De Alwis v The State of Western Australia - [2014] WASC 161

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: DE ALWIS -v- THE STATE OF WESTERN AUSTRALIA [2014] WASC 161

CORAM: MARTIN CJ

HEARD: 5 MARCH 2014

DELIVERED : 5 MARCH 2014

FILE NO/S: CIV 2673 of 2013

BETWEEN: VIJITHA GAMINI DE ALWIS
Applicant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

Catchwords:

Administrative law - Prerogative writs and orders - Habeas corpus - Excess of jurisdiction - Procedural fairness - Conviction for alternate offence

Administrative law - Prerogative writs and orders - Habeas corpus - Error in warrant of commitment

Legislation:

Criminal Code (WA), s 10A, s 10B, s 294, s 304, s 317
Criminal Procedure Act 2004 (WA), s 85, s 178(3)
Interpretation Act 1984 (WA), s 32, s 55
Sentencing Act 1995 (WA), s 36
Sentencing Regulations 1996 (WA), reg 13, sch 1
Supreme Court Act 1935 (WA), s 178

Result:

Application dismissed

Category: B

Representation:

Counsel:

Applicant: In person
Respondent: Mr J O'Sullivan

Solicitors:

Applicant: In person
Respondent: Director of Public Prosecutions (WA)

Case(s) referred to in judgment(s):

Cowell vCorrective Services Commission (1988) 13 NSWLR 714
Day v The Queen [1984] HCA 3; (1984) 153 CLR 475
R v Turnbull; Ex parte Taylor [1968] HCA 88; (1968) 123 CLR 28
Re Officer in Charge of Cells, ACT Supreme Court; Ex parte Eastman [1994] HCA 36
Re Williams (1934) 51 CLR 545
Re Writ of Habeas Corpus Ad Subjiciendum; Ex Parte Hooker [2005] WASC 292
Ruddock v Vardalis (2001) 110 FCR 491
Williamson v Inspector-General of Penal Establishments [1958] VR 330
MARTIN CJ:

(This judgment was delivered extemporaneously on 5 March 2014 and has been edited from the transcript.)
Mr De Alwis applies for the issue of a writ of habeas corpus, the effect of which would be to release him from the detention in which he is now being held as a consequence of his conviction and sentence after trial by jury in the District Court. Before going to the circumstances which underpin the application for habeas corpus and the circumstances which resulted in the conviction of Mr De Alwis in the District Court, it is appropriate to say something about the general principles that govern the remedy of habeas corpus.

