Dudley v A Judge of the County Court of Victoria
[2020] VSCA 179
•2 July 2020
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S EAPCI 2020 0045
| KEITH DUDLEY | Applicant |
| v | |
| A JUDGE OF THE COUNTY COURT OF VICTORIA | First Respondent |
| and | |
| SECRETARY TO THE DEPARTMENT OF JUSTICE AND COMMUNITY SAFETY | Second Respondent |
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| JUDGES: | PRIEST and KAYE JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 25 June 2020 |
| DATE OF JUDGMENT: | 2 July 2020 |
| MEDIUM NEUTRAL CITATION: | [2020] VSCA 179 |
| JUDGMENT APPEALED FROM: | [2019] VSC 593 (Digby J) |
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PRACTICE AND PROCEDURE – Application for extension of time – Delay of more than 6 months – Adequate explanation for delay – No prejudice caused to second respondent – Proposed appeal devoid of merit – No prospects of success – Application refused – Supreme Court (General Civil Procedure) Rules 2015 r 64.08.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | In person | |
| For the First Respondent | No appearance | |
| For the Second Respondent | Mr L Brown with Ms R Amamoo | Victorian Government Solicitor’s Office |
PRIEST JA
KAYE JA:
This is an application for an extension of time within which to seek leave to appeal a decision of Digby J, dated 30 August 2019, to decline to direct the Prothonotary to seal a proposed originating motion by which the applicant sought to issue a writ of habeas corpus.[1]
[1]Re Dudley [2019] VSC 593 (‘Second Proceeding Reasons’).
The background to the current application is somewhat complex, and needs to be set out in a little detail.
Background circumstances
In about August 2017, the applicant was convicted, by the jury empanelled on his trial in the County Court of Victoria, of five charges of indecent act with or in the presence of a child under the age of 16 years, and one charge of sexual penetration of a person between the ages of 10 years and 16 years. He was sentenced to a total effective term of four years and six months’ imprisonment with a non-parole period of three years. The applicant did not seek leave to appeal against his conviction or sentence. He has not been released on parole, and the term of his head sentence will expire on 17 October 2021.
On 7 September 2017, the applicant filed in the Supreme Court an application, pursuant to r 57.02 of the Supreme Court (General Civil Procedure) Rules 2015 (‘the Rules’), seeking the issue of a writ of habeas corpus. In documents filed in conjunction with the application, the applicant contended that he had been denied a fair trial. In particular, he contended that the judge had been biased against him, that the judge had failed to assist the applicant as an unrepresented accused person, and that the judge had made rulings without providing adequate reasons. The applicant, by a summons, sought the issue of a writ of habeas corpus, and also a declaration or order under s 21(7) of the Charter of Human Rights and Responsibilities Act 2006 (‘the Charter’).
The proceeding came before J Forrest J on 20 September 2017. Having heard submissions on behalf of the applicant, and on behalf of the defendants to the proceeding, his Honour made orders dismissing the application.[2] J Forrest J noted that the lawfulness of the applicant’s incarceration was proven by the tender in evidence of the gaol calendar, which confirmed that he had been sentenced to the term of imprisonment set out above. His Honour then referred to the decision of this Court in Rich v Secretary to the Department of Justice.[3] In that case, the appellant, having been convicted in the Supreme Court of one charge of murder and one charge of armed robbery, made an application for a writ of habeas corpus. The Court dismissed that application stating:
Quite simply, the application for habeas corpus is misconceived. It is a principle of very long standing that ‘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.’ That this is the established position is confirmed by the most recent (2011) edition of Justice Robert Sharpe’s work, The Law of Habeas Corpus, extracts of which were included by Mr Rich in his submissions. The learned authors put the position very clearly: ‘The writ of habeas corpus has never been used with effect where convictions or orders of courts of general common law jurisdiction are concerned’.
In Ex parte Williams, Dixon J held that the writ of habeas corpus ‘cannot be granted when the prisoner is held under an actual order or sentence, unless the Court making the order exceeded its jurisdiction so that the order is a nullity’.[4]
[2]Dudley v Hopkins Correctional Centre Ararat [2017] VSC 580 (‘First Proceeding Reasons’).
