J v Australian Capital Territory
[2009] ACTSC 170
•18 December 2009
J BY HIS LITIGATION GUARDIAN MAXWELL BERNARD VARDANEGA v AUSTRALIAN CAPITAL TERRITORY
[2009] ACTSC 170 (18 December 2009)
ADMINISTRATIVE LAW – sentence of committal to an institution in the Children’s Court – application for an order of habeas corpus, Supreme Court Act 1933 (ACT), s 34B; Court Procedures Rules 2006 (ACT), rr 3506, 3507 – whether sentence ante-dated – whether offender entitled to remissions – order made and offender released pending final determination, Magistrates Court Act 1930 (ACT), s 226 – held no such power to impose and therefore ante-date sentence of imprisonment in the Children’s Court, Children and Young People Act 1999, s 99 – occasion for grant of remissions not yet reached – habeas corpus order set aside and application dismissed – discretion whether to return offender to custody, Magistrates Court Act 1930 (ACT), s 226 – need for exceptional circumstances – receipt of further evidence regarding offender’s conduct while on bail relevant – receipt tantamount to reopening of the case – likely admissible in the “interests of justice” – period of incarceration may now have expired – leave for further submissions as to final orders.
PRACTICE AND PROCEDURE – correction of title of the proceedings – correct form of pleadings – “merging” of sentences for sentencing purposes ultra vires.
Children and Young People Act 1999 (ACT), ss 9, 10, 11, 12, 56, 61A, 96, 98, 99, 127
Criminal Code 2002 (ACT), s 712A
Crimes (Sentencing) Act 2005 (ACT), Chs 4, 5, ss 9, 17, 56, 63, 70, 71
Children and Young People Act 2008 (ACT)
Crimes Act 1900 (ACT), s 9
Supreme Court Act 1933 (ACT), s 34B
Supreme Court Act 1970 (NSW), s 69(1)
Judicial Review Act 1991 (Qld), s 41
Supreme Court (General Civil Procedure) Rules 2005 (Vic), O 56
Evidence Act 1995 (Cth), s 75
Magistrates Court Act 1930 (ACT), Pt 3.10, ss 216, 226,
Criminal Law Act 1967 (UK), s 1
Crimes (Classification of Offences) Act 1981 (Vic)
Crimes Act 1958 (Vic), ss 322B, 322D
Australian Capital Territory (Self-Government) Act 1988 (Cth), s 7
Court Procedures Rules 2006 (ACT), Pt 3.10, rr 275, 3502, 3503, 3504, 3506, 3507, 3553
Crimes Amendment Ordinance 1983 (ACT), s 6
Blackstone W, Commentaries on the Laws of England (Clarendon Press, 1769)
Howes W W, Studies to the Civil Law (Little Brown & Co, 1896)
Sharpe R J, The Law of Habeas Corpus (2nd ed, Oxford University Press, 1989)
Antieau C J, The Practice of Extraordinary Remedies – Habeas Corpus and the Other Common Law Writs (Oceana Publications, 1987)
Rinaldi F, “Consecutive Sentencing in Magistrates’ Courts” (1976) 50 ALJ 77
Warner K, “General Sentences” (1987) 11 Crim LJ 335
Warner K, Sentencing in Tasmania (The Federation Press, 1991)
R v Gilbert [1975] 1 WLR 1012
R v Judge Frederico; Ex parte Attorney General [1971] VR 425
Wills v Webster [1968] Tas SR 195 (NC 21)
R v Bennett [1975] Crim LR 654
Arts and Briggs (1997) 93 A Crim R 56
Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
R v Paivinen (1985) 158 CLR 489
Re Superintendent Belconnen Remand Centre, Ex parte Diamond (1986) 69 ACTR 11
Opinion on the Writ of Habeas Corpus (1758) 97 ER 29
R v Jackson; Ex parte Pretty (1982) 63 FLR 198
R v Governor of His Majesty’s Prison, Brixton; Ex parte Savarkar [1910] 2 KB 1056
Owen v State of South Australia (1996) 85 A Crim R 28
R v Greig and Heriot; Ex parte Beavan and Sinclair [1944] VLR 66
Lloyd v Wallach (1915) 20 CLR 299
Re B, a prisoner [1972] NZLR 897
In Re Amand [1941] 2 KB 239
Secretary of State for Home Affairs v O’Brien [1923] AC 603
Greene v Secretary of State for Home Affairs [1942] AC 284
Gargan v Director of Public Prosecutions (NSW) and Anor (2004) 144 A Crim R 296
Re Parker and Ors; (The Case of the Canadian Prisoners) (1839) 5 M & W 32; 151 ER 15
Ex parte Corke [1954] 2 All ER 440
Zeccola v Barr (1978) 33 FLR 223
R v Castro (1890) 5 QBD 490
R v Longford [1970] 3 NSWR 276
Lee v Walker [1985] 1 All ER 781
Prus-Grzybowski v Everingham (1983) 45 ALR 468
R v Wilkes (1770) 98 ER 327
R v Greenberg (No 2) [1943] KB 381
R v Blake [1962] 2 QB 377
R v Boudelah and Charlston (1991) 28 FCR 176
TDJ v Carter [2001] ACTSC 38
Nikoloski v Ridge Consolidated Pty Ltd (unreported, ACTSC, Higgins J, SC 420 of 1993, 9 Sept 1994)
Teoh v Hunters Hill Council and Anor (No 3 ) (2009) 167 LGERA 432
The Movie Network Channels Pty Ltd v Optus Vision Pty Ltd [2009] NSWSC 132
Commonwealth of Australia v The State of Western Australia and Ors (1999) 196 CLR 392
Mann v Carnell (1999) 201 CLR 1
Inglis v Moore (1981) 51 FLR 293
R v Edirimanasingham [1961] AC 454
Ryan v The Queen (1982) 149 CLR 1
R v Jones (1862) 1 W & W (VLR) 221
Pearce v The Queen (1998) 194 CLR 610
R v Lomax [1998] 1 VR 551
CH v Healey [2008] ACTSC 65
No. SC 1065 of 2008
Judge: Refshauge J
Supreme Court of the ACT
Date: 18 December 2009
IN THE SUPREME COURT OF THE )
) No. SC 1065 of 2008
AUSTRALIAN CAPITAL TERRITORY )
BETWEEN:J BY HIS LITIGATION GUARDIAN MAXWELL BERNARD VARDANEGA
Plaintiff
AND:AUSTRALIAN CAPITAL TERRITORY
Defendant
ORDER
Judge: Refshauge J
Date: 18 December 2009
Place: Canberra
THE COURT ORDERS THAT:
The title to the proceedings be amended to show J by his litigation guardian Maxwell Bernard Vardanega as plaintiff and the Australian Capital Territory as defendant.
The habeas corpus order be discharged and the application dismissed.
The parties have leave to bring in short minutes of order as to any ancillary orders that they consider should be made consistent with the reasons for judgment delivered in this matter.
While the practice in the Children’s Court in respect of criminal proceedings has often a close similarity with the practice in the Magistrates Court, there are significant differences and practitioners need to be aware of them. This case shows how problems can arise when those differences are not clearly perceived.
