Appeal Outcome: Special leave application dismissed by the High Court - 11 December 2007 New South Wales Court of Appeal CITATION: Clarkson v Commissioner of Corrective Services, New South Wales [2007] NSWCA 58 HEARING DATE(S): 12 February 2006 JUDGMENT DATE: 22 March 2007 JUDGMENT OF: Beazley JA at 1; Sully J at 48; Howie J at 49 DECISION: 1. The Application to Show Cause and Summons are dismissed; 2. The Application for prerogative relief filed 13 October 2006 is dismissed; 3. The questions in the stated case are answered in the negative. CATCHWORDS: Procedure – stated case – whether trial judge erred in failing to respite execution of judgment under section 72 Judiciary Act 1903 (Cth) – whether accused waived right to operation of Act LEGISLATION CITED: Mental Health (Criminal Procedure) Act 1990 (NSW) s 10(2) Judiciary Act 1903 (Cth) s 72 Brown v The Queen (1986) 160 CLR 171 Commonwealth v Verwayen (1990) 170 CLR 394 Di Natale v Kelly (An officer of the RSPCA NSW) [2006] NSWCCA 201 CASES CITED: Gordon v Berowra Holdings Pty Limited (2005) 62 NSWLR 427; [2005] NSWCA 27 Graham v Ingleby (1948) 154 ER 277 Park Gate Iron Co v Coates (1870) LR 5 CP 634 Smyth & Co v Bailey & Co [1940] 3 All ER 60 Mark Alfred Clarkson (Appellant) Commissioner of Corrective Services, New South Wales (First Respondent) Regina (New South Wales) (Second Respondent) Commonwealth Director of Public Prosecutions (Third Respondent) PARTIES: On the Remitter from the High Court Mark Alfred Clarkson (Appellant) Commonwealth of Australia (First Respondent) Commonwealth Director of Public Prosecutions (Second Respondent) Commissioner of Corrective Services New South Wales (Third Respondent) FILE NUMBER(S): CA 40803/06 COUNSEL: In person (Appellant) P Roberts SC; L Crowley (Regina) SOLICITORS: Commonwealth Director of Public Prosecutions (Regina) LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 02/11/0900; 02/11/1109 LOWER COURT JUDICIAL OFFICER: Hosking DCJ LOWER COURT DATE OF DECISION: 26 November 2004 - 13 - IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40803/06 BEAZLEY JA SULLY J HOWIE J 22 March 2007 Mark Alfred Clarkson v Commissioner of Corrective Services & Anor Judgment 1 BEAZLEY JA: Mark Alfred Clarkson was convicted by a jury in the District Court of a total of 16 charges preferred on indictment. Five charges were laid under s 10(1)(a) of the Passports Act 1938 (Cth) (the Passports Act). Seven charges were laid under s 10(1)(b) of the Passports Act. Four charges were laid under s 184 of the Crimes Act 1900 (NSW). 2 Mr Clarkson has appealed against conviction and has sought leave to appeal against sentence: see proceedings CCA 2006/1693. In addition to the appeal against conviction and application for leave to appeal filed by Mr Mark Alfred Clarkson (who for ease of reference I will continue to refer to as the appellant), there was before this Court a stated case, an application for prerogative relief and the remittal of a matter from the High Court. This judgment deals with those matters. 3 This judgment is to be read in conjunction with the judgment in the Court of Criminal Appeal proceedings as the resolution of the questions raised in those proceedings, other than whether the trial judge was required to state a case, were duplicated in the issues raised on the appeal and in the stated case and have been determined in proceedings CCA 2006/1693. 4 Having regard to the way in which the matters were argued by the appellant it is convenient to deal, in the first instance, with the question whether there was any requirement on the trial judge to state a case under s 72 of the Judiciary Act 1903 (Cth) (the Judiciary Act) prior to sentencing the appellant or prior to the writs of commitment being issued. The resolution of that issue will effectively determine the issues in the other applications before the Court. The stated case issue 5 The appellant's trial commenced on 15 November 2004. The evidence in the matter concluded on 25 November 2004. On that day, the appellant filed in the District Court Registry three applications requesting that questions of law "be reserved for the consideration of a Full Court of the Supreme Court of New South Wales". The applications were stated to be made pursuant to s 72 of the Judiciary Act. 6 Section 72 provides, relevantly: "72(1) When any person is indicted for an indictable offence against the laws of the Commonwealth, the Court before which he or she is tried shall on the application by or on behalf of the accused person made before verdict, and may in its discretion either before or after judgment without such application, reserve any question of law which arises on the trial for the consideration of a Full Court of the High Court or if the trial was had in a Court of a State of a Full Court of the Supreme Court of the State. (2) If the accused person is convicted, and a question of law has been so reserved before judgment, the Court before which he or she was tried may either pronounce judgment on the conviction and respite execution of the judgment, or postpone