New South Wales Supreme Court CITATION : CRIBB v REGINA [2008] NSWSC 265 This decision has been amended. Please see the end of the judgment for a list of the amendments. HEARING DATE(S) : 7 March 2008 JURISDICTION : Common Law JUDGMENT OF : Adams J at 1 EX TEMPORE JUDGMENT DATE : 7 March 2008 DECISION : No decision; application withdrawn. CATCHWORDS : Mandatory life sentence - application for redetermination - withdrawal - whether leave of Court required - whether Court can order that further application not be made for specified period. LEGISLATION CITED : Crimes (Sentencing Procedure Act) 1999 cls 4, 6, 7 of schedule 1 District Court Act 1973 CASES CITED : Reischauer v Knoblanche (1987) 10 NSWLR 40, 31 A Crim R 240 PARTIES : John Ernest CRIBB (Applicant) REGINA (Respondent) FILE NUMBER(S) : SC 1998/05 COUNSEL : Mr A Haesler SC (Applicant) Mr L Babb SC (Respondent) SOLICITORS : Mr J Grahame, Prisoners Legal Service (Applicant) S C Kavanagh (Respondent) LOWER COURT JURISDICTION : Supreme Court LOWER COURT JUDICIAL OFFICER : Roden J LOWER COURT DATE OF DECISION : 22 May 1979 IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION ADAMS J Friday 7 March 2008 1998/05 JOHN ERNEST CRIBB v REGINA JUDGMENT 1 HIS HONOUR: On 11 August 1978 the applicant, John Ernest Cribb, committed four extremely serious crimes, three of murder and one of rape. Following pleas of guilty after an issue of fitness to plead was determined against him, he was sentenced on 22 May 1979 to life imprisonment for each of the three murders and 12 years imprisonment for the crime of rape, each sentence dating from the 22 May 1979. 2 The life sentences, in accordance with the law as it then stood, were mandatory and, of course, it was unnecessary for the judge to dilate upon the reasons for those sentences since they applied by operation of law. At that time, however, there was a procedure available, which it is not to the point to presently discuss, which would have permitted, in the event of certain procedures having been followed and certain permissions given, the applicant to be released from prison before his life sentences were terminated in the natural way. Following the 1989 abolition of mandatory life sentences, legislation permitted persons who had been earlier sentenced to life imprisonment by operation of law to apply to this Court to seek a determinate sentence. The orders available are specified in cl 4 of Schedule 1 to the Crimes (Sentencing Procedure) Act 1999. The Court can set a specified term for the sentence together with a non-parole period, decline to set a specified term for the sentence but set a non-parole period or decline to set either a specified term for the sentence or a non-parole period. Clause 6 of the Schedule provides for the consequences of the Court declining to set a specified term or a non-parole period. When that occurs, the Court may direct that the offender may never reapply to the Court for a determination or may not reapply for a specified period of time. If the Court does not give a direction under the clause the offender may not reapply within the period of three years from the date of the Court's decision. 3 On 1 May 1991, the applicant made an application to have his sentence redetermined by this Court. On 26 August 1993, the application was heard and judgment was reserved. On 12 November 1993, the Court declined to set minimum and additional terms and dismissed the application. The applicant appealed to the Court of Criminal Appeal which, on 4 November 1994, dismissed the appeal. 4 In July 1998 the applicant filed a further application for a redetermination of his sentence but nothing appears to have been done so far as the Court was concerned until February 2006, when the Prisoners' Legal Service advised the Court that the applicant had been undertaking certain programmes within the prison system and did not wish to proceed with his application until those programmes were completed. In December 2006, the application was called over before the list judge for directions and stood over to a date to be fixed, awaiting the outcome of the prisoner's then situation. On 24 May 2007 the application was called over before the Registrar of the Court of Criminal Appeal, who was informed that it was to proceed but that reports that were required for the purposes of the application still needed to be prepared. This was also the position when the matter was called over again on 16 August 2007 and on 25 October 2007. Eventually, on 6 December 2007, the matter was ready to proceed and was fixed for hearing today. 5 On 5 March, namely two days ago, my Associate was informed that the applicant did not wish to proceed with his application and wanted to withdraw it. I am not sure when the Director of Public Prosecutions was informed of that decision but it was at about the same time. When the matter came on for hearing before me the applicant was not present but he was represented by Mr Haesler SC. Senior counsel also appears for the Director. The information that the applicant wished to withdraw his application was confirmed. Withdrawal was not opposed by the Crown Prosecutor but it was submitted that the leave of the Court was necessary and that the Court should order that the applicant could not make a further application for a redetermination for a period of five years. 6 The legislation does not deal with the issue of withdrawal. It is, I think, a matter of first principle that a person who seeks to instigate a proceeding can always, unless the circumstances are exceptional or some rule of law otherwise prevents it, not press the matter and withdraw the originating process. One of those exceptions arises when there is a withdrawal of an appeal from a Local Court to a District Court. The relevant provisions of the District Court Act did not (but now do) provide for withdrawal but provide for hearing and determination of the appeal. In Reischauer v Knoblanche (1987) 10 NSWLR 40 at 45-46; 31 A Crim R 240 at 245, the Court of Appeal held that there was a right to withdraw such an appeal but that there was an implicit requirement that leave first be granted. This was because there were procedural and other ancillary effects that arose from the institution of an appeal. The President said (10 NSWLR 40 at 45) – "A number of practical reasons suggest that leave should be required. These include the resolution of any order that should be made for the costs incurred by the prosecution as a consequence of the appeal, the necessity in some cases to make orders concerning the custody of the appellant who may have entered recognisances containing conditions that he will prosecute the appeal, the need in some cases where the execution of the conviction or order has been stayed...to provide for the appellant's return to custody and the power of the District Court in disposing of the hearing of the appeal to exercise its powers in resentencing the appellant effectively to increase the sentence imposed in the Local Court." 