Hooker v DIRECTOR-GENERAL Department of Justice
[2006] WASCA 96
•31 MAY 2006
HOOKER -v- DIRECTOR-GENERAL DEPARTMENT OF JUSTICE & ANOR [2006] WASCA 96
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2006] WASCA 96 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACV:28/2006 | 17 MAY 2006 | |
| Coram: | WHEELER JA | 31/05/06 | |
| 9 | Judgment Part: | 1 of 1 | |
| Result: | Application for bail dismissed | ||
| B | |||
| PDF Version |
| Parties: | LAURANCE ANTHONY HOOKER DIRECTOR-GENERAL DEPARTMENT OF JUSTICE HONOURABLE JAMES McGINTY in his capacity as ATTORNEY GENERAL, MEMBER OF THE LEGISLATIVE ASSEMBLY |
Catchwords: | Turns on own facts |
Legislation: | Sentence Administration Act 2003 (WA), s 8 Service and Execution of Process Act 1901 (Cth), s 19 Service and Execution of Process Act 1992 (Cth) , s 86 |
Case References: | Re writ of habeas corpus ad subjiciendum; Ex Parte Hooker [2005] WASC 292 Attorney-General v Ball [1958] IR 280 Garvey v The Queen [2003] WASCA 10 Marotta v The Queen (1999) 160 ALR 525 R v Kleinert (1928) 49 ALT 137 The People v Crosbie & Ors [1966] IR 426 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : HOOKER -v- DIRECTOR-GENERAL DEPARTMENT OF JUSTICE & ANOR [2006] WASCA 96 CORAM : WHEELER JA HEARD : 17 MAY 2006 DELIVERED : 31 MAY 2006 FILE NO/S : CACV 28 of 2006 BETWEEN : LAURANCE ANTHONY HOOKER
- Appellant
AND
DIRECTOR-GENERAL DEPARTMENT OF JUSTICE
First Respondent
HONOURABLE JAMES McGINTY in his capacity as ATTORNEY GENERAL, MEMBER OF THE LEGISLATIVE ASSEMBLY
Second Respondent
(Page 2)
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram : LE MIERE J
Citation : RE WRIT OF HABEAS CORPUS AD SUBJICIENDUM; EX PARTE HOOKER [2005] WASC 292
File No : CIV 1937 of 2005
Catchwords:
Turns on own facts
Legislation:
Sentence Administration Act 2003 (WA), s 8
Service and Execution of Process Act 1901 (Cth), s 19
Service and Execution of Process Act 1992 (Cth) , s 86
Result:
Application for bail dismissed
Category: B
Representation:
Counsel:
Appellant : In person
First Respondent : Mr B P King
Second Respondent : Mr B P King
Solicitors:
Appellant : In person
First Respondent : State Solicitor's Office
Second Respondent : State Solicitor's Office
Case(s) referred to in judgment(s):
Re writ of habeas corpus ad subjiciendum; Ex Parte Hooker [2005] WASC 292
Case(s) also cited:
Attorney-General v Ball [1958] IR 280
Garvey v The Queen [2003] WASCA 10
Marotta v The Queen (1999) 160 ALR 525
R v Kleinert (1928) 49 ALT 137
The People v Crosbie & Ors [1966] IR 426
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1 WHEELER JA: This is the appellant's application for bail, pending his appeal. The appeal which he seeks to bring is from the decision of Le Miere J dismissing the appellant's application for a writ of habeas corpus. Le Miere J also dismissed the appellant's application for bail on that occasion.
2 There are two issues which arise in this application. The first is whether, sitting as a single Judge of the Court of Appeal, I have jurisdiction to grant bail pending appeal in such a case. The second is whether, assuming I have jurisdiction, bail should be granted.
