New South Wales Supreme Court CITATION : Potier v General Manager & Governor, M.R.R.C [2007] NSWSC 1031 This decision has been amended. Please see the end of the judgment for a list of the amendments. HEARING DATE(S) : 24 August 2007 JUDGMENT DATE : 30 October 2007 JURISDICTION : Supreme Court JUDGMENT OF : Rothman J DECISION : Application dismissed. No order for costs. CATCHWORDS : HABEAS CORPUS – principles – lawful custody – application to process appeal more easily – application misconceived – not grant, other than in exceptional circumstances, if to do so would be inconsistent with order of a court with jurisdiction to imprison. LEGISLATION CITED : Bail Act 1978 (NSW) Bill of Rights 1688 1 Will and Mary sess 2 c 2 Cox v Hakes (1890) 15 App.Cas. 506 Ex parte Nichols (1845) Res & Eq J 11 (NSW Supreme Court, Full Court) Fay v Noia 372 US 391 CASES CITED : Hicks v Ruddock (2007) 156 FCR 574 Jones v Dunkel (1959) 101 CLR 298 R v Allen (1868) 2 S.A.L.R. 54 (Full Court) R v Governor of Metropolitan Gaol, Cobury, ex parte Kimball (1937) V.L.R. 279 Secretary of State for Home Affairs v O'Brien [1923] A.C. 603 PARTIES : Applicant: Malcolm Huntley Potier Respondent: The General Manager/Governor, Metropolitan Remand and Reception Centre FILE NUMBER(S) : SC 13419/2007 COUNSEL : Applicant: Self represented Respondent: - SOLICITORS : Applicant: Self represented Respondent: - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION ROTHMAN J 30 OCTOBER 2007 13419/2007 Malcolm Huntley POTIER v General Mangager/Governor, Metropolitan Reception and Remand Centre JUDGMENT 1 ROTHMAN J: Malcolm Huntley Potier seeks issue of the writ of habeas corpus. He is serving a prison sentence as a result of a conviction. He had been previously convicted of another offence for which he was also imprisoned. The sentences overlapped. 2 The first conviction was appealed to the Court of Criminal Appeal and the appeal was dismissed. Mr Potier now seeks leave to appeal to the High Court of Australia. He is, at least presently, representing himself in that application. 3 The second conviction is the subject of a Notice of Intention to Appeal that has been filed in the Court of Criminal Appeal. He is represented in that by solicitor and counsel. It has not yet been heard and Mr Potier has not yet finalised the requisite paperwork. 4 Mr Potier seeks, in these proceedings, for the Court to issue habeas corpus in order for him to prepare his appeal to the Court of Criminal Appeal with better facilities and access to his legal team. He relies on affidavits that attest to the difficulty in preparing his appeal because neither his solicitor nor his counsel appeared at trial. At the trial, by choice of Mr Potier, he was self-represented. 5 Other applications have been made to the Court in relation to this and his other imprisonment. There is extant an application for habeas corpus in relation to the application for leave to appeal to the High Court. He has also applied for bail pending his appeal to the Court of Criminal Appeal and, as best I can ascertain, another application for bail pending leave to appeal to the High Court. None of those applications are before me. 6 The Court, as presently constituted, is required to deal only with the current application and its function is confined to that matter. Principles for Grant of Habeas Corpus 7 The writ of habeas corpus is of long standing and is one of the pillars of democracy as we know it. It is also a cornerstone of the common law system. It applies in all common law countries. It was described by the Earl of Birkenhead in Secretary of State for Home Affairs v O'Brien [1923] A.C. 603 in the following terms: "The determining considerations are partly general and partly particular. The first class is deeply involved in the history of the matter. We are dealing with a writ antecedent to statute, and throwing its root deep into the genius of our common law. The writ with which we are concerned to-day was more fully known as habeas corpus ad subjiciendum. This writ, however, was one of many. Thus there was a writ of ad respondendum, ad satisfaciendum, ad prosequendum, ad testificandum, and ad deliberandum. All these writs exhibited many features in common; but the most characteristic element of all was their peremptoriness. To-day the substitution of more modern remedies has left the writ ad subjiciendum, more shortly known as the writ of habeas corpus, in almost exclusive possession of the field. It is perhaps the most important writ known to the constitutional law of England, affording as it does a swift and imperative remedy in all cases of illegal restraint or confinement. It is of immemorial antiquity, an instance of its use occurring in the thirty-third year of Edward I. It has through the ages been jealously maintained by Courts of Law as a check upon the illegal usurpation of power by the Executive at the cost of the liege." (at 609) 8 Its purpose and importance were stressed by the Lord Chancellor, Lord Halsbury in Cox v Hakes (1890) 15 App.Cas. 506 in which he said: "But your Lordships are here determining a question which goes very far indeed beyond the merits of any particular case. It is the right of personal freedom in this country which is in debate; and I for one should be very slow to believe, except it was done by express legislation, that the policy of centuries has been suddenly reversed and that the right of personal freedom is no longer to be determined summarily and finally, but is to be subject to the delay and uncertainty of ordinary litigation, so that the final determination upon that question may only be arrived at by the last Court of Appeal." 