the judgment until the question has been considered and decided, and may either commit the person convicted to prison or admit him or her to bail … (3) The presiding judge is thereupon required to state in a case signed by him or her the question of law so reserved with the special circumstances upon which it arose …" 7 On 26 November 2004, just after an adjournment in the proceedings, the appellant's counsel informed his Honour that the appellant had filed applications under s 72 of the Judiciary Act. His Honour did not have the provisions of s 72 before him at that time, nor does it appear that counsel was in a position to provide him with a copy of the section. However, counsel did inform the Court that "the important thing" was that the application be "flagged before verdict" and also that the terms of the section were mandatory. 8 Later, during the course of that day, the appellant's counsel again raised the appellant's applications under s 72 and indicated that he had a handwritten document that he proposed to reduce to typing. Mr Lowe arranged for that to be done prior to the jury returning with a verdict. Mr Lowe also handed a copy of s 72 to his Honour (Appeal book 827). At the point when he handed the document to his Honour, Mr Lowe stated that he had "reduced to writing that application". The document handed to his Honour was headed "Application Pursuant to Section 72 of the Judiciary Act". The document was in these terms: "1. Did I err in law in holding that it was not duplicitous for the Crown to rely on two or more false statements made in the course of supporting an Australian Adult Passport Application in proof of an offence under s 10(1)(b) of the Passports Act 1938. 2. Did I err in law in failing to grant an application for a separate trial in relation to the counts preferred in the indictment under s 10(1)(a) and s 10(1)(b) of the Passports Act 1938. 3. Did I err in law in holding that the accused was not entitled to lead evidence in his defence as to events which took place on and from 23 June 2000 as being not relevant to his state of mind prior to that date. 4. Did I err in law in ruling that there was no evidence fit to go to the jury of the defence of necessity, duress of circumstances or self defence arising from the operation of the common law and/or Commonwealth Criminal Code 1995." 9 The jury returned verdicts of guilty later that day. The appellant's counsel asked for a pre-sentence report and his Honour indicated that he did not propose to grant bail. The appellant's counsel then again raised the matter of the application under s 72 and again informed his Honour that he did not have a discretion as to whether he stated a case, as his Honour apparently considered he had. (Black appeal book 10) In the discussion that followed, the appellant's counsel agreed that the trial judge did not need to state the case immediately, so long as the application was made prior to conviction. 10 The appellant's counsel then agreed, that as a matter of procedure, it would fall upon him to prepare a draft of the stated case and to settle it with the Crown before sending it to his Honour. At that point, his Honour stated, "Well you can just send it in when you're ready Mr Lowe … [t]here's no need to appear personally". The matter was then stood over for sentencing to 1 April 2005. On that occasion, trial counsel again appeared for the appellant. At no time during the course of the sentence hearing did Mr Lowe raise the question of the stated case. 11 The matter was then stood over until 11 April 2005 for sentencing. On that date, the appellant's counsel was again in attendance. Again, no question was raised in relation to the stated case. His Honour sentenced the appellant and it would appear that the warrants of commitment were issued shortly thereafter. 12 Subsequently, on 28 April 2005, the appellant wrote to the Commonwealth Director of Public Prosecutions, enclosing a Notice of Appeal that he had posted that day to the Registrar of the Court of Criminal Appeal for filing, and also attached a draft of "the stated case foreshadowed by counsel". By a further letter dated 26 May 2005, the appellant suggested to the Commonwealth Director of Public Prosecutions that it would be convenient to include in the stated case on the Commonwealth counts questions of law arising on the State counts, pursuant to s 5A of the Criminal Appeal Act 1912 (NSW) (the Criminal Appeal Act). 13 The Commonwealth Director of Public Prosecutions responded to Mr Clarkson on 29 September 2005. 14 The "stated case" was filed on 9 January 2007, the date of the stated case being 22 December 2006. His Honour stated 8 questions for determination by the Court, notwithstanding that he had only reserved 4 questions on the application of the appellant. I will refer to that later but in the meantime will proceed to deal with the appellant's argument that his Honour was required to state the questions reserved and was required to do so before, at least, imposing sentence and/or issuing the warrants of commitment. 