Whan v McConaghy

On 26 August 1983, the applicant attended the Supreme Court in accordance with the condition of his bail. The matter came before a judge of that Court (Yeldham J.) who was apparently informed that it was accepted that the appeal which had been lodged was incompetent and that it was proposed to initiate proceedings in the Supreme Court for relief by way of prerogative writ. With the concurrence of e Crown, the applicant was granted bail subject to the condition that he enter into an agreement for security to forfeit the sum of $1,000 in the event that he did not comply with his bail undertaking and an additional condition that the proceedings seeking to challenge the decision of the learned District Court judge be prosecuted with expedition. Proceedings by way of summons seeking declarations and prerogative relief in the nature of certiorari were instituted subsequently on that day.

The applicant's bail was continued by further orders made on 2 September 1983 and 16 September 1983. On none of the four occasions on which bail was granted or extended was the application for bail opposed by the Crown. There is no suggestion that the applicant failed duly to observe any of the conditions which were imposed upon the grant or extension of bail.

The proceedings for declaratory relief and certiorari were heard by the Court of Appeal on 6 December 1983. The court unanimously held against the applicant. Further argument then ensued as to the power of the court to substitute a fresh date for the commencement of the sentences. Those sentences, it will be recalled, were for concurrent terms of three months which had been expressly ordered to commence on 19 August 1983. No order had, at any time, been made for the stay of execution of those sentences. The applicant submitted to the Court of Appeal that, in those circumstances, the court lacked power to substitute a fresh date for the commencement of the sentences. On 7 December 1983, the Court of Appeal made formal orders dismissing with costs the applicant's application for declarations and certiorari. By majority (Moffitt P. and Samuels J.A., Mahoney J.A. dissenting), their Honours went on to direct that the time while the applicant had been on bail should not count as part of his sentence, that the sentences of periodic detention at the Emu Plains prison imposed by the learned District Court judge should commence from Friday, 16 December 1983 at 7 p.m. and that the notice of commitment to prison should operate according to its terms except that Friday 16 December 1983 at 7 p.m. should be substituted for Friday 19 August 1983.

The applicant lodged an application for special leave to appeal to this Court from the direction of the Court of Appeal that the sentences should commence from 16 December 1983. On 16 December 1983, an order was made by a justice of this Court admitting the applicant to bail pending the determination of the application and any subsequent appeal.

It is not suggested on behalf of the applicant that the Court of Appeal was in error in dismissing the applicant's application for declaratory relief and certiorari. The sole ground upon which the applicant seeks leave to appeal is that the Court of Appeal possessed, in the circumstances, no power to give the direction which, by majority, it purported to give that his sentence commence on 16 December 1983. The effect of the argument which it is sought to advance on behalf of the applicant is that the unforeseen consequence of the grant and continuation of bail without any accompanying order that the execution of his sentence be stayed was that he had avoided serving the term of periodic detention to which he had been duly sentenced. It is obvious that that argument has nothing to recommend it in terms of substantive merits. The question which the applicant wishes to raise is, however, a question of some general importance involving personal liberty. Reluctantly, we have come to the view that special leave to appeal should be granted. We turn to the consideration of the questions of law which the appeal raises.

It is argued for the applicant that in the absence of express statutory authority the Court of Appeal had no power to substitute a fresh order of commitment to prison for one the term of which had expired. As examples of circumstances in which such statutory authority exists, the applicant points to cases where a prisoner escapes while serving a sentence (Crimes Act 1900 N.S.W., s. 447A), where an appellant is admitted to bail pending the hearing of his appeal by the Court of Criminal Appeal (Criminal Appeal Act 1912 N.S.W., s. 18(3)) and where a person convicted and sentenced by a court of petty sessions appeals to the District Court (Justices Act 1902 N.S.W., ss. 122-125B). The researches of counsel have failed to find any precedent for the exercise of an inherent jurisdiction to substitute a fresh order of commitment to prison for a term of imprisonment which has expired. It would seem clear enough that, if the term of imprisonment for which the applicant was sentenced had expired, the Court of Appeal lacked inherent jurisdiction to revitalize the expired term by directing that it commence again at some future time. The applicant's argument tends, however, to obscure the real question in the case by assuming that it be answered in his favour. That question is whether, in the circumstances, the term of imprisonment which the applicant was sentenced to serve had expired.

