Dudley v Hopkins Correctional Centre

[2017] VSC 580

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

PRACTICE COURT

S CI 2017 03645

KEITH IRVINE DUDLEY	Plaintiff
v
GOVERNOR, HOPKINS CORRECTIONAL CENTRE ARARAT & ORS	Defendants

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JUDGE:	J FORREST J
WHERE HELD:	Melbourne
DATE OF HEARING:	20 September 2017
DATE OF RULING:	20 September 2017
CASE MAY BE CITED AS:	Dudley v Hopkins Correctional Centre & ors
MEDIUM NEUTRAL CITATION:	[2017] VSC  580

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CRIMINAL LAW – Conviction – Order of imprisonment by County court of Victoria – Application for writ of habeas corpus – Writ of habeas corpus not available – Rich v Secretary to the Department of Justice (2011) 33 VR 437.

PREROGATIVE WRITS – Habeas corpus – Availability.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Self-represented
For the First and Second Defendants	Ms D Coombs	Victorian Government Solicitor
For the Third Defendant (the County Court)	No appearance

HIS HONOUR:

1. Keith Dudley was, in August 2017, sentenced by Judge Gucciardo in the County Court to four and a half years’ imprisonment in relation to six charges involving unlawful sexual acts with a child under the age of 16.  Mr Dudley has been held in custody since 17 May 2017, when a County Court jury at Wodonga found him guilty of those charges.

2. On 7 September 2017 Mr Dudley filed an application under Order 57 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic), seeking the issuing of a writ of habeas corpus. The writ was directed to the Governor of the Hopkins Correctional Centre at Ararat, the Secretary to the Department of Justice and the County Court of Victoria.

3. Mr Dudley is self-represented. His application was accompanied by an affidavit of approximately 14 pages and schedules of approximately 27 pages describing a series of complaints arising from the conduct of the County Court trial, and his access to legal materials and other matters whilst in custody.

4. The County Court, in accordance with the principles set out in R v The Australian Broadcasting Tribunal; Ex parte Hardiman[1] took no part in the proceeding; the Governor of Hopkins Corrections Centre and the Secretary of the Department of Justice were represented by Ms Coombs. 

   [1](1980) 144 CLR 13.

5. The grounds set out in the application made by Mr Dudley are as follows:

   I was denied a fair trial and an impartial court by the trial judge, in breach of the Charter of Human Rights and Responsibilities Act 2007, s 24 and the rules of natural justice.  We have seen the judge's overriding duty is to ensure a fair trial, that being the only trial that a judge can judicially conduct.  The trial judge in proceeding with an unfair trial did not have judicial authority to proceed did not have judicial authority to issue enforceable and lawful orders.  The orders issued by the trial judge leading to the deprivation of my liberty should not have been issued or enforced and my liberty should not have been taken from me.  The affidavit attached is not completed and a draft only.  I have been denied adequate facilities to bear my defence.  This is a breach of my right under s 25(2)(b) of the Charter of Human Rights and Responsibilities Act 2007.  It is my understanding that in an application of a writ of habeas corpus, the defendants have the burden to prove my loss of liberty was lawful.  I ask the court to clarify this.

6. The details of Mr Dudley’s incarceration were clarified by the tender of the gaol calendar, also known as the ‘records of orders made in the criminal jurisdiction’, apparently signed by His Honour Judge Gucciardo and dated 1 August 2017.  This document confirms that Mr Dudley was sentenced to four years and six months’ imprisonment with a minimum period of three years to be served before he will be eligible for parole.

7. At the hearing, Mr Dudley argued very much along the same lines as those contained in his application, seeking the issuing of a writ of habeas corpus: that he could not prepare his application adequately by reason of his incarceration, that the trial was conducted in an unfair way and that there were, in both aspects, breaches of the Charterof Human Rights and Responsibilities Act 2006 (Vic).

8. In Richv The Secretary to the Department of Justice,[2] the Court of Appeal constituted by Maxwell P, Mandie and Bongiorno JJA said as follows in relation to an application for a writ of habeas corpus where a person is in lawful custody:

   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 … 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.[3]

   [2](2011) 33 VR 437.

   [3]Ibid 438.

9. So, the position is clear: once I am satisfied that Mr Dudley’s imprisonment is lawful, no writ of habeas corpus can issue.  It follows that notwithstanding Mr Dudley’s implied request that I adjourn the application to enable him to prepare further material, there is no point in granting such a request as the application as currently conceived cannot possibly succeed.  The reality is that Mr Dudley has been lawfully restrained in his liberty by reason of the orders of Judge Gucciardo and that is the end of the matter.

10. 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.