15 As I understand the Crown's argument, it does not dispute that if s 72 is engaged then the trial judge was required to state the case before sentence and/or the issue of the warrants. In this regard, there was no argument before the Court that the word "may" appearing in s 72(2) was merely facultative. I accept that it is not and does require the trial judge to act in accordance with its terms if the section is engaged. 16 The Crown contends however that the provisions of s 72(2) of the Judiciary Act were not engaged in this case, as his Honour had not reserved a question of law under s 72(1). It contends that s 72 envisages some formal order being made by the Court reserving a question of law before the sentencing process takes place or a warrant is issued. It submits that this was due to no fault of or refusal by the trial judge, but rather resulted from a failure by the appellant to submit a case to be stated with the questions of law reserved prior to either of those events. 17 Two issues emerge from the Crown's submissions. The first is whether his Honour reserved a question of law; the second is what consequences flow if his Honour did not reserve a question of law. 18 I have already set out the exchanges between his Honour and counsel in relation to the applications to state a case under s 72. 19 In my opinion, in circumstances where the appellant's counsel had handed to his Honour a document which set out the questions of law that were asked to be reserved, and his Honour informed counsel that they could forward to him the draft of the stated case whenever counsel was in a position to do so and that he would deal with it, his Honour reserved the questions of law raised by the appellant. Whilst he did not do so expressly, there was no other reason for his Honour to direct counsel to forward the draft stated case. 20 In my opinion, there is no requirement for a trial judge to use particular words to reserve a case. In this case, the combined effect of his Honour's actions in acknowledging that the applications to reserve the questions were on file, in allowing the further document with the four questions that were sought to be reserved to be handed to his Honour, in entertaining the application and having specific regard to the provisions of s 72 and in directing the parties to state a case, he thereby reserved the questions of law. 21 For those reasons, I am of the opinion that s 72(2) was engaged. 22 The next question which arises is the consequence of what happened thereafter. As explained, the stated case was not forwarded to his Honour prior to the proceedings on sentence. Counsel for the appellant appeared on both occasions when his Honour was dealing with sentence. Up to that point of time, the trial judge had refused bail and the appellant remained in custody on remand. His reason for refusing bail was because of the nature of the offences, namely, that the appellant had applied for and obtained false passports and the passports had not been recovered. His Honour stated that, on 26 November 2004, it appeared a custodial sentence was inevitable as he was not confident that the appellant would appear for sentence. 23 When the matter came before his Honour on both 1 and 11 April 2005, no application was made for his Honour to state the case, nor was any submission made that it was incumbent upon his Honour to either respite execution or postpone the judgment until the questions of law had been considered and decided by either this Court or the High Court. 24 The appellant had a right to invoke s 72, but had no obligation to do so. Even though the processes specified by the section required compliance by the trial judge if an application was made, there is nothing within its terms that prevent a party from subsequently withdrawing an application. Had the appellant expressly informed the Court that he had withdrawn the application, there would have been no continuing obligation on his Honour to state a case. In that sense, it could be said that he had abandoned or waived his rights to the processes that the section activates. 25 "Waiver" has been expressed to be "a term of shifting meaning": see Commonwealth v Verwayen (1990) 170 CLR 394 per Brennan J at 422; Smyth & Co v Bailey & Co [1940] 3 All ER 60 at 70. In Smyth, Lord Wright included amongst its meanings the case where "a party expressly or impliedly gives up a right". In Verwayen itself, Brennan J stated that the sense in which the word "waiver" was being used was "a unilateral release or abandonment of a right" or, as his Honour said later, "waiver recognises the unilateral divestiture of certain rights". At 424, his Honour pointed out that the general principle as to waiver was stated by Alderson B in Graham v Ingleby (1948) 154 ER 277 at 279. Alderson B said: "It is evident that a party who has a benefit given him by statute may waive it if he thinks fit." 26 Not every statutory right may be waived. Only a right introduced solely for the benefit of a party may be waived. A condition precedent to the jurisdiction of a court to grant leave cannot be waived: see Park Gate Iron Co v Coates (1870) LR 5 CP 634; Verwayen at 425; Di Natale v Kelly (An officer of the RSPCA NSW) [2006] NSWCCA 201 per Hall J (Grove J and Smart AJ agreeing). There is a further limitation on the capacity of a party to waive a statutory right, namely, a right, which is not jurisdictional, may be waived unless the statute itself was enacted for a public interest wider than that of the parties': see Brown v The Queen (1986) 160 CLR 171 at 178, 208; Gordon v Berowra Holdings Pty Limited (2005) 62 NSWLR 427; [2005] NSWCA 27 per Mason P at [46]. 