Habeas Corpus – General Principles

Habeas corpus is a remedy directed to the issue of the lawfulness of a person's detention at a particular place and time: Ruddock v Vardalis (2001) 110 FCR 491. It is one of the essential safeguards by which the court can inquire into and ascertain the lawfulness of the detention of any person within the jurisdiction of the court. It is a remedy which reflects the importance which our society attributes to individual liberty. The principles that govern the grant of the remedy reflect the importance which the court appropriately places upon the preservation of the liberty of the individual.
Those principles include the proposition that once an applicant discharges an evidentiary burden, which raises a question with respect to the lawfulness of his or her detention, the burden of proving the lawfulness of detention falls upon the respondent and that burden will not be easily discharged. That burden will not be discharged on the basis of flimsy, inadequate or insubstantial evidence; rather, the proof of the lawfulness of the detention must be established by clear and cogent evidence.
It is also clear that there are limits upon the availability of the remedy when the remedy is sought in the context of the criminal justice system. Those limits were referred to by Le Miere J in the decision in Re Writ of Habeas Corpus Ad Subjiciendum; Ex Parte Hooker [2005] WASC 292. That was a case in which habeas corpus was sought with respect to the lawfulness of the detention of a person who was detained pursuant to a sentence of imprisonment imposed after conviction of a criminal offence, although the detainee had escaped from legal custody and travelled to another State from which he was returned under warrant.
Le Miere J made some general observations with respect to the issues which arise when habeas corpus is sought. He observed:
In any event, the duty of this court, as presently constituted, is to determine whether the applicant is presently being held unlawfully in custody or whether there are arguable grounds for the issue of a writ or referring the matter to the Court of Appeal for a hearing as to whether or not to issue a writ of habeas corpus. The writ of habeas corpus is an important safeguard of liberty in circumstances where a person is being detained in custody without lawful warrant or authority. It is not, however, available as a means of collaterally impeaching the correctness of a judgment or order made by a court of competent jurisdiction which is not shown to be a nullity [15].
His Honour then referred to the decision of the High Court in Re Williams (1934) 51 CLR 545 in which Starke J observed that there were two reasons in that case why a writ of habeas corpus would not issue. The second reason given by Starke J was expressed in the following terms:
[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 (548).
As Le Miere J observed, Dixon J made observations to similar effect at 549 ‑ 550.
The meaning of Starke J's observations have been explained in more contemporary language in subsequent decisions. One of those decisions is the decision of Deane J, also in the High Court, in Re Officer in Charge of Cells, ACT Supreme Court; Ex parte Eastman [1994] HCA 36.
That was one of the cases arising from a cause célèbre within the ACT involving a Mr Eastman who was charged with a serious criminal offence in that jurisdiction. He applied for a writ of habeas corpus relating to his detention in cells within the Supreme Court. Deane J said of the application:
Mr Eastman claims that his arrest was illegal for two distinct reasons, namely, that the arresting police did not have an original or complete warrant in their possession and that the whole process of arrest had constituted an abuse of process in that there had been deliberate and unjustifiable delay in executing any warrant and that that delay had been motivated by improper reasons. The affidavit discloses, however, that Mr Eastman is not at present held in custody under the authority of any warrant for arrest. He has been and is held in custody pursuant to a series of orders made by magistrates of the ACT Magistrates Court. His claim is that his detention in custody pursuant to those orders was and remains illegal for the reason that his original arrest was illegal. For the purposes of an application for a writ of habeas corpus, however, the answer to that claim is that on each occasion when the matter came before a magistrate of the ACT Magistrates Court, the learned magistrate was required to consider and determine whether an order could properly be made, and whether an order should be made, that Mr Eastman be remanded in custody and that, on each occasion, the magistrate made such an order. Apparently, none of the orders so made has been overridden by a subsequent bail order or has subsequently been set aside in an appellate proceedings [5].
After referring to the general circumstances in which the remedy would be available, Deane J went on to observe that:
It is not, however, available as a means of collaterally impeaching the correctness of a judgment or order made by a court of competent jurisdiction which is not shown to be a nullity. There is nothing at all in the material before me which provides an arguable basis for a finding that the order made by any of the learned magistrates was vitiated by absence or excess of jurisdiction or is otherwise void. That being so, those orders, while they stand, provide an answer to Mr Eastman's present application [6].
After referring to Ex parte Eastman in Ex parte Hooker, Le Miere J went on to observe at [23] that in the case before him there was nothing in the materials which provided an arguable basis for a finding that the order made by the District Court was vitiated by absence or excess of jurisdiction or was otherwise void and that being so the orders, while they stood, provided a complete answer to the application for habeas corpus.
Put another way, the rather quaint language used in Re Williams in 1934, to the effect that habeas corpus does not lie where a person is in execution on a criminal charge after judgment in due course of law, might be paraphrased in more contemporary language by observing that while an order made by a court remains in force and has not been shown to be outside the jurisdiction of the court, such order provides a complete answer to any application for habeas corpus. That being so, the critical question in this case is whether there is any basis for believing that the sentence imposed by the judge of the District Court following Mr De Alwis' conviction is vitiated because it went beyond the jurisdiction conferred upon him, having regard to the circumstances in which that sentence was imposed.
Another general point of importance which emerges from these authorities is the proposition that habeas corpus is not to be allowed to operate as a means of subverting the normal appellate process or of mounting a collateral attack on the correctness of a judgment or order made within jurisdiction. Rather, where the detention is pursuant to court order, the remedy only lies if it is established that the court has exceeded its jurisdiction. As I have observed, the onus of proving that the order giving rise to the detention of the applicant was within jurisdiction rests on the respondent if and when there is some evidence to suggest that the order might have been beyond jurisdiction.