Although this case involves an application for an order of habeas corpus in the original jurisdiction of the Supreme Court, the substance of the proceedings involves a criminal case before the Children’s Court in which the plaintiff was charged with a number of serious offences. Accordingly, a report of this decision and reasons for judgment could disclose the identity of the plaintiff or allow his identity to be worked out. This would breach s 61A of the Children and Young People Act 1999 (the 1999 Act) or s 712A of the Criminal Code 2002 (ACT) or both. I will, therefore, refer to the plaintiff merely as J.
Facts
J was charged with a number of serious offences before the Children’s Court. In all, he pleaded guilty to 29 charges and 30 additional charges were included in a List of Additional Offences under s 56 of the Crimes (Sentencing) Act 2005 (ACT) (the Sentencing Act), made applicable by s 9(2) of that Act. The more serious offences included four counts of aggravated robbery, one of attempted aggravated robbery, one of aggravated burglary and one of damage to property. The other offences mainly include riding in motor vehicles without consent, burglaries and theft. Apart from the robberies and attempted robbery, there were no other offences against the person other than three serious threat offences, which were scheduled. Nevertheless, the number and nature of the offences against property were serious enough.
Unsurprisingly, J had been arrested and refused bail. By the time he was sentenced on 2 June 2008, he had spent 240 days in custody on remand.
On 2 June 2008, Magistrate Dingwall, the Children’s Court Magistrate, sentenced J for all these offences. His Honour set out the history of the matter and the circumstances of the offences. His Honour had before him pre-sentence reports and referred to those and made reference to J’s background. His Honour then proceeded to impose the sentences for the various charges.
Since the terms of the sentences are critical to the issues in this case, I set out a portion of his Honour’s sentencing remarks in some detail. After referring to the principles set out in the 1999 Act, his Honour continued:
Applying all those provisions, and in an intuitive way, I suppose, as is required, I have in this case borne in mind the seriousness of the offences, particularly in October 2007; the long and consistent offending behaviour over the period commencing October 2004 through to August 2007, but at the same time taking into account the very real prospect of rehabilitation and generally J’s good behaviour whilst in Quamby. And he is giving every sign of wanting to rehabilitate himself, get himself his education and become a useful and good citizen.
I think trying to balance all the criteria and all the principles that I am required to balance it is clear to me that an order for committal is necessary and it is being used as very much a last resort. But imposing a period of committal I am conscious of the fact that the young person will turn 18 next April, that he needs to be encouraged to rehabilitate himself fully if possible before he turns 18; encouraged to continue his year 10, complete that and at the same time serve a committal which will have the effect for him to really bring home to him how serious these offences are and to in effect in his own mind feel that he’s been held accountable for what are serious offences.
I have broken the offending behaviour up into three broad periods. No particular science to it, but I’m trying to group them into years with the most serious offences being dealt with as a separate category. So basically I’ll end up with three groups of offences. I will start with the most serious of the offences committed on 7 October 2007. They are charges 1298, 1299, 1300 of 2007; charge 1335, 1336, 1337 and 1338 of 2007, with four of those offences also being scheduled.
In respect to charge 1298 of 2007, I record a conviction and order the young person to be committed to an institution in the ACT for a period of 12 months. The court notes the young person is to be credited with 240 days in respect of time spent in custody on remand. That was the first charge of aggravated robbery. Charge 1299 the second charge of aggravated robbery the young person is convicted and committed to an institution in the ACT for a period of 12 months concurrent with charge 1298 of 2007.
In respect of charge 1300 of 2007 – that’s intentionally cause damage to property – the young person is convicted and will be committed to an institution in the ACT to the rising of the court.
In respect of charge 1335 of 2005 charge of aggravated burglary the young person is convicted and ordered to be committed to an institution in the ACT for a period of 12 months concurrent with charge 1298 of 2007. In respect of charge 1336 of 2007 attempted aggravated robbery I order the young person is convicted and ordered to be committed to an institution in the ACT for a period of 12 months concurrent with charge 1298 of 2007.
Charge 1337 of 2007, aggravated robbery, I record a conviction. The young person is committed to an institution in the ACT for a period of 12 months concurrent with charge 1298 of 2007 and in respect of charge 1338 of 2007 I order the young person be convicted and committed to an institution in the ACT for a period of 12 months concurrent with charge 1298 of 2007.
…
… I’ve taken those scheduled matters into account. In terms of the other offences they of course predate those particular offences I’ve just dealt with. Some were committed as I say at a time when the young person was dealt with by the court for other offences; sometimes similar offences in which no conviction is recorded. It seems to me that if those offences were known at those relevant times then those particular dispositions may not have been imposed.
In November 2006, the young person was dealt with for burglary and receiving stolen property. The offence was committed on 21 October 2005. No conviction had been recorded and he was placed on a good behaviour bond. Had he come before the court it seems to me on that date with all the offences known from 31 October through to at least 16 November then a very different disposition would have resulted and clearly in my view, given the nature and the number of the offences at that time, a custodial order would have been appropriate.
In respect of charge 1567 of 2007, which is a charge of burglary on 31 January 2005 and in about the middle of that group of offences, but I’ve chosen that as being somewhat representative of a particular type of offence over that period of time, I record a conviction and order the young person be committed to an institution in the ACT for a period of three months cumulative upon the committal order on charge 1298 of 2007. In respect of matters No 1555 of 2007, 1556 of 2007, 1126 of 2007, 1127 of 2007, 1568 of 2007, 1572 of 2007, 1573 of 2007, 1574 of 2007, 1575 of 2007, 1135 of 2007, 1683 of 2007, 1684 of 2007 and 1580 of 2007, I record a conviction and each of those matters is merged with charge 1567 of 2007 for sentencing purposes.
The next series then or group I have taken are for burglary committed on 10 April 2006 through to a ride in motor vehicle 27 November 2006. There are other offences subsequent to that which have been scheduled and even before that. I am sorry; going back earlier ride in motor vehicle charge on 4 February 2006 is the commencing one. I have chosen 1132 of 2007, which is ride in motor vehicle on 27 November 2006, as again representative of the other significant area of offending behaviour by the young person. So in effect I’ve taken one burglary and one ride in motor vehicle charge. That’s a ride in motor vehicle charge and in that matter I record a conviction. In imposing the period of committal on this matter I’ve had regard to the fact that the young person spent 240 days in custody whilst on remand. By reason of being on remand for that period of time he has not been able to earn any remissions. He would normally be earning remissions at the rate of one third of committal. The effect of what’s happened is he would not get the one-third remissions that would normally have applied had he been serving a committal, so I have taken that into account in imposing this final period of committal. In respect to that charge which is 1132 of 2007 I order the young person be convicted and order the young person to be committed to an institution in the ACT for a period of three months cumulative upon the order committal on charge 1567 of 2007.
In respect of matters 1581 of 2007, 1128 of 2007, 1129 of 2007, 1585 of 2007 the young person is convicted and each of those matters is merged with charge 1132 of 2007 for sentencing purposes. In respect of matters 983 of 2007 dangerous driving, 984 of 2007 unlicensed and 1115 of 2007 possession of a knife I record a conviction and the young person is committed to an institution in the ACT until the rising of the court. That, I think effectively deals with all matters. The total then and what is intended is a period of 18 months with credit being given for 240 days already served for the capacity then to earn remissions on the 18 months.
The following exchange then occurred between the Learned Magistrate and J’s counsel, Mr S Gill:
HIS HONOUR: Anything further Mr Gill?