27 Section 72 is a provision of the Judiciary Act. The Judiciary Act is "an Act to make provision for the Exercise of the Judicial Power of the Commonwealth", and thus may be considered to be an Act relating to public purposes. I am of the opinion that a provision such as s 72, which does not operate unless and until a person makes an application, is not of a kind that cannot thereafter be waived. In other words, its operation is personal to the applicant and it does not have the "public purpose" necessary to invoke the limitation to the waiver principle. 28 In this case, the appellant did not expressly abandon or waive his rights to have a case stated under s 72, nor did he expressly withdraw his application. The question, therefore, becomes whether he impliedly did so. I have already referred to the direction that his Honour gave in respect of the draft stated case. Counsel for the appellant accepted his obligation to attend to the matter. The direction given by his Honour, and counsel's acceptance of it, presumably reflected the convention that operates in relation to the drafting of a stated case, namely, that the parties attend to the drafting of the case that the trial judge is requested to state. 29 His Honour was required to state the case prior to execution of the judgment. "Judgment" is defined in s 3 of the Judiciary Act and includes "sentence". However, at the sentence hearing, which was four months after the trial judge had directed the draft stated case to be forwarded to him, nothing was said to his Honour about the status of the s 72 application. No draft stated case had been forwarded to his Honour. 30 A range of considerations that might have influenced the appellant's decision not to pursue the matter. Those considerations include the fact that it was likely that the appellant would have remained in custody on remand for the reasons already explained above. It may have been that he had legal advice that the questions asked would be answered adversely to him, as in fact those issues have on the appeal. However, there is no necessity to speculate on what considerations might have been available to, or were taken into account, in not preparing the draft of the stated case. It was not submitted to the Court that the matter was merely overlooked. 31 No case was in fact stated by his Honour at that time. He had not been provided with the draft case by the appellant, no application for a further adjournment was made to enable counsel to attend to the matter nor was any application made that his Honour respite execution of the sentence until the case was stated. In those circumstances, I am of the opinion that the appellant by his conduct abandoned his right to have the case stated under the provisions of s 72. 32 Having regard to this conclusion, it is not necessary to separately answer the questions raised in the stated case insofar as those questions were reserved by Hosking DCJ under s 72 of the Judiciary Act. However, Hosking DCJ did finally, albeit reluctantly, state a case and in doing so asked 8 questions. The stated case is appended as "A" to these reasons. It is possible that he did so, as he was entitled to do as a matter of his own discretion under s 72(1), although given his Honour's handwritten note on the stated case that he had misgivings in so doing, that is unlikely. However, if his Honour did state the case as a matter of his own discretion under s 72(1), that is another reason to answer the questions stated. 33 The questions asked in the stated case were each separately raised as issues in the grounds of appeal against conviction. The appellant acknowledged that this was so and did not advance any separate argument in respect of any of the questions. The issues argued on the appeal have all been rejected and all grounds have been dismissed. It follows that if the questions in the stated case are in fact before the Court for determination, each question should be answered in the negative. The Application to Show Cause and Summons in the High Court 34 By Summons filed on 17 January 2007, in the High Court of Australia, the appellant sought an order by way of a prerogative relief uplifting the record of the proceedings in the District Court of New South Wales and quashing the convictions entered, the sentences imposed and warrants executed together with an order to show cause why a writ of habeas corpus should not issue and an order directing Hosking DCJ to state a case. The appellant also filed an Application for an Order to Show Cause, seeking by way of relief the orders sought in the Summons. The grounds upon which relief was claimed were based upon the failure of the trial judge to state a case in accordance with s 72 of the Judiciary Act. The grounds were pleaded in these terms: "1. The imprisonment of the [Appellant] unlawful ab initio is now demonstrably unlawful. 