The circumstances giving rise to Mr De Alwis' imprisonment

It is with those general principles in mind that I turn to the circumstances which gave rise to the sentence of imprisonment which was imposed upon Mr De Alwis.
Mr De Alwis was presented to the District Court on an indictment which alleged that on 4 April 2011 at East Perth he, with intent to maim, disfigure, disable or do some grievous bodily harm to another, unlawfully wounded that other. That charge was brought pursuant to s 294(1) of the Criminal Code (WA) (the Code). The offence might be succinctly described as the offence of unlawful wounding with intent to do grievous bodily harm. That was the only charge brought on the indictment. Mr De Alwis was required to plead to that charge and he entered a plea of not guilty.
During the course of the prosecutor's opening, reference was made to the possibility that Mr De Alwis might be convicted of an alternative charge. After referring to the offence of unlawful wounding causing grievous bodily harm, the prosecutor said to the jury:
If you are not satisfied at the end of the trial that the accused intended to cause grievous bodily harm there are alternatives available to you, and his Honour will explain this more at the end of the trial. For example, you may be satisfied beyond reasonable doubt that the accused intended to harm the complainant, Ms Perera, and that bodily harm was caused to her. However, the State case remains that the accused unlawfully wounded Ms Perera and intended to do her grievous bodily harm (ts 275).
Plainly those words were a reference to the alternative offence created by s 304(2) of the Code.
Before going to that subsection it is necessary to say something about the general scheme of the Code with respect to the conviction of an offender of an alternative offence; that is to say, an alternative to the offence charged in the indictment. That scheme is created initially by s 10A and s 10B of the Code and is then implemented by various specific provisions of the Code in which reference is made to alternative offences.
Section 10A of the Code provides that:
(1)A person charged with an offence cannot be convicted by the court dealing with the charge of any other offence unless -
(a)the accused is charged with the other offence as an alternative to that offence; or
(b)this Chapter provides otherwise.
The scheme of that section is to provide two alternative means by which a person may be convicted of an alternative offence. One is the circumstance in which a person is specifically charged with another offence, as an alternative. The other is if there is provision otherwise within the relevant chapter of the Code, which is ch 2A.
Such provision is made by s 10B, which is within ch 2A of the Code. That section provides that:
(1)This section applies if a provision of this Code, or of another written law, that creates an offence (offence A) provides one or more alternative offences for offence A.
(2)If a person is charged with an offence (offence A), whether or not on an indictment, the person, instead of being convicted as charged, may be convicted of any alternative offence that is provided for offence A.
So consistently with s 10A, s 10B creates the second means by which a person may be convicted of an offence other than that with which he or she has been charged. The first means is the circumstance in which the accused is charged with another offence as a specific alternative to the offence charged. The second is the circumstance in which a person is charged with an offence for which the Code makes provision for the conviction of a person for an alternative offence.
Section 294 of the Code, along with many other sections of the Code, provides for such an alternative offence. The alternative offences for which provision is made by s 294 are the offences created by s 297, s 304, s 317 and s 317A of the Code. As I have mentioned, the prosecutor's opening was plainly a reference to s 304(2) which is one of the offences created as an alternative to the offence created by s 294 of the Code.
Section 304 creates two offences. The first is the offence created by s 304(1), which is the offence of either omitting to do any act that it is the person's duty to do, or unlawfully doing an act, as a result of which bodily harm is caused or the life, health or safety of any person is or is likely to be endangered. Significantly, that offence does not require any specific intention to be established. The second offence is the offence created by s 304(2) which is committed if a person, with intent to harm, omits to do any act that it is the person's duty to do or does any act as a result of which bodily harm is caused to any person, or the life, health or safety of any person is or is likely to be endangered.
A material distinction between the two offences created by s 304 is that an intent to harm is an element of the offence created by s 304(2). So it is clear that when the prosecutor referred to the alternative offence of which Mr De Alwis might be convicted by specifically referring to an intention to harm, the prosecutor was referring to the offence created by s 304(2).