A sentence of imprisonment, like any other court order, must operate in accordance with its terms as interpreted in the context of any statutory provisions pursuant to which it is imposed or framed. If the sentence does not itself direct that the term of imprisonment which the offender is ordered to serve be a period commencing on a particular day or if overriding statutory provisions do not have that effect, the term of imprisonment will ordinarily commence when the offender is taken into custody and begins to serve it. The framing of the sentence or the effect of overriding statutory provision can however, intentionally or inadvertently, be such that the imprisonment to which an offender is sentenced is imprisonment during a period which is identified by reference to a nominated specific commencing date. In such a case, if the offender fails to serve the term of imprisonment imposed, he may be guilty of some further offence (see, e.g., Periodic Detention of Prisoners Act, s. 33). In the absence of statutory provision or valid court order to the contrary however, the term or period during which the offender is sentenced to be imprisoned will commence on the designated day.

On our reading of the Periodic Detention of Prisoners Act, the specification of a commencing date does not itself form part of the sentence. The commencing date must however be identified by the sentencing court in order that the procedures of that Act may be applied to the sentence of imprisonment. Section 8 of the Periodic Detention of Prisoners Act expressly provides that the sentence "shall commence" on the date specified in the order imposing the sentence. There is nothing in the Act which qualifies that clear provision. That being so, its effect is that the period or term of imprisonment which the person sentenced is required to serve is the period or term commencing on that designated date.

The fact that the applicant did not actually commence to serve the sentence of imprisonment did not, in itself, prevent the term of the sentence from commencing to run. In that regard, it is to be recalled that not even escape from custody had the effect, at common law, of preventing a term of imprisonment from continuing to run (In re Court [1] ; Wilson v. Attorney-General (N.Z.) [2] ). It becomes necessary to determine whether the orders for bail which were purportedly made by the Supreme Court operated to prevent the commencement of the term of imprisonment or to interrupt it after it had commenced. Two subsidiary questions immediately arise: the first is whether there was any power under the Bail Act 1978 N.S.W. to make the orders in question; the second is as to the effect of such orders, assuming them to have been validly made.

1. (1871) 2 Q.S.C.R. 171. 2. [1938] N.Z.L.R. 496.

Section 6 of the Bail Act outlines the periods in respect of which bail may be granted in accordance with the act to an accused person. So far as material, it provides as follows:

Bail may be granted in accordance with this Act to an accused person in respect of any one or more of the following periods (so far as they relate to the offence of which the person is accused):

(d) the period of a stay of execution of a conviction;

(e) the period between the lodging of an appeal and its determination, being an appeal against a conviction or order or against the severity of his sentence.

Section 4(2) provides: A reference in this Act to an accused person includes a reference to -

(a) a person charged with, convicted of or found guilty of an offence;

(b) a person whose conviction for an offence is stayed;

(c) a person in respect of whom an appeal (including an appeal to the High Court) relating to an offence is pending.

It may be conceded readily that the applicant satisfied the description of "accused person" under the Act. He was a person convicted of an offence. It is not altogether clear whether an appeal had been instituted on his behalf before the first bail order was made by Reynolds J.A. on 19 August 1983. Although it was accepted that the appeal proceedings were not open and the applicant would have to seek prerogative relief when Yeldham J. granted further bail on 26 August 1983, the appeal proceedings had not been finally disposed of at that time. The further orders continuing the applicant's bail in September 1983 were made after the institution of the proceedings for certiorari.

The references to "appeal" in s. 6(e) must be read in the light of the extended definition of that word in s. 4(1). "Appeal" is defined by that sub-section so as to include, subject to any contrary intention, "an application for leave to appeal and a proceeding by way of appeal". The extended definition is wide enough to comprehend proceedings in the nature of prohibition or certiorari the object of which is to prohibit further proceeding on, or to secure a quashing of, a conviction or sentence for want of jurisdiction or error of law or otherwise. In the context of bail it is natural that the legislature would make provision for a broad definition of "appeal" so as to provide for the grant of bail in connexion with proceedings which result in a quashing of a conviction or sentence. It is of some significance that until it was amended in 1970, the Justice s Act N.S.W. 1902, as amended, treated habeas corpus and certiorari as appeals. The heading of Div. 3 of Pt V was "Special provisions regarding appeals by way of writ of habeas corpus or certiorari".