[3](2011) 33 VR 437 (‘Rich’).
[4]Ibid 438 [5]–[6] (citations omitted).
Accordingly, J Forrest J held that as he was satisfied that the applicant’s imprisonment was lawful, a writ of habeas corpus could not issue.[5]
[5]First Proceeding Reasons [9].
The applicant did not seek to appeal the decision of J Forrest J. Rather, on 7 December 2018, he sought to file a number of documents comprising a summons dated 29 November 2018, an affidavit sworn by the applicant on 29 November 2018, a document entitled ‘4 page Skeleton Argument’ dated 30 November 2018 and a document entitled ‘Requests to the Court: Preliminary Issues’ dated 28 November 2018. By the summons, the applicant sought to apply for a writ of habeas corpus, and an order under s 21(7) of the Charter.
By a letter dated 17 December 2018, the Prothonotary informed the applicant of her decision not to accept the documents pursuant to rules 27.06(1), 27.06(2)(a) and 28A.04(2)(a) of the Rules. The Prothonotary gave two reasons for her decision. First, the proposed proceeding, if commenced, would be irregular or an abuse of process pursuant to rules 27.06(1) and 28A.04(2)(a), because it would be an attempt to re-litigate the matters already determined by J Forrest J in the first proceeding. In addition, insofar as the summons sought relief under s 21(7) of the Charter, it was misconceived, because that provision was not directed to imprisonment following a conviction. It was also noted that the proceeding was irregular because it named the judge of the County Court as a defendant. The second reason, provided by the Prothonotary, was that the skeleton argument and preliminary issues documents had not been prepared in accordance with the Rules and accordingly were substantially irregular.
In his affidavit dated 29 November 2018, the applicant set out, in detail, his complaints concerning the conduct of the trial in the County Court. In particular, he described difficulties that he had had in engaging appropriate counsel in order to prepare for the trial. He claimed that the trial judge had bullied counsel who was briefed to appear on his behalf. After the applicant dispensed with counsel during the trial, the judge did not permit him sufficient time to prepare his case. Nor (he claimed) did the judge give him appropriate assistance or advice during the trial in his capacity as an unrepresented litigant. The applicant also claimed that he was in effect excluded from discussions between the judge and the prosecutor, and that the judge and the prosecutor had addressed each other in terms that he, as a lay person, was not able to understand. The applicant contended that the judge was biased against him, that he had unfairly pressured the applicant to make his final address when he was not ready to do so, and that there were errors in the judge’s charge to the jury.
Subsequently, in January 2019, the applicant submitted further documents, consisting of a revised summons dated 18 February 2019, a Form 1 Notice under the Charter dated 13 February 2019, a document entitled ‘Requests to the Court: Preliminary Issues’ dated 18 February 2019, a document entitled ‘Skeleton Argument’ dated 28 February 2019, a ‘Main Written Case’ dated 28 February 2019, a document entitled ‘Authorities for Main Written Case’ dated 28 February 2019, and an affidavit sworn by the applicant on 29 January 2019.
By a letter dated 25 March 2019 addressed to the applicant, the Prothonotary advised that the revised summons and associated documents would not be accepted for filing pursuant to rules 27.06(1) and (2)(a) of the Rules, and that it was rejected pursuant to r 28A.04. The Prothonotary’s reasons for rejecting the documents were that, apart from the removal of the name of the judge as a defendant to the proceeding, the revised summons was in the same form as the original summons. Further, it was noted that, insofar as the summons sought relief under s 21(7) of the Charter, it was misconceived, because that provision is not directed to an imprisonment following a conviction.
In the letter, the Prothonotary further advised the applicant that if he was not satisfied with her decision, he might request that the matter be referred to a judge of the Court to consider making a direction to the Prothonotary to seal the documents, pursuant to rules 27.06(3) and 28A.04(5).
