Telford v Severin & Anor

[2007] HCATrans 427

[2007] HCATrans 427

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Adelaide  No A22 of 2007

B e t w e e n -

DENNIS CRAIG TELFORD

Applicant

and

PETER SEVERIN

First Respondent

STATE OF SOUTH AUSTRALIA

Second Respondent

GUMMOW J
KIRBY J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT ADELAIDE ON THURSDAY, 9 AUGUST 2007, AT 9.25 AM

Copyright in the High Court of Australia

MR S.C. CHURCHES:   If it please the Court, I appear for the applicant.  (instructed by Bourne Lawyers)

MR M.J. WAIT:   If it please the Court, I appear for the respondent.  (instructed by Crown Solicitor’s Office South Australia)

GUMMOW J:   Yes, Mr Churches.

MR CHURCHES:   Your Honours, home detention is provided for in the State of South Australia in the Correctional Services Act.  There are some two pages of the legislation devoted to the topic.  They were in existence at the time that Mr Telford was sentenced in 2002.

GUMMOW J:   The question comes down to asking whether he had what one might call an accrued right in the terms of the legislation, is it not?

MR CHURCHES:   Yes, your Honour, and we say that that is so because the way in which the home detention provisions will be administered will go to penalty.  It is our submission that the ability of a prisoner to be able to apply for home detention and receive that home detention on the terms on which Mr Telford was sentenced he would have been out at the four and three-quarter year mark in a nine and a half year non-parole period.

GUMMOW J:   We have to look at the legislation, do we not, Mr Churches?  Page 96 of the book.  The basic proposition in section 37A(1) as it stood in April 2002 was that “the Chief Executive Officer has an absolute discretion” but subsection (2) restrained that discretion by imposing some stipulations.  It is hard to get an accrued right out of that, is it not?

MR CHURCHES:   It is our submission, your Honour, that the ability to apply for such home detention is itself capable of attracting the concept of accrued right.  We do that by reference to the appellate decisions in the United Kingdom and the United States ‑ ‑ ‑

GUMMOW J:   No, no, what about the text of the statute?  Where do you get it out of the text of the statute?  It is no good, I think, looking first to some decision somewhere else on some other statute.

MR CHURCHES:   I assume that your Honour is referring to the concept that the chief executive officer has an absolute discretion.

GUMMOW J:   You said your client had a right to something.

MR CHURCHES:   Yes, a right to apply at the halfway through his non‑parole period and that has been taken away from him.  He has received a letter saying, “No, you cannot apply” according to the new statutory provisions which came in some three years after he was sentenced.

KIRBY J:   Just take us to the provisions of the old Act.  Did that not require an application to the director?

MR CHURCHES:   It, on its face, does not actually make a reference to application, but there is a system in place for a process of application.  In fact, your Honours, the prison materials at page 61, for example, of the application book – there is another reference as well, but 61 will do – this is the offender plan prepared by the Prisons Department in December 2004, at the top of that page, so it is about lines 2, 3 and 4:

Craig has been advised that he will be required to apply for release on Parole.  He said that he intends to apply for Home Detention but does not know where he will live yet –

and so forth.  So at that time, that was before the amendments to the home detentions provisions, Mr Telford was under the impression that he would be applying for home detention for the halfway mark.

KIRBY J:   Is that not the problem, that the system that existed contemplated an application and before he had made his application the system was changed?  So that, as the Crown argues, this is not a case where there is a retrospective operation of the Act as amended, it simply attaches at the time the application is made.

MR CHURCHES:   In our submission, your Honour, the case law on that notion of retrospectivity is inapplicable in the light of the reasoning, for example, of the Western Australian Court of Appeal in Barminco, and that is why we referred to Barminco in our reply.  It is our submission that Mr Telford entered into a status which attracted his right to apply according to the statutory provisions at the time of his sentence and that is why we have ‑ ‑ ‑

GUMMOW J:   The problem is, Mr Churches, you talk about a right to apply, but to apply for what?

