Jacka v Australian Capital Territory & Anor
[2009] HCATrans 151
[2009] HCATrans 151
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
No C4 of 2009
B e t w e e n -
MITCHELL JACKA
Applicant
and
THE AUSTRALIAN CAPITAL TERRITORY
First Respondent
THE CHIEF EXECUTIVE OF THE DEPARTMENT OF JUSTICE AND COMMUNITY SAFETY OF THE AUSTRALIAN CAPITAL TERRITORY
Second Respondent
Writ of Summons
Office of the Registry
No C5 of 2009
B e t w e e n -
MITCHELL JACKA
Applicant
and
THE AUSTRALIAN CAPITAL TERRITORY
First Respondent
THE CHIEF EXECUTIVE OF THE DEPARTMENT OF JUSTICE AND COMMUNITY SAFETY OF THE AUSTRALIAN CAPITAL TERRITORY
Second Respondent
Application for order to show cause
HEYDON J
TRANSCRIPT OF PROCEEDINGS
FROM BRISBANE BY VIDEO LINK TO CANBERRA
ON WEDNESDAY, 24 JUNE 2009, AT 9.16 AM
Copyright in the High Court of Australia
__________________
MR F.J. PURNELL, SC: May it please the Court, I appear with my learned friend, MR S.L. GILL, for the plaintiff in this matter. (instructed by Ken Cush and Associates)
MR D.J.C. MOSSOP: May it please the Court, I appear for the defendants. (instructed by ACT Government Solicitor)
HIS HONOUR: Now, I have read an affidavit of Mitchell Jacka sworn on 18 June 2009. You are relying on that, Mr Purnell?
MR PURNELL: Yes, your Honour.
HIS HONOUR: I take it there is no objection, Mr Mossop?
MR MOSSOP: No, your Honour.
HIS HONOUR: The exhibits MJ1 and MJ2 to that affidavit are admitted and may be referred to by those letters and numbers. I have also read an affidavit of Kristy Maree Katavic which was sworn on 23 June 2009. You rely on that, Mr Mossop?
MR MOSSOP: I do.
HIS HONOUR: You have no objection, Mr Purnell?
MR PURNELL: No, your Honour, no objection.
HIS HONOUR: Yesterday, the Court sent a letter asking for production of any notice to the plaintiff as to the impending hearing by the board. It seems to me appropriate that those two replies be in evidence but it occurs to me that each side may not have seen the other’s reply. Mr Purnell, have you seen a letter from Mr Mark Barrow to the Deputy Registrar which he sent yesterday at 3.58 pm?
MR PURNELL: I actually have not, your Honour, but I am told that my instructing solicitor received it and it contained a section 67 notice. Yes, your Honour, the one sent by us – I am sorry, I misunderstood.
HIS HONOUR: Yes, you have seen that?
MR PURNELL: Yes, your Honour, I have seen that.
HIS HONOUR: Do you have any objection to it forming part of the evidence?
MR PURNELL: No, your Honour, I do not.
HIS HONOUR: Have you seen the letter which Ms Katavic sent to the Registrar enclosing a copy of a section 67 notice and a notice under section 204 of the Crimes (Sentence Administration) Act?
MR PURNELL: I actually have not, your Honour, but I am told my instructing solicitor received it.
HIS HONOUR: Well, if you would just like to glance through it and see if you object to it or not? It just completes the formal background.
MR PURNELL: Your Honour, there will not be any problems with it. I have spoken to Mr Mossop and he told me about it, and I am familiar with these notices.
HIS HONOUR: Very well. Well, those two letters will be ‑ ‑ ‑
MR PURNELL: There are no problems, your Honour, with them.
HIS HONOUR: Very well. Those two letters will be exhibit A. Now, is there any other evidence you have, Mr Purnell?
MR PURNELL: Just the email that we sent to the Deputy Registrar yesterday, your Honour, in relation to the section 67 notice.
HIS HONOUR: Yes, that will be part of exhibit A as well.
EXHIBIT A: Letter from Mark Barrow and letter from Ms Katavic
Email to Deputy Registrar of 23 June 2009
MR PURNELL: Yes.
HIS HONOUR: Mr Mossop, do you have any other evidence?
