In the matter of Clare Perry

[2025] NSWSC 757

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

In the matter of Clare Perry [2025] NSWSC 757

Hearing dates:

09 July 2025

Date of orders:

09 July 2025

Decision date:

09 July 2025

Jurisdiction:

Common Law

Before:

Hamill J (as Duty Judge)

Decision:

No orders made.

Catchwords:

CIVIL LAW – habeas corpus – urgent call to Duty Judge – where no formal application made – where Judge exercised supervisory role by calling police station – no evidence of unlawful detention – putative application for orders refused

Legislation Cited:

Bail Act 2013 (NSW)

Supreme Court Act 1970 (NSW), ss 71(1), 71(2)

Uniform Civil Procedure Rules 2005 (NSW), rr 6.4(2)(a), 25.2(1)(a)

Cases Cited:

Azam v Home Secretary [1974] AC 18

Dacich v Commissioner of Corrective Services [2020] NSWCA 359

Dacich v Picton Local Court & Anor [2020] NSWSC 1714

R v Governor of Brixton Prison; Ex parte Ahsan [1969] 2 QB 222

Texts Cited:

N/A

Category:

Principal judgment

Parties:

Clare Perry (potential applicant)

File Number(s):

2025/265010

Publication restriction:

N/A

JUDGMENT (Partially delivered in court the morning after no orders were made and revised in the days that followed)

1. I will now deal with the matter of Clare Perry, in relation to whom there was some activity last night (Wednesday 9 July 2025) and the possibility of an application for orders in the nature of, or a writ of, habeas corpus to be issued, to bring her to the Court to determine whether she was legally detained.

2. The matter arose initially when a person who, for her privacy’s sake will not be named, made a telephone call to security in the Law Courts building, who passed on her name and ‘phone number to my Associate. My Associate telephoned her at around 8.05pm. The person, who is known to me as a solicitor, or former solicitor, who practiced predominantly in the criminal law for many years, indicated to my Associate that a person called Clare Perry was in the cells at Narellan Police Station and was being detained illegally. The person told my Associate that Clare Perry wanted to seek an order in relation to the nature of habeas corpus and that it would be necessary for either my Associate or me, as the sitting Duty Judge, to make contact with Narellan Police Station in order to speak with Ms Perry because she was representing, or would be, representing herself.

3. The person who my Associate spoke with explained that she was not calling as Clare Perry’s legal representative but rather as “a concerned citizen”. When asked by my Associate about her relationship with Ms Perry she explained that she had represented Clare previously in a number of cases but was not currently representing her as she was dealing with her own difficulties with the Law Society.

4. Nothing in these remarks is a criticism of this person who acted appropriately and compassionately when she became aware that her former client was in custody and had concerns as to the lawfulness of that custody.

5. The person explained that her understanding was that if Ms Perry remained detained by police she would lose her house, her mother-in-law’s house and her job. Further information was provided concerning matters which seemingly, or in retrospect, may not have been specifically relevant to Ms Perry’s detention last night.

6. In any event, my Associate contacted me at 8.09pm and explained that our chambers received a call from security that someone was being unlawfully detained and wanted to seek habeas corpus. My Associate provided the information that I set out earlier.

7. I asked my Associate to take some notes and make a record of relevant times and said that I would get back to her. In the meantime, at about 8.28pm, my Associate received a further ‘phone call from the person with whom she had spoken earlier. She informed my Associate that the police were refusing to allow Ms Perry to contact the Supreme Court and that bail had been refused. She then provided several other pieces of information, which my Associate detailed in closely recorded notes but which are unnecessary to relay for the purpose of this judgment.

8. The person asked if the matter was going to be “listed for habeas corpus” that night and whether my Associate had spoken with Ms Perry yet. My Associate explained that she had spoken to me and that I was considering the next step.