MR CHURCHES:   To apply for home detention in the terms as provided for at the time of his sentence.  In our submission, he had a status, just as in Barminco.  The worker was found by the Court of Appeal, confirming the District Court below I might say, saying that that worker had a status at the time he was injured.  So that even though he had not put his application on to have his workers compensation claim dealt with and the legislation was changed before he put his application on, nonetheless in Barminco the Court of Appeal found that his status had emerged at the time that he was injured.  That is what cut him out from the generality of the community.  In our submission, Mr Telford becomes a special person at the time of sentence.  He is given the status of one which attracts the operation of the then Correctional Services Act as it was in 2002.

KIRBY J:   Where is the key passage?  Is it in the reasons of Justice Steytler in the Western Australian case?

MR CHURCHES:   In Barminco at paragraph 32, your Honours.

KIRBY J:   Was that the subject of an application for special leave to this Court?

MR CHURCHES:   It was handed down, from memory, about the middle of 2006.  I have checked the transcripts and seen no sign of any ‑ ‑ ‑

KIRBY J:   I do not recall ever seeing the case.

MR CHURCHES:   No.

KIRBY J:   Anyway, 32.

MR CHURCHES:   Yes, I trust your Honours have the authorities in bound form?

KIRBY J:   Yes.

MR CHURCHES:   Page 84, paragraph 32.

GUMMOW J:   This is the problem:

His right was one to recover damages, arising out of a cause of action given to him by the common law.

MR CHURCHES:   Yes, your Honour, but it was legislative provisions that emerged later – there was some legislative provision that he, the worker, had to go through.

GUMMOW J:  

Because that cause of action had arisen before the repeal he had, in that respect, an accrued right, albeit one into which the legislature had, before the 1999 Act, made some statutory inroads.

MR CHURCHES:   Yes.  Justice Steytler rested in turn on the decision of the Queensland Court of Appeal in a case called Resort Management.

GUMMOW J:   There is no common law right underlying this particular regime.

MR CHURCHES:   No, indeed, your Honour, but nonetheless we say that the idea of status emerging and which cannot be interfered with without, of course, express words in our system.  Parliament, of course, has the capacity to change that by express words.  It did so in this State later in the same year, in 2005, in the Parole Act.  It amended the Parole Act, and we have set that out in the book, and particularly put in the appropriate words.  That is at page 125 of the book of authorities.  There is amendments to the same Act, the Correctional Services Act, but this is the parole amendment. We see there in the middle of page 125 the Schedule 1 at clause (2), this operates “regardless of when the prisoners were sentenced”.

In other words, these parole amendments will operate in respect of prisoners already sentenced prior to the amendments coming into force.  Those words did not appear in the amendments earlier in the year affecting home detention and it is the Crown’s argument that home detention is merely an embellishment to sentence and that all that matters is what the judge delivered at the time of sentence, it was Justice Perry handed down nine and a half years.  The Crown says, that is it, that is all there is to sentence.  But we submit that the legislature has specifically provided for a variation on sentence and then has altered that after sentence was imposed on Mr Telford, and it is that which we submit is troubling in the light of appellate authority in the rest of the common law world. 

Where that variation in actual prison time, where that prison time is varied by legislation after sentence, the Privy Council out of Scotland in Flynn’s case, the American Supreme Court recited in Lynce v Mathis, various New Zealand cases, Canadian Federal Court, all to the point on this, that a variation in getting out of prison time is an effect on penalty.  In our system, of course, putting aside any issue of bill of rights, the principle of legality requires that Parliament make address in express words.  It can do so but it did not in respect of the change to home detention provisions and that is what concerns the applicant in this matter and it is submitted that that is appropriate for review by this Court, that it is not enough in our submission to say, as the Full Court did, the matter of home detention is merely and purely an administrative matter, a mere embellishment, to sentence.

In our submission, the legislature has not merely provided an administrative fillip to the system of sentence.  The Crown has suggested that home detention is no more than a variation in eating in different mess halls, picking a recreation yard that the Correctional Services might send you to.  I can only say in respect of that that the Correctional Services Act says nothing in it about how there will be an allocation to mess halls or recreation yards.