3 So far as the jurisdiction point is concerned, there are two issues of some complexity which arise. The first is whether there exists an inherent power in the Supreme Court to grant bail in relation to a proceeding or a writ of habeas corpus. That raises the question of the extent to which the Bail Act1982 (WA), either expressly or impliedly, excludes or limits such power. The second is that of the jurisdiction of the Court of Appeal to grant bail pending an appeal in relation to the refusal of a habeas corpus application, as opposed to hearing the appeal and substituting, if it considers appropriate, the order which should have been made at first instance. A further question which would arise if the Court of Appeal were found to have such jurisdiction, is whether that jurisdiction could be exercised by a single Judge of the Court of Appeal sitting alone.
4 The jurisdictional issues are, as I have noted, issues of some complexity. However, I do not propose to deal with them for the reason that, having read the reasons of Le Miere J, I am of the view that the appeal has no prospect of success. It would, accordingly, be inappropriate to grant bail for the purpose of enabling the appellant to pursue that appeal.
5 In order to explain that conclusion, it is convenient to set out the factual background, which is contained in the reasons of Le Miere J, to be found in Re writ of habeas corpus ad subjiciendum; Ex Parte Hooker [2005] WASC 292, I quote [3] - [6] and [9] of those reasons:
"3 The background to this application is broadly as follows. On 10 May 1988 the applicant was sentenced in the District Court of Western Australia to a term of imprisonment of 2 years and 11 months for the offence of breaking and entering. On 29 September 1988 the applicant escaped from Karnet Prison Farm. On 3 October 1988 at Perth a Justice of the Peace issued a
- warrant at first instance to apprehend the applicant and bring him before justices to answer the charge that he did escape legal custody. That warrant is described as central warrant no 19958 of 88.
- 4 In February 1989 the applicant was arrested in New South Wales. The applicant says that on 20 February 1990 the Magistrate, before whom he was brought in New South Wales, found that the warrant by which he had been arrested was defective in that it was not endorsed in the manner required by the Service and Execution of Process Act 1901 and ordered that the applicant be released.
5 The applicant was again arrested in New South Wales on 3 March 1990. He was brought before Judge Solomon in the District Court. The applicant says Judge Solomon ordered that if a valid warrant was not produced, he would release the applicant. Central warrant no 19958 of 88 was produced. The Judge held that the warrant was defective and ordered that the applicant be released.
6 In May 2004 the applicant was living in Queensland. After some earlier contact with police officers he was arrested and brought before the court on 16 June 2004. He presented papers concerning his previous arrests and release in New South Wales. Submissions were made and he was extradited to Western Australia. The applicant was returned to Hakea Prison on 21 June 2004. On 20 January 2005 the applicant was sentenced by the Court of Petty Sessions in Perth to a term of imprisonment for the offence of escaping legal custody.
...
9 The respondents have filed an affidavit by John Charles Simon Walker sworn on 14 September 2005. Mr Walker swore a subsequent affidavit on 15 September 2005 in which he said there were a number of errors in his affidavit of 14 September and he corrected those errors. Mr Walker deposes in essence as follows. Mr Hooker is not at present held in custody under the authority of any warrant for his arrest. He has been and is held in custody
- pursuant to a certificate of the clerk of arraigns issued in the District Court of Western Australia dated 10 May 1988 in respect of the applicant which indicates that the applicant was sentenced to a term of imprisonment of 2 years 11 months for the offence of break and enter and a warrant of commitment issued in the Court of Petty Sessions in Perth dated 20 January 2005 in respect of the applicant which states that the applicant was sentenced to a term of imprisonment of 3 months cumulative for the offence of escaping legal custody. The applicant's claim is that his detention in custody pursuant to those orders was and remains illegal for the reason that his original arrest in, and extradition from, Queensland was illegal. For the purposes of an application for a writ of habeas corpus, however, the answer to that claim is that the applicant is lawfully detained pursuant to the certificate of the clerk of arraigns in District Court of Western Australia dated 10 May 1988 and the warrant of commitment issued in the Court of Petty Sessions in Perth dated 20 January 2005."