MR MOSSOP: No, your Honour.
HIS HONOUR: Well, Mr Purnell, I have read your three lots of written submissions, I think it is.
MR PURNELL: I am sorry about that, your Honour.
HIS HONOUR: No, that is no problem. Do you have anything you want to add to what is in those written submissions?
MR PURNELL: Just this, your Honour. Justice Hayne at page 12 in the decision that my learned friend referred to, Ex Parte Ame – Re Battersby ‑ ‑ ‑
HIS HONOUR: You say page 12, I have a transcript which begins at page 13.
MR PURNELL: I have one that begins at page 1.
HIS HONOUR: Well, maybe if I go to page 25 ‑ ‑ ‑
MR PURNELL: Your Honour, it will not be a problem if I just read this. Mine says page 12 of 17 and at the top of page 12, the very first paragraph, says this:
the relief which now is sought can be seen as being in the nature of bail pending consideration of an application for habeas. If that were its proper characterisation, the inability of the applicant to provide security for his surrender to authorities would be a relevant circumstance. If, contrary to that approach, the present application were to be seen only as an application for injunction, the principles to be applied are those underpinning the decision of Acting Chief Justice Mason in Castlemaine Tooheys Ltd v South Australia (1986) 161 CLR 148.
The reason that I take your Honour to that is to say that clearly the relief we seek today is bail, pending consideration of an application for habeas. We say then that what follows from that is a different test in relation to an application for an injunction.
If I can just add this, your Honour, that if we do not get bail today the application for habeas does, indeed, become moot. If we do get bail and fail in the invalidity proceedings, that is the constitutional challenge, then the plaintiff will have to return to gaol and serve his remaining 10 days. If we win the invalidity proceedings, then obviously he would remain free.
The use of habeas is a legitimate device to seek bail. That was referred to by Chief Justice Gleeson in Al‑Kateb and we referred to that in paragraph 1 of our further submissions. When Justice Dawson gave his decision in Peters v The Queen he spoke about bail being an inherent power of this Court and he referred to various authorities and said that there had to be exceptional circumstances, which may mean in one sense that the test in Castlemaine is probably not all that different.
But what Justice Dawson looked at in his decision to grant bail in Peters was whether the applicant would have served, or substantially served, by the time the application for special leave is heard, his sentence and secondly, whether the application for special leave enjoyed a reasonable prospect of success. Applying those two criteria bail was granted in that case.
Then we wanted to add, your Honour, interestingly what Justice Gummow said in Pelechowski in the Australian Law Journal Report which commences at page 712 in the right‑hand column at paragraph [6]:
If matters proceed in their ordinary course it is to be expected that the custodial sentence will, in whole or most substantially as to part thereof, have expired by the time the special leave application is disposed of. There is also the circumstance, which has to be considered in combination with the first, that there has been no intermediate appellate review -
which is the situation here. We understand that to mean that the onus is greater in a bail application, your Honour, where there has been intermediate appellate review, because of what flows from that. Justice Gummow went on to say that:
That is a significant matter. There are some prospects of success on the leave application but they are not considerable.
That is another matter that he took into account. But in those circumstances your Honour did grant bail. So we say at the end of that, that we have an arguable case. We will observe, of course, all the remaining 10 days that we have if we do not get bail and that freedom is an important aspect for your Honour to consider. We say that in the circumstances the application for habeas will become moot if we do not get bail and these are exceptional circumstances in this case, sufficient to ground our application for bail. They are the only matters that I have to put, your Honour.
HIS HONOUR: Yes, thank you, Mr Purnell. I need not trouble you, Mr Mossop.
Before the Court there are two sets of proceedings which have been filed. In one of them, C4 of 2009, the plaintiff claims declarations that sections 68(2)(f), 79 and 82 of the Crimes (Sentencing) Act 2005 of the Australian Capital Territory (“the Act”) are invalid on various grounds relating to Chapter III of the Constitution and the principles stated in Kable v Director of Public Prosecutions of New South Wales (1996) 189 CLR 51. In the other, C5 of 2009, the plaintiff seeks a writ of habeas corpus directed to the person in charge of the prison in which he is in custody and an order for his release. In the absence of that relief the plaintiff will remain in prison until 4 July 2009, serving a sentence which came to be passed in a way I will describe shortly.
