Supreme Court New South Wales Medium Neutral Citation: Potier v The General Manager MSPC, Area 2 Long Bay Correctional Centre [2012] NSWSC 233 Hearing dates: 04/01/12 Decision date: 16 March 2012 Before: Garling J Decision: (1) Application for issue of writ of habeas corpus dismissed. (2) Each party to pay its own costs Catchwords: HABEAS CORPUS - Whether available - Exhaustion of alternative route of bail - Conditions of custody - Difficulty in preparing appeals - No manifest injustice of further incarceration pending appeals Legislation Cited: Felons (Civil Proceedings) Act 1981 Cases Cited: Al-Kateb v Godwin [2004] HCA 37; 219 CLR 562 Burrell v The Queen [2008] HCA 34; 238 CLR 218 Eshugbayi Eleko v Government of Nigeria [1931] 1 AC 662 Hicks v Ruddock [2007] 156 FCR 574 Khawaja v Secretary of State for the Home Department [1984] 1 AC 74 Liversidge v Anderson [1942] 1 AC 206 Potier v General Manager and Governor, Metropolitan Reception and Remand Centre [2007] NSWSC 1031 Potier v R [2006] NSWCCA 27 Prisoners A-XX inclusive v State of New South Wales (1995) 38 NSWLR 622 R v Deputy Governor of Parkhurst Prison; Ex Parte Hague [1992] 1 AC 58 R v Potier [2004] NSWCCA 136 R v Secretary of State for the Home Department; Ex parte Muboyayi [1992] 1 QB 244 Re Officer in charge of cells, ACT Supreme Court; Ex Parte Eastman [1994] HCA 36; 68 ALJR 668 Secretary of State for Home Affairs v O'Brien [1923] 1 AC 603 Category: Principal judgment Parties: Malcolm Huntley Potier (applicant) The General Manager MSPC, Area 2 Long Bay Correctional Centre (first respondent) Regina (second respondent) File Number(s): SC 2011/404581 Publication restriction: Nil Judgment 1Malcolm Huntley Potier applies to the Court for the issue of a writ of habeas corpus. 2The matter came on for hearing in the course of the vacation. Although the Court was informed that the application had been served on the Director of Public Prosecutions, there was no appearance by or on behalf of the Director. 3I determined to proceed to hear the argument advanced by Mr Potier. At the conclusion of the argument, I indicated that I would consider the matter, and if I thought it necessary, would relist the matter and take steps to ensure that a representative of the DPP, or another appropriate contradictor, was in attendance for any further hearing. 4For the reasons which I describe below, the application by Mr Potier for the issue of a writ of habeas corpus is dismissed. It follows that I have not found it necessary to relist the matter for further hearing with respect to his application. Factual background First Offence - 2000 5On 19 September 2001, Mr Potier was indicted before his Honour Judge Hosking SC and a jury in the Sydney District Court, on two counts that between 2 and 8 May 2000 he solicited an undercover police operative to murder Ms Myra Oswald and Mr Glenn Wakeham. 6A plea of not guilty was entered to