MR GILL:It’s just the last one I didn’t quite follow. The credit for the 240 days, your Honour, does that mean the sentence is backdated?
HIS HONOUR: Well I haven’t gone back, but effectively yes. He’s taken to have already served 240 days.
MR GILL:And the comment on the capacity to earn remissions is on the total?
HIS HONOUR: On the 18 months.
MR GILL:Yes, your Honour.
HIS HONOUR: Yes thank you, Mr Gill, you’re excused.
Legal framework
To understand the issues, it is necessary to consider some of the framework within which sentencing in the Children’s Court operates. This regime has, however, now changed. The Children and Young People Act 2008 (ACT) effectively adopted the principles and procedures of the Sentencing Act for the purposes of sentencing young offenders with, however, some additional, specific provisions in a new Chapter 8A of the Sentencing Act. These provisions commenced on 27 February 2009. Thus, the sentencing of J was governed by the 1999 Act.
Upon conviction of a young person for an offence, the Children’s Court had, at the time J was sentenced, the powers of disposition (or sentencing) set out in s 96 of the 1999 Act. This section provides:
96 Disposition of young offenders
(1)If a young person has been convicted of an offence by the Children’s Court, the court must, as soon as practicable and in any event within six months after the date of the conviction, make 1 or more of the following orders:
(a)an order reprimanding the young person;
(b)a conditional discharge order;
(c)an order imposing a penalty provided by law with respect to the offence;
(d)another order that the court is empowered by another law to make with respect to the offence;
(e)if a fine is not provided by law with respect to the offence – an order imposing a fine not greater than 50 penalty units;
(f)if reparation or compensation is not provided for by law in relation to the offence – an order that the young person make reparation by way of money payment, or pay compensation, in respect of a loss suffered or expense incurred by reason of the offence, but so that the total amount of reparation or compensation is not more than $1,000;
(g)a probation order;
(h)a community service order;
(i)an attendance centre order;
(j)a residential order having effect for the period of not longer than 2 years stated in the order;
(k)an order committing the young person to a State institution in a named State for the period of not longer than 2 years stated in the order;
(l)an order committing the young person to an institution for the period of not longer than 2 years stated in the order;
(m)an order in accordance with section 118 (Referral and mental health tribunal following conviction).
Not relevant here is s 98 of the 1999 Act which permits the Children’s Court to proceed with disposition without proceeding to a conviction, similar to s 17 of the Sentencing Act.
Section 99 of the 1999 Act prohibits the Children’s Court from making an order for the imprisonment of a young person. As a result, a number of the procedural provisions of the Crimes Act 1900 (ACT) or, since 2 June 2006, the Sentencing Act, relating to imprisonment do not apply. In particular, s 63 of the Sentencing Act does not apply. It provides, relevantly:
63 Start of sentences – backdated sentences
(1)The court may direct that a sentence of imprisonment is taken to have started on a day before the day the sentence is imposed.
(2)For subsection (1), the court must take into account any period during which the offender has already been held in custody in relation to the offence.
This clearly relates to a sentence of imprisonment which the Children’s Court is prohibited from imposing. In addition, it is included in ch 5, not ch 4 which s 9(2) made applicable to, inter alia, the Children’s Court.
Section 63 is an important provision because, at common law, it was not possible to “back-date” a sentence. The UK Court of Appeal held in R v Gilbert [1975] 1 WLR 1012 (at 1017) that courts of assize and quarter sessions did not have power to ante-date their sentences. Relevantly, the Court considered some of the difficulties that arose from such a grant of remissions of part of a sentence on the ground of “industry and good conduct.” There was, however, a fiction that such sentences commenced on the first day of the sittings.
Gowans J in R v Judge Frederico; Ex parte Attorney General [1971] VR 425 described the position (at 427):
Under the common law, sentences of imprisonment imposed by courts exercising jurisdiction under a commission of oyer and terminer or gaol delivery, were by a fiction treated as imposed, and, therefore, as commencing, on the first day of the sitting under the commission, the sitting being regarded as continuous thereafter: (Whitaker v. Wisbey (1852), 6 Cox C C 109). This fiction could not be directly transplanted to colonies where the courts were differently constituted. No doubt, however, some need for certainty was felt. In the colony of Victoria statutory provisions to a similar effect was made for certain sentences of specified courts, probably because the business of these courts was arranged in sittings, and provision was made to a different effect in the case of other sentences.
Little J held, to the same effect (at 431):
In courts sitting under a commission of oyer and terminer or gaol delivery the sentence ran from the first day of the sitting of the court of trial and statutory provision to the same effect has long been made in the legislation of this State. We were not referred to, nor have I found any authority to suggest there was any power at common law to order that a sentence commence as from a date prior to that time. Indeed, as was put by Mr Graham in argument, such authority as is to be found, tends or is to the contrary. In that connexion he referred to R. v. Davies (1912), 7 Cr. App. Rep. 254; R. v. Roberts (1929), 21 Cr. App. Rep. 69; R. v. Crockett (1929), 21 Cr. App. Rep. 164, and R v Hatch (1934), 22 Cr. App. Rep. 83.
Winneke CJ (at 432) agreed with both judgments.
It has been held in Wills v Webster [1968] Tas SR 195 (NC 21) that such a principle applies to magistrates, though that case did depend, it appears, on some specific legislation.
While s 99 of the 1999 Act means that a custodial disposition is not imprisonment, it seems to me that this principle applies, at least to exclude a common law power where the disposition is a statutory one. It thus appears that, absent a statutory provision permitting it, a custodial sentence imposed by the Children’s Court cannot commence prior to the date it is imposed.
There is no provision like s 63 of the Sentencing Act in the 1999 Act, nor any otherwise applicable legislation, and accordingly, it is therefore not possible to back-date a custodial sentence in the Children’s Court.
That is not to say that any pre-sentence custody must be ignored or cannot be taken into account. Indeed, at common law, it seems that it must be taken into account. This accords with notions of justice. See R v Bennett [1975] Crim LR 654; Arts and Briggs (1997) 93 A Crim R 56 (at 58-9). The result is, however, that the sentence to be otherwise imposed will ordinarily simply be reduced by such time as the court considers is appropriate, taking the pre-sentence custody into account.
A further consideration raised by the plaintiff in this application involves s 127 of the 1999 Act, which provides:
127 Remission of time to be spent in institution
If a young person has been committed to an institution, the chief executive may, unless the Children’s Court otherwise ordered when committing the young person, having regard to the young person’s conduct and industry or to special circumstances, reduce the period stated by the court under that paragraph by not more than 1/3 of the period so stated.
Such remissions are, it is clear, discretionary but any exercise of the discretion would have to be exercised in the way that was described in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223. There, Lord Green MR said (at 229):
For instance, a person entrusted with a discretion must, so to speak, direct himself properly in law. He must call his own attention to the matters which he is bound to consider. He must exclude from his consideration matters which are irrelevant to what he has to consider. If he does not obey those rules, he may truly be said, and often is said, to be acting “unreasonably.” Similarly, there may be something so absurd that no sensible person could ever dream that it lay within the powers of the authority. Warrington L.J. in Short v. Poole Corporation [1926] Ch. 66, 90, 91 gave the example of the red-haired teacher, dismissed because she had red hair. That is unreasonable in one sense. In another sense it is taking into consideration extraneous matters. It is so unreasonable that it might almost be described as being done in bad faith; and, in fact, all these things run into one another.