Since the proceedings were filed, that is to say since the second set of proceedings were filed, the nature of the application for consideration today has changed slightly. It is an application for bail pending hearing of the application for habeas corpus on the basis that if bail is not granted the application for habeas corpus will become moot. That is so because the sentence being served of full‑time imprisonment will come to an end on 4 July, in 11 days time.
The plaintiff is in prison by reason of the following events. On 8 January 2009 he was convicted in the Magistrates Court of the Australian Capital Territory of negligently causing grievous bodily harm contrary to section 5 of the Crimes Act 1900 (ACT). In the course of a quarrel with his partner he had struck a window pane of the house in which he and his partner were living. The glass broke and injured the partner who was on the other side of the window. It caused her various cuts including a laceration to her right eye.
He was sentenced to 10 months imprisonment but the sentence was to be suspended and he was to be released after serving four months imprisonment by way of periodic detention on certain conditions. That term was to end on 7 May 2009. On 17 March 2009 the Sentence Administration Board of the Australian Capital Territory (“the Board”) concluded that the plaintiff had breached his periodic detention obligations. The Board cancelled his periodic detention order.
In consequence of section 79 of the Act, the Board considered that the plaintiff was liable to full‑time detention for three months, two weeks and two days. Under section 82(3) of the Act the Board issued a warrant for the arrest of the plaintiff. Two police officers executed the warrant on the evening of 19 March at the house of the plaintiff’s mother. In his affidavit the plaintiff described the events of that evening and the following morning in the following way:
I was watching a movie waiting for dinner when two police officers arrived. I was advised by one of the police officers there was a warrant for my arrest. I walked to the paddy wagon, outside the house, was patted down by the police officer and removed in the back of the paddy wagon.
I was taken to the Civic Watch house in the Australian Capital Territory (“the watch house”) where I was patted down and searched again. Someone took my details at the counter. I was not offered the opportunity to see or talk to a lawyer and I was put in a cell on my own at the watch house.
I was in the cell for about an hour and at about 9.30 pm I was shown a warrant by a police officer. I had not seen the warrant before. I had a conversation with this officer.
I said “What’s the go?”
He said “You’ve got to serve the amount of time in the warrant, then you’ll get out. It’s a straight sentence.”
I woke about 7.30am on 20 March 2009 I was taken from the watch house to the Act Court holding cells. While I was in the holding cell I had a conversation with a Corrective Service Officer as follows:
I said “When will I be seeing my lawyer and going up?”
By this the plaintiff indicates that he meant going before a Canberra Magistrate in Court. The plaintiff’s affidavit continues:
He said: “I do not think you will be going.”
I said “Why won’t I be going up?”
He said “Not sure.”
Since that time the plaintiff has been held in two prisons. It was not until 16 June 2009 that the plaintiff spoke to a lawyer. The two sets of proceedings under consideration were commenced on 19 June 2009 and set down for an initial hearing today, 23 June 2009, while the Court is on circuit in Brisbane.
The evidentiary picture set out above in the quotations from the plaintiff’s affidavit conveys the impression that the authorities had taken no steps to give the plaintiff any notice of any allegation that he had been in breach of his periodic detention and that he had been subjected to full‑time imprisonment without any form of hearing.
Evidence which has been admitted today indicates that that impression is quite wrong. On 18 February 2009, a letter was sent by the Board to the plaintiff alleging that the plaintiff had breached his periodic detention obligations for the periods commencing 16 January, 30 January and 6 February 2009. The letter gave notice that the Board would hold an inquiry on 3 March 2009 into those alleged breaches. It stated that he was not obliged to attend but it invited him to make a written submission by 25 February giving the reasons for his non‑attendance at periodic detention and enclosing any supporting documents such as medical certificates. The letter apparently enclosed a breach report by a custodial officer.
The letter warned that if the Board cancelled the plaintiff’s periodic detention order the plaintiff would be liable to serve the remainder of his sentence by way of full‑time detention. A letter was sent by prepaid post to the plaintiff’s last known address, that of his mother. There was no evidence that the letter did not arrive at that address.