7 It is immediately apparent that nothing in the present proceedings reflects or is analogous to the ancillary requirements to which the President referred. No question of costs arises. The applicant is continuing to serve his sentence. There were no undertakings as to his pressing his application. No orders concerning the disposition of the application, (subject to the question of leave), or the disposition of the applicant need to be made. The questions are whether leave is needed and there is this Court has jurisdiction to make any orders following the withdrawal of an application. 8 It is not suggested by the Crown that an undertaking not to make an application within a specified time should be extracted as a condition of granting leave. It is submitted that the Court should grant leave to withdraw the application and make the additional substantive order that no further application could be made for the five year proposed period. It is said such an order may be made under cl 4 by way of "disposing" of the application by permitting its withdrawal. 9 There are several answers to this contention but the most obvious and simplest seems to me to be this: the power of the Court to prohibit further applications contained in cl 6 of the schedule can only be exercised where there is a hearing within the meaning of cl 7. That clause refers to the matters to which the Court must have regard in such a hearing. These are reports on the offender made by relevant bodies, the need to preserve the safety of the community (that would scarcely be significant where the question of release is not being considered but merely the question of when an application may be made), the age of the offender and other relevant matters. 10 The Crown sought to tender an affidavit setting out the facts of the offence – no doubt these are not disputed – and a communication from members of the family of the victims. Such matters, I think, would be relevant (to a greater or lesser degree) on the determination of an application and the making of an order under cl 6 but they plainly do not exhaust the relevant matters to which a Court must have regard under cl 7. 11 It would be bizarre if a Court can make an order under cl 6 such as that presently being sought only after a full hearing and after considering all relevant matters and also can make such an order, as it were, as ancillary to an application to withdraw an application for redetermination and in the absence of the cl 7 material essential to considering a substantive application. I do not think this reflects the sense or logic of the Schedule. 12 The jurisdiction under cl 4 is headed "Determination of an Application". Whilst it is true that the heading given to clauses or sections is not to be taken as part of the section or provision, nevertheless it indicates to my mind what is evident upon any fair reading of the Schedule, namely, that the disposition by the Supreme Court of an application in relation to an existing life sentence under cl 4 must follow a full hearing and a consideration of all the specified matters in cl 7. It cannot apply to a situation where an applicant does not seek to have his or her sentence determined. Despite, therefore, the generality of the phrase "dispose of an application" in cl 4, I think it is clear that the clause does not apply where an application is withdrawn. In that case, I do not think this Court "disposes" of it in the sense in which that word is used in cl 4. Nor do I think that leave is required for a withdrawal. 13 The exercise of a statutory jurisdiction must be either explicit or necessarily implicit in the grant of an explicit jurisdiction. The jurisdiction which the Crown asks me to exercise here is certainly not explicitly within the provisions of Sch1, nor do I think it is implicitly necessary. The Court is perfectly capable of determining an application which is proceeding. It does not need to determine an application which is not proceeding. It is not necessary, or indeed even convenient, to import some leave requirement of uncertain scope that gives the Court a discretion which is indeterminable by the application of any rule of law or practice. This must still more be the case where the effect of what is sought is a significant limitation on the right given by the Act to a person to make an application. 14 As I have said, the Crown has not submitted that an undertaking should be extracted from the applicant in accordance with the period proposed as a condition of granting leave and, if I may say so, it was right not so to cast its case, but the alternative is a submission that, where an application is withdrawn there is a concomitant power in the Court to prohibit a further application being made for a specified time, although no hearing or full hearing is to be conducted and in relation to which (if he wished) the applicant, or more accurately non-applicant, could simply, could simply be absent and the matter proceed as it were ex parte where the Crown is in substance, if not in form, the moving party. I see this as not only not authorised by Sch1 but as a contravention of the clear process which is expressed in the Schedule. 15 I can understand, and indeed I sympathise with, the concern of the family of the victims that this matter might be agitated again and necessarily then raise in an acute form memories of the most dreadful kind. However I do not sit to impose laws of convenience and I am bound also to consider that, although they be limited, the applicant also has some rights, however unsympathetically those rights might be regarded by others. The most fundamental principle, of course, is that it is not for this Court to invent a jurisdiction, still less to do so where it adversely affects the liberty of the subject. Accordingly, I decline to grant leave because in my view leave is not necessary and I decline to make any order on the application. The Court record will simply note that the application is withdrawn. 16 I would, however, make this observation. Mr Haesler SC for the applicant has indicated that, if the Court had held that there was a jurisdiction to make an order of the kind sought by the Crown, his client would have consented to it. That consent would, if there were a complete hearing of the matter within the Schedule, have been a material fact, but it is plainly not a fact which would have bound the Court. Adherence, however, by the applicant to the indication that he was prepared to agree not to make an application for five years would, I should think, be a material factor, if after the period of five years expires he then makes an application for a determinate sentence. That, of course, is not in any sense to indicate a view about what the outcome of any such application might or ought to be but it strikes me as being capable of being a relevant feature. Accordingly, it is not without some significance. ********** 26/03/2008 - Wrong solicitor on coversheet - Paragraph(s) Coversheet 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.