Dacich v Commissioner of Corrective Services - [2020] NSWCA 359

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Dacich v Commissioner of Corrective Services [2020] NSWCA 359
Hearing dates: 22 December 2020
Date of orders: 22 December 2020
Decision date: 23 December 2020
Before: Bell P; Basten JA; Macfarlan JA
Decision:
Appeal dismissed.

Catchwords:
ADMINISTRATIVE LAW – writ of habeas corpus – to whom writ should be directed – who has custody of prisoners in correctional centres – whether prosecutor entitled to appear
APPEAL – appeal against refusal to issue writ of habeas corpus – grounds on which appeal available – s 71 Supreme Court Act 1970 considered
JUDGMENTS AND ORDERS – sentence of imprisonment – whether warrant for commitment required in addition to court order – s 62 Crimes (Sentencing Procedure) Act 1999 considered
JUDGMENTS AND ORDERS – sentence of imprisonment – judicial review sought – release on bail – stay of execution of order – ss 69A-D Supreme Court Act 1970 considered

Legislation Cited:
Crimes (Administration of Sentences) Act 1999 (NSW), ss 72, 232
Crimes (Sentencing Procedure) Act 1999 (NSW), s 62
Crimes Act 1900 (NSW)
Criminal Procedure Act 1986 (NSW), s 244
Prisons Act 1952 (NSW)
Stronger Communities Legislation Amendment (Miscellaneous) Act 2020 (NSW), Sch 1, [1.10]
Supreme Court Act 1970 (NSW), ss 23, 69, 69C, 69D, 71, 101

Cases Cited:
Cowell v Corrective Services Commission (NSW) (1988) 13 NSWLR 714
Dacich v Director of Public Prosecutions (NSW) [2020] NSWCA 313
Day v The Queen (1984) 153 CLR 475; [1984] HCA 3
Ex parte Walsh and Johnson; In re Yates (1925) 37 CLR 36; [1925] HCA 53
Gargan v Director of Public Prosecutions (NSW) [2004] NSWSC 10; 144 A Crim R 296
The Queen v Turnbull; Ex parte Taylor (1968) 123 CLR 28 at 45; [1968] HCA 88

Category: Principal judgment
Parties: Clare Dacich (Appellant)
Commissioner of Corrective Services (First Respondent)
Director of Public Prosecutions (NSW) (Second Respondent)
Representation:
Counsel:
Self-represented Appellant
K E Heath (First Respondent)
J Davidson (Second Respondent)
Solicitors:
Crown Solicitor’s Office (First Respondent)
Office of the Director of Public Prosecutions (NSW) (Second Respondent)

File Number(s): 2020/353442
Decision under appeal

Court or tribunal:

Supreme Court of New South Wales

Jurisdiction:

Common Law

Citation:

[2020] NSWSC 1714

Date of Decision:

27 November 2020

Before:

Button J

File Number(s):

2020/271829

Judgment

THE COURT: The appellant, Clare Dacich (Kennedy), appealed from the refusal of a judge to issue a writ of habeas corpus and, which would have had the same effect, an order for her immediate release from her imprisonment. [1] The application, by way of notice of motion, was filed on 27 November 2020, and was heard the same day by Button J. The appeal, filed on 17 December 2020, was heard on 22 December 2020 and was dismissed at the conclusion of the hearing.
1. Dacich v Picton Local Court [2020] NSWSC 1714. The naming of a court as defendant derived from the application being made, inappropriately, by way of a motion in judicial review proceedings.
The…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2020] NSWCA 359
Decision Date: 23 December 2020

CaseChat Overview and Summary

The applicant, Mr Dacich, sought a writ of habeas corpus directed to the Commissioner of Corrective Services, challenging his detention. The Commissioner argued that the writ should have been directed to the Sheriff, as the Sheriff, not the Commissioner, had custody of prisoners. The appeal concerned the refusal by the primary judge to issue the writ.

The Court of Appeal was required to determine to whom a writ of habeas corpus should be directed when a prisoner is held in a correctional centre, and whether the prosecutor was entitled to appear in proceedings for a writ of habeas corpus. Further, the Court considered whether a warrant for commitment was required in addition to a court order for a sentence of imprisonment, and the implications of ss 69A-D of the *Supreme Court Act 1970* (NSW) regarding release on bail and stays of execution.

The Court held that the Commissioner of Corrective Services was the appropriate respondent to a writ of habeas corpus concerning a prisoner detained in a correctional centre, as the Commissioner had effective control over the prisoner's detention. The Court also found that the prosecutor had a right to appear in such proceedings. Regarding the commitment, the Court determined that a warrant for commitment was not a prerequisite for lawful detention following a sentence of imprisonment, and that the provisions of ss 69A-D of the *Supreme Court Act 1970* did not provide a basis for the relief sought. The appeal was accordingly dismissed.

Orders

Orders of the court

Appeal dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Dacich v Commissioner of Corrective Services [2020] NSWCA 359
Hearing dates:	22 December 2020
Date of orders:	22 December 2020
Decision date:	23 December 2020
Before:	Bell P; Basten JA; Macfarlan JA
Decision:	Appeal dismissed.
Catchwords:	ADMINISTRATIVE LAW – writ of habeas corpus – to whom writ should be directed – who has custody of prisoners in correctional centres – whether prosecutor entitled to appear APPEAL – appeal against refusal to issue writ of habeas corpus – grounds on which appeal available – s 71 Supreme Court Act 1970 considered JUDGMENTS AND ORDERS – sentence of imprisonment – whether warrant for commitment required in addition to court order – s 62 Crimes (Sentencing Procedure) Act 1999 considered JUDGMENTS AND ORDERS – sentence of imprisonment – judicial review sought – release on bail – stay of execution of order – ss 69A-D Supreme Court Act 1970 considered
Legislation Cited:	Crimes (Administration of Sentences) Act 1999 (NSW), ss 72, 232 Crimes (Sentencing Procedure) Act 1999 (NSW), s 62 Crimes Act 1900 (NSW) Criminal Procedure Act 1986 (NSW), s 244 Prisons Act 1952 (NSW) Stronger Communities Legislation Amendment (Miscellaneous) Act 2020 (NSW), Sch 1, [1.10] Supreme Court Act 1970 (NSW), ss 23, 69, 69C, 69D, 71, 101
Cases Cited:	Cowell v Corrective Services Commission (NSW) (1988) 13 NSWLR 714 Dacich v Director of Public Prosecutions (NSW) [2020] NSWCA 313 Day v The Queen (1984) 153 CLR 475; [1984] HCA 3 Ex parte Walsh and Johnson; In re Yates (1925) 37 CLR 36; [1925] HCA 53 Gargan v Director of Public Prosecutions (NSW) [2004] NSWSC 10; 144 A Crim R 296 The Queen v Turnbull; Ex parte Taylor (1968) 123 CLR 28 at 45; [1968] HCA 88
Category:	Principal judgment
Parties:	Clare Dacich (Appellant) Commissioner of Corrective Services (First Respondent) Director of Public Prosecutions (NSW) (Second Respondent)
Representation:	Counsel: Self-represented Appellant K E Heath (First Respondent) J Davidson (Second Respondent) Solicitors: Crown Solicitor’s Office (First Respondent) Office of the Director of Public Prosecutions (NSW) (Second Respondent)
File Number(s):	2020/353442
Decision under appeal	Court or tribunal: Supreme Court of New South Wales Jurisdiction: Common Law Citation: [2020] NSWSC 1714 Date of Decision: 27 November 2020 Before: Button J File Number(s): 2020/271829