On 4 March, the Board sent another letter to the plaintiff at that address by prepaid post. It stated that the Board had decided to hold a hearing on 17 March in the ACT Magistrates Court and that a judicial member of the Board required his attendance. It also informed him that it would send a written submission and supporting documents. There is no evidence to suggest that that letter did not arrive at the address to which it was sent. The plaintiff did not attend the hearing on 17 March and the matter proceeded in his absence.
The plaintiff’s submissions in support of his application for release state correctly that that application depends on the prospects of success in the proceedings claiming that parts of the Act are invalid. The plaintiff has filed, and to some extent served, notices under section 78B of the Judiciary Act 1903 (Cth). There has not been full compliance with subsection (1) but in view of the urgency of the application, non‑compliance does not matter - see section 78B(5).
The Court has original jurisdiction in the matter by reason of section 76(i) of the Constitution and section 30(a) of the Judiciary Act. It has jurisdiction to issue a writ of habeas corpus by reason of section 33(1)(f) of the Judiciary Act, at least as an incident to the exercise of the Court’s original jurisdiction under section 30(a) - see Re Officer in Charge of Cells, ACT Supreme Court; Ex parte Eastman (1994) 123 ALR 478 and 479 per Deane J.
Acceptance of one of the plaintiff’s key arguments depends on overruling Capital TV and Appliances Pty Ltd v Falconer (1971) 125 CLR 591. It is not possible for a single judge of this Court to do this. Acceptance of another of the plaintiff’s key arguments depends on deciding that Griffith CJ, with whom Gavan Duffy and Rich JJ agreed was incorrect to say in R v Bernasconi (1915) 19 CLR 629 and 635:
Chapter III . . . has no application to territories.
If that statement was part of the ratio decidendi, a single judge would have no power to overrule it. Even if that statement were not part of the ratio decidendi it is highly doubtful whether a single judge should ever depart from it and the present circumstances do not make it appropriate to do so. That remains the case, even though as the plaintiff has pointed out, later Justices have doubted Griffith CJ’s proposition - see Spratt v Hermes (1965) 114 CLR 226 at 243- 245, 269-271 and 275.
Further, the argument of the plaintiff which rests on Kable’s Case is that just as the legislature cannot confer on the Territory court a power which would impair its integrity and capacity to act as a receptacle of federal jurisdiction, so it cannot confer on a body which is not a court a power which would have the same effect. It was not explained how the powers conferred on the Board would have that effect.
The plaintiff contends that if an order for bail is not granted, his application for habeas corpus will become futile since he is due to be released in 11 days time on 4 July 2009. He contends that it is not necessary for him to meet the test for granting bail when a prisoner is seeking special leave to appeal, namely, that there be exceptional circumstances. He contends that it is sufficient to demonstrate an arguable case for invalidity. He contends that whoever claims to imprison another must justify that claim by reference to law. On that point, that is what the defendants have done. It would be different, for example, if there had been a failure to give the plaintiff notice of the hearings which led to him being imprisoned full‑time.
A contention that the law pursuant to which the plaintiff is imprisoned is arguably invalid is not, at least in these proceedings, sufficient to justify a grant of habeas corpus or bail. There may be exceptional circumstances in which habeas corpus may be granted to prevent grave injustice, even before a law is held invalid, but otherwise as Acting Chief Justice Mason said in Castlemaine Tooheys Limited v South Australia (1986) 161 CLR 148 at 155 to 156:
it is the duty of the Court to respect, indeed, to defer to, the enactment of the legislature until that enactment is adjudged ultra vires.
This is not a case in which exceptional circumstances exist. The plaintiff does not claim that they do. Rather, the plaintiff stresses the fact that he has substantially served the sentence of full‑time imprisonment. He stresses the shortness of the time between today and when that period of full‑time imprisonment will end, and he contends that his application is arguable and enjoys a reasonable prospect of ultimate success in proceedings C4 of 2009.
He also points out that this is not a case in which an intermediate appellate court has examined the position. Indeed, in a strict sense, no court at all has examined the position. The plaintiff makes the further point, correctly enough, that questions of freedom are important aspects of habeas corpus applications.