In response, by a letter dated 19 June 2019, the applicant requested the Prothonotary to refer the matter to a judge of the Court, so that the decision to refuse to seal the application could be reviewed. For that purpose, the matter was referred to Digby J of the Trial Division. His Honour, having considered the documents, made an order ‘on the papers’ declining to direct the Prothonotary to seal the proposed documents.[6]
[6]Second Proceeding Reasons [18].
In his reasons for decision, Digby J considered that the proposed proceeding would be an abuse of process for two reasons. First, it would seek to re-litigate matters already decided by J Forrest J. Secondly, if the summons were sealed, it would instigate proceedings which had no reasonable prospect of success. In respect of that second reason, Digby J referred to the passage in Rich quoted by J Forrest J, and noted that, as the applicant had been lawfully imprisoned by a court order that remained in force, the application for habeas corpus was misconceived and would be an abuse of process.[7]
[7]Ibid [13]–[17].
On 15 March 2020, the applicant sought to file a notice of appeal, and a number of associated documents, by which he sought to commence an appeal from the decision of Digby J on 30 August 2019. In the notice, and accompanying documents, the applicant took the position that the decision of Digby J was a refusal to grant habeas corpus, and, accordingly, pursuant to s 14A(2)(a) of the Supreme Court Act 1986, (he contended) he was not required to seek leave to appeal against that decision. On 16 April 2020, the Deputy Registrar of the Court of Appeal Registry wrote to the applicant noting that, regardless of whether he was correct to assert that leave to appeal was not required, the appeal period specified in r 64.05(1) applied, so that his documents had been received after the expiration of the time fixed by the Rules. On 1 June 2020, the applicant filed a document entitled ‘Application for Extension of Time to Submit Application for Appeal from Refusal to Grant Habeas Corpus’ and a number of associated documents. It is that application that is before the Court.
The proposed appeal
It is convenient, first, to summarise, briefly, the content of the proposed appeal. The proposed notice of appeal specifies some nine separate proposed grounds of appeal. The written case filed in support (some 52 pages and 189 paragraphs in length) elaborates on those grounds. The proposed grounds can be summarised as follows:
(1)Under grounds 1 and 2, it was contended that both J Forrest J and Digby J erred in relying on the decision of the Court in Rich, because that decision concerned a proceeding that was heard in the Supreme Court. Further, it was contended that, in any event, the trial in the County Court was beyond jurisdiction because of the breach by the judge of procedural fairness.
(2)Under ground 3, it was contended that Digby J erred by failing to take into account and properly consider the amended documents that had been provided to the Prothonotary in January 2019.
(3)Under ground 4, it was contended that the judge had failed to ensure that procedural fairness had been afforded to the applicant. In particular, notwithstanding that by a letter dated 26 May 2019 the applicant had requested the Prothonotary to reconsider her decision, the judge proceeded to review the Prothonotary’s decision without ensuring that the applicant was present in the court room to make submissions.
(4)Under ground 5, it was contended that the judge erred in failing to properly consider the applicant’s right under s 21(7) of the Charter, and thus the judge was in breach of s 38(1) of the Charter. It was contended that the judge only directed his consideration to the application for a writ of habeas corpus.
(5)Under ground 6, it was contended that the manner, in which the Prothonotary and the Court had handled the applicant’s applications for a writ of habeas corpus and for a declaration under s 21(7) of the Charter, had brought the administration of justice into disrepute.
(6)Under ground 7, it was contended that the judge failed to provide adequate reasons for his decision.
(7)Under ground 8, it was contended that the judge erred in failing to carry out his duty to properly investigate the lawfulness of the loss of the applicant’s liberty.
(8)Under ground 9, it was contended that the judge erred in failing to disqualify himself from conducting the review on the grounds of ‘the appearance of bias’.
