 (Vic), his trial was a nullity. It followed, he argued, that the order of the trial judge sentencing him to a term of imprisonment was also a nullity.

7 Whatever may be the strength of Mr Rich's complaints about the empanelment of the jury, the argument is untenable, for the reasons which Dixon J went on to give in Ex parte Williams, as follows:

But the Supreme Court is a superior court of record having general jurisdiction. It may not be true that such a court has in all cases an authority to determine its own jurisdiction, which makes it impossible ever to treat its orders as nullities, but it is in this particular instance true that it had authority conclusively to determine the existence of its own jurisdiction, and so, whether it correctly determined it or not, to make an order which was a valid judicial order, and not a mere nullity operating to give no authority to hold the prisoner.[7]

8 In Williamson v Inspector-General of Penal Establishments,[8] the Full Court of this Court (Gavan Duffy, Smith and Adam JJ) applied the decision in Ex parte Williams when it dismissed an appeal regarding an application by a prisoner under sentence for an order nisi for a writ of habeas corpus directed to the prison authorities. The appellant had been sentenced by the Supreme Court to a term of imprisonment and was being held pursuant to that sentence. The Court (Smith J) said:

it is well established that, as a general rule, where any order for imprisonment has in fact been made by a judge of the Supreme Court, as it has in this case, the validity or propriety of the order cannot be challenged upon an application for a writ of habeas corpus in respect of the imprisonment ordered.[9]

9 In Director of Public Prosecutions v T Y (No 2),[10] this Court pointed out that the order of a superior court is valid and binding until set aside or varied. Even a court order which lacks constitutional (and therefore legislative) authority only ceases to have valid operation from the date of quashing.[11]

10 It follows that the order imprisoning Mr Rich is valid until it is set aside. That will only occur if his conviction appeal succeeds and his conviction and sentence are quashed. Unless and until that occurs, the order provides complete legal authority for his detention.[12]

11 Mr Rich's application was based on alleged non-compliance with s 30 of the Juries Act 2000 (Vic) in the process of empanelling the jury at the start of his trial. For reasons already given, it is neither necessary nor appropriate to address the matters relied on. The fate of the present application does not depend upon the merits of those complaints.

12 The issues about the empanelment of the jury must be litigated (if at all) on Mr Rich's application for leave to appeal against his conviction.[13] In R v Panozzo,[14] for example, this Court allowed an appeal against conviction on the ground that, because provisions of the Juries Act 2000 (Vic) had been contravened, there was in the circumstances of the case 'a fundamental defect in the constitution of the tribunal of fact', such that the trial was a nullity. Whether any of the matters relied on by Mr Rich falls into that category will be a matter for consideration by the Court dealing with his application for leave to appeal.

[1] Constitution Act 1975 (Vic) s 78A.

[2] Ex parte Williams [1934] HCA 48; (1934) 51 CLR 545, 548 (Starke J); see also Dixon J at 550, citing R v Lees (1858) 27 LJ QB 403.

[3] Judith Farbey, Justice R J Sharpe and Simon Atrill, The Law of Habeas Corpus (Oxford University Press, 3rd ed, 2011) 163-4; see also, David Clark and Gerard McCoy, Habeas Corpus - Australia, New Zealand, the South Pacific (Federation Press, 2000) 71-3.

[4] Judith Farbey, Justice R J Sharpe and Simon Atrill, The Law of Habeas Corpus (Oxford University Press, 3rd ed, 2011) 41.

[5] [1934] HCA 48; (1934) 51 CLR 545, 549-50.

[6] See also Re Officer in Charge of Cells ACT Supreme Court; Ex parte Eastman [1994] HCA 36; (1994) 123 ALR 478, 480.

[7] See also at 548 (Starke J) and see Re Superintendent of Training Centre at Goulburn; Ex parte Pelle (1983) 48 ALR 225, 227-8 (Brennan J).

[8] [1958] VicRp 52; [1958] VR 330.

[10] [2009] VSCA 226; (2009) 24 VR 705, 712 [27].

[11] D M W v C G W [1982] HCA 73; (1982) 151 CLR 491, 505; Residual Assco Group Ltd v Spalvins [2000] HCA 33; (2000) 202 CLR 629, 658-661; Re Macks; Ex parte Saint [2000] HCA 62; (2000) 204 CLR 158, 236-7 [218]-[220].

[12] See Re Harrod [1978] 1 NSWLR 331, 333-4 (NSWCA).

[13] See, for example, R v Abrahams and Bull [1948] VicLawRp 12; [1948] VLR 51; Johns v The Queen [1979] HCA 33; (1979) 141 CLR 409; Wilde v The Queen [1988] HCA 6; (1988) 164 CLR 365; R v Panozzo [2003] VSCA 184; (2003) 8 VR 548.

[14] [2003] VSCA 184; (2003) 8 VR 548.