I should note that the position adopted by Mason ACJ has been followed often since, for example, by that judge himself in Australian Capital Television Proprietary Limited v The Commonwealth (1992) 66 ALJR 214 at 217, by Gummow J in Re Ruddock; Ex Parte Cowgill unreported 4 April 2003, and by Hayne J in Re Battersby; Ex Parte Ame [2004] HCATrans 361.
Despite the points of distinction which the plaintiff urged between the question of granting interlocutory relief which was before Mason ACJ in the Castlemaine Tooheys Case and questions of habeas corpus in issue in this case, the fact remains that the plaintiff is inviting the Court to disregard the provisions of legislation of the ACT legislature which was validly enacted and has not been held beyond constitutional power by any court. Accepting the possibility of circumstances in which that may not be fatal I do not consider that the present circumstances justify a departure from the general position stipulated by Mason ACJ.
There is a further difficulty in the plaintiff’s position. The plaintiff’s position depends on the proposition that the case to be argued in proceedings C4 of 2009, if not overwhelmingly strong, at least has arguable prospects. That case depends on the view that when the Board cancelled the periodic detention order it was perhaps terminating and substituting a fresh sentence or perhaps varying and increasing the sentence originally passed by the Magistrates Court.
A competing view is that that original sentence of 10 months suspended on performing periodic detention for four months has not in fact been changed or increased by the Board but is simply being implemented differently in a manner mandated by the Act in view of the plaintiff’s failure to meet the conditions of periodic detention. The effect of the Board’s finding is that the plaintiff had failed to perform periodic detention in relation to two or more detention periods. That finding made cancellation of the periodic detention mandatory under section 69(2), and it made it mandatory that the plaintiff be imprisoned full‑time under section 79(4).
These were consequences of the statute operating on the original sentence in the Magistrates Court. There were not consequences arrived at by independent discretionary sentencing decisions by the Board.
There is considerable force in that competing view and in my judgment, at least for today’s purposes, the contentions advanced by the plaintiff in relation to validity are not at all strong. For those reasons, I make the following order:
The application for an order to show cause in No C5 of 2009 is dismissed with costs.
Now, that leaves proceedings C4 of 2009. In my opinion, they ought to be remitted to the Supreme Court of the Australian Capital Territory. Do you, Mr Purnell, or does Mr Mossop disagree with that?
MR PURNELL: Your Honour, we put in submissions that that should not happen.
HIS HONOUR: Yes, you have submitted that because there is at least one, and arguably two, decisions of the Court standing in the path of your success, and since no other court but this Court has power to overturn those decisions, it would be, if not a waste of a time, at least it would be an incomplete activity to remit it to the Supreme Court of the Australian Capital Territory.
MR PURNELL: Yes, that is our submission, your Honour.
HIS HONOUR: Thank you. Mr Mossop, what is your attitude?
MR MOSSOP: We would not have any objection to the remission of the matter to the Supreme Court. It would certainly allow the question of characterisation of the decision of the Board as either a variation or not of the sentence that was imposed by the magistrate to be determined by that court and that is an issue which, if resolved in favour of the defendants, would mean that the court would not need to address the more difficult constitutional issues.
HIS HONOUR: Yes, thank you. Mr Purnell has argued that proceedings C4 of 2009 should not be remitted to the Supreme Court of the Australian Capital Territory and he advances an argument of some weight in support of that position. The argument is that since the Supreme Court could not overrule the previous decisions of this Court, the matter could not be dealt with fully below. As far as it goes that argument is, I think, incontestably correct.
Despite that, if the plaintiff wishes to continue his attack on the validity of the legislation, and I say nothing as to the deficiencies that may later be exposed in that course, it is desirable that the Supreme Court consider the issues. It would have some familiarity which this Court does not possess with the structure of the Act and that would assist in clarifying the relevant questions for this Court should the matter ever return here.
Accordingly, I think it is better that the matter be remitted to the Supreme Court of the Australian Capital Territory. I order that it be remitted to the Supreme Court of the Australian Capital Territory and I make the usual orders effecting the transmission of the file.
Is there any other matter that needs to be dealt with, Mr Purnell and Mr Mossop?
MR PURNELL: No, thank you, your Honour.
MR MOSSOP: No, your Honour.
HIS HONOUR: Thank you, the Court will now adjourn.
AT 9.46 THE MATTER WAS CONCLUDED
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