The expression "proceeding by way of appeal" is also sufficiently wide to include a proceeding by way of appeal which was duly instituted but which was incompetent. If the bail order of Reynolds J.A. was made after the institution of the appeal the consequence is that the bail order was competent. Likewise, the last two bail orders (after the proceedings for prerogative writ had been instituted) were competent. There is greater difficulty with Yeldham J.'s order since his Honour was told that the appeal which had been lodged was incompetent and that it was proposed to start proceedings for prerogativwrit. Accordingly, it is difficult to say that he was exercising the power conferred by s. 6(e) to grant bail during the period "between the lodging of an appeal and its determination". As a matter of jurisdiction, however, it would seem that, if the view be correct that the institution of an incompetent appeal is a "proceeding by way of appeal", there was jurisdiction to grant bail between the time the incompetent appeal was lodged and the time it was disposed of as incompetent.

Notwithstanding that, in its modern garb, bail may operate more as a form of conditional liberty than as a form of alternative custody (as it used to do when the bailed person was given over into the custody of his sureties), and thereby assume a character more akin in effect to a stay of execution of an order, it does not of itself interfere with the operation of the order: R. v. Brooke [3] . A stay of execution, as its name implies, operates directly on the judgment or order the subject of the stay. Bail, in the absence of the exercise of any associated or supplementary powers that may be available, merely authorizes the accused person to be at liberty notwithstanding the operation of the sentence. That being so, in the circumstances of the present case, at the time when the Court of Appeal purported to direct that the sentence of the applicant commence on a new and future date, the sentence of three months imposed had already run its term.

1. (1788) 2 T.R. 190, at p. 196 [100 E.R. 103, at p. 106].

The matter may be tested by considering the situation of the superintendent or gaoler of the prison at Emu Plains. He would have received the warrant in respect of the applicant from the District Court recording the sentence of three months to be served by way of periodic detention commencing on 19 August 1983. The applicant failed to present himself at the prison at 7 p.m. on that day and thereby exposed himself to prosecution for an offence under s. 33 of the Periodic Detention of Prisoners Act. There is little doubt that he could establish, by proving the grant of bail, that he had a reasonable excuse for his failure provided that he had made the fact known to the prison before the time when he was required to report or as soon as practicable after that time (s. 33(2)(c)). If no further bail were then granted the applicant would be required to report for the next succeeding period of detention stipulated by the Act with reference to the order of the District Court, that is, on Friday, 26 August 1983. Nothing has happened to extend the authority of the gaoler to hold the applicant beyond the number of periods occurring within the term of three months commencing on 19 August 1983. The statute does not authorize the gaoler to adopt a new commencing date for that specified by the District Court and in the absence of a court order staying the execution of the sentence it would expire on the expiration of three months from the specified commencing date. The same point may be made in respect of the subsequent orders granting bail.

From what has already been said it will be seen that our conclusion is based on the following propositions: (1) that the concurrent sentences of three months' imprisonment imposed by the District Court judge commenced on 19 August 1983; (2) that, in the absence of a stay of execution, the bail orders did not have the effect of suspending or postponing the operation of the sentences; (3) that the sentences continued to run notwithstanding that the applicant did not commence to serve the term of imprisonment to which he was sentenced; and (4) that the Court of Appeal (a) had no inherent jurisdiction to substitute a fresh order of commitment for a sentence which had expired, and (b) had no statutory power, similar to that possessed by the Court of Criminal Appeal, to vary the sentence so as to take account of the period spent on bail. The effect of those propositions is that the appellant's sentence had run its course by the time the Court of Appeal heard and determined the proceedings before it and that the Court of Appeal lacked jurisdiction to make an order to the effect that the term of imprisonment commence on some future date. We note that that conclusion is in accordance with the unreported decision of Humphreys J. in the case of Sinnott [4] which was discussed in Ex parte Blyth [5] but which apparently was not cited in argument before the Court of Appeal.