KIRBY J:   No, but the problem is that the Act as amended is expressed in terms of the chief executive officer having the power to grant a prisoner leave to be absent from the place at which he is being detained and that does not seem to have a retrospective operation to take away rights.  It simply attaches to a person who is in detention and administratively seeks the enlivening of the power which is thereby granted and therefore, as the Crown has argued, it is not really a retrospective operation of the Act.  It simply has amended the ground rules in the course of your client serving his sentence and attaching to your client at the moment that he made his application.  That is the problem that I see in the case.

MR CHURCHES:   Your Honour, in our submission, Mr Telford “attached” in that concept to the terms of home detention as they existed at the time of sentence.  That was inherent in the sentencing provisions at the time.  The American Supreme Court is very clear on that, that sentences will be handed down with the knowledge – they may not be referred to in sentencing notes – but with the knowledge of what the structure is for the processes of early release, whatever they might be, leave on licence, parole and so forth.

KIRBY J:   But what do the American cases say in answer to the proposition which seems self-evident in our system that that is known to be subject to the power and action from time to time of Parliament to amend the laws governing these things?

MR CHURCHES:   In the American system, of course, with the amendment – Bill of Rights, clause 1 specifically prohibits the retrospective operation of penalty.

KIRBY J:   The Crown says this is not a case of retrospective operation.  This is simply a privilege which your client had and it was a privilege which was subject of being amended from time to time.

MR CHURCHES:   Yes, but the facts here are strong ‑ ‑ ‑

KIRBY J:   I do understand.  You say, “Well, the bottom line is how long I spend inside, and when I was sentenced the bottom line was I spent inside the non-parole period minus up to half the non-parole period of the discretion and that was a position when I was sentenced, and that was what I had a legitimate expectation to expect what happened to me”.  Then along comes an amendment in the law and order age and took that away and said, you can only have home detention one year before you would otherwise have been released to parole, and you say that is affecting the bottom line.  I understand that, but the problem was that the bottom line was itself within the absolute discretion of the chief executive before and the rules by which that absolute discretion is exercised were changed in the meantime by Parliament, not ostensibly with retrospective effect, but ostensibly applying for the exercise of the director’s discretion.

MR CHURCHES:   In our submission, the facts in Telford are strongly analogous with both Flynn out of the Privy Council and with Lynce v Mathis in the United States, your Honour, because in both those situations there were discretionary possibilities in front of a prisoner at the time that, in the case of Flynn’s, the Scottish Parliament ‑ ‑ ‑

KIRBY J:   Tell us a bit about the facts of Flynn.  What were the facts of Flynn?

MR CHURCHES:   There are four murderers, your Honours, which have been sentenced in the past.  They are sentenced to life imprisonment, mandatory life imprisonment, but with the knowledge that the United Kingdom had installed an informal early release system in which one applied for parole and was sort of on a rolling conveyor belt.  You never got your parole the first time you applied but you kept applying.  What happened is that in 2001 the Scottish Parliament, after devolution, changed the rules in Scotland and provided for specific portions of a sentence to be the punishment portion that could not be tampered with.  That had not been the case previously.

The Privy Council had to wrestle with whether this new legislative provision would work deleteriously to the possibilities, only the possibilities – none of these four prisoners headed by Flynn had any right to say that “I will get parole at a particular period” but they had already started their parole exercises.  The problem is summed up wonderfully in an aphorism of Baroness Hale where she says the race had already started, and if I could just find that reference of Baroness Hale.

KIRBY J:   I would not want to miss out on a wonderful aphorism of her Ladyship.

MR CHURCHES:   No, indeed, your Honour.  It is at page 19 of the book, 881 of the Scottish Law Times.

KIRBY J:   Is this affected by the European Convention on Human Rights?

MR CHURCHES:   Indeed, your Honour.  We must not be distracted by the fact that the American and English and Scottish – I should say in this case, Scottish cases, go off pursuant to bills of rights issues because what is at stake is the characterisation of what is happening to prisoners as penalty because that will then impact on the principle of legality in our system.  What is Parliament required to specifically address?

KIRBY J:   What is this aphorism?