9 It is apposite to cite Justice Brennan of the United States Supreme Court, describing habeas corpus: "It is a writ antecedent to statutes, and throwing its roots deep into the genius of our common law …. It is perhaps the most important writ known to the constitutional law of England, affording as it does a swift remedy in all cases of illegal restraint or confinement." ( Fay v Noia 372 US 391 at 400 per Brennan J citing Lord Birkenhead, supra) The above was cited with approval by Tamberlin J in the Federal Court of Australia in Hicks v Ruddock (2007) 156 FCR 574 at 587-8. 10 Essentially the writ was issued (and is still issued) where the Executive acts in a manner inconsistent with the liberty of the individual to which liberty the individual is entitled. It is a writ (one of the most common prerogative writs) used to bring an individual before a court usually to assess the lawfulness of detention, and, if considered unlawful, to order the individual's release. It is also used to test the validity of extradition process, any unreasonableness on bail (although now see Bail Act 1978 (NSW)) and jurisdictional challenge to a criminal court that has imposed a sentence. Each of those latter purposes usually involve (or historically derive from) unlawful detention. 11 It is used in order to obtain speedy redress for wrongful imprisonment and depends on the cause and lawfulness of the detention, usually involving an assessment of the power of the officer (often a judge of an inferior court) to order imprisonment: Ex parte Nichols (1845) Res & Eq J 11 (NSW Supreme Court, Full Court). It is most appropriate as a procedure for obtaining the release of a prisoner who has been illegally detained: R v Governor of Metropolitan Gaol, Cobury, ex parte Kimball (1937) V.L.R. 279. 12 Because, in some ways, it is still a developing area of law (see Hicks, supra), I do not by the above suggest that an otherwise lawful imprisonment under which cruel and unusual punishment is imposed may not allow issue of the writ. The writ, after all, formed part of the Bill of Rights 1688 1 Will and Mary sess 2 c 2 together with the prohibition against cruel and inhumane punishment. Conclusion 13 But in these proceedings there is no submission that the imprisonment is unlawful. Nor is it suggested that the imposition of any condition is cruel and unusual or inhumane; nor that the conditions of imprisonment have converted otherwise lawful imprisonment into unlawful imprisonment. 14 Mr Potier is imprisoned pursuant to an extant order of a court with jurisdiction to make the order. The conviction and sentence were imposed prima facie regularly. As earlier stated, Mr Potier seeks liberty because it is in his interests for the purpose of his appeal. This is an interest specifically recited as one of the criteria for the grant of bail: section 32(1) of the Bail Act. 15 However, a court ought not issue a writ of habeas corpus that would be inconsistent with a judgment of a court with jurisdiction to make the order in other than exceptional circumstances. While the judgment or conviction remains unreversed it is, even if erroneous, an answer to a challenge to the lawfulness of the imprisonment: R v Allen (1868) 2 S.A.L.R. 54 (Full Court). 16 The statutory remedy available to Mr Potier is an application for bail. That application has been heard by the Court differently constituted and I make no comment on it. 17 Further to the above, if, as is submitted, there is real prejudice in the preparation of the appeal because of the incarceration of Mr Potier, then one would expect corroborating material from Mr Potier's legal representatives. These are civil proceedings; not criminal. There is an inference available to be drawn that such evidence would not assist Mr Potier: Jones v Dunkel (1959) 101 CLR 298. It is unnecessary to deal with this last point as the application is fundamentally misconceived. 18 I dismiss the application. I make no order for costs. ********** 26/11/2007 - coversheet and judgment heading amended to reflect that his Honour dealt only with 13419/2007 matter. - Paragraph(s) Coversheet and judgment heading 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.