6 Simply put, the appellant's case is as follows. He does not point to any defect in the certificate of the clerk of arraigns dated 10 May 1988 in the District Court in Western Australia, or the warrant of commitment issued in the Court of Petty Sessions at Perth dated 20 January 2005. He does not dispute that he was regularly sentenced in the District Court of Western Australia in 1988, nor that he escaped legal custody in September 1988, nor that he was regularly sentenced in respect of that escape in January 2005. What he asserts is that at the time of his arrest in Queensland for the purpose of extradition to Western Australia, the arresting police did not have a valid warrant. Further, he asserts that because of the proceedings in New South Wales, and because perhaps of some discussions with Western Australian authorities, he had formed the view that the matter of his escape had been "dealt with" and that he had established his life in Queensland, founded on that belief. He submits that either the warrant on which he was arrested in Queensland was defective, or alternatively that it was an abuse of process to attempt to extradite him based on that warrant.
7 The answers to those submissions of the appellant lie, as Le Miere J appreciated, in two distinctions, which may not be readily appreciated by non-lawyers, but which are nevertheless of importance. The distinctions are between the jurisdiction of the courts of Queensland and of Western
(Page 7)
- Australia to review decisions of Queensland courts, on the one hand; and the distinction between the lawfulness of an arrest and the lawfulness of custody on the other.
8 Taking the first distinction first, Mr Hooker was brought before a Magistrate's Court in Queensland in relation to his extradition, and the order for extradition was made there. Both s 19 of the Service and Execution of Process Act 1901 (Cth)(under which the former warrant was issued) and s 86 of the Service and Execution of Process Act 1992 (Cth) provide for review of the orders of a Magistrate made in relation to the execution of warrants under those Acts. However, those review provisions only permit an application to be made to a Judge of the Supreme Court of the State in which the person was apprehended, or in which the order in relation to the warrant was made. It would have been open for Mr Hooker to apply to the Supreme Court of Queensland for a review of any orders made in that State relating to the execution of the warrant against him. However, this Court does not have jurisdiction to review the decision of the Queensland Magistrate.
9 More importantly, however, even if Mr Hooker was brought into Western Australia pursuant to a warrant which was, as he describes it, a "nullity", he is not held in prison by virtue of that warrant. Rather, he is held by virtue of the warrants of commitment which were issued in relation to the original term imposed on him in 1988, and in relation to his sentence in 2005 for escaping lawful custody. In relation to the former term - that is, the breaking and entering term - s 8 of the Sentence Administration Act 2003 (WA) provides, in effect, that that term did not elapse while he was at large having escaped, and that, having been returned to custody after his escape, he must serve that portion of the term calculated in accordance with the provisions of s 8. In relation to that distinction between the lawfulness of arrest and the lawfulness of detention in custody, Le Miere J made these observations, at [20] - [23] inclusive of his reasons:
"20 A more direct authority and one which, in my view, is on all-fours to this case was the decision of Deane J in the High Court in Officer in Charge of Cells, ACT Supreme Court, Re; Ex parte Eastman (1994) 123 ALR 478. In that case Mr Eastman applied for a writ of habeas corpus addressed to the police officer in charge of the cells, ACT Supreme Court. The application by Mr Eastman was supported by an affidavit sworn by him.
(Page 8)
- 21 At 480 Deane J said this:
'As I read Mr Eastman's affidavit and as he made clear in the course of his oral argument, the attack which he wishes to launch upon the lawfulness of his detention in custody is directed to the circumstances of his arrest by officers of the Australian Federal Police on 29 July 1994. He has orally informed me that, at the time of that arrest, he was on bail awaiting trial on a charge of murder. It was apparently alleged against him that, while on such bail, he had been making "offensive phone calls".
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 his 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 appellate proceedings.'
22 After remarking that habeas corpus is an important safeguard of liberty, remarks which I have already alluded to, Deane J continued as follows:
- '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.'
- 23 As in the case before Deane J there is nothing in the materials before me which provides an arguable basis for a finding that the order made by the District Court or the Court of Petty Sessions was vitiated by absence or excess of jurisdiction or is otherwise void. That being so, those orders, while they stand, provide a complete answer to Mr Hooker's present application."
10 There is nothing in the materials before me to suggest that his Honour's reasoning, in those paragraphs which I have quoted, is arguably incorrect. I would therefore, even if I had jurisdiction, not make an order for bail.
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