There was in existence in the relevant department at the time, it appears, a policy about the exercise of the discretion to grant remissions. Again, that is permissible so long as it does not fetter the discretion to an unacceptable degree: Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 (at 640-1).
The court, however, should not take such remissions into account by, for example, increasing the period of custody to avoid the effect of the remissions: R v Paivinen (1985) 158 CLR 489 (at 494-5). It may, as appears his Honour proposed to do, adjust the sentence to take into account the loss of access to remissions on the pre-sentence period of custody.
The plaintiff’s contentions
J contended that he was due to be released from custody on at least 21 January 2009 or probably earlier on 22 December, 21 November or 6 October 2008.
The explanation for these dates is relatively simple. It relies on two propositions, singly or in combination. It was first submitted that the sentence imposed by the Learned Sentencing Magistrate was ante-dated so that it commenced on the date on which J was first taken into custody, namely 6 October 2007. Thus, it was submitted, the 18 month custodial period commenced on that day and would expire on 5 March 2009.
The second submission was that J was entitled to a remission of one third of his sentence or, in the alternative, no less than 75% of that one third remission. I am by no means clear how the figure of 75% was calculated or assessed as being relevant. These remissions were to be calculated, it was submitted, on the whole of the sentence, that is, including the ante-dated portion. It was further submitted, in the alternative, that the remissions should at worst be calculated on the balance of the sentence from the date of sentencing, that is 2 June 2008.
The calculations were as follows:
(i) On the 18 months sentence from 6 October 2007, full remissions amount to six months remission. That would result in a release date of 6 October 2008.
(ii) On the same sentence, 75% of the full remissions would amount to 4 ½ months remission. That would result in a release date of 21 November 2008.
(iii) On the balance of the 18 months sentence from 2 June 2008, namely approximately 10 months, full remissions amount to 1/3 of that time, about 100 days. That would result in a release date of 22 December 2008.
(iv) On the same balance, 75% of the full remissions amount to approximately 2 ½ months. That would result in a release date of 21 January 2009.
J commenced the proceedings for an order of habeas corpus on 19 December 2008. If calculations (i) or (ii) above were correct, then J would have been entitled to immediate release. If (iii) or (iv) were correct, he would have been entitled to release before a full hearing could be conducted.
Accordingly, I then issued an order for habeas corpus returnable on short notice. On 24 December 2008, I admitted J to bail and subsequently listed the matter for hearing.
Habeas corpus ad subjiciendum
The common law knew seven writs known as habeas corpus: habeas corpus ad deliberandum et recipiendum, habeas corpus ad respondendum, habeas corpus ad satisfaciendum, habeas corpus ad testificandum, habeas corpus ad faciendum et recipiendum, habeas corpus ad prosequendum and habeas corpus ad subjiciendum. The most famous and the one that has survived into the modern era is the last, habeas corpus ad subjiciendum, sometimes known as habeas corpus ad subjiciendum et recipiendum.
William Blackstone, in his Commentaries on the Laws of England (Clarendon Press, 1769) identified the first use of the writ as long ago as 1305 and described it as “that great bulwark of our constitution”: (v 4, p 431). William W Howe in his Studies to the Civil Law (Little Brown & Co, 1896) (at p 54), traced its use back to the Pandects of Justinian I.
It certainly has become synonymous with the protection of the citizen from abuse of power by government officials.
The procedure for obtaining “habeas corpus” has changed over the years. In 2006, the writ itself was abolished in the ACT: r 3502 of the Court Procedures Rules 2006 (ACT) (Court Procedures Rules). Prior to that, it had become somewhat distant from its historic past. As was noted by Miles CJ in Re Superintendent Belconnen Remand Centre, Ex parte Diamond (1986) 69 ACTR 11 (at 14):
The ancient writ of habeas corpus has become another legal fiction. A writ is not an order of a court. A writ is a command made by the Sovereign as part of the prerogative power requiring the person to whom it is directed to act according to its terms. Some writs, including a writ of habeas corpus, issue through the medium of a superior court and are regarded as part of its process. A writ of habeas corpus (or, more precisely, a writ of habeas corpus ad subjiciendum, one of the five [sic] varieties of a writ of habeas corpus) requires the person to whom it is directed to produce to the court the body of another whom he has in custody so that a decision may be made according to law relating to the liberty of the person in custody. As a matter of procedure, a writ of habeas corpus does not issue as of course, unlike a writ of summons and the now abolished writs of subpoena. Long ago in New South Wales it was held that where the respondent takes part in proceedings leading to the granting of a rule authorising the issue of a writ of habeas corpus, all matters may be dealt with upon the return of the rule nisi which could be dealt with upon the return of the writ itself: Ex parte Lo Pak (1888) 9 NSWR 221. The procedure laid down in this Territory by rules of court is that an order nisi is obtained in the first instance calling upon the respondent to show cause why a writ of habeas corpus should not issue. By O 55, r 49 when an order to show cause has been made, the court or judge may, on the return of the order direct the discharge or other disposition of the person in question without the issue of a writ of habeas corpus, and any other such order shall be as effectual as if it had been made on the return of the writ.
Prior to 1780, an ex parte motion would be made for a writ of habeas corpus and if on that application the detained person made out an arguable case, the writ issued. The case was then determined on the return of the writ when the detained person was brought before the court. The gaoler’s return was endorsed on the writ and the case turned upon its sufficiency. The return was thus a very important document for it contained the justification for the detention. See Wilmot J’s Opinion on the Writ of Habeas Corpus (1758) 97 ER 29. For a modern example of that process, though in relation to guardianship of infants, see R v Jackson; Ex parte Pretty (1982) 63 FLR 198.
Thereafter until about 1938, in England, an ex parte application was made for an order (or rule) nisi requiring the respondent gaoler to show cause on a certain day why the writ should not issue. If the court was satisfied that the applicant had an arguable case, the order (or rule) nisi would issue. The applicant would then serve the order (or rule) on the respondent who had then to appear in court on the return of the order (or rule) nisi and make out a case for the detention. This then became the substantive hearing. See R v Governor of His Majesty’s Prison, Brixton; Ex parte Savarkar [1910] 2 KB 1056 (at 1074-5). For an Australian example, see Owen v State of South Australia (1996) 85 A Crim R 28 (at 33).
In Victoria, it appears that the response to the order nisi is also known as a return and this is, effectively, the same as the return to the writ itself: R v Greig and Heriot; Ex parte Beavan and Sinclair [1944] VLR 66 (at 69, 70). This procedure is a very convenient one. It has been regularly adopted: Lloyd v Wallach (1915) 20 CLR 299 (at 305).
The modern practice in England is set out by Mr R J Sharpe in The Law of Habeas Corpus (2nd ed, Oxford University Press, 1989) (pp 218-227). See also Emeritus Professor C J Antieau, The Practice of Extraordinary Remedies – Habeas Corpus and the Other Common Law Writs (Oceana Publications, 1987) (v 1, pp 247-253). There, an application is made by summons or notice of motion ex parte for the writ, supported by an appropriate affidavit. This is similar to the pre-1780 procedure. If the judge is satisfied that there is an arguable case for the writ the matter is adjourned so that proper notice can be given to the respondent and any necessary parties. It is possible for the court to issue the writ on this ex parte application but this is not normally done. For an example where it was done, see Re B, a prisoner [1972] NZLR 897. The applicant may, however, be admitted to bail: InRe Amand [1941] 2 KB 239 (at 249).