Mr De Alwis represented himself for a large part of the trial. During the course of the trial judge's direction to the jury, at a relatively early point in the course of that direction, his Honour identified the elements of the offence with which Mr De Alwis had been charged. The four elements of that offence were first described by his Honour at ts 976. A little later (ts 979), his Honour advised the jury that he would repeat again the four elements that the State must establish to prove the offence charged; that is to say, the offence of unlawful wounding with intent to cause grievous bodily harm. Then his Honour repeated the four elements to which he had earlier referred. His Honour then went on to say:
[I]f you are not satisfied that the State have established that the accused person had an intent to do grievous bodily harm but were satisfied of the other elements, that is, that he was the offender, that he deliberately struck the complainant and that she received a wound, if you are not satisfied that he had the intent to grievous bodily harm, it would be necessary to consider the alternate offence of doing an act causing bodily harm.
And before you could be satisfied that the accused was guilty of that alternate offence, you would need to be satisfied of the following elements: firstly, that when the accused struck Ms Perera with the shovel he did so with an intent to harm her; and, secondly, that as a result of striking Ms Perera with the shovel, bodily harm was caused to her (ts 979).
I digress to observe that by specifically referring to an intent to harm, it is clear that his Honour was referring to the offence created by s 304(2). His Honour did not refer at any point in his charge to the jury to the offence created by s 304(1) and, of course, there is no reason to believe that the jury would have any awareness of the existence of that offence or the way in which the elements of that offence are distinct from the offence created by s 304(2).
His Honour went on to refer to the meaning of 'bodily harm', instructing the jury that 'bodily harm' means a bodily injury which interferes with health or comfort and in that context observed, again, that if the jury were not satisfied that the accused had the intent to do grievous bodily harm to Ms Perera, they would then have to consider the alternate offence, and, in considering that, would need to be satisfied beyond reasonable doubt that when the accused struck Ms Perera with the shovel he did so with intent to harm her and that as a result of striking Ms Perera with a shovel, bodily harm was caused to her.
So it is clear again, beyond doubt, that his Honour was referring to the offence created by s 304(2). His Honour then referred again to 'bodily harm' and what that expression meant, and then observed that that was an alternative offence that would have to be considered if the jury were satisfied with the three other elements of the offence of unlawful wounding, but not of the element that Mr De Alwis had an intent to cause grievous bodily harm.
His Honour then went on to refer the jury to a second alternative in these terms:
If you were satisfied that the accused person deliberately struck Ms Perera with the shovel but were not satisfied that at that time he intended to harm her, it would be necessary to consider the alternate charge of assault occasioning bodily harm (ts 980).
I digress to observe that this is the offence created by s 317 of the Code and which is specifically stipulated to be an alternative offence available when a charge is brought under s 294 of the Code. His Honour went on to direct the jury that before they could be satisfied that the accused was guilty of that offence, they would need to be satisfied of the following elements: firstly, that he assaulted the complainant, 'assault' relevantly meaning the application of force to another person without their consent; secondly, the State would have to prove not only that there was an assault but that it caused bodily harm to Ms Perera; and finally, the State would have to prove in respect of the alternate offence that the assault was unlawful.
It follows that the jury must have understood that the material distinction between the three offences that were being left to them was the nature of the intention of Mr De Alwis. They were clearly directed that if they were satisfied to the requisite standard that he had an intention to do grievous bodily harm to Ms Perera and were satisfied of the other elements of the offence of unlawful wounding, then they should convict Mr De Alwis of the offence charged. However, if they were not satisfied that he intended to do grievous bodily harm but were satisfied that he intended to harm Ms Perera, the trial judge placed before them the alternative offence of causing bodily harm with intent to harm created by s 304(2). The other alternative left to the jury arose if they were not satisfied that Mr De Alwis had any intent to harm at all. In that circumstance, they could, nevertheless, convict Mr De Alwis of the offence of assault causing bodily harm if the various elements of that offence were established beyond reasonable doubt.