9. I called my Associate at about 8.32pm. I indicated that it did not seem to me necessary to constitute the Court in the Law Courts building in Queens Square, but that it was appropriate that we, or more correctly I, make some enquiries of the police at Narellan to satisfy myself that the matter did not warrant any further action. I invited my Associate to touch base with the Narellan police, to tell them that a Supreme Court Judge, acting as Duty Judge, intended to call them and make enquiries about the case in question.

10. At about 8.43pm my Associate called the Narellan Police Station, initially speaking with a female sergeant and advising that I, that is as Duty Judge, intended to speak with whoever was in charge of Ms Perry’s current custodial situation. My Associate was transferred to an officer who I took to be the custody manager. The officer identified himself as Acting Sergeant Milne. Mr Milne confirmed that Ms Perry was in custody at the Narellan Police Station and that he had received a call from the person who had spoken to my Associate twice by that stage. His information was that that person was unable to act on Ms Perry’s behalf because she had been “disbarred”. He gave some descriptions, of an entirely subjective nature, of the telephone call that he had with that person.

11. In any event, at that point I was merged or patched into the call. I introduced myself to Acting Sergeant Milne who introduced himself to me. Acting Sergeant Milne confirmed that Ms Perry was in custody at the Narellan Police Station. I indicated that I wanted to get an understanding of the circumstances in which Ms Perry had been taken into custody and gave a brief explanation of the role of the Duty Judge and the reasons that I had become involved that evening. Acting Sergeant Milne said that Ms Perry had been placed under arrest for a breach of bail and that he believed that the officers investigating the case were looking at what were described as “new” or “fresh” charges of fraud. I asked whether Ms Perry was in custody with bail refused. Acting Sergeant Milne said that, at that stage, no charges had been formulated and therefore no bail determination had been made.

12. I then asked Mr Milne to explain the basis upon which Ms Perry was being held in custody, if she was not bail refused. The Acting Sergeant said that she was in custody and under arrest for a breach of bail and, potentially, for the laying of a fresh fraud charge. I asked what was the alleged breach of bail and whether the breach was said to be constituted by the alleged commission of the fraud offence(s) yet to be preferred. Acting Sergeant Milne said that that was not the case; rather the alleged breach of bail was failing to report and failing to be of good behaviour in accordance with the conditions of an existing bail undertaking.

13. At that point I formed the view based on the information provided to me that there was no evidence that the detention was unlawful. However, that was not a firm position, and I asked the Acting Sergeant some more questions and specifically whether Ms Perry would be, if bail was refused last night, taken to the Local Court this morning. Acting Sergeant Milne explained correctly that under the new bail protocols she would be taken “virtually”, as it were, to the new bail court – or “bail hub” – and that that would be done via audio visual link (“AVL”) this morning.

14. I advised the officer that was probably all I needed to know and that I had no information before me, apart from a bare allegation by the person who called my Associate, of an illegal detention. I explained that I thought it was appropriate, given that that assertion had been raised by a person who I knew to have acted as a criminal law solicitor for many years, in fact decades, that I should make enquiries to satisfy myself that the detention of Ms Perry appeared to be lawful. I told the Acting Sergeant I assumed that police would consider the question of bail that night and that she would be taken to the Court as soon as practicable in accordance with relevant legislation and confirmed that would mean being taken to court either in person or via AVL this morning. Acting Sergeant Milne told me that that was exactly correct and what would happen. I thanked the Acting Sergeant for taking the time to speak to me and indicated to him that I would not take any further action that night, but that my Associate would record the conversation.

15. My Associate received a further text message at 9.38pm from the person with whom she originally spoke and she responded at 9.44pm. It is unnecessary to detail that text message or the ones that followed at 9.44pm and 9.46pm because I was not a party to them and they are not relevant to any matter before the Court and I have only become aware of them essentially sitting here [in Court, on 10 July 2025] reading my Associate’s notes as I provided these reasons.

