Borleis v Wacol Correctional Centre

[2011] QSC 232

SUPREME COURT OF QUEENSLAND

CITATION:

Borleis v Wacol Correctional Centre [2011] QSC 232

PARTIES:

MARK ANDREW BORLEIS
(applicant)
v         
WACOL CORRECTIONAL CENTRE
(respondent)   

FILE NO:

BS 6518 of 2011

DIVISION:

Trial

PROCEEDING:

Applications

DELIVERED ON:

28 July 2011

DELIVERED AT:

Brisbane

HEARING DATE:

28 July 2011

JUDGE:

Fryberg J

ORDERS:

Application is dismissed.  

CATCHWORDS:

Administrative law — Prerogative writs and orders — Habeas corpus — Generally — application for the issuance of a writ of habeas corpus  

COUNSEL:

G O Carpenter given leave to appear for the applicant

No appearance for the respondent

SOLICITORS:

Unrepresented  

No appearance for the respondent

HIS HONOUR:  There is before the Court an application for an order for the release of Mark Andrew Borleis supported by an affidavit entitled Affidavit in Support of Writ of Habeas Corpus.  The application has been brought by Mr Glen Owen Carpenter who is a friend of Mr Borleis who, it seems, is also known as Mr Pytellek.

Mr Carpenter has tendered a handwritten document which is
headed “affidavit”, but which is not an affidavit, and another affidavit has been handed to the Court headed Affidavit of Service.  It, unfortunately, does not prove service of the material upon the General Manager of the Brisbane Correctional Centre and I have therefore dealt with the matter on an ex parte basis.

Mr Carpenter has made submissions and has also handed up a list of orders which he wishes to have made in addition to the release of Mr Borleis.  The affidavit and the statement are rambling, discursive and largely irrelevant.  They refer to a long history of incidents involving Mr Borleis and the authorities, both police and Magistrates, which seem to begin in 2003 when Mr Borleis says he discovered that drivers licences and vehicle registration were required for commercial purposes and from that drew the conclusion that no licence is
required for non-commercial or private use.  It seems that since then he has had a number of run-ins with the
authorities, possibly in relation to the driving of a vehicle without a licence.

The material contains a number of pejorative allegations of the history of the most recent arrest by the police.  The allegations do not seem to be relevant to the legality or otherwise of the present detention of Mr Borleis because, as I was told and indeed as seems to appear from the first affidavit, Mr Borleis was taken before the Southport Magistrates Court last Monday, the 25th of July and there the Magistrate made an order remanding him in custody until the next appearance in that Court on the 26th of August 2011.

Mr Carpenter submitted that he and his friends would like to have Mr Borleis released to freedom to go back to Court “under his own volition”, as Mr Carpenter put it.  That sounds very much like an application for bail.

Mr Borleis apparently did not make an application for bail when the matter was before the Magistrate on Monday but Mr Carpenter submitted that he was not given a chance to do so. The material is not sufficient to establish whether that assertion is true. Whether it be true or not, Mr Borleis still has the right to apply for bail and can do so. The procedure for doing so is set out in the Bail Act and no doubt it would be open to him to bring an application under that Act if he wished to obtain bail.

The actual warrant by which Mr Borleis is currently being held is not in evidence before the Court.  I am, however, prepared to assume from the material that is before the Court that the warrant was issued by authority of the Magistrate.

Mr Borleis, who was brought to Court from the prison today, was allowed to make some submissions himself.  He submitted that the Magistrate had no authority to deal with him.  He seemed to distinguish between himself as a man in two different capacities and suggested that the law did not bind him in one of those two capacities.  This rather esoteric and spiritual argument does not find any reflection in any provision of our law.

He also asserted that there is no entitlement under our law for anyone to be kept in custody prior to their conviction for an offence.  That, again, is not the state of affairs under our law.  A Magistrate is empowered to remand accused persons in custody until their trial.  It seems clear that that is what has happened in this case.  Appeals to Magna Carta and the Bill of Rights do not alter that situation.  Nothing in either of those pieces of legislation is capable of affecting the operation of subsequent legislation which confers on Magistrates the power to remand in custody.

Finally, Mr Borleis submitted that the Magistrate lacked power because the charges which were before the Court had already been disposed of.  By that he did not mean that they had been heard and determined in Court but rather that they had been withdrawn or settled as a result of negotiations between him and those who brought the charges.  That is, no doubt, a matter which the Magistrates Court can deal with but I do not see at the moment how it could possibly be the fact that there was a compromise of a criminal or quasi criminal charge.  Either the charge is withdrawn or it is not.

In any event, there is nothing before me to suggest that the warrant which the Magistrate issued was in any way imperfect or that those who are carrying out the instructions in the warrant, that is to say the General Manager of the Brisbane Correctional Centre and his staff are detaining Mr Borleis wrongfully.  That being so, there is no ground for ordering the release of Mr Borleis as sought in the application, nor is there any ground for issuing an order nisi for a writ of habeas corpus. The application is therefore dismissed.