New South Wales Supreme Court CITATION : Potier v Ruddock & MRRC [2008] NSWSC 153 HEARING DATE(S) : 15/05/06; 17/05/06; 19;05/06; 25/05/06; 01/06/06; 15/03/07; 03/05/07; 01/06/07 JUDGMENT DATE : 3 March 2008 JURISDICTION : Common Law Division JUDGMENT OF : Hidden J at 1 DECISION : Leave under s4 Felons (Civil Proceedings) Act refused. CATCHWORDS : PRISONERS: - Habeas Corpus - whether available - conditions of custody - applicant wishing to lodge High Court special leave application - difficulty in complying with High Court rules while in custody LEGISLATION CITED : Felons (Civil Proceedings) Act 1981 (s5) CATEGORY : Principal judgment Potier v General Manager/Governor MRRC [2007] NSWSC 1031 Prisoners A – XX Inclusive v State of New South Wales (1995) 38 NSWLR 622 CASES CITED : Miller v The Queen (1985) 24 DLR (4th) 9 R v Deputy Governor of Parkhurst Prison; ex parte Hague [1992] 1 AC 58 Behrooz v Secretary of Department of Immmigration and Multicultural and Indigenous Affairs (2004) 219 CLR 486, [2004] HCA 36 Malcolm Huntley Potier (applicant) PARTIES : General Manager, Metropolitan Remand and Reception Centre (respondent) Philip Ruddock, Commonwealth Attorney General (1st named respondent) FILE NUMBER(S) : SC 11987/2006 COUNSEL : Applicant in Person S Robson (respondent) SOLICITORS : Applicant in Person Crown Solicitor (respondent) IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION HIDDEN J Monday 3 March 2008 2006/11987 Malcolm Huntley Potier v (Philip Ruddock, Commonwealth Attorney General) & the General Manager of the Metropolitan Remand and Reception Centre JUDGMENT 1 HIDDEN J: This is yet another proceeding instituted by the applicant, Malcolm Huntley Potier, arising from his imprisonment after his conviction of two counts of soliciting to murder. He filed a motion seeking the issue of a writ of habeas corpus, for reasons which I shall explain shortly. He joined as respondents to the motion the honourable Philip Ruddock, Commonwealth Attorney General at the relevant time, and the General Manager of the Metropolitan Remand and Reception Centre, the prison where he was then being held. The joinder of Mr Ruddock was misconceived, he has not been served and the applicant no longer seeks any remedy against him. The active respondent is the general manager of the prison to which I have referred, who has been represented by Mr Robson of counsel. 2 To pursue the application, the applicant requires leave under s 4 of the Felons (Civil Proceedings) Act 1981. Section 5 of that Act provides that a court must not grant such leave unless it is satisfied "that the proceedings are not an abuse of process and that there is prima facie ground for the proceedings …". In his motion the applicant seeks that leave. The respondent has filed a motion seeking that leave be refused or, alternatively, that the proceedings be summarily dismissed. 3 The issue arises in this way. The applicant's appeal to the Court of Criminal Appeal against his conviction was dismissed. He has wished to apply for special leave to appeal to the High Court, but has been unable to lodge that application because he cannot comply with High Court rules which require that it be typed and that it be filed in person. A handwritten application which he forwarded to the High Court registry was rejected. A letter to him from the principal registrar of that court of 20 February 2006 conveys that there were additional reasons for the rejection of that application, but that is not material for present purposes. The same letter explains that the requirement that initiating documents be filed in person could be met by the applicant having someone else file them on his behalf. Nevertheless, the applicant pursues the present application. He complains that he has not been able to gain access to typing facilities in custody. He has filed numerous documents in various proceedings in this Court, but all of them have been hand written. 4 The leave he seeks is for the purpose only of temporary release so that he can prepare and file an application for special leave in compliance with the rules. He does not dispute that he has been lawfully imprisoned in accordance with the order of a court. His affidavit evidence about the difficulty he faces in complying with the High Court rules because of the circumstances of his custody was not challenged, no doubt because the respondent's stance is that his application must fail as a matter of law. 5 The evidence includes an affidavit filed in court on 1 June 2007 in which, among other things, he complains that he has not been given access to typing facilities despite a recommendation by McClellan CJ at CL in May 2006 that they be provided to him. That affidavit also refers to another conviction he sustained after a further trial and to difficulties which he has in preparing an appeal to the Court of Criminal Appeal against that conviction. That part of the affidavit does not appear to me to be relevant to the present application, and I would reject it. However, it was the subject of a further application for habeas corpus dealt with recently by Rothman J, and it will be necessary to refer to his Honour's judgment in that case: Potier v General Manager/Governor MRRC [2007] NSWSC 1031. 