16. Section 71(1) of the Supreme Court Act 1970 (NSW) provides that “the Court may, on an application for a writ of habeas corpus, give such judgment or make such order disposing of the proceedings as the nature of the case requires.” Section 71(2) outlines the limitations on such applications, providing that “where an application for a writ of habeas corpus has been made in respect of any person, no application for a writ of habeas corpus shall again be made in respect of that person on the same grounds, whether to the same Judge or to any other Judge or to the Court of Appeal, unless fresh evidence is adduced in support of the application.” An application should be commenced by summons with a supporting affidavit [Uniform Civil Procedure Rules 2005 (NSW) r 6.4(2)(a) (“UCPR”)] although, in an urgent case, an affidavit alone will be sufficient [UCPR r 25.2(1)(a)]. The defendant, that is the gaoler, bears the onus of justifying the detention: R v Governor of Brixton Prison; Ex parte Ahsan [1969] 2 QB 222. If proper grounds are made out for habeas corpus the Court has no discretion to refuse relief: Azam v Home Secretary [1974] AC 18 at 41-2.

17. The view I formed last night was twofold.

18. First, there was no formal application for any orders to be made by the Court and the actions I took were in the nature of taking a supervisory role in circumstances where it had at least been alleged that there may be a person or a citizen unlawfully detained by police. As Button J said in Dacich v Picton Local Court & Anor [2020] NSWSC 1714:

“[11] Speaking about habeas corpus applications generally, I have proceeded on the basis that there is an ancient right of any Australian citizen to, first, be at liberty unless there has been lawful interference with that liberty: Re Bolton; Ex parte Beane (1987) 162 CLR 514 at 547; [1987] HCA 12; see also Antunovic v Dawson [2010] VSC 377; (2010) 30 VR 555.

[12] Secondly, on return of the writ, it is not incumbent upon the person who has been detained to demonstrate that that is happening unlawfully. It is incumbent upon the detainer to show on balance that the detention is lawful. If that cannot be demonstrated on balance, the plaintiff is entitled to immediate release: Ex parte Walsh and Johnson; In re Yates (1925) 37 CLR 36 at 79 [1925] HCA 53.”

19. That approach was confirmed on appeal: Dacich v Commissioner of Corrective Services [2020] NSWCA 359. On the facts of that application, Button J refused to provide relief and that decision was upheld by the Court of Appeal. I was not aware of the decisions in the Dacich case at the time I declined to take any action beyond speaking with the custody manager at Narellan Police Station. There is some hint – based on a coincidence of the first name, date of birth and MIN [1] – that Ms Dacich and Ms Perry may be the same person. Even assuming they are, the earlier application – relating as it did to an entirely different detention – would not create a bar under s 71(2). The decision would have had no relevance to the matter I dealt with on the evening of Wednesday 9 July 2025 except insofar as Button J correctly identified the nature of the right to seek relief and where the onus of proof in such cases lies.

    1. Master Index Number: a unique identification number assigned to inmates by Corrective Services.

20. The second conclusion I drew last night, based on the conversation I had with the custody manager or Acting Sergeant Milne, was that Ms Perry was indeed detained but that the information I had suggested that detention was lawful and in accordance with the Bail Act 2013 (NSW). If the second conclusion is wrong, it may be that Ms Perry would have an actionable case against police but there was no evidence then and there is no evidence now to suggest to the contrary.

21. Accordingly, even if there had been a formal application for orders in the nature of habeas corpus, such an application would have been refused.

22. I direct that a court file be created and that my Associate’s notes be kept in that file. I also direct that a copy of this decision be provided to Ms Perry, the Officer in Charge of Police at Narellan and to the person who reported the matter to the Court.

Post Script

23. By way of follow up, my Associate checked JusticeLink which confirmed that Ms Perry was taken before the Local Court on 10 July 2025 and bail was refused by Magistrate Covington. Ms Perry has since lodged a release application in the Supreme Court and the application is listed for call-over before the Registrar on 18 July 2025. These inquiries confirmed that the detention of Ms Perry appeared to be lawful.

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Endnote

Amendments

16 July 2025 - Further amendments made in revising the judgment.

Decision last updated: 16 July 2025