MR CHURCHES:   It is paragraph [98], your Honour, of Baroness Hale on page 19 of our book, and she says:

The essential reason why the detriment to these appellants offends against basic principles of fairness is the retrospectivity: the rules of the race have been changed after the runners have set off along their journey.

That is the problem for Mr Telford.  He had begun his journey at sentence in 2002.  He knew what the rules of the race were then and the rules of the race were changed in 2005.  He sent his letter last year saying, “I am entitled to get out on 8 January 2007”, and he got a letter back saying, “No, you are not, come back in three and three-quarter year’s time”, and that is a long time, in our submission to be affected by Parliament not having addressed specifically whether those already sentenced would receive this additional impediment to the possibility of release.

In our submission, I note that the – and the American Supreme Court does always reflect on this, whether the prisoner was a prime prospect for home detention and we submit that Mr Telford as a white ‑ ‑ ‑

KIRBY J:   Have you got an affidavit saying how many prisoners would be affected by your client succeeding on this point, or have you got any idea that you can tell us from your knowledge as to numbers who would be affected?

MR CHURCHES:   I can say definitely, your Honour, that I am aware of other prisoners in the plural but I am not aware of how many ‑ ‑ ‑

KIRBY J:   Presumably every prisoner, on your argument, every prisoner who was sentenced in this way with a non-parole period at the time of the intervening legislation would be the beneficiary of this argument if it succeeded.

MR CHURCHES:   Indeed, your Honour.

GUMMOW J:   Now, the issue in Flynn is explained by Lord Bingham at page 865, is it not?  Letter K:

The question which now arises is whether s 2 of the Prisoners and Criminal Proceedings (Scotland) Act 1993, as amended by the 2001 Act, and Pt 1 of the schedule to the 2001 Act are incompatible with the Convention rights of the appellants.

What is the Convention rights of the applicants?

MR CHURCHES:   The Convention rights are set out in our book, your Honour, at page 2.  That is article 7 of the European Convention.  Right at the bottom there on page 2 at L.

KIRBY J:   You are not trying to tempt me into applying international Convention rights where they have not been incorporated in municipal law?

MR CHURCHES:   No, your Honour.  I note that our original submissions did refer to the International Convention on Civil and Political Rights.

GUMMOW J:   The relevant provision of Article 7, “Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed”.  So the debate is all about what “penalty” means and what “heavier” means.

MR CHURCHES:   Indeed, your Honour.

GUMMOW J:   That is a world away from this.

MR CHURCHES:   In our submission, not so, your Honour, no.

GUMMOW J:   Well, you can say that.  Of course you would say that.

MR CHURCHES:   No, your Honour, with all due respect.  In Flynn there were no inherent rights, no absolute rights to apply for parole.  One came up for parole, one kept applying for parole, but the members of the Privy Council were concerned that the legislative amendments in 2001 did not take away from any previous rights that had been obtained by, as it were, getting on that conveyor belt of application prior to the legislation.

KIRBY J:   How could Parliament have done this, in your submission?

MR CHURCHES:   Very simply, your Honour, with the words, and these amendments apply in respect of sentences already on foot.  Simple as that.  If they wanted to say that they could say it clearly, as they did in the parole amendments later in the same year.

KIRBY J:   Where is that?

MR CHURCHES:   That is page 125.  That is the middle of page 125, your Honour.  Last words of clause (2) of the schedule.  That schedule is about:

The amendments made by Part 2 of this Act . . . are intended to apply in respect of prisoners serving sentences of imprisonment immediately before the commencement of this Schedule regardless of when the prisoners were sentenced.

So the Parliament in South Australia did that in respect of parole amendments, did not do it in respect of home detention provisions.  On the principle of legality we submit there is – in fact, that is an extraordinarily obvious example of expressio unius at work where you have got amendments by the same Parliament in the same year to the same legislation.  That is the sort of moment when, in our submission, expressio unius does have applicability.

GUMMOW J:   What was the outcome in Flynn?

MR CHURCHES:   Now, I am the first to concede, your Honour, that Flynn did not really improve his position, but the members of the Privy Council were concerned at all stages in their various dicta to talk about ‑ ‑ ‑

GUMMOW J:   Did his appeal succeed?