The application for an extension of time
The applicant has filed two affidavits, sworn 9 April 2020 and 28 May 2020, in support of the application for an extension of time. In summary, in those affidavits, he makes the following points:
(1)The applicant forwarded letters to the Court of Appeal Registry dated 15 September, 12 October and 3 November 2019 respectively, stating his intention to appeal against the decision of Digby J dated 30 August 2019. Until he received a letter from the Deputy Registrar dated 16 April 2020 advising of the requirement to apply for an extension of time, his understanding was that, because he was appealing from a refusal to grant habeas corpus, his application was not limited by time.
(2)The applicant had experienced significant computer problems while incarcerated in Langi Kal Kal Prison. In particular, on one occasion, the computer provided to him malfunctioned, with the result that he lost a number of the documents he had prepared for the proposed appeal. The computer problems delayed the preparation of his submission for an application for appeal by ‘about three months’.
(3)The applicant wrote letters to the Registrar dated 18 September, 14 October and 4 November 2019 respectively, seeking access to facilities provided by the Court to assist him to prepare his appeal documents. He did not receive any response to those letters.
(4)The applicant set out in some detail the difficulties that he had experienced in the prison environment in focusing on, researching, and formulating his court documents. In particular, he was required to work while in prison, he was tired after a day’s work, the circumstance of being held in the same cell or next to cells with other prisoners made it difficult to prepare documents, and he lacked access to legal advisers.
(5)The applicant had experienced some delay in having his affidavits witnessed.
(6)The applicant had made requests for Practice Notes and other documents.
(7)Subsequent to the filing of his notice of appeal, the applicant had lost a lot of his material when, on 22 April 2020, he was transferred from Langi Kal Kal Prison to Ararat Prison.
Submissions
In his written case in support of the application for extension of time, the applicant primarily contended that the time limits, specified in r 64.05, do not apply to an appeal for a refusal to grant habeas corpus. The written case advanced detailed arguments supporting that submission. However, at the commencement of oral argument, it became clear that, in making that submission, the applicant had mistakenly considered that the decision by Digby J was, in some way, a refusal to grant habeas corpus, which it was not.
In oral submissions, the applicant did not have legal representation, but he had the assistance of a person who it would seem had some legal education. The applicant commenced his submissions by referring to and relying on his affidavit (sworn 28 May 2020) explaining the reasons for the delay in commencing an application for leave to appeal from the decision of Digby J.
The applicant then submitted that if he were granted an extension of time, his application for leave to appeal would not be futile or devoid of prospects of success. In that respect, he contended that Digby J erred in two respects. First, it was submitted, Digby J erred in considering that the proposed proceeding would be an abuse of process because it would seek to re-litigate matters already decided by J Forrest J. In that respect, the applicant acknowledged that the grounds upon which he sought the issue of a writ of habeas corpus in the proposed proceeding are the same as the grounds relied on in the proceeding before J Forrest J, namely, that the applicant had been denied the right of a fair trial, so that the proceeding before the County Court, and his conviction, were outside the jurisdiction of that court. However, he submitted, the hearing before J Forrest J was, in essence, a summary proceeding, in which he did not have the opportunity to argue the merits of the claim. In that respect, he referred to the concluding remarks by J Forrest J in his reasons, namely:
The application is dismissed but in doing so, I note that Mr Dudley has rights of appeal regarding the conduct of the trial and a right of judicial review in relation to his ability to obtain appropriate assistance while incarcerated. There is also no bar to Mr Dudley bringing a further application for a writ of habeas corpus as I have not dealt with this case on its merits, but as presently formulated, this case cannot possibly succeed.[8]
[8]First Proceeding Reasons [10].
The applicant then addressed the second basis for the decision of Digby J, namely, that, as the applicant had been lawfully imprisoned by force of an existing court order, the Court had no jurisdiction or power to the issue of writ of habeas corpus.[9] In that respect, the applicant contended that as he had been denied procedural fairness by the judge in the criminal trial in the County Court, that trial, and his conviction, were beyond the jurisdiction of the County Court. In support of that proposition the applicant referred to the decision of the High Court in Craig v South Australia.[10]
[9]Second Proceeding Reasons [13]–[17].
[10](1995) 184 CLR 163.
