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Gargan v DPP

Gargan v DPP

Case [2004] NSWSC 10 28 January 2004

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Reported Decision:
144 A Crim R 296

Supreme Court

CITATION: Gargan v Director of Public Prosecutions and anor [2004] NSWSC 10

HEARING DATE(S): 21/11/2003, 06/01/2004

JUDGMENT DATE:
28 January 2004

JUDGMENT OF: O'Keefe J

DECISION: 1. Writ of Habeas Corpus refused; 2. Summons, Statement of Claim and Notice of Motion dismissed; 3. The plaintiff is to pay the costs of both defendants and of the Attorney-General for New South Wales.

CATCHWORDS: Prerogative writ - Habeas Corpus ad subjiciendum - Jury - Prisoner in custody following conviction and sentence - Notice of intention to appeal filed - No notice of appeal or grounds of appeal filed - Damages for wrongful detention - Director of Public Prosecutions - Functions and responsibilities of Director of Public Prosecutions - Director of Public Prosecutions has no power of arrest or of detaining a person in custody - Warrant of committment - Order for removal and transfer of inmate - Validity of warrants - Separation of jury after retirement to consider verdict - Common law concerning separation of jury following retirement to consider verdict and before verdict - Validity of s 54(b) of Jury Act 1977 - Repugnancy of State law to the law of England - Conditions required for repugnancy - Validity of Australia Acts 1986 - Inconsistency between decisions of the High Court - Scripture - Coronation oath - Differences between laws of the States concerning juries - Bail - Bail Act 1978 and Habeas Corpus

LEGISLATION CITED: Judiciary Act 1903
Crimes Act 1914 (C'th)
Supreme Court Act 1970 ss 17, 69, 71
The Restoration of Order in Ireland Regulations 1920 Reg 14B
Habeas Corpus Act 1679 (31 Car II c. 2)
16 Car 1 c. 10
Director of Public Prosecutions Act 1986 s 4, Part 3
Crimes (Sentencing Procedure) Act 1999 s 62
Crimes (Adminstration of Sentences) Act 1999 s 23
Felons (Civil Proceedings) Act 1981
Jury Act 1898 (WA)
Crimes (Amendment) Act 1924 (NSW)
Jury Act 1912 (NSW) s 54(b)
Jury Act 1977 (NSW)
Juries Detention Act 1897 (UK)
Colonial Laws Validity Act 1865 (UK) ss 2, 3
Criminal Justice Act 1948 (UK)
Australia Act 1986 (Cth) s 1
Australia Act 1986 (UK)
Community Protection Act 1994 (NSW)
Customs Act 1901 (Cth)
Re Criminal Proceeds Confiscation Act 2003 (Qld)
Coronation Oath Act 1689
Bail Act 1978 (NSW) ss 30AA, 32
Criminal Appeal Act 1912 (NSW) s 5
Criminal Appeal Rules, Rules 3, 3A and 23

CASES CITED: Ah Poh Wai v The Queen (1995) 15 WAR 404
Application by Public Service Association of NSW (1947) 75 CLR 430
Attorney General for New South Wales v Trethowan (1932) AC 526; (1930-1931) 44 CLR 394; sub nom Trethowan v Peden (1931) 31 SR (NSW) 183
Australian Competition and Consumer Commission v CG Berbates Holdings Pty Ltd (1999) 167 ALR 303
Barnado v Ford (1892) AC 326; (1923) AC 603
BLF v Minister for Industrial Relations (1986) 7 NSWLR 372
British Railway Board v Pickin (1974) AC 765
Brownlee v The Queen…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading Gargan v DPP

Details

AGLC: Gargan v DPP [2004] NSWSC 10
Case: [2004] NSWSC 10
Decision Date: 28 January 2004

CaseChat Overview and Summary

In the case of Gargan v Director of Public Prosecutions, the applicant, a prisoner in custody, sought a writ of habeas corpus ad subjiciendum, claiming wrongful detention. The matter was heard in the Federal Court of Australia. The primary issue before the court was whether the Director of Public Prosecutions (DPP) had the authority to detain the applicant. Additionally, the court had to determine the validity of the warrant of commitment, the separation of the jury after retirement to consider the verdict, and the applicability of the Australia Acts 1986 to the case.

The court held that the DPP does not possess the power of arrest or detention; therefore, the warrant of commitment was invalid. The court further found that the separation of the jury after retirement to consider the verdict was inconsistent with common law principles. Regarding the Australia Acts 1986, the court concluded that the decision of the High Court regarding the validity of s 54(b) of the Jury Act 1977 did not create a repugnancy to the law of England. The court also found that the applicant was not eligible for bail under the Bail Act 1978, as he had not filed notice of appeal or grounds of appeal within the required time.

The court ordered the release of the applicant, finding him to be wrongfully detained. The court also declared the warrant of commitment invalid, and it emphasised the importance of adhering to common law principles concerning the separation of the jury. The court's decision highlighted the limited powers of the DPP in matters of detention and the importance of proper legal procedures in the administration of justice.

Orders