In his concluding remarks to the jury later that day, his Honour repeated the four elements which the State had to establish in order to prove the offence charged on the indictment; that is, the offence of unlawfully wounding. I will not restate those elements. His Honour in that context said:
Now, if you are satisfied that the accused deliberately struck Ms Perera with the shovel but were not satisfied that at the time he did so he had an intent to cause her grievous bodily harm, you would have to consider the alternate position. That is several positions, but the first one you have to consider is whether he did an act causing bodily harm.
But before you could be satisfied that he was guilty of that alternate offence, you would need to be satisfied of the following elements: that when he struck Ms Perera with the shovel he did so with intent to harm her and that as a result of striking her with the shovel, bodily harm was caused to her, 'bodily harm', as I indicated, meaning a bodily injury which interfered with her health or comfort (ts 1036).
I digress to observe that plainly this is another reference to the offence created by s 304(2) because of the direction that the jury had to be satisfied to the requisite standard that Mr De Alwis had an intent to harm. Plainly it is not a reference to the offence created by s 304(1).
His Honour then went on to direct the jury in these terms:
If you were satisfied that he struck Ms Perera with the shovel, deliberately struck her with the shovel, but were not satisfied that at the time that he had an intention of causing her grievous bodily harm or an intention to harm her, it would be necessary to consider the charge of assault occasioning bodily harm and in respect of that offence the State would need to satisfy you that the accused assaulted Ms Perera (ts 1036).
His Honour then went on to again describe what an assault was.
So in this portion of the charge to the jury, his Honour reiterated that the essential distinction between the three offences they might consider was the extent to which they were satisfied beyond reasonable doubt of the intention of Mr De Alwis. If, the other elements of the offence being established, they were satisfied beyond reasonable doubt that Mr De Alwis had an intention to cause grievous bodily harm, the proper course would be to convict Mr De Alwis of the offence charged. If, on the other hand, they were not so satisfied but were satisfied that he had an intent to harm the complainant, then the proper course would be to convict of the alternative offence created by s 304(2) of the Code. Alternatively, if the jury were not satisfied that Mr De Alwis had an intent to harm, but were otherwise satisfied that he had assaulted the complainant and caused her bodily harm, then the proper course would be to convict him of the offence created by s 317 of the Code.
The jury then retired and considered their verdict. After some time they returned with a question to his Honour, after which his Honour advised the prosecutor and Mr De Alwis that he proposed to redirect the jury with respect to the various elements of the offence and the ultimate verdicts, which he then did.
He commenced that redirection by referring again to the four elements of the charge of unlawful wounding, which was the charge on the indictment, and in that context observed:
[I]f you … were not satisfied that [Mr De Alwis] had an intent to do grievous bodily harm, then you would have to consider the alternative count or the alternate offence of doing an act causing bodily harm. Before you could be satisfied that the accused was guilty of that alternate offence, you would need to be satisfied of the following elements: that when the accused struck Ms Perera with the shovel he did so with an intent to harm her, and that as a result of the striking of Ms Perera with the shovel bodily harm was caused to her, 'bodily harm' meaning a bodily injury which interfered with her health or comfort (ts 1049).
Again, it is clear that his Honour specifically directed the jury clearly and unequivocally that they could only convict Mr De Alwis of the alternative offence if satisfied beyond reasonable doubt that he had the intent of harming Ms Perera.
His Honour then went on to refer to the second alternative offence. That arose if the jury were satisfied that the accused person deliberately struck Ms Perera with the shovel but were not satisfied that at the time he intended to harm her. It would then be necessary for the jury to consider the charge of assault occasioning bodily harm, and his Honour repeated the directions which he had previously given with respect to the elements of that offence.
So, on three separate occasions his Honour specifically directed the jury with respect to the alternative offences that were open to them on the basis of the evidence that had been adduced and clearly drew the attention of the jury to the distinction between the elements of those various offences.
After further deliberation the jury returned and were asked in the conventional way for their verdict. They were first asked by the clerk of arraigns whether the accused was guilty or not guilty as charged to which the foreman of the jury replied, 'not guilty as charged' and confirmed that that was the verdict of the entire jury.
The clerk of arraigns next asked the jury whether the accused was guilty or not guilty of the alternative charge of 'an act causing bodily harm', to which the foreman replied 'guilty' and confirmed that that was the verdict of all. His Honour then entered a judgment of conviction for the alternative count of doing an offence causing bodily harm pursuant to s 304 of the Code (ts 1054).
With the benefit of hindsight, it would probably have been preferable for language to have been used which distinguished the offence created by s 304(2) of the Code from the offence created by s 304(1) of the Code by adding reference to the intention which is an essential element of the offence created by s 304(2) of the Code. However, the language used in the charge that was put to the jury, and to which they returned the verdict of guilty, and the language which his Honour used when entering the conviction was precisely the language used by his Honour during the course of his direction to the jury in which he referred to the first alternative charge available to them. He consistently described the offence as an act causing bodily harm. That is an accurate description of one of the offences created by the section, although it does suffer the deficiency that it does not provide sufficient particularity to distinguish between the offence created by subsection (2) and the offence created by subsection (1).
There is no reason to believe that any member of the jury would have had any knowledge of the existence of the offence created by s 304(1). It is therefore impossible to see how any injustice or potential miscarriage of justice arose from any imprecision of language used at this point of the trial. It is undoubtedly the case that the only alternative offences left to the jury were the offence created by s 304(2) of the Code and the alternative offence created by s 317 of the Code. The jury were clearly and explicitly directed on three separate occasions that an essential element of the first alternative offence was their satisfaction beyond reasonable doubt that Mr De Alwis had the intention of harming the complainant.
Following the conviction there were sentencing proceedings. In his Honour's remarks upon sentence he commenced by referring to the conviction of Mr De Alwis by the jury of the offence constituted by s 304(2) of the Code. This was consistent with the terms in which he had repeatedly directed the jury. After making various observations, his Honour imposed a sentence of 4 years and 9 months imprisonment in respect of that charge.
Pursuant to the obligation created by s 36 of the Sentencing Act 1995 (WA) (Sentencing Act), a warrant of commitment was created following imposition of that sentence. The warrant takes the form in sch 1 of the Sentencing Regulations 1996 (WA), being the form prescribed by reg 13, and contains the various particulars required. One of those particulars is erroneous, being the particular under the heading 'description of offence' where the words 'with intent to do grievous bodily harm, unlawfully wounds another' have been inserted.
Plainly that is in error because Mr De Alwis was acquitted of that offence by verdict of the jury. The form should properly have referred to Mr De Alwis' conviction of the offence of causing bodily harm with intent to harm, contrary to s 304(2) of the Code. Mr De Alwis relies upon the error in that warrant as one of the grounds for seeking the writ of habeas corpus.