In response, counsel for the second respondent submitted that the Court should decline to grant an extension of time to the applicant, because the proposed appeal has no prospects of success. First, it was contended, Digby J was correct to conclude that, in the proposed proceeding, the applicant sought to re-litigate a matter that had already been determined by J Forrest J. Counsel referred the Court to r 57.04 which provides that where an order for a writ of habeas corpus is refused, an application for a writ for that relief shall not be made again in respect of the same person on the same grounds, unless fresh evidence is adduced. Counsel submitted that the grounds upon which the applicant had sought relief by way of habeas corpus in the proceeding before J Forrest J were essentially the same grounds as those contained in the proposed proceeding, which were considered by Digby J. Further, the applicant did not seek to rely on any fresh evidence which was not available to him at the time of the hearing and determination of the first proceeding.
The second basis, upon which counsel for the second respondent contended that the proposed appeal would be bound to fail, was that Digby J was correct to conclude that, as the applicant had been lawfully imprisoned pursuant to a current order of the County Court, the application for a writ of habeas corpus was misconceived and would thus be an abuse of process. In that respect, it was contended that the principles stated by this Court in Rich would apply to the proposed proceeding.
In reply, in respect of the abuse of process point, the applicant contended that there was fresh evidence relied on in the proposed proceeding, namely, that in the criminal trial, the judge had failed to comply with s 357 of the Criminal Procedure Act 2009, and in particular, had failed to ensure that the applicant had appropriate legal representation to cross-examine the protected witnesses in the trial. He also submitted that in the hearing before J Forrest J, he did not have the opportunity to present full arguments on the merits of his claim for writ of habeas corpus. In addition, he submitted that the principle discussed in Rich did not apply to a proceeding before a court of limited jurisdiction, such as the County Court, so that such proceedings are amenable to a writ of habeas corpus.
Application for extension of time — legal principles
Pursuant to r 64.08 of the Rules, the Court has a discretion to extend the time for filing an application for leave to appeal. In deciding whether an extension of time should be granted, the Court takes into account a number of factors, including the length of the delay, the reasons for the delay, and the extent of any prejudice suffered by the respondent if the extension of time were granted. Further, an extension of time will not be granted if ‘the appeal is so devoid of merit that it would be futile to extend time’.[11] In a case in which that threshold has been met, it may still be relevant to make an assessment, as best can be done, of the prospects of success, as a consideration relevant to the exercise of the discretion.[12]
[11]Jackamarra v Krakouer (1998) 195 CLR 516, 521 (Brennan CJ and McHugh J). See also Gippsreal Ltd v Kenny [2016] VSCA 65, [21] (Kyrou JA); Kambouris v Kiatos [2016] VSCA 266, [23] (McLeish JA and Riordan AJA).
[12]Bunney v Ryan [2018] VSCA 326, [37] (Niall JA); Wei v Yu [2019] VSCA 175, [28]–[29] (Niall JA).
Analysis and conclusions
Applying those principles, it is clear that the period of delay, between the decision of Digby J, and the date on which the applicant filed his application for leave to appeal, was particularly lengthy, amounting to more than six months. However, the affidavit, filed by the applicant in support of the present application, demonstrates that he had experienced a number of difficulties in compiling the documents necessary for him to institute the appeal. Those difficulties were over and above the ordinary problems which do confront prisoners who seek to compile and lodge such documents themselves. The second respondent has not suggested that the applicant has failed to provide an appropriate explanation for his lengthy period of delay. Nor has the second respondent identified any material prejudice suffered by it as a consequence of that delay.
It follows that the critical question is whether, if an extension of time were granted to the applicant, the proposed appeal would be devoid of merit so that it would be futile to extend time. In that respect, it is necessary to assess whether it might, at the least, be arguable that Digby J erred in holding that the proposed proceeding, if issued by the applicant, would be an abuse of process. That is, the central question for our consideration is whether the proposed proceeding has any arguable prospect of success, or whether, on the other hand, it is doomed to fail.