MR CHURCHES:   Well, I am the first to concede that the members of the Privy Council were guarded in their language, but ‑ ‑ ‑

GUMMOW J:   They dismissed the appeals.

MR CHURCHES:   Yes.  For example, your Honour, I am looking at Lord Hope of Craighead on page 10 of the book, paragraph [44] ‑ ‑ ‑

KIRBY J:   Yes, but at page 3, page 865 of the record, the judicial committee refused the appeals.

MR CHURCHES:   Indeed, your Honour, but they did that because they came to the conclusion that the administration of the new 2001 Scottish legislation could be performed in a way that did not trample on that which had gone before, and it is our submission that the South Australian legislation in 2005 has not done that at all.  It has on terms now adopted by the chief executive officer made absolute the possibility of a prisoner being able to remain on the conveyor belt on which he began, or running the race, as Baroness Hale put it, that he began with.  That has been taken away, and that was not taken away in Flynn’s case, and therein lies the difference.

GUMMOW J:   Very well.  You have got the red light.

MR CHURCHES:   I am sorry, my apologies.  Thank you, your Honours.

MR WAIT:   Your Honours, the applicant in this case seeks to characterise the amendments, the relevant amendments, as either affecting a right of the applicant or affecting a penalty imposed upon the applicant.

KIRBY J:   As I understand it, they are arguing that it is a principle of construction.  If you want to take away expectations, which are terribly important to prisoners, as to when they will get out, what I call the bottom line, you have got to do it clearly and the legislature did that clearly in respect of this self-same legislation later in the same year.  It can be done.

MR WAIT:   Yes, your Honour.

KIRBY J:   Why should we read this legislation as merely procedural and applying prospectively when in respect of parole itself the legislature expressly provided that it was to apply to serving prisoners?

MR WAIT:   Well, your Honour, we simply say that the presumption simply had no role in this case because the amended legislation in this case simply applies prospectively.  It has no retrospective operation.

KIRBY J:   But the terms of the Act itself does not in terms say that the prisoner has to apply.  It is the discretion of the director, and at the time he was sentenced this prisoner picked up the discretion of the director according to one formula and subsequently it was changed.  Why should that not be read by a court as applicable to prisoners sentenced after the change?  You can do it, you can make it clear.

MR WAIT:   Yes, your Honour, but what my friend is seeking to do is to draw on the principle of expressio unius between two separate enactments.  He is looking at something contained in one amending Act and seeking to cast light on an entirely separate amending Act and, your Honour, we would say that the principle of expressio unius is to be used with caution.

KIRBY J:   I accept that it is arguable both ways and I was initially very impressed by the reasons of the Full Court, but Mr Churches getting very excited after the red light had gone on really made a very good point I thought about the fact that later in the same year you made it clear.  Now, why should we have to do your work, the work of the legislature?

MR WAIT:   Yes, your Honour, what we would say is that in relation to the other amending Act that it appears for abundance of caution reference was made ‑ ‑ ‑

KIRBY J:   Well, maybe a bit of abundance of caution is not a bad thing when you are altering the bottom line of a lot of prisoners getting home detention, which means they are not locked up in often very ancient prisons.  I mean, do you disagree that this would affect many prisoners, this point?

MR WAIT:   I certainly accept that it would affect more than this prisoner, your Honour, and a class of prisoners ‑ ‑ ‑

KIRBY J:   How many would it affect?   Would you have any idea?

MR WAIT:   No, your Honour.

KIRBY J:   Would it be hundreds?

MR WAIT:   I really do not know, your Honour.  I am afraid I cannot assist on that point.

KIRBY J:   Well, one would think that as at the time of the amending Act there would be hundreds of prisoners who were serving sentences of imprisonment which were subject to non-parole periods with expectations under the old regime that they would have been entitled to be released to home detention halfway through serving their sentence.

MR WAIT:   Your Honour, what we would say to that is that no prisoner ought to hold such an expectation because the home detention regime is something that is vested in the absolute discretion of the chief executive.

KIRBY J:   Yes, but they sit in their cells and they see that halfway through the sentences of lots of prisoners they get released, and do not think people do not follow these things.  These are desperately important matters for people who are serving terms of imprisonment.