If the writ is not in fact then issued, and ordinarily this is so even where the grounds are made out, the hearing of the summons or notice of motion invariably becomes effectively the substantive hearing. This is the modern version of the former nisi procedure. The writ may then be issued, but as noted above, this is rarely needed or done. If so, however, in England, the decision to issue the writ is a final determination in favour of the applicant and further proceedings are purely formal: Secretary of State for Home Affairs v O’Brien [1923] AC 603 (at 611-3, 616-7, 621-2, 637-41).
All of this emphasises that the writ, although a writ of right, is not a writ of course.
As Lord Wright said in Greene v Secretary of State for Home Affairs [1942] AC 284 (at 302):
The writ is described as being a writ of right, not a writ of course. The applicant must show a prima facie case that he is unlawfully detained. He cannot get it as he would get an original writ for initiating an action, but if he shows a prima facie case he is entitled to it as of right. The first question, therefore, in any habeas corpus proceeding is whether a prima facie case is shown by the applicant that his freedom is unlawfully interfered with, and the next step is to determine if the return is good and sufficient.
It has been necessary to investigate these issues because of the need to clarify the procedure now established by the amendment to s 34B of the Supreme Court Act 1933 (ACT) which now provides:
34BHabeas corpus and prerogative orders
(1)The Supreme Court has power to grant any relief by way of a habeas corpus order or prerogative order.
(2)In this section:
habeas corpus order means an order the relief under which is in the nature of, and to the same effect as, relief by way of a writ of habeas corpus.
prerogative order means an order the relief under which is in the nature of, and to the same effect as, relief by way of –
(a)a writ of mandamus, prohibition or certiorari; or
(b)an information in the nature of quo warranto.
relief includes remedy.
To this is added rr 3502 and 3553 of the Court Procedures Rules by which the prerogative writs have been abolished. This abolition includes the writ of habeas corpus. While this follows the modern trend in relation to the writs of certiorari, mandamus and prohibition (see s 69(1) of the Supreme Court Act 1970 (NSW), s 41 of the Judicial Review Act 1991 (Qld), O 56 of the Supreme Court (General Civil Procedure) Rules 2005 (Vic)), the ACT has gone further and abolished the writ of habeas corpus but authorised the grant of the same relief by order. None of the other jurisdictions have abolished the writ of habeas corpus: Gargan v Director of Public Prosecutions (NSW) and Anor (2004) 144 A Crim R 296 (at 300). This may be principally for historical reasons, given the constitutional significance of the writ.
It does mean, however, that there needs to be a reconsideration of the procedure appropriate to this form of remedy in the ACT; nevertheless, I hasten to add, it must give the same effective relief in the same circumstances as was available for the writ.
The new procedure retains some of the elements of the earlier procedure. Whilst the writ has been abolished, an order “in the nature of” habeas corpus is substituted: r 3503 of the Court Procedures Rules.
Rule 3504 sets out the procedure for the application. An originating application is to be used, unless the application is made during the course of the proceedings. The originating process would allow other relief also to be claimed, such as in this case, where a certiorari order was also claimed (see Pt 3.10 of the Court Procedures Rules). The application can be made ex parte.
An affidavit is required to support the application: r 3504(3). Unlike the earlier procedure, it is not required to be made by the person in custody: r 3504(4). It may still be necessary, however, to show that the person in custody consents to the application or that the circumstances of the imprisonment prevent consent being obtained: Re Parker and Ors; (The Case of the Canadian Prisoners) (1839) 5 M & W 32; 151 ER 15; Ex parte Corke [1954] 2 All ER 440. Here the affidavit was made by the plaintiff’s next friend. It may contain hearsay evidence so long as it states the source of the hearsay information and deposes to a belief that it is true: s 75 of the Evidence Act 1995 (Cth) (Evidence Act). That may not, however, apply to the final hearing, subject to provisions such as ss 63 and 64 of the Evidence Act, so applicants need to be vigilant to ensure that they have admissible evidence available at the final hearing where the orders of detention may be challenged.
Rule 3506 prescribes the procedure on the hearing of the application. It is in the following terms:
(1)On the hearing of an application for a habeas corpus order, the court may –
(a)order the release or other disposition of the person in custody; or
(b)order the issue of a habeas corpus order directed to the defendant and to anyone else and give directions about the course to be taken under the habeas corpus order; or
(c)dismiss the application.
…
(2)If a habeas corpus order is issued –
(a)the person to whom the order is directed must bring the person in custody before the court as directed in the order; and
(b)unless the court otherwise orders, the following must be served personally on everyone to whom the order is directed:
(i)a sealed copy of the order;
(ii)the application for the order;
(iii)the supporting affidavits;
(iv)a notice stating the things to be done by the person under the order and the consequences of failing to comply with the order.
…
(3)However, if a habeas corpus order is directed to the person in charge of the place where the person is in custody, a document mentioned in subrule (2)(b) may be served –
(a)by sending a copy by prepaid post to the place where the person is in custody, addressed to the person in charge of the place; or
(b)if the place has a postbox at a post office – by sending a copy by prepaid post to the postbox, addressed to the person in charge of the place; or
(c)if the place has a fax machine – by sending a copy by fax to the place, addressed to the person in charge of the place; or
(d)if the person in charge of the place has an email address – by sending a copy by electronic communication to the email address.
(4)The court may, pending the return of the habeas corpus order, make an order about the custody of the person in custody.
If a habeas corpus order is issued, then r 3507 provides:
On the return of a habeas corpus order, the court may do any of the following:
(a)receive further evidence in support of the application for release from custody;
(b)allow a person to whom the order is directed to show cause why the person should not be released from custody;
(c)if it considers the person’s custody is unlawful – order the person’s release or other disposition;
(d)set aside the order;
(e)if the evidence presented to the court suggests someone else has custody of the person in custody – order another habeas corpus order issue directed to the other person;
(f)make an order or give directions about the disposal of the proceeding, or about the person in custody, it considers appropriate.
The former provision for a return to be made to the writ has not been included in the rules. If it survives, it may be that a return is no longer as important a document as under the former procedure. The respondent would normally now simply file and serve an affidavit or affidavits deposing to the grounds supporting the detention of the applicant. These, of course, would be essential in response if a grant of relief sought by the plaintiff were opposed.
In addition, s 226 of the Magistrates Court Act 1930 (ACT), made applicable by s 56 of the 1999 Act (see also Zeccola v Barr (1978) 33 FLR 223 (at 225-6)), is relevant. It provides:
226 Power of court to admit to bail
(1)If any person imprisoned or detained under a summary conviction or order is brought up by a habeas corpus order, and the Supreme Court postpones the final decision of the case, the Supreme Court may admit the person to bail in accordance with the Bail Act 1992.
(2)If the judgment of the Supreme Court is against any person so brought up, the Supreme Court may remand the person to his or her former custody, there to serve the rest of the term for which the person was committed.
Since J was detained under a summary conviction order, and I had issued a habeas corpus order, s 226(1) applied. I admitted J to bail, as noted above (at [28]). This was, of course, a risk for J since if I ultimately did not find his detention, or continued detention, unlawful, then he may have to be returned to custody.