As we have noted, Digby J held that the proposed proceeding, if issued, would be an abuse of process, for two reasons. First, his Honour held that such a proceeding would be an abuse of process on the ground that, by that proceeding, the applicant sought to re-litigate the matters already decided by J Forrest J. Secondly, Digby J held that, in any event, if the proposed proceeding were issued, it would have no reasonable prospects of success because, the applicant having been lawfully imprisoned by a current order of the County Court, the application by him for a writ of habeas corpus, or for relief under s 21(7) of the Charter, would be misconceived.
We turn to the first issue, namely, whether the proposed proceeding would be an abuse of process on the basis that it involved the reliance by the applicant on the same issues already determined by J Forrest J.
In our view, the answer to that question is straightforward. As we have already outlined, in the first proceeding before J Forrest J, the applicant sought the issue of a writ of habeas corpus, or relief under s 21(7) of the Charter, because, he contended, he had not been granted a fair trial. In particular, he alleged (inter alia) that the trial judge was biased, that the trial judge failed to provide the appropriate assistance to the applicant as an unrepresented accused, and that the trial judge made rulings without giving any appropriate reasons. In the proposed proceeding, the applicant plainly sought to re-agitate the same issues, albeit that, in the documents filed in support of it, he provided more details of the type of complaints on which he relied in the first proceeding. However, at the heart of the relief, sought in the proposed proceeding, was the proposition that he had not been provided a fair trial by virtue of the conduct of the judge who presided in it. In oral submissions before us, the applicant realistically and correctly conceded that the grounds upon which he relied, in the proposed proceeding, were the same grounds on which he had relied in the first proceeding that was heard by J Forrest J.
In former times, at common law, in certain circumstances, an applicant was permitted to make repeated applications for a writ of habeas corpus, notwithstanding that that applicant had previously made such an application based on the same grounds. However, that principle (or practice) has been abrogated by the plain terms of r 57.04 of the Rules. Rule 57.01 provides that in that order ‘writ’ means writ of habeas corpus ad subjiciendum. Rule 57.04 provides:
Where an order for a writ is refused, an application for a writ shall not be made again in respect of the same person on the same grounds, whether to the same Judge of the Court or to any other Judge of the Court, unless fresh evidence is adduced.
The proposed proceeding, by seeking to make the same claim that was determined by J Forrest J, plainly contravenes that rule. If it were issued, it would also be an abuse of the process of the Court.[13]
[13]Cf Kermani v Westpac Banking Corporation (2012) 36 VR 130, 153–8 [97]–[114] (Robson AJA, with whom Neave and Harper JJA agreed).
In Censori v Adult Parole Board (Vic),[14] in 1992, the appellant, who had been sentenced to a term of life imprisonment for the crime of murder, unsuccessfully applied to the Supreme Court for a writ of habeas corpus on the basis that his detention was unlawful. Subsequently, after he had been released on parole, the appellant, in 2014, made a second application for a writ of habeas corpus again on the basis that his imprisonment was unlawful. In effect, he sought to challenge the assertion by the Parole Board that he remain subject to a life sentence, and the validity of conditions imposed on him under the parole order. The Court, dismissing the appellant’s appeal, stated:
It follows that, if an unsuccessful applicant for habeas corpus makes a further application to the Court, it is first necessary to ask whether it is made on the same grounds as the previous application. To the extent that it is, such a ground may only be advanced if fresh evidence is adduced in respect of it. To the extent that the application is made on different grounds, or on the same grounds but supplemented with fresh evidence, the Court retains its inherent power to dismiss the proceeding as an abuse of process, making due allowance for the fact that the liberty of the subject is in issue.[15]
[14][2015] VSCA 254.
[15]Ibid [61] (Warren CJ, Ferguson and McLeish JJA).