MR WAIT:   Your Honour, we do not seek to shy away from the point that this is an important matter to the applicant, no doubt.  What we say, however, is that the operation of the amendment is not ambiguous in any way because its operation is purely prospective.  It seeks to prospectively change the criteria that apply to home detention by reference to a prospective criteria, namely, how much additional time a prisoner has to serve.  So it is very different, of course, your Honour, to a case where there might be a prospective change by reference to a past event which would then, we say, bring into play the relevant principles about the presumption against retrospective operation.  We say this Act simply has no retrospective operation.

KIRBY J:   But would it not be a good principle for our country if Mr Churches could persuade the High Court of Australia to say, well, if you want to take away even a de facto entitlement that grows out of the previous regime, you have got to do it as you did it to the Parole Act, you have got to do it explicitly, and then, as is often said in the cases, Parliament is forced to face up to its responsibility that it is affecting the liberty of a large number of human beings in prison and they are then accountable before the people of the country democratically.

MR WAIT:   Your Honour, one problem with that approach, however, is that what my friend seeks to do to adopt that method is to say that his client had a section 37A status at the time that he was sentenced.  Your Honour, we say that that is problematic because this would render nugatory a whole range of amendments in legislation.  For example, your Honour, if a land tax law was altered such that land tax raised from 5 per cent to 10 per cent and, your Honour, I had acquired a block of land to which the tax applied prior to the amendment, then, your Honour, I might, according to my friend’s argument, be able to say I had acquired a 5 per cent land tax status so that the change from 5 to 10 per cent did not apply to me.

KIRBY J:   Well, that might not be a bad principle either.  If you are going to impose taxation you have got to make it clear that it is going to apply to previously acquired land, but that is not quite the same as liberty.  We are talking about liberty to which our legal system has been traditionally protective.  I think, may I say, that both sides have put in very good written submissions here and I accept you might win in the end, but can it really be denied that this is an important issue of principle?

MR WAIT:   It certainly cannot be denied that this is a matter of importance to the applicant. 

KIRBY J:   Not only the applicant.

MR WAIT:   However, your Honour, we would dispute that this is an important matter of principle.  Your Honour, perhaps another point that I should emphasise is that detention on home detention is not liberty.  Being detained in home detention is subject to very strict conditions.

KIRBY J:   Well, it feels a bit more like liberty to the prisoner than being locked up there in a prison behind bars.

MR WAIT:   I accept that, your Honour.  I certainly accept that it has a big effect upon the prisoner in a personal sense.  But, your Honour, the prisoner on home detention is certainly not free in the relevant sense recognised by the common law and, your Honour, is still indeed under the custody of the chief executive officer under the Correctional Services Act under section 24.

KIRBY J:   From the silence of my colleagues I think you might be in front at the moment, but I understand your arguments and it is a question of evaluating whether it is worth bringing the matter up.  I am a bit inclined to have been moved by the passion of Mr Churches in his last few minutes when the red light was on.

MR WAIT:   Yes, your Honour.  Of course, we would maintain that there is a clear distinction between the parole cases that my friend points out some divergences in judicial opinion about and this case.  We say, of course, your Honour, it is much easier to suggest that parole has a connection with the penalty and affects the penalty of a prisoner than it is to say that a change in the home detention regime affects the penalty of a prisoner.

KIRBY J:   If I could believe that I could understand that argument, but to the prisoner parole or home detention are a whole lot better than being behind bars.

MR WAIT:   Yes.  Your Honour, would it be of any assistance if I were to take your Honour to the relevant provisions relating to the conditions that apply to home detention?

KIRBY J:   No, I think we understand generally what it involves.

MR WAIT:   Yes.

KIRBY J:   At least I think I do.

MR WAIT:   Well, unless there is anything else, your Honour.

GUMMOW J:   Thank you.  Yes, Mr Churches.