Nevertheless, I note that s 226(2) appears to give the court a discretion as to whether the person is to be remanded back into custody. I raised this issue with counsel for the defendant and he expressly conceded that the section gave me a discretion as to whether to order the return of J to custody if I found against him in the application.
I have been unable to find any similar provision or any authority on this provision. The usual approach is that stated by Emeritus Professor Antieu in The Practice of Extraordinary Remedies, Habeas Corpus and the Other Common Law Writs, (v 1, p 41):
If the petition is dismissed, the petitioner remains in custody or, if out on bail or his own recognizance, he is returned to custody.
When the petition is successful, however, a wide opportunity is given to the courts. As Emeritus Professor Antieu comments immediately thereafter:
Statutes customarily give judges and courts broad opportunities for doing justice when the petitioner prevails on the merits. The Habeas Corpus Act of 1816 [56 Geo 111 c 100] enables the judge or court “to do therein as justice shall appertain”. Most modern statutes perpetuate this injunction. [footnote omitted]
It seems to me that the circumstances would have to be quite exceptional for a court to reject an application on a habeas corpus order by setting aside the order but then set the applicant free from custody.
One practical problem would be that there would still be a warrant in existence which commits the applicant to a custodial institution. Even if the court were not to remove the applicant to his or her former custody, the relevant authorities would be in a position to execute the warrant and take him or her back into custody. If it dismisses the habeas corpus order, the court could not then rationally interfere with or set aside the warrant.
If, of course, the period of custody had passed and there was no further warrant to detain the applicant, this would, perhaps, justify the exercise of such a discretion. It may also be that, if there were only a day or a few days of the custody left and the respondent agreed not to execute the warrant for those few days, there might be an exceptional case for not making a remand order despite dismissing the application or setting aside a habeas corpus order.
The Children’s Court sentence
It is clear to me from reading what fell from the Learned Magistrate that he did not intend to ante-date the sentence he imposed. Although not expressed, his Honour was clearly conscious that he had no power to do so. As noted above, his Honour said:
In imposing the period of committal on this matter I’ve had regard to the fact that the young person spent 240 days in custody whilst on remand.
That would not make sense if his Honour were merely ante-dating a sentence, since that would itself resolve the issue. The reference to a “period of committal” clearly means that he had reduced the period of committal to take account of the pre-sentence custody.
That becomes even clearer when reference is made to the issue of remissions. His Honour remarked:
By reason of being on remand for that period of time he has not been able to earn any remissions. He would normally be earning remissions at the rate of one third of committal. The effect of what’s happened is he would not get the one-third remissions that would normally have applied had he been serving a committal, so I have taken that into account in imposing this final period of committal.
This comment would also not make sense were his Honour of the view or intending that the sentence be ante-dated and that remissions applied to the whole of the period, including that served prior to sentence.
By his Honour’s sentence, J was committed to an institution for twelve months in respect of the charges of aggravated burglary. The sentences on those counts were to be served concurrently.
These were described by his Honour as serious offences and could well have merited a sentence closer to the maximum. Thus, while mathematically the addition of 240 days of pre-sentence custody added to the actual sentence would not have meant a total sentence of two years custody, it would approach that, being some twenty months in total. That would not necessarily have been, so it appears to me, outside the sentencing discretion of the Learned Magistrate, given the number and nature of the serious charges.
Of course, if the pre-sentence custody had been served as part of the sentence, remissions would have been available to J though not necessarily granted automatically. This could have reduced the period of actual custody to seventeen and a half months. This is still longer than the period of the actual sentence imposed for those offences, reinforcing my view that his Honour did not intend to ante-date the sentence, but took it into account, here rather generously, when imposing the actual sentence.
His Honour then purported to accumulate two other sentences of commitment each of three months, thereby bringing the total period of commitment to eighteen months. As I have found, that period would date from the date on which the sentences were imposed, namely 2 June 2008.
Although not originally argued before me, I have had to consider the power of the Children’s Court to do that. Accordingly, I sought and received further submissions on this issue.
As noted above, s 96(1)(l) of the 1999 Act gives the court power to commit a young offender to an institution but for a maximum of two years. At common law, sentences of incarceration imposed are to be served concurrently. At least for felonies, there was no power to direct them to be served cumulatively: R v Castro (1880) 5 QBD 490 (at 514); R v Longford [1970] 3 NSWR 276 (at 277).
The reason that consecutive sentences were not permitted at common law was that the penalty for felonies was death and there could not be imposed consecutive death sentences: Lee v Walker [1985] 1 All ER 781 (at 785). This did not include the felony of petit larceny, for which the punishment was not death: Prus-Grzybowski v Everingham (1983) 45 ALR 468 (at 477). There did not appear to be, however, a common law power to impose consecutive sentences for petit larceny.
That position, however, did not apply to misdemeanours, where the penalty was imprisonment or a fine: R v Wilkes (1770) 98 ER 327 (at 355); R v Greenberg (No 2) [1943] KB 381 (at 384).
The distinction between felonies and misdemeanours has been abolished in this Territory by s 6 of the Crimes Amendment Ordinance 1983 (ACT). That provision still appears as s 9 of the Crimes Act 1900 (ACT).
The consequences of this, however, are not easy to ascertain. Elsewhere, that has not always been as difficult. For example, when the United Kingdom abolished the distinction, it made appropriate consequential provisions. Section 1 of the Criminal Law Act 1967 (UK) was in the following terms:
1 Abolition of distinction between felony and misdemeanour
(1)All distinctions between felony and misdemeanour are hereby abolished.
(2)Subject to the provisions of this Act, on all matters on which a distinction has previously been made between felony and misdemeanour, including mode of trial, the law and practice in relation to all offences cognisable under the law of England and Wales (including piracy) shall be the law and practice applicable at the commencement of this Act in relation to misdemeanour.
Similarly, when Victoria also abolished the distinction in 1981, it similarly made consequential provisions. Thus in the Crimes (Classification of Offences) Act 1981 (Vic), a new s 322B was inserted into the Crimes Act 1958 (Vic) as follows:
322B(1) All distinctions between felony and misdemeanour are hereby abolished.
(2)Subject to section 322D, in all matters in which before the commencement of this Part a distinction has been made between felony and misdemeanour (including mode of trial), the law and practice in relation to all indictable offences cognizable under the law of Victoria (including piracy and offences deemed to be piracy) shall be the law and practice applicable immediately before the commencement of this Part in relation to misdemeanour.
Section 322D was a transitional provision.
The Sentencing Act, however, makes provisions for a cumulation of committal orders. At the date of sentence, s 70(2) defines “imprisonment” for the purposes of Part 5.3 of the Act to include:
(b)… an order committing a young person to an institution under the Children and Young People Act 1999, section 96(1)(k) or (l).
Section 71 of the Sentencing Act, which appears in Part 5.3, provides:
(1)In the absence of a direction under subsection (2), the primary sentence must be served concurrently with the existing sentence.
(2)The court may direct that the primary sentence be served consecutively (or partly concurrently and partly consecutively) with the existing sentence.
The effect of these provisions is, as submitted by the defendant, that sentences of committal of a child or young person are deemed to be concurrent unless the court directs otherwise. Here, as appears from the learned Magistrate’s sentence (at [6] above), his Honour did so direct.