In order to avoid such an outcome, the applicant relied on two points. First, he submitted, the decision by J Forrest J, to dismiss the first proceeding brought by him, was not made after a full argument and a determination of the proceeding on its merits. The applicant submitted that the argument, that was presented by himself and the solicitor for the defendants to the proceeding, did not traverse the merits of the application. Further, he relied on the concluding remarks by J Forrest J, which we have earlier quoted, in which his Honour observed that there was no bar to the applicant bringing a further application for a writ of habeas corpus as his Honour had not dealt with the matter on its merits.
Neither of those points enabled the applicant to avoid the application of the principles of abuse of process. The argument before J Forrest J, it appears, focussed on the proposition that because the applicant had been convicted by the County Court, and the order for his conviction had not been set aside, no writ of habeas corpus could issue in his favour. Based on that proposition, J Forrest J made orders dismissing the proceeding. The applicant did not seek to appeal that decision. Nor did he seek otherwise to have it set aside. As J Forrest J found, the proceeding as then ‘presently’ formulated could not succeed. The proposed proceeding, that he has sought to file in the Supreme Court, is ‘formulated’ in precisely the same manner. The re-agitation of that point would, accordingly, constitute an abuse of process by him.
As we have noted, the applicant also sought to avoid the application of r 57.04, by contending that, in the proposed proceeding, he intended to rely on a point that he had not agitated in the first proceeding. In particular, the applicant, in the proposed proceeding, sought to contend that he had not had a fair trial, because the judge had failed to make an order, under s 357(2) of the Criminal Procedure Act, that Victoria Legal Aid provide legal representation for him to enable the protected witnesses in his trial to be cross-examined.
Certainly, that point was not raised by the applicant in the first proceeding. However, it does not, nor could it, constitute ‘fresh evidence’. Rather, it was another particular, which the applicant sought to rely on, in support of the same proposition that he advanced in the first proceeding, namely, that he had not been afforded a fair trial of the criminal charges against him.
For those reasons, Digby J was correct to conclude that, as the applicant sought to propound, in the proposed proceeding, the same claim that had been dismissed by J Forrest J, the proposed proceeding , would, if issued, be an abuse of the process of the Court.
That conclusion renders it unnecessary for us to determine the second basis on which Digby J held that the proposed proceeding would be doomed to fail, namely, that as the applicant was the subject of an existing order for his conviction and sentence, he would not be entitled to the issue of a writ of habeas corpus. Nevertheless, in light of the issues that were raised on this application, and by Digby J, it is appropriate that we address that point.
The applicant is correct to point out that the principle, discussed by the Court in Rich, was expressed in terms that relief by way of habeas corpus would be declined where the applicant is in custody pursuant to the order of a court of general jurisdiction.[16] However, that proposition does not have the effect that habeas corpus may or could be granted in a case such as the present, in which the applicant is subject to a current operative order of the County Court for his imprisonment consequent upon his conviction, by the jury empanelled on his trial, of the six charges brought against him. The applicant did not appeal, nor has he sought to appeal, against his conviction and sentence. In the course of submissions, he made it clear that he had known of his rights of appeal, but that he had elected to seek relief by way of habeas corpus, in both proceedings.
[16]Ex parte Williams (1934) 51 CLR 545, 549–50 (Dixon J).
It may be accepted that a breach of procedural fairness may amount to jurisdictional error.[17] However, the grant of relief by way of prerogative writ is a discretionary remedy. It may be refused where the applicant, for such relief, has available an alternative and more appropriate remedy. In particular, it is well established that where application is made for a writ of certiorari in respect of the decision of a lower court or an administrative tribunal, such relief may be refused if the applicant had appropriate rights to challenge the decision of the lower court or tribunal by way of appeal.[18]
[17]Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57.
[18]See, eg, R v Judges of the Federal Court of Australia; Ex parte Western Australian National Football League (Inc) (1970) 143 CLR 190, 230–1 (Mason J), 238 (Murphy J); Garde-Wilson v Legal Services Board (2008) 19 VR 398, 400 [8] (Nettle JA), 415 [99] (Dodd-Streeton JA); R v Elliott; Ex parte Elliott (1974) 8 SASR 329, 366–7 (Sangster J), 375 (Jacobs J); Lloyd v Veterinary Surgeons Investigating Committee [1999] NSWCA 68, [13], [24] (Priestley JA, with whom Mason P and Stein JA agreed).