1. Unreported; Divisional Court, 4 May 1943. 2. [1944] K.B. 532, at pp. 539-540.

We would grant special leave to appeal and allow the appeal.

The applicant appealed to the District Court from orders made against him by the Court of Petty Sessions at Hornsby upon his conviction on two charges of driving in a manner dangerous to the public. The District Court was constituted by his Honour Judge Loveday. His Honour imposed a sentence of three months periodic detention on the applicant, concurrent on each charge. Section 5(1) of the Periodic Detention of Prisoners Act 1981 N.S.W. provides that a court, sentencing a convicted person to imprisonment for a term of not less than three months and not more than eighteen months may, if it is of the opinion that it is appropriate in the circumstances of the case that the person serve his sentence by way of periodic detention and if it is satisfied that it is practical to do so, order than the term of imprisonment to which it has sentenced him be served by way of periodic detention.

A notice of commitment to prison was served upon the applicant, as s. 7(1) of the Act requires. The notice specified Friday 19 August 1983 as the day and date on which the applicant was first to report to prison. The sentence of three months imprisonment to be served by way of periodic detention commenced on that date in accordance with the provisions of s. 8 of the Act:

A sentence of imprisonment to be served by way of periodic detention shall commence on the date specified in the order of the court imposing the sentence as the date on which the sentence shall commence, which date shall be not earlier than 7 days and not later than 21 days after the date on which the sentence is imposed.

There was no right of appeal against the sentence imposed by Judge Loveday, but the applicant purported to institute an appeal against that sentence to the Court of Criminal Appeal. Notwithstanding the incompetence of the appeal, an application for bail pending the appeal was made to the Supreme Court on 19 August 1983. An order was made admitting the applicant to bail for one week. On 26 August 1983, the Crown agreed to Yeldham J. making an order granting the applicant bail "on condition that he enter into an agreement without security to forfeit the sum of $1,000 in the event that he does not comply with his bail undertaking and an additional condition that the proceedings seeking to challenge the decision of Loveday D.C.J. be prosecuted with expedition". On this occasion, the incompetence of the appeal was manifest, but his Honour was told that it was intended to issue a summons that day "seeking to challenge what Loveday D.C.J. did".

A summons was issued seeking orders in the nature of certiorari and those proceedings came before the Court of Appeal. On 6 December 1983, that Court dismissed the summons. The period of three months from and including 19 August 1983 had then expired. The applicant had served none of the sentence imposed by Judge Loveday in custody because the bail orders had been made and the later bail order had been continued pending the hearing of the proceedings before the Court of Appeal. The bail orders were made, it seems, without jurisdiction. Jurisdiction to grant bail is conferred on the Supreme Court by the Bail Act 1978 N.S.W.. That Act abolished any non-statutory power to grant bail in connexion with criminal proceedings. Section 6(e) of the Act authorizes bail in respect of "the period between the lodging of an appeal and its determination, being an appeal against a conviction or order or against the severity of sentence". "Appeal" includes an application for leave to appeal and a proceeding by way of appeal. I doubt whether the Bail Act authorized the grant of bail pending the determination of the proceedings commenced by summons, but it is not necessary to decide that point.

When the summons was dismissed, the Court of Appeal had no statutory power to order that the time during which the applicant had been on bail be reflected in a sentence thereafter to be served by him. Where an appeal lies against conviction or against the severity of a sentence to the Court of Criminal Appeal and bail is granted pending the appeal, s. 18(3) of the Criminal Appeal Act 1912 N.S.W. allows for the time during which the appellant is at liberty on bail to be reflected in the sentence still to be served. Section 125B(1) of the Justices Act 1902 N.S.W. has substantially the same effect where appeals are brought against a conviction or sentence before Courts of Petty Sessions. These provisions did not cover the applicant's case. Nevertheless the Court of Appeal, by a majority, asserting a jurisdiction to make such orders as are "incidental to the proper determination of proceedings before it", made an order purporting to fix a new date (16 December 1983) for the commencement of the sentence under s. 8 of the Periodic Detention Act. The question is whether that Court had jurisdiction to do so.