Another matter of concern is that were the Children’s Court to be able to impose consecutive sentences, then the principle enunciated in R v Blake [1962] 2 QB 377 would appear to apply, namely that the cumulative total of sentences for separate offences can exceed the maximum period of custody for any one offence. It is true that even for juvenile offenders, general deterrence and punishment play a part in the sentence to be imposed. This was clearly laid down in R v Boudelah and Charlston (1991) 28 FCR 176 which Gray J held in TDJ v Carter [2001] ACTSC 38 (at [10]) applied to the 1999 Act. Nevertheless, it does seem to me that the legislature does not appear to have contemplated a committal to an institution of more than two years. This was not argued, however, and I make no finding on it. In any event, the total sentence imposed by the learned Magistrate did not exceed two years.
I note that there was no appeal against the sentence by either J or the prosecution.
Accordingly, the challenges to the sentence imposed by the learned Magistrate have not been made out and the habeas corpus order should be set aside and the application dismissed. The consequences of his, however, are not entirely clear.
Conclusion
This proceeding is not an appeal in any real sense, and so there has been no stay of the order of the Learned Magistrate, as would apply were it to be an appeal under Pt 3.10 of the Magistrates Court Act 1930 (ACT) when the stay under s 216 of that Act would operate.
Further, the occasion for the grant of remissions does not arrive until the sentence is nearing its conclusion. It is, therefore, inappropriate to deal with that aspect of the application before me. While it may be that the approach evinced by the Chief Executive had elements of dictating policy, I cannot say that at the end of the day, there would not have been a proper exercise of discretion by the Chief Executive.
As a result, I do not consider that J has made out a case for the relief sought, but there are serious issues unresolved about the disposition of the application.
The disposition of the application
I am concerned that J has been on bail since 24 December 2008. In the ordinary course, this would not mean that the usual orders, namely dismissing the application and directing J to be returned to custody, should not be made.
In this case, however, J is a young person and the terms of the bail have required ongoing supervision, including the participation in programs as directed by the Chief Executive.
Further, I recently varied J’s bail to enable him to undertake training at the Canberra Institute of Technology.
On the other hand, the defendant recently filed an affidavit disclosing that J had been charged with further offences whilst on bail. That information, as the defendant properly submits, goes to the question of entitlement or propriety of J continuing on bail. The defendant, however, did not apply to revoke the bail granted to J. The evidence is thus not relevant to a live issue before the court in relation to continued bail.
The evidence, however, may be relevant to the issue of whether I should exercise the discretion I have identified under s 226 of the Magistrates Court Act 1930 (ACT), as to which see [49] to [56] above.
The introduction of this affidavit is, in effect, an application by the defendant to re-open its case. The principles have been usefully considered by Higgins J (as his Honour then was) in Nikoloski v Ridge Consolidated Pty Ltd (unreported, ACTSC, Higgins J, SC 420 of 1993, 9 Sept 1994). In that case, his Honour considered various authorities and concluded (at 4):
The correct principle to be applied in situations where, before final judgment, a party wishes to re-open that party’s case is simply whether the interests of justice are better served by allowing or rejecting the application.
While, “the interests of justice” is a familiar phrase, it is not always particularly helpful in determining the considerations that are to be taken into account, or, perhaps more significantly, to be rejected, and the approach a court should take to the matter.
In general, of course, the power to re-open should be restricted. As Sheahan J said (at 445) in Teoh v Hunters Hill Council and Anor (No 3) (2009) 167 LGERA 432:
Any power to reopen has been held to be a “limited, special, and wholly exceptional jurisdiction”, “not lightly to be exercised”, and there must be shown to be “exceptional circumstances”, often in the nature of some “unfinished business”. The courts will not simply respond to some “undefined feeling that an injustice has occurred which the court must correct”. See Haig v Minister Administering National Parks and Wildlife Act 1974 (No 2) (1994) 85 LGERA 143, per Kirby P at 153-155. See also Woollahra Municipal Council v Ferella (2005) 141 LGERA 166, and Pittwater Council v Brown Brothers Waste Contractors Pty Ltd [2009] NSWLEC 50 (Brown Bros), in which Lloyd J made a thorough survey of relevant authority; the discussion by Basten JA in Deputy Commissioner of Taxation v Meredith (No 2) (2008) 72 ATR 425 at [6]-[7], [13]-[16] and [22]; and Pain J’s analysis in Michales at [28]ff.
It has long been accepted that, subject only to very special exceptions, including successful appeal, the substantial issues between litigating parties are ordinarily settled by a judgment which follows a correctly run trial. This is often referred to as the “principle of finality”. Coulton v Holcombe (1986) 162 CLR 1 at 7. See also D’Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1 (D’Orta) at [34]-[37]. In Drummoyne Foreshores Committee Inc v Drummoyne Council [2001] NSWLEC 14, I observed that a court is functus officio when proceedings are “brought regularly to an end”.
In Wentworth v Rogers (No 5) (1986) 6 NSWLR 534 (at 538) Kirby P said:
There is a public interest in finality of litigation. Parties ought not, by proceeding to impugn a judgment, to be permitted to relitigate matters which were the subject of the earlier proceedings which gave rise to the judgment. Especially should they not be so permitted, if they move on nothing more than the evidence upon which they have previously failed.
Einstein J had occasion recently to consider the principles relating to an application to re-open in The Movie Network Channels Pty Ltd v Optus Vision Pty Ltd [2009] NSWSC 132. His Honour helpfully set out some principles (at [4] to [8]) as follows:
[4]In every case the overriding principle to be applied is whether the interests of justice are better served by allowing or rejecting the application to re-open [Inspector-General in Bankruptcy v Bradshaw [2006] FCA 22 at [24]; Urban Transport Authority of NSW v Nweiser (1992) 28 NSWLR 471 at 478]. An application to re-open is subject to various degrees of scrutiny depending on the stage of the proceedings when the application is made. The test of what is ‘just’ at this stage of the proceedings is akin to the considerations applicable where leave to rely on fresh evidence is sought on appeal. That is, the evidence must be credible, highly probative and not previously obtainable by reasonable diligence [Jesseron Holdings Pty Ltd v Middle East Trading Consultants Pty Ltd (No 2) (1994) 122 ALR 717 at 719 per Young J; Ritchies at [51.51.50]; Australasian Meat Industry Employees’ Union (WA Branch); Ex parte Ferguson (1986) 67 ALR 491 at 493-494 per Toohey J; Murray v Figge (1974) 4 ALR 612; Betts v Whittingslowe (No 1) [1944] SASR 163; Hughes v Hill [1937] SASR 285; Watson v Metropolitan (Perth) Passenger Transport Trust [1965] WAR 88].
[5]Naturally the principles which inform the exercise of the discretion to re-open are to be read against the general background of the obvious public interest in the finality of litigation: cf Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300 per Mason CJ at 302-303.
[6]In Inspector-General in Bankruptcy v Bradshaw [2006] FCA 22 Kenny J identified at [24] certain recognised classes of cases in which a court may grant leave to re-open as including where:
(a)Fresh evidence becomes available [Granitgard Pty Ltd v Termicide Pest Control Pty Ltd (No 3) [2009] FCA 82 (evidence from a ‘whistle blower’ became available after the conclusion of the hearing)];
(b)There is inadvertent error; [Telecom Vanuatu Ltd v Optus Networks Pty Ltd (No 2) [2009] NSWSC 33];
(c)There is a mistaken apprehension of the facts [Urban Transport Authority of NSW v Nweiser (1992) 28 NSWLR 471; Autodesk Inc]; or
(d)There is a mistaken apprehension of the law [Urban Transport Authority of NSW v Nweiser (1992) 28 NSWLR 471].