The same principle has been applied, with necessary modification, to applications for the writ of habeas corpus. In Eaves v James,[19] the appellant was convicted of murder. He applied, and was granted, bail pending appeal. Soon after, on the application of the Director of Public Prosecutions, a different judge revoked his bail. The appellant then commenced proceedings in the Court of Appeal by way of application for habeas corpus. The Court held that it did not have jurisdiction in the matter and dismissed the application. Further, by way of obiter dictum, the Court stated:
These conclusions made it unnecessary to consider a still more fundamental obstacle which might face the claimant. This is that consideration of his claim for bail as incidental to a writ of habeas corpus was futile because the writ would not avail him on the ground that the claimant was lawfully in custody pursuant to the sentence pronounced following his conviction. Upon the return of the writ … the lawfulness of the prisoner’s custody would be proved by his sentence. Generally speaking, the courts of Australia have made it plain that the writ of habeas corpus is not an appropriate means of seeking review of the lawfulness of a decision where another regular means which a prisoner has invoked to test that lawfulness exists and has not been invoked or has been exhausted.[20]
[19](1988) 33 A Crim R 369.
[20]Ibid 374 (Kirby P, Samuels and Clarke JJA) (citations omitted).
In In re Corke,[21] the applicant was sentenced by the Bow Street Magistrates’ Court to a term of imprisonment. He unsuccessfully applied to the Queen’s Bench Division for a writ of habeas corpus. Lord Goddard CJ, who read the judgment of the Court, stated:
It is as well that persons serving sentences passed upon them by a competent court of summary jurisdiction should understand that habeas corpus is not a means of appeal. If they complain that they are wrongly convicted, they should appeal to a quarter sessions. A person convicted by a competent court of summary jurisdiction cannot apply for a writ of habeas corpus. … It has always been the law … that [the writ of habeas corpus] is a writ of right and not a writ of course. That means that, before a writ can issue or leave be given to apply for a writ, an affidavit must be before the court showing some ground on which the court can see that the applicant may be unlawfully detained. In the present case, it is clear that, unless the conviction was set aside by on appeal … the applicant is lawfully in custody, serving a lawful sentence; and his application for a writ of habeas corpus is, therefore, refused.[22]
[21][1954] 1 WLR 899.
[22]Ibid. See also Johns v The Queen [1982] WAR 52, 53 (Burt CJ, with whom Wickham J agreed), 54 (Jones J).
In the present case, the applicant is currently held in custody pursuant to a lawful order for his imprisonment made by the County Court, consequent upon his conviction, by the jury empanelled on his trial, on the charges brought against him. The applicant has not sought to impugn or set aside that conviction and the sentencing order, either by way of appeal or (perhaps) by way of application for a writ of certiorari. If, hypothetically, the proposed proceeding were issued, the applicant would be seeking relief by way of habeas corpus for his release from custody, in circumstances in which the order for his conviction and sentence still stood. In other words, the applicant would be seeking relief by way of habeas corpus that would be directly inconsistent with, and contrary to, the terms of the extant court order for his imprisonment.
Given that the applicant has chosen not to invoke his rights of appeal in respect of his conviction and sentence, in those circumstances, it cannot be conceived that an order for his release by way of habeas corpus would be granted by the Court. It is not necessary to determine, and we shall refrain from doing so, whether that conclusion would be a result of the application of the principles in Rich, extending to the convictions recorded in lower courts, or whether it would be the inevitable application of the discretionary principles to which we have referred. In either event, in our view, the proceeding, if issued, would be doomed to failure.
Summary of conclusions
For the foregoing reasons, we consider that it would be futile to grant the applicant an extension of time within which to apply for leave to appeal against the decision of Digby J. We have reached that conclusion because, if time were extended, the application for leave to appeal would be destined to fail. Accordingly, the application for such an extension of time is refused.
6
14
0