The grounds of seeking habeas corpus

The originating process which initiated these proceedings was provided by Mr De Alwis in what he asserts were difficult circumstances arising from and in connection with his incarceration.
Whatever be the reason for the form of the originating process, it is almost unintelligible, in the sense that it does not identify with any certainty or particularity or, indeed, with any comprehensibility, the grounds upon which reliance is placed for the issue of the writ of habeas corpus. It is for that reason that I convened a hearing on 10 February at which only the applicant for relief was present. I invited Mr De Alwis to more specifically enunciate the grounds upon which he sought the remedy of habeas corpus.
Following a process of interchange between us, I enunciated what I took to be the three arguments which he wished to present and asked him whether those were the arguments which were comprehended within the originating process. He confirmed that they were (ts 10). He then went on to refer to additional propositions, but as I observed at the time, they all seemed to me, and continue to appear to me, to be subsumed within the three lines of argument which he enunciated on that occasion.
Those arguments were, first, that his conviction for an offence contrary to s 304 was not open because it was not an alternative offence available on the charge brought against him under s 294 of the Code. Second, he asserts that he was denied procedural fairness because he was not on notice of the possibility that he could be convicted of the charge created by s 304 and, third, that the warrant of commitment is invalid because of the erroneous description of the offence of which he was convicted.
During the course of argument today, an additional aspect of the case has emerged and that is the proposition that the conviction is uncertain because it is not clear whether he was convicted of the offence created by s 304(2) or of the offence created by s 304(1).

Conviction of an alternative offence

It is necessary to deal with those various propositions in turn. The first proposition is that Mr De Alwis could not lawfully have been convicted of the offence created by s 304 because he was not charged with that offence. There are a number of aspects to this proposition. The first is an assertion that the portion of s 294 which refers to the various alternative offences for which a person may be convicted when charged of an offence against that section is a footnote which has to be disregarded by reason of s 32 of the Interpretation Act 1984 (WA). That submission has no substance. The description of the alternative offences within s 294 is plainly part of the text of the section. It is not a footnote. It draws its force from the scheme created by s 10A and s 10B of the Code and to which I have referred.
Reference in any section of the Code to an alternative offence has an important legal significance under that scheme because it creates the second means by which a person may be convicted of an offence other than that which they are charged, the first being the laying of a specific alternative offence within the charge itself; that is to say, relevantly to this case, within the indictment. The proposition that the alternative offences specified within s 294 are to be disregarded must be rejected.
Next it is said that the indictment brought against Mr De Alwis did not enable him to be convicted of the alternative offence because of the provisions of the Criminal Procedure Act 2004 (WA) (Criminal Procedure Act). Reference is made, in particular, to s 85 of that Act, which requires that an indictment must comply with sch 1 to that Act. Schedule 1 in turn provides by cl 2(3) that:
A prosecution notice or indictment must contain one charge only, unless clause 7 or another written law permits otherwise.
Clause 5(1) of sch 1 provides that:
A charge in a prosecution notice must inform the accused of the alleged offence in enough detail to enable the accused to understand and defend the charge.
Clause 7(1) provides that:
A prosecution notice or indictment may charge two or more offences as alternatives to one another.
Plainly that is reference back to s 10A of the Code and what I have been describing as the first means by which a person may be convicted of an alternative offence. It is not a reference to the second means, which is the means created by s 10B of the Code which has the effect that whenever a person is charged with an offence for which conviction of an alternative is made by the Code itself, then the person may be convicted of that alternative, irrespective of whether or not it is specified in the charge or indictment.
Clause 7 of sch 1 to the Criminal Procedure Act is only concerned with the specific laying of a charge in the alternative in accordance with s 10A of the Code. That is made clear by cl 7(2) of schedule 1 which provides that:
Unless two or more charges are expressly said by a prosecution notice or indictment to be alternatives to one another, they are not.
The effect of that provision is that where there are two charges in an indictment, unless they are expressly said to be alternatives, then they are two separate and distinct charges. That provision has nothing to do with this case, contrary to the submissions that were put on behalf Mr De Alwis. The reason it has nothing to do with this case is that there was only one charge in the indictment, being the charge of unlawful wounding with intent to cause grievous bodily harm. But because of s 10B of the Code, and because s 294 expressly provides that a person charged with that offence may be convicted of the alternative offence created by s 304, it was at all times lawful for Mr De Alwis to be convicted of the offence created by s 304(2) when charged with the offence on the indictment of unlawful wounding with intent to cause grievous bodily harm.
The other aspect of this first line of argument concerns the alleged uncertainty with respect to the particular offence of which Mr De Alwis was convicted and, in particular, uncertainty as to whether the conviction related to the offence created by s 304(1) or the offence created by s 304(2). I have already provided reasons why this proposition should be rejected. There was no reference whatever during the course of the trial to the offence created by s 304(1) and on every occasion upon which reference was made to the alternative offence of causing actual bodily harm, the jury were specifically directed that an intent to harm was a necessary element of that offence.
It follows that the only alternative offence that was left to the jury was the offence created by s 304(2) and the language used at the time Mr De Alwis was convicted of that offence is only consistent with the proposition that the jury were convicting him of that offence, that being the language that been consistently used by the trial judge throughout the trial. For those various reasons there is nothing in the proposition that it was not open to the jury to convict Mr De Alwis of the alternative offence created by s 304(2) or that there was some uncertainty or invalidity in his conviction of that offence.

