Potier v R

[2014] NSWCCA 157

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	Potier v Regina [2014] NSWCCA 157
Hearing dates:	31/07/2014
Decision date:	15 August 2014
Before:	Garling J
Decision:	Application for the Court to issue a criminal justice stay warrant pursuant to s 151 of the Migration Act 1958 (Cth) is dismissed.
Catchwords:	CRIMINAL LAW - appeal - interlocutory issues - PROCEDURE - criminal justice stay warrant; application for - applicant seeking to stay in Australia to conduct appeal against conviction in Court of Criminal Appeal - Migration Act 1958 (Cth) - power of the Court to grant criminal justice stay warrant - Supreme Court Act 1970 - PROCEDURE - parties - standing - whether applicant has standing to apply for criminal justice stay warrant - Migration Act 1958 (Cth); Pt 2 Div 4
Legislation Cited:	Migration Act 1958 (Cth) Supreme Court Act 1970
Cases Cited:	Application by Solomon Barudea [1995] VSC 55 Attorney-General in and for the State of NSW v Potier [2014] NSWSC 118 Goldie v Commonwealth of Australia [2002] FCA 261 Lee v Minister for Immigration and Citizenship [2008] FCA 1023 Minister for Immigration and Citizenship v Zhang [2009] FCAFC 129
Category:	Interlocutory applications
Parties:	Malcolm Hutley Potier (Applicant) The Crown
Representation:	Counsel: In person (P) (via AVL) J Bremner (Crown) Mr McIlwaine (Commissioner of Corrective Services) Solicitors: Commonwealth Director of Public Prosecutions NSW Crown Solicitor's Office
File Number(s):	2005/14700

Judgment

1. There is on foot an appeal to the Court of Criminal Appeal consequent upon the conviction by a jury in October 2006 of Mr Potier for an offence of soliciting to murder contrary to s 26 of the Crimes Act 1900.

1. The appeal has been fixed for hearing before the Court of Criminal Appeal on 10 November 2014.

1. In the course of the case management of that appeal by me, Mr Potier has applied to the Court for it to issue a criminal justice stay warrant.

1. For the reasons that follow, I refuse to issue such a warrant.

Relevant Facts

1. Mr Potier is presently serving a sentence of imprisonment imposed by Shadbolt DCJ on 13 November 2006 for a period of 12 years with a non-parole period of 7 years. This sentence commenced on 7 August 2006, and will conclude on 5 August 2018.

1. In 2013, the State Parole Authority initially considered the question of whether Mr Potier ought to be granted parole. It determined at that time that he was not suitable for parole. Mr Potier sought a review of that determination. On 19 July 2013, that application for review was dismissed. As a consequence, the question of parole was not able to be further determined for at least 12 months.

1. The State Parole Authority has scheduled a further hearing for 13 August 2014, on the question of whether or not Mr Potier ought be granted parole. I am unaware of the outcome of that scheduled hearing.

1. Mr Potier is not an Australian citizen. He is presently in Australia on a limited visa that, so far as he tells the Court, merely permits his temporary presence in Australia for the purpose of serving the custodial component of his sentence of imprisonment. The precise visa and its conditions, if any, have not been provided to the Court.

1. Mr Potier submits that the probabilities are, that if he is released on parole, he will be initially detained by Commonwealth migration authorities and then deported to the United Kingdom because his visa would no longer be current, and he would be in Australia unlawfully.

1. If deported to the United Kingdom, Mr Potier fears that he would not be permitted by the Commonwealth immigration authorities to return to Australia for the purpose of the conduct of his appeal in this Court.

1. Mr Potier appears for himself in the conduct of the appeal, and he fears that if he is not permitted to return to Australia, he will be unable to prosecute his appeal, it will lapse and he will not have an opportunity to rectify what he asserts is an erroneous conviction and one which constitutes a miscarriage of justice.

Relevant Legislation

1. A criminal justice stay warrant is dealt with in the Migration Act 1958 (Cth) ("the Act"). The control of arrival in Australia and presence of non-citizens in Australia for the purposes of the criminal justice system is dealt with in Div 4 of Pt 2 of that Act. The purpose of the Division is to permit the presence in Australia of a non-citizen for the purposes of the administration of criminal justice. Mr Potier is a non-citizen within the meaning of the Act.