6 The applicant developed his arguments at length over several separate hearing days, furnishing written submissions and a volume of learning to be found in authorities and articles. Some of the authority to which he referred dealt with the undoubted importance of a citizen's unimpeded access to the courts. He also took me to authorities on the remedy of habeas corpus not only in this country but also in other jurisdictions, including Canada and the United States. The difficulty he cannot surmount, however, is that authority which binds me is squarely against the use of habeas corpus in the circumstances in which he seeks to invoke it. 7 In Prisoners A – XX Inclusive v State of New South Wales (1995) 38 NSWLR 622, the Court of Appeal rejected the proposition that conditions of custody might be such that imprisonment, otherwise lawful, is rendered unlawful and the prisoner is entitled to release. Sheller JA, in the leading judgment, examined the writ of habeas corpus at 627ff. He noted that, broadly, the writ is available "to secure the liberty of a person improperly detained…". He referred to the Canadian decision of Miller v The Queen (1985) 24 DLR (4th) 9, in which the Supreme Court of Canada recognised a prisoner's "residual liberty", infringement of which might support a writ. In that case, the court granted habeas corpus to secure a prisoner's removal from a place of special confinement and his return to the general prison population. In effect, the prisoner was released from a prison within a prison. 8 The background to the Prisoners A – XX case itself was the refusal of the NSW Department of Corrective Services to supply condoms to male prisoners, or to permit the possession or use of them. It was this which raised the issue whether imprisonment could be rendered unlawful by unfavourable custodial conditions. The court ruled that it could not, adopting the reasoning of the House of Lords in R v Deputy Governor of Parkhurst Prison; ex parte Hague [1992] 1 AC 58. After reviewing the speeches in that case, Sheller JA concluded (at 630): The House of Lords decision precludes the use of habeas corpus to review conditions of imprisonment either on the basis that a prisoner enjoys against the State or a governor of a prison a legal right to "residual liberty", meaning a species of freedom of movement within a prison, or on the basis that "intolerable" conditions of detention make the imprisonment unlawful. 9 His Honour added (at 633) that it was unnecessary to consider whether a prisoner enjoys a right of "residual liberty" where that person is held illegally in "a prison within a prison". He expressed the view that the Canadian Supreme Court provided "powerful authority in support of that proposition". He added, however, that there was "no such compelling authority" to support the "intolerable conditions" submission, noting that such conditions might found an action for negligence or for administrative review. 10 The issue was revisited by the High Court in Behrooz v Secretary of Department of Immmigration and Multicultural and Indigenous Affairs (2004) 219 CLR 486, [2004] HCA 36. That case was concerned with immigration detention, but in the course of the judgments the Court of Appeal's decision was cited with approval. In the light of this authority, the present application for habeas corpus is unsustainable. It is based only upon the asserted conditions of the applicant's custody, and is in no way analogous to the situation for which relief was granted in Miller v the Queen. 11 It was while my judgment was reserved in this matter that Rothman J dealt with the other application to which I have referred. The applicant sought release through the issue of a writ of habeas corpus in order to allow him better facilities and access to his lawyers for the purpose of preparing his appeal from his later conviction. After examining a different line of authority, his Honour also concluded that no basis had been established for the remedy and dismissed that application. 12 Accordingly, I am satisfied that the respondent's motion should be granted. It is appropriate that I do so on the basis that the applicant has not established a prima facie ground for these proceedings within the meaning of s5 of the Felons (Civil Proceedings) Act. That being so, leave under s4 of that Act is refused. The respondent's motion seeks costs. While it is unlikely that any such order would have any utility, the parties should have the opportunity to be heard on that question. ********** 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.