2. The procedure prescribed by section 72, of the Judiciary Act 1903 [Cth] was regularly invoked by the Plaintiff, the provisions are mandatory and there has been a corrupt and willful refusal to state the case demanded." 35 On 14 February 2007, Gummow J remitted the Summons to the Supreme Court of New South Wales, Common Law Division, pursuant to s 44 of the Judiciary Act. His Honour directed that steps in the proceedings in the High Court be treated as steps in the proceedings in the Supreme Court and ordered that costs in the High Court be costs in the Supreme Court proceedings. 36 It was common ground that the Application to Show Cause and the High Court Summons raised the same questions as were raised in the Application for prerogative relief. For the reasons given in the determination of that issue, the Application to Show Cause and the Summons should be dismissed. It should also be added that to the extent that the Application to Show Cause sought an order that Hosking DCJ state a case, that relief would have been unnecessary if the appellant had otherwise made out his case as his Honour stated the case to the Court on 22 December 2006. The application for prerogative relief in the Supreme Court 37 On 13 October 2000, the appellant filed an Application in the Supreme Court seeking orders by way of prerogative relief which in substance was the same as the relief sought in the Application to Show Cause made to the High Court. The Application was supported by an affidavit sworn by the appellant on 9 June 2006, and was accompanied by written submissions. 38 In his written submissions, the appellant said that 3 principal questions arose on the stated case. He described those questions as: fitness for trial (good faith); jurisdiction of the District Court; and jurisdiction of the Supreme Court. 39 The first question, namely, fitness for trial, has been dealt with in relation to grounds 1 to 6 and to some extent in grounds 7 to 8 in the appeal in the Court of Criminal Appeal. Nothing more needs to be said on this issue, save for one matter. The appellant submitted that when the question of fitness for trial is raised, the trial judge would ordinarily be expected to accept that the issue had been raised in good faith. 40 The appellant developed this submission in a number of ways including by reference to the audi alteram partem rule. The appellant also submitted that it appears that the trial judge accepted that the application was raised in good faith and the question for determination was whether his health problems were such that he was not "fit for trial in the legal sense". 41 It may be that the reference to "good faith" derives from s 10(2) of the Mental Health (Criminal Procedure) Act 1990 (NSW). It has not been necessary to deal with that provision as the question of fitness to plead in this case, if it arose at all arose prior to arraignment. That question has been dealt with fully on the appeal. 42 The second question, namely the jurisdiction of the District Court was posed in these terms: "… the issue of fitness for trial once joined, as it was, must be determined by a special jury. In fact, Blanch DCCJ and Hosking DCJ (who followed Blanch DCCJ) decided the issue. Neither had jurisdiction to do so. There were not only errors of law apparent on the fact (sic) of the record, but they are areas that go to jurisdiction." 43 This question has already been answered in substance in the determination of grounds 1 to 6 and in particular, at [138]ff. 44 The argument should be rejected. 45 The third question raised was the jurisdiction of the Supreme Court. The appellant's submissions are not easy to follow and in part, at least, seek his release on bail pending the determination of his appeal and application for prerogative relief. The point it appears that the appellant wishes to make is perhaps better set out in paragraph 27 of his affidavit in which he asserts that the sentences imposed upon him for the state sentences were imposed other than according to "due process of the law" and are therefore void. He refers to his written submissions in support of appeal ground 10. That has been dealt with in the Court of Criminal Appeal matter and is rejected. 46 It follows that this application should also be dismissed. 47 The orders I propose therefore are as follows: 1. The Application to Show Cause and Summons are dismissed; 2. The Application for prerogative relief filed 13 October 2006 is dismissed; 3. The questions in the stated case are answered in the negative. 48 SULLY J: I agree with Beazley JA. 49 HOWIE J: I agree with Beazley JA. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.