1. Section 148 of the Act permits an authorised official for a State, which means the Attorney General, the Director of Public Prosecutions (or an official holding a like office) and the highest ranking member of the police force of that State, to give a certificate that the stay of a non-citizen's removal or deportation is required for the administration of criminal justice by the State. Although there is a similar provision with respect to Commonwealth officials and Commonwealth offences, that is irrelevant in this case because Mr Potier was convicted of a State offence.

1. The prerequisite conditions for the issue of such a stay certificate are dealt with in s 148 of the Act. If a stay certificate is issued, and so long as it is in force, s 150 of the Act prohibits the removal or deportation of the non-citizen.

1. The terms of s 151 of the Act are of importance to Mr Potier's application. The section is in these terms:

"151 Certain warrants stay removal or deportation

(1) If an unlawful non-citizen is to be, or is likely to be, removed or deported, this Act does not prevent a court issuing for the purposes of the administration of criminal justice in relation to an offence against a law a warrant to stay the removal or deportation.

(2) If a criminal justice stay warrant about a non-citizen is in force, the non-citizen is not to be removed or deported.

(3) If a court issues a criminal justice stay warrant about a non-citizen, the applicant for the warrant is responsible for the costs of any maintenance or accommodation (other than immigration detention) of the non-citizen while the warrant is in force."

1. Section 153 of the Act is also of importance. It is in the following terms:

"153 Removal or deportation not contempt etc. if no stay certificate or warrant

(1) Subject to subsection (2), if:

(a) this Act requires the removal or deportation of a non-citizen; and

(b) there is no criminal justice stay certificate or criminal justice stay warrant about the non-citizen;

any other law, or anything done under any other law, of the Commonwealth or a State (whether passed or made before or after the commencement of this section), not being an Act passed after that commencement expressed to be exempt from this section, does not prevent the removal or deportation.

(2) Subsection (1) does not permit the removal or deportation of a non-citizen if that removal or deportation would be in breach of an order of the High Court, the Federal Court or the Federal Circuit Court."

1. Subdivision D of Div 4 deals with criminal justice visas. Those sections make it plain that one of the criteria for a criminal justice stay visa for a non-citizen is that a criminal justice stay warrant in respect of that non-citizen is in force.

1. Section 159 of the Act provides that the Minister may "... in his or her absolute discretion ..." grant a criminal justice visa if satisfied that the criteria for it have been met. A criminal justice visa provides permission for the non-citizen to travel to, and, enter and remain in Australia while it is in effect. If that non-citizen is in immigration detention, such a visa entitles the non-citizen to be released from that detention. A criminal justice visa does not prevent the non-citizen leaving Australia: see s 161 of the Act.

1. Section 163 of the Act provides that a stay warrant may be cancelled. It is in the following terms:

"163 Stay warrant to be cancelled

(1) If:

(a) the presence in Australia of a non-citizen in respect of whom a criminal justice stay warrant has been given is no longer required for the purposes for which it was given; and

(b) if the warrant is to expire at a certain time - that time has not been reached;

a person entitled to apply for the warrant's cancellation must apply to the court for the cancellation ..."

1. Section 164 of the Act provides that if a criminal justice stay warrant is cancelled or expires, any criminal justice visa granted because of the warrant is cancelled.

Applicable Legal Principles

1. Nathan J, when dealing with a similar application made to the Supreme Court of Victoria in 1995, held that it was not open to a person in the position of Mr Potier, namely the non-citizen, to apply for the issue of a criminal justice stay warrant. He said:

"In the State jurisdiction, if an unlawful citizen is to be or is likely to be removed, an authorised official, in this instance, the Director of Public Prosecutions, may give a certificate. Under s 149 a criminal justice stay certificate may be given even though an application for a visa has been made but not finalised. Section 150 in effect stays removal if a certificate has been issued. It can be seen that the certification which stays the deportation is a certification by the Attorney or an authorised official. The warrant, which is the instrument affecting the stay, can have no greater power than the person entitled to obtain it, and, again, the words of s 151 reflect the format of the preceding sections in the subdivision. If an unlawful citizen is likely to be removed, the Act does not prevent a court issuing, for the purposes of the administration of justice, a warrant to stay the removal ..."

See Application by Solomon Barudea [1995] VSC 55 at [24].