Procedural fairness

The next line of argument advanced concerns the alleged lack of procedural fairness arising from Mr De Alwis not being put upon notice of his potential liability to conviction of the alternative offence. There are, I think, two answers to this proposition. The first is that the prosecutor specifically referred to the potential for Mr De Alwis to be convicted of the alternative offence in the course of his opening. Mr De Alwis was thereby put on notice of that prospect.
The second answer to this argument is that it would be drawing a very long bow, indeed, to propose that any infelicity in the notice given to Mr De Alwis with respect to his potential liability for conviction to an alternative offence had the result that the proceedings before the District Court were a nullity or took that court beyond the jurisdiction conferred upon it. There may conceivably be circumstances in which a denial of procedural fairness takes a criminal court beyond jurisdiction, with the result that any conviction entered as a consequence of that denial of procedural fairness is outside jurisdiction and, therefore, amenable to a prerogative remedy such as habeas corpus. But this case is a long way from any such circumstance, especially having regard to the prosecutor's opening to which I have already referred.
The proposition that Mr De Alwis seeks to run under this heading is a proposition of the kind that might be put to suggest that there was a miscarriage of justice within the jurisdiction of the court; that is to say, an argument of the kind that could be ventilated upon an appeal against his conviction. However, it does not appear to me to be an argument which could conceivably vitiate his conviction or the sentence that was imposed as a consequence of that conviction, as being beyond the jurisdiction of the court.

The error in the warrant

The final line of argument raised by Mr De Alwis relies upon the error in the warrant of commitment. As I have indicated, there is no doubt that there is an error in that warrant and an error of some significance. The warrant was required to be prepared as a consequence of s 36 of the Sentencing Act and had to take the form in sch 1 of the Sentencing Regulations, which it does. However, it contains information within a significant portion of the form that is simply wrong.
It is therefore necessary to question the legal effect of the warrant in a context in which it is clear that Mr De Alwis was sentenced to a term of imprisonment by order of the judge in the District Court in open court. The short answer to that question is that the legal authority for Mr De Alwis' continuing detention comes from the order imposed by the judge in open court, that is, the order that Mr De Alwis be sentenced to 4 years and 9 months imprisonment, and does not come from the warrant.
That proposition can be drawn from two authorities identified by the respondent in its written submissions. The first in point of time is the decision of the High Court in Day v The Queen [1984] HCA 3; (1984) 153 CLR 475, which was also a case which arose from a sentence imposed by the District Court of Western Australia. In that context, the plurality, which comprised Gibbs CJ, Mason, Wilson and Dawson JJ observed that the Criminal Code of Western Australia provided, in effect, that a person who is convicted of an indictable offence may be sentenced to a term of imprisonment not exceeding the maximum term prescribed. Their Honours went on:
As is the case elsewhere, the sentence being imposed by a superior court is itself sufficient authority for its execution (479).
Reference is made by the plurality to the decision in Williamson v Inspector-General of Penal Establishments [1958] VR 330, an earlier Victorian decision, and to an earlier decision of the High Court in R v Turnbull; Ex parte Taylor [1968] HCA 88; (1968) 123 CLR 28.
Their Honours then went on to refer to the Criminal Practice Rules taking the matter further and requiring that a calendar be prepared at the end of each sittings listing the persons who had been tried and containing a formal record of the proceedings, that calendar being signed by the judge and the clerk of arraigns, and then to a certificate which was required to be prepared based upon the criminal calendar. Their Honours went on:
In practice, the function of the certificate is to provide documentary evidence of the sentence pending the completion of the calendar at the end of the sittings (479).