Apart from that order, the term of imprisonment imposed by Judge Loveday expired by effluxion of time three months from and including 19 August 1983. A term of imprisonment expires with effluxion of time whether or not the prisoner is in custody serving that sentence for the whole of the term. Thus it has been held that a prisoner who escapes while serving a term of imprisonment cannot be detained in custody under the sentence once the term has expired, though he may be liable to arrest and prosecution for escaping: In re Court [6] . And in Wilson v. Attorney-General (N.Z.) [7] the Court of Appeal in New Zealand held that a term of imprisonment continued to run while a prisoner is at large after escaping from lawful custody. The effect which bail has upon a sentence of imprisonment was stated by Buller J. in R. v. Brooke [8] . Buller J., considering the effect of an Act which gave a right of appeal from a conviction by justices of the peace, said:

It is said that it is strange that the party should suffer the punishment while the appeal is pending: but we are to consider it like the case put at the Bar of a writ of error, which does not suspend the execution of a judgment which it is brought to reverse. It would be absurd to put a contrary construction upon this Act of Parliament, for if the appeal were to put an end to the imprisonment by entitling the party to be bailed, the consequence would be that, although the conviction were affirmed, the party would escape from punishment and laugh at justice; for the imprisonment is to run from the time of the conviction; and here the parties having been sentenced to be imprisoned for fourteen days, the time would be expired before the appeal was determined. This passage was cited with approval by Hallett J. in Ex parte Blyth [9] . His Lordship referred to an unreported case where bail had been granted when leave was given to move for certiorari to quash an order for imprisonment in default of payment of a fine. The term expired and the motion was dismissed. Thereafter the magistrate concluded that he had no power to commit or re-commit the person sentenced under the original order. The matter came to the attention of Humphreys J., as Hallett J. stated [10] : The question with which he was concerned was whether, if bail were granted and the period of the sentence had expired by the time the appeal had been dismissed, the granting of bail had the wholly unintended and, one would think, undesirable effect, of cancelling the sentence which, as events proved, had been rightly imposed. I understand that Humphreys J. came to the conclusion that such a cancellation was produced, and that, accordingly, the law on the matter required some consideration. In my opinion, Humphreys J. came to the right conclusion. 1. (1871) 2 Q.S.C.R. 171. 2. [1938] N.Z.L.R. 496. 3. (1788) 2 T.R. 190, at p. 196 [100 E.R. 103, at p. 106]. 4. [1944] K.B. 532. 5. [1944] K.B., at p. 540.

The grant of bail in the present case effectively cancelled the sentence and allowed the applicant to "escape from punishment and laugh at justice". Although that consequence was unintended, it does not follow that the Court of Appeal had inherent jurisdiction to impose a sentence to make up for the sentence avoided. The limits of the inherent jurisdiction are determined primarily by reference to the purposes served by its exercise, the chief among them being control of the court's procedure, suppression of abuses of its process, preventing tempts to thwart its process, and ensuring fairness in its proceedings (see Connelly v. Director of Public Prosecutions [11] ). The authorities are helpfully reviewed by Mr. Mason Q.C. and by Master Jacob in their respective articles on the inherent jurisdiction: Australian Law Journal, vol. 57 (1983), p. 449 and Current Legal Problems, vol. 23 (1970), p. 23. The inherent jurisdiction is not closely circumscribed, but it does not extend to sentencing a convicted person to a term of imprisonment in addition to, or in substitution for, a term of imprisonment which was not served because the court had bailed the prisoner during the term. If the processes of the court were abused by the seeking of bail, the suppression of the abuse lay in refusing bail or, perhaps, in revoking the bail once granted. If the seeking of bail in the present case were an abuse, it was not to be remedied by imposing what is in truth a new sentence. The Court of Appeal had no jurisdiction, either inherent or statutory, to make the order under appeal.

Special leave should be granted and the appeal allowed with costs. The orders of the Court of Appeal should be set aside and in lieu thereof it should be ordered that the summons be dismissed with costs.