Re the Commissioner of the Department of Corrective Services;

[2016] WASC 139

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION:   RE THE COMMISSIONER OF THE DEPARTMENT OF CORRECTIVE SERVICES; EX PARTE SANTOS [2016] WASC 139

CORAM:   ALLANSON J

HEARD:   27 APRIL 2016

DELIVERED          :   27 APRIL 2016

FILE NO/S:   CIV 1594 of 2016

MATTER                :An Application for a Writ of Habeas Corpus against the Commissioner of the Department of Corrective Services pursuant to sections 16 and 17 of the Prisons Act 1981

EX PARTE

JAMIESON ANDREW SANTOS
Applicant

AND

DEPARTMENT OF CORRECTIVE SERVICES
First Defendant

ATTORNEY GENERAL OF WESTERN AUSTRALIA
Second Defendant

GARY HUGGINS
Third Defendant

THE DIRECTOR OF PUBLIC PROSECUTIONS (WA)
Fourth Defendant

Catchwords:

Administrative law - Prerogative writs - Habeas Corpus - Application by person serving sentence of imprisonment - Turns on own facts

Practice and procedure - Abuse of process - Collateral challenge against decision - Turns on own facts

Practice and procedure - Notice to proceed - Section 78B Judiciary Act 1903 (Cth) - Abuse of process - Application determined without notice - Turns on own facts

Legislation:

Commonwealth Places (Application of Laws) Act 1970 (Cth)
Judiciary Act 1903 (Cth), s 78B
Rules of the Supreme Court 1971 (WA), O 56 r 5, O 57 r 2

Result:

Application dismissed

Category:    B

Representation:

Counsel:

Applicant:     In person

First Defendant             :     No appearance

Second Defendant         :     No appearance

Third Defendant           :     No appearance

Fourth Defendant          :     No appearance

Solicitors:

Applicant:     In person

First Defendant             :     No appearance

Second Defendant         :     No appearance

Third Defendant           :     No appearance

Fourth Defendant          :     No appearance

Case(s) referred to in judgment(s):

Australian Competition and Consumer Commission v C G Berbatis Holdings Pty Ltd [1999] FCA 1151; (1999) 95 FCR 292

Cameron v The Queen [2004] WASCA 16; (2004) 142 A Crim R 424

De Alwis v The State of Western Australia [2014] WASC 161

Glennan v Commissioner of Taxation [2003] HCA 31; (2003) 198 ALR 250

Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520

Hughes v The State of Western Australia [2015] WASCA 164

Pham v Secretary, Department of Employment and Workplace Relations [2007] FCAFC 179

Pinkstone v The Queen [2004] HCA 23; (2004) 219 CLR 444

R v Porter [2001] NSWCCA 441; (2001) 53 NSWLR 354

Re Finlayson; Ex parte Finlayson (1997) 72 ALJR 73

Santos v State Director of Public Prosecutions [2015] WASC 335

Santos v The State of Western Australia [No 2] [2013] WASCA 39

ALLANSON J: 

(This judgment was delivered orally on 27 April 2016 and has been edited from the transcript)

1. Mr Santos is serving a 15 year term of imprisonment.  He applies for orders that would see him released from prison by a writ of habeas corpus.  He also seeks two declarations directed to the lawfulness of the indictment on which he was tried and convicted.  For the reasons which follow, his application should be dismissed.

Principles relating to the remedy of habeas corpus

1. An application for a writ of habeas corpus is governed by O 57 of the Rules of the Supreme Court 1971 (WA). The application may be made ex parte and must be supported by an affidavit by the person restrained.

2. The principles governing habeas corpus were recently discussed by Martin CJ in De Alwis v The State of Western Australia [2014] WASC 161 [3] ‑ [14]. Relevantly for the present application, his Honour referred to the limit upon the availability of the remedy in the context of the criminal justice system, where an applicant is detained pursuant to a sentence of imprisonment imposed after conviction for a criminal offence. Martin CJ stated the principle in these terms:

   … while an order made by a court remains in force and has not been shown to be outside the jurisdiction of the court, such order provides a complete answer to any application for habeas corpus [13].