MR CHURCHES:   Your Honours, I think a very quick conspectus of the leading appellate cases.  Flynn’s case in the Privy Council, page 5 of the book of authorities, Lord Bingham at paragraph [8] of his advice, the last sentence:

The appellants cannot rely on the new procedures to improve their position, but they are entitled to claim that they should not be prejudiced.  This is a claim to which due effect may be given when their appeals against sentence are heard.

and so on.  It is the concern against prejudice threaded through all the advices of the various members of the Privy Council.

KIRBY J:   They are not advice now.  If you look at the end they just dismiss the appeals, but do not worry about that.

MR CHURCHES:   My apologies.  Thank you, your Honour.  Yes.

KIRBY J:   This is in their – what they do not call federal but it is essentially a federal jurisdiction for Scotland.

MR CHURCHES:   Yes.

GUMMOW J:   It is less offensive for the Scots than it would be if the House of Lords did it, it seems.

MR WAIT:   Yes.  If I could take you to Lord Hope at page 10 of the book, paragraph [44], right at the bottom his Lordship said:

This means that other aspects, including the system for release and the effect of the licence that the prisoner is given when released, are to be regarded as part of the penalty.

We regard that as going to the very heart of what the Full Court, in our submission, made error in respect of.  Finally, Lord Rodger of Earlsferry, page 14 of the book, paragraph [68] – and since your Honour Justice Kirby has twice raised the concept of the prisoner having a legitimate expectation I could not resist taking your Honours there.  His Lordship said:

I assume, without deciding, that under the previous system the appellants had, in effect, a legitimate expectation amounting to a vested right to a Parole Board hearing –

and so forth.  Then quickly to the decision in the US Supreme Court in Lynce v Mathis at page 34 of the book of authorities.  It is a joint judgment in the Supreme Court.

KIRBY J:   Given, I note, by Justice Stevens.

MR CHURCHES:   It is Justice Stevens for the court, yes, your Honour.  There were two additional judgments from Justice ‑ ‑ ‑

KIRBY J:   Great judge, in my opinion.

MR CHURCHES:   Sorry, your Honour?

KIRBY J:   I say, a great judge, in my opinion.  Where are we?

MR CHURCHES:   Indeed, and he wrote for the court.  His Honour said there about a third of the way down page 34 on the left-hand column:

As we recognised in Weaver, retroactive alteration of parole or early release provisions, like the retroactive application of provisions that govern initial sentencing, implicates the Ex Post Facto Clause because such credits are “one determinant of petitioner’s prison term . . . and . . . [the petitioner’s] effective sentence is changed.

In our submission, that is what really is at the heart of this case, the alteration of effective sentence after sentencing has been performed, alteration purporting to be performed in that case by the Florida legislature, in our case by the South Australian Parliament, impacting on the situation at the moment of sentence and in later comes an amending provision.

KIRBY J:   After the judicial branch has performed its function.

MR CHURCHES:   Yes, your Honours.

KIRBY J:   The problem is though that the judicial branch’s performance of its function was subject to this absolute, as it is called, discretion on the part of an executive branch official.

MR CHURCHES:   Yes.  Similarly, New Zealand cases we have cited, have not put in the book, and so forth.  I notice my red light has come on again, your Honour.

KIRBY J:   No, I do not think so, you have still got a few moments for passion.  It is only orange.

MR CHURCHES:   I think Justice Gummow is of the view that the red is on.  Thank you, your Honours.

GUMMOW J:   What I am about to say is the view of the majority. 

The Court has been assisted by the careful submissions of counsel for the parties.  The question which the applicant seeks to propound concerns the provisions of the home detention law in South Australia under the Correctional Services Act 1982 of this State. The applicant seeks to argue that he had, in the sense of the Australian authorities, an accrued right to seek release to home detention under the statute as it stood when he was first sentenced.

However, the better view, as the Full Court of the Supreme Court of South Australia held, is that the applicant had no such accrued right and that the amending Act was prospective in its application.  The amending Act did not operate retrospectively, rather, it attached to the applicant when he made an application for home detention at the later date. 

There are insufficient prospects that an appeal would succeed to support a grant of special leave and special leave is refused. 

Is there any question of costs?  No order as to costs.

KIRBY J:   I would grant special leave.

AT 10.09 AM THE MATTER WAS CONCLUDED