1. In 2002, French J (as he then was), considered the provisions of the Act which are relevant here in Goldie v Commonwealth of Australia [2002] FCA 261. At [36], he said:

"36. The provisions are enacted in the public interest in the administration of criminal justice. They are, on the face of it, not intended to create any rights or privileges on the part of the unlawful non-citizen."

1. In 2008, Lindgren J considered whether he ought grant a criminal justice stay warrant in Lee v Minister for Immigration and Citizenship [2008] FCA 1023.

1. Application was made to the Federal Court of Australia by Mr Lee for an order that a warrant be issued staying his removal from Australia, pending the hearing of an appeal to the District Court of New South Wales in the course of a prosecution brought in the Local Court of New South Wales against him. Mr Lee was an unlawful non-citizen who was to be, or was likely to be, removed or deported from Australia, unless a stay warrant was issued.

1. At [5], his Honour held that the provisions of s 151(1) of the Act did not confer a power upon the Federal Court to issue a criminal justice stay warrant. As well, his Honour held that Mr Lee was not a person who was entitled to apply for a criminal justice stay warrant. His Honour said:

"16 I return now to the terms of s 151. The reference to a 'court' in that section has an ambulatory operation and refers to any court otherwise seized of power to issue a warrant to stay a removal or deportation for the purposes of the administration of criminal justice in the particular jurisdiction, Commonwealth or State as the case may be.

17 The picture that emerges from the above provisions is that they are concerned with investigation, enforcement and punishment within the criminal justice system of the Commonwealth or of a State respectively. Although I was not directed to any other provision of Commonwealth or State legislation, it seems reasonable to expect that it will be a court invested with jurisdiction in respect of Commonwealth or State investigation, prosecution or punishment that will have power to issue a criminal justice stay warrant in relation to it - in the present case a court of the State of New South Wales.

18 There are at least two other considerations suggesting that s 151 does not give this Court the power to issue a criminal justice warrant on the present application. The first is found in definitions contained in s 142. A 'criminal justice entry certificate' is a certificate 'given under' one or other of various specified sections, and a 'criminal justice stay certificate' is a certificate 'given under' ss 147 or 148. In contrast a 'criminal justice stay warrant' is simply a warrant 'described in' s 151. That is to say, the words 'given under' are absent in the latter case. The reason is that a criminal justice stay warrant is not 'given under' s 151."

1. His Honour went on to consider the effect of the statute in the context of its legislative history. At [20], his Honour said:

"20 In the explanatory memorandum for the Migration Reform Bill 1992, para 182 stated of the then proposed s 54G (see now s 151) that the purpose of the section was to ensure that the powers created by Div 3 (see now Div 4) did not interfere with the power of a court to issue a warrant requiring that a non-citizen not be removed or deported. That paragraph of the explanatory memorandum also stated:

'The section [s 54G] also makes it clear that the applicant to the court for the warrant (ie the relevant law enforcement agency) is responsible for any accommodation, maintenance, or migration detention costs associated with requiring that non-citizen to remain in Australia. [my emphasis]'

This statement is consistent with my statement earlier that the perspective that permeates Div 4 is that of the administrators of the criminal justice system. In sum, the applicant does not have standing to apply for a criminal justice stay warrant under s 151."

Lindgren J declined to grant the relief sought.

1. In 2009, the Full Court of the Federal Court considered the relevant provisions of the Act, to which I have drawn attention, in Minister for Immigration and Citizenship v Zhang [2009] FCAFC 129. The Full Court held that the entire focus and object of Div 4 of the Act is to

"... facilitate the administration of criminal justice by securing the temporary presence in Australia of persons who would not otherwise be permitted to enter or remain in Australia."

1. The Court expressed the view that the provisions of Div 4 were enacted in the public interest in the administration of criminal justice, and were not intended on their face to create any rights or privileges on the part of the unlawful non-citizen. Their Honours also noted that there was no specific provision in the legislation for a person whose presence is required in Australia to apply for the grant of a criminal justice certificate.

1. Their Honours referred to the decision of Lindgren J in Lee, and the earlier decision of French J in Goldie and said:

"102. Lindgren J also observed at [9] that the references to investigation, prosecution and punishment in the definition of the 'administration of criminal justice' in s 142 make it clear that the relevant perspective is that of the administrators of the criminal justice system.

103. It follows from Lindgren J's remarks that the relevant perspective for the exercise of the power to issue or cancel a criminal justice certificate is that of the administrators of the system, not that of the person whose interests may in a broad sense be thought to be affected by the decision: see Lindgren J at [9] and [20].

104. In our view, the observations of French J in Goldie and Lindgren J in Lee are plainly correct and we adopt them. In Lindgren J's words at [20], the perspective that permeates Div 4 is that of the administrators of the criminal justice system.'

Discernment

1. The decisions to which I have made reference offer an analysis of the statutory provisions, which I find compelling and with which I agree.

1. In particular, I agree that the provisions upon which Mr Potier relies are not intended to, and do not, create any rights or privileges for an individual non-citizen. This means that here, Mr Potier does not have any standing to make an application for a criminal justice stay warrant.

1. He is in no different position to Mr Lee with respect to whom Lindgren J made a similar finding.

1. I am also of the view, as Lindgren J said in Lee at [5]-[6], that the proper interpretation of this legislation means that s 151 does not on its terms give the Court a power to grant a warrant, but rather assumes the existence of courts that are otherwise invested with the power to issue criminal justice warrants. The Act has no provision that specifically invests this Court with the power to issue a warrant.

1. It is a nice question as to whether s 23 of the Supreme Court Act 1970 is a sufficient jurisdictional base for the existence of a power in this Court to issue the warrant. It is unnecessary for me to decide that question, and it is appropriate that it be reserved to an occasion when the Court has the benefit of considered submissions on the issue.

1. I am prepared to proceed upon the assumption that this Court has the power to issue a criminal justice stay warrant. On that assumption, I would not be prepared to exercise my discretion so to do. That is because the material before me does not persuade me of two essential matters.

1. First, that there is any real or imminent risk of deportation of Mr Potier or, that if deported, that he would not be permitted to return to Australia for the conduct of his appeal. All I am informed of is that there is a hearing of the State Parole Authority on 13 August 2014. I have no knowledge of the material being put before the Authority, nor its attitude. Even if a decision were to be made about granting parole to Mr Potier, the administrative process would take some time to complete. Secondly, another matter upon which evidence would be necessary, and none is provided, is the identification of who would be responsible to pay for the expenses for Mr Potier's stay in Australia until his appeal is heard, and how that responsibility would be secured and discharged. Section 151(3) requires attention to be given to those questions.

1. However, it is sufficient for the purpose of finally determining this application that I am satisfied that the applicant, Mr Potier, does not have the standing to seek the warrant. The purpose of Div 4 of Pt 2 of the Act is fulfilled when an application is made to the Court for a stay warrant by a person appropriately representing the public interest in the administration of justice. No such application has been made.

1. Accordingly, I decline to issue the criminal justice stay warrant as the applicant, Mr Potier, seeks.

Vexatious Litigant

1. I note that on 25 February 2014, McCallum J made an order prohibiting Mr Potier from instituting proceedings in New South Wales "... except in the appeal proceedings instituted by him in the Court of Criminal Appeal, being proceedings numbered 2005/14700" and staying any proceedings instituted by him except that appeal and any interlocutory proceedings in that appeal.

1. In her judgment, Attorney-General in and for the State of NSW v Potier [2014] NSWSC 118, McCallum J said at [220]:

"220. I do not know what other kind of interlocutory proceedings in connection with or incidental to his appeal against conviction might be pursued by Mr Potier. I am not persuaded that it is appropriate to prohibit the institution of any such proceedings by the mechanism of a vexatious proceedings order. Any interlocutory proceedings in connection with his appeal against conviction, which is currently pending in the Court of Criminal Appeal, should more properly be managed by that Court, rather than seeing the appeal process truncated and probably delayed by the interposition of a requirement to obtain leave under the Vexatious Proceedings Act from a judge of the Court sitting in this Division."

1. I have taken the view that the application made by Mr Potier was a kind of interlocutory proceedings in connection with or incidental to his appeal, and accordingly excluded from the order made by McCallum J under the Vexatious Proceedings Act.

1. Whether any further application made by Mr Potier would properly fall within that description must necessarily depend upon the nature and content of the application.

Orders

1. I make the following order:

(1) Application for the Court to issue a criminal justice stay warrant pursuant to s 151 of the Migration Act 1958 (Cth) is dismissed.

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Decision last updated: 15 August 2014