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:
Solicitors:
Self-represented Appellant
K E Heath (First Respondent)
J Davidson (Second Respondent)
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:
- 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.
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The…
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- Case
- [2020] NSWCA 359
- Decision Date
CaseChat Overview and Summary
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
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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