Their Honours observed in that context that the certificate may be delivered by the clerk of arraigns to the director of the Department of Corrections or handed to the gaoler in attendance at the court. So in that case the certificate was roughly analogous to the warrant of commitment required by s 36 of the Criminal Procedure Act, performing the function of providing documentary evidence of the sentence that was imposed in open court. However, the legal authority for the continuing detention of a person who is sentenced to a term of imprisonment is the order of the court, not a document which provides evidence of that order.
Observations to the same effect were made in the Court of Appeal in New South Wales in Cowell v Corrective Services Commission (1988) 13 NSWLR 714. Clarke JA referred (at 727) to the submission by counsel for the appellant to the effect that the detention was commanded by the judicial order of sentence, being the order which authorised the continued detention of the appellant.
In relation to that argument Clarke JA observed that:
In the case of a person convicted of an indictable offence in New South Wales, a warrant is not issued. The order of the court sentencing a person is sufficient authority for the first respondent to detain him in custody (727).
Clarke JA referred to the decision of Windeyer J in R v Turnbull; Ex parte Taylor, where his Honour pointed out that the sentence of a superior court provided the authority for the execution of the punishment imposed. So in Cowell, Clarke JA held that when the Department of Corrective Services received the appellant into custody, it did so under the authority of the order of the sentencing judge, not pursuant to any warrant or certificate.
It seems to me to be clear that the authority by which Mr De Alwis is today detained at Casuarina Prison is the sentence of imprisonment imposed upon him by the judge of the District Court following his conviction of the offence created by s 304(2) of the Code. The warrant of commitment issued by the court following the imposition of that sentence serves the purpose of providing evidence to relevant officials, including the Department of Corrective Services, but ultimately it is the order itself and not the warrant which provides the legal authority for the continuing detention of Mr De Alwis.
Plainly the error in the warrant is unsatisfactory and it is something that should be remedied. There are, I think, a number of means by which the warrant can be remedied. They include an order of the court under s 178(3) of the Criminal Procedure Act or, if the procedure specified by s 178 of the Supreme Court Act 1935 (WA) is followed, by an order of this court. However, that procedure would require the court to first require the District Court to provide to the Supreme Court a certified copy of the warrant and, indeed, the entire record of the District Court relating to the proceedings.
In the circumstances of this case it seems to me to be preferable for the warrant to be amended by the court which issued the warrant. That is a course which is open pursuant to s 55 of the Interpretation Act read with s 36 of the Sentencing Act. Section 55 provides that:
Where a written law confers a power or imposes a duty upon a person to do any act or thing of an administrative or executive character … the power or duty may be exercised or performed as often as is necessary to correct any error or omission in any previous purported exercise or performance of the power or duty.
Section 36 of the Sentencing Act imposes a duty upon the court to issue a warrant of commitment where a sentence of imprisonment is imposed. Because the purpose of that warrant is to provide evidence of the order of the court, it is, in my view, properly described as an act or thing of an administrative character, and plainly an error was made in the performance of that duty. It is, therefore, open to the District Court to exercise the power conferred by s 55 of the Interpretation Act to amend the document so as to remedy that error and, in my view, that is the proper course to be followed rather than for this court to itself bring the document into line with the order made by the District Court.

Conclusion

The various arguments advanced by Mr De Alwis in support of the proposition that his detention is unlawful must be rejected for the reasons which I have enunciated. It follows that the application for writ of habeas corpus must be dismissed.