[7]In Smith v NSW Bar Association (1992) 176 CLR 256 at 266 a majority of the High Court found that:
If an application is made to re-open on the basis that new or additional evidence is available, it will be relevant, at that stage, to inquire why the evidence was not called at the hearing. If there was a deliberate decision not to call it, ordinarily that will tell decisively against the application. [See also: Barker v Furlong [1891] 2 Ch 172 at 184; Hughes v Hill [1937] SASR 285 at 287; Multicon Engineering Pty Ltd v Federal Airports Corporation (NSWSC, Cole J, 10 December 1993, unreported)].
[8]In ASIC v Rich (2006) 235 ALR 587 at [18] per Austin J listed [sic] the factors that he agreed were relevant to the exercise of the discretion as follows:
i.The nature of the proceeding [See also Woolworth Ltd v Olson [2004] NSWSC 871];
iiWhether the occasion for calling the further evidence ought reasonably to have been foreseen;
iii.The consideration of fairness that the defendant is entitled to know all of the evidence he has to meet in taking forensic decisions as to cross-examination and the nature and extent of the evidence he will himself adduce on the matters in question;
iv.The extent to which the plaintiff has embarked upon calling evidence on the issue in question in its case in chief;
v.The importance of the issue on which the further evidence is sought to be adduced to the pleaded issues in the case;
vi.The degree of relevance and the probative value of the further evidence sought to be adduced and its potential to involve an undue waste of time;
vii.The prejudice to the defendant in terms of delay in the completion of the proceeding and the consequential costs;
viii.The public interest in the conclusion of litigation [See also Hawthorn Glen Pty Ltd v Aconex Pty ltd (No 1) [2007] FCA 2010 at [48]]; and
ix.What explanation is offered by the plaintiff for not having called the evidence in chief.
I respectfully adopt his Honour’s analysis. Applying it, it seems to me that, at least on the issue of discretion, this evidence is admissible. The fact that it post-dates the hearing makes it the more readily able to be considered.
Were I to be required to exercise a discretion, I would take the material in the affidavit into account but would also require a report on the response of J to supervision under the conditions of bail that I granted.
It seems to me, however, that the ultimate decision in this case is not to be resolved by the exercise of a discretion for the period of incarceration may now have expired by the effluxion of time.
Accordingly, having made the orders dismissing the application, I shall give the parties leave to bring in short minutes of any additional orders that, consistent with those reasons, they consider should be made.
Procedural Issues
There were a number of technical problems with these proceedings which are worth noting and recording.
In the first place, there is much confusion in this file about the correct title of the proceedings. The title on the originating application was
MAXWELL BERNARD VARDANEGA AS LITIGATION GUARDIAN FOR [J]
Plaintiffs
AUSTRALIAN CAPITAL TERRITORY (BY ITS EMPLOYER MS SANDRA LAMBERT, THE CHIEF EXECUTIVE, DEPARTMENT OF DISABILITY, HOUSING AND COMMUNITY SERVICES
Defendant
This is quite wrong and should not stand. The plaintiff is J. He should be so identified. The title seems to suggest that Maxwell Vardanega is the plaintiff. He is not. He is simply the plaintiff’s litigation guardian, though a necessary part of the proceedings by virtue of r 275 of the Court Procedures Rules.
The Australian Capital Territory is a body politic (s 7, Australian Capital Territory (Self-Government) Act 1988 (Cth) and, as such is a juristic person: Commonwealth of Australia v the State of Western Australia and Ors (1999) 196 CLR 392 (at 429-31); Mann v Carnell (1999) 201 CLR 1 (at 14). It can, therefore, quite properly be sued and there is no occasion for a reference to be made to the Chief Executive, or to a department which is to be sued thereby.
In order to regularise these matters, I direct that the title to the proceedings be amended to read:
J BY HIS LITIGATION GUARDIAN MAXWELL BERNARD VARDANEGA
Plaintiff
AUSTRALIAN CAPITAL TERRITORY
Defendant
The other issue involved the defence. Most of the paragraphs of the defence read “[t]he defendant admits paragraph …” or “[t]he defendant denies paragraph …”. Apart from being incorrect grammar, this is bad pleading. As that distinguished ACT Supreme Court judge, Connor J, said in Inglis v Moore (1981) 51 FLR 293 (at 296):
Throughout all five defences the defendants purport to admit or deny paragraphs or sub-paragraphs. What should be admitted or denied or not admitted are the plaintiff’s allegations. It is acceptable to deny each allegation in a particular paragraph. It is meaningless to deny a paragraph.
Despite these defects, I did not require the defence to be amended, but it is a salutary canon of drafting pleadings that should be followed in the future.
I make a final comment. The Learned Magistrate recorded convictions on 13 charges and imposed no sentence but “merged” them with another charge “for sentencing purposes”. In my view, this is not an available way for his Honour to sentence.
It appears that such an approach may have had its genesis in what was termed a “general sentence”. A general sentence is “a sentence intended by the judge to cover more than one count” according to Lord Tucker in R v Edirimanasingham [1961] AC 454 (at 460). Such a sentence is now unknown in many jurisdictions: Ryan v The Queen (1982) 149 CLR 1 (at 4). It is, so far as I can ascertain, unknown in this Territory. It seems that it was, in any event, only available, if and when available, on indictment: R v Jones (1862) 1 W & W (VLR) 221. For general sentences, reference should be made to Mr F Rinaldi’s “Consecutive Sentencing in Magistrates’ Courts”, (1976) 50 ALJ 77 (at 82); Ms K Warner’s “General Sentences” (1987) 11 Crim LJ 335 and Ms K Warner’s Sentencing in Tasmania (The Federation Press, 1991) (pp 194-199).
In any event, it seems clear that such an approach is now impermissible. As was said by McHugh, Hayne and Callinan JJ in Pearce v The Queen (1998) 194 CLR 610 (at 624):
A judge sentencing an offender for more than one offence must fix an appropriate sentence for each offence and then consider questions of cumulation or concurrence, as well, of course, as questions of totality. [footnote omitted]
See also R v Lomax [1998] 1 VR 551 (at 562-4).
I am aware that Gray J considered the possibility of a general sentence in CH v Healey [2008] ACTSC 65. His Honour did expressly note (at [10]) that that case was not one in which to make a statement of principle.
Problematic though it may sometimes be, where, as here, there are a very large number of offences, it is an important principle that each offence is dealt with properly in accordance with proper sentencing practice and law.
As this is not an appeal from the sentence, there is no relevant order to make in consequence of those remarks, but the comment has been made merely to draw attention to the issue and to encourage relevant judicial officers not to continue a practice that is not in accordance with proper sentencing practice.
I certify that the preceding one hundred and five (105) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Refshauge.
Associate:
Date: 17 December 2009
Counsel for the plaintiff: Mr F J Purnell SC
Mr S Gill
Solicitor for the plaintiff: Ken Cush & Associates
Counsel for the defendant: Dr D R Jarvis
Solicitor for the defendant: ACT Government Solicitor
Date of hearing: 5 May 2009; 23 July 2009
Date of judgment: 18 December 2009
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