3. The remedy cannot be used for the purpose of mounting a collateral attack on the correctness of a judgment or order made within jurisdiction.  Where the detention is pursuant to a court order, the remedy only lies if it is established that the court has exceeded its jurisdiction:  De Alwis [14].  The question, at this stage, is whether it is arguable that the District Court acted without jurisdiction.

The application

1. The application was commenced by a notice of originating motion, filed 13 April 2016.  Mr Santos seeks, in the first instance, an order that the defendant show cause why a writ of habeas corpus should not be issued to effect his release from prison.   Mr Santos requests the return of the order to show cause be remitted to the Court of Appeal for hearing.  He also applies for an interim order releasing him on bail to enable him to 'conduct research and have complete access to legal materials and law library information'. 

2. The grounds of the application for both habeas corpus and the declarations are, in substance, that the indictment on which he was convicted was signed by a person not authorised to sign a federal indictment, so that the indictment and subsequent warrant of commitment are vitiated by jurisdictional error. 

3. In his affidavit, sworn 7 April 2016, Mr Santos states:

   1.he is currently being held in Acacia Prison in Western Australia;

   2.he has been illegally detained since 15 December 2011;

   3.the indictment presented against him was signed by a State prosecutor authorised only to file state indictments under the judicial power of the State and is invalid; and

   4.the warrant of commitment under the Sentencing Act (WA), under which he is being held, is based upon the invalid indictment and is therefore invalid.

4. Mr Santos attaches to his affidavit the indictment upon which he was tried, and a copy of the warrant of commitment, signed 2 February 2012 by a judge of the District Court.  He has also forwarded correspondence to the court to confirm that the officer who signed the indictment was not authorised to sign indictments for Commonwealth offences.

5. The warrant of commitment shows that Mr Santos was sentenced on 2 February 2012 to imprisonment for 15 years, taken to have begun on 1 May 2011.  His present imprisonment is within the terms of the warrant of commitment.

Earlier proceedings

1. Mr Santos appealed against his convictions.  On 20 February 2013, the Court of Appeal refused leave to appeal:  Santos v The State of Western Australia [No 2] [2013] WASCA 39. None of the proposed grounds of appeal was concerned with the matters he now raises.

2. Mr Santos applied for special leave to appeal the decision of the Court of Appeal.  The application was refused on 14 August 2013.  A second application for special leave was refused on 10 December 2014.

3. On 2 June 2015, Mr Santos began proceedings for judicial review in this court, seeking a writ of certiorari and a declaration.  The proposed grounds of review included that the presentation of the indictment was outside power because the offence was a Commonwealth matter and the prosecutor who signed the indictment was not appointed to present a federal indictment.  The application for habeas corpus relies upon the same issue, decided against Mr Santos, as in the application for a writ of certiorari.

4. The application for certiorari proceeded on notice to the Director of Public Prosecution. The Director of Public Prosecutions served notices under s 78B of the Judiciary Act 1903 (Cth), on the basis that the application involved a matter arising under the Constitution or involving its interpretation. The Attorney General for Western Australia intervened and made submissions on the constitutional issue.

5. After hearing the application, I held that the constitutional argument advanced by Mr Santos was not sustainable and his application was without merit.  Having regard to the gross delay in bringing the application, and the absence of any adequate explanation for that delay, I refused leave to proceed.  I dealt specifically with the argument Mr Santos now puts forward, and rejected it:  Santos v State Director of Public Prosecutions [2015] WASC 335 [11] ‑ [17]. In summary, I held that the argument was based on an erroneous construction of s 69 and s 79(1) of the Judiciary Act. While the court which convicted Mr Santos was exercising federal jurisdiction, conferred on it by s 39(2) of the Judiciary Act, the offences with which he was charged remained offences against the law of the State, or were not, relevantly, offences against a law of the Commonwealth.  The procedural provisions of State law applied.  The indictment was properly brought in the name of the State and signed by a State prosecutor.  In reaching that conclusion, I regarded myself as bound by the recent decision of the Court of Appeal in Hughes v The State of Western Australia[2015] WASCA 164. Mr Santos submitted that Hughes is inconsistent with High Court authority and wrongly decided, but I regard it as binding on me.

6. In the present application, Mr Santos relied on a series of cases where offences under State law were held to be Commonwealth offences because committed in a Commonwealth place to which the Commonwealth Places (Application of Laws) Act 1970 (Cth) applied: R v Porter [2001] NSWCCA 441; (2001) 53 NSWLR 354; Pinkstone v The Queen [2004] HCA 23; (2004) 219 CLR 444; and Cameron v The Queen [2004] WASCA 16; (2004) 142 A Crim R 424. But the issue of application of State law in a Commonwealth place does not arise in this case.

7. Mr Santos referred also to Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520. Mr Hili and his co-appellant had been convicted of offences against the Criminal Code Act 1995 (Cth)and the Crimes Act 1914 (Cth). Again the case is not relevant to whether State law applied to the indictment on which Mr Santos was convicted.

8. Mr Santos has appealed my earlier decision and the appeal is yet to be heard.  If my decision regarding the construction of the Judiciary Act and the validity of the indictment is wrong, it will be corrected on appeal.  For now, the arguments that Mr Santos wishes to advance have been determined against him.  The attempt to challenge the lawfulness of his imprisonment under the warrant of commitment by a further collateral attack on the indictment and the lawfulness of his conviction is an abuse of process. 

9. By O 57 r 2, the judge to whom the application is made ex parte may refuse the application. I am satisfied that this application should be dismissed at this stage without requiring any other party to respond to it.

10. The application for declarations is essentially an application for judicial review, ancillary to the application for habeas corpus. It should be dismissed under O 56 r 5 because it has no reasonable prospect of succeeding and because it too is an abuse of process.

Section 79B

1. I considered whether in this application notices must be given under s 78B(1) of the Judiciary Act before I can proceed.  I am, however, satisfied that I should proceed to determine the application. 

2. In Glennan v Commissioner of Taxation [2003] HCA 31; (2003) 198 ALR 250 [14], the High Court endorsed the statement of Toohey J in Re Finlayson; Ex parte Finlayson (1997) 72 ALJR 73, 74:

   In terms of s 78B, a cause does not 'involve' a matter arising under the Constitution or involving its interpretation merely because someone asserts that it does. That is not to say that the strength or weakness of the proposition is critical. But it must be established that the challenge does involve a matter arising under the Constitution.

3. Section 78B does not apply where the application raises trivial or unarguable points, or the matter sought to be raised is frivolous or vexatious or is raised as an abuse of process:  Australian Competition and Consumer Commission v C G Berbatis Holdings Pty Ltd[1999] FCA 1151 [14]; (1999) 95 FCR 292, 297; Pham v Secretary, Department of Employment and Workplace Relations [2007] FCAFC 179. For the reasons I gave in the earlier application, I consider that Mr Santos' argument is based on an erroneous construction of s 69 and s 79(1) of the Judiciary Act. On the proper construction of those sections, this application does not involve a matter arising under the Constitution or involving its interpretation.

4. While my earlier decision is subject to appeal, the correctness of my conclusion should be determined in that appeal and not a further collateral challenge to Mr Santos' imprisonment, relying upon an alternative remedy.  That is, to the extent this application might be seen as an attempt to raise a constitutional issue, it is raised as an abuse of process.

Conclusion

1. For these reasons, the application for habeas corpus and declarations will be dismissed. 

2. The application for an interim order admitting Mr Santos to bail does not arise where I am satisfied that he is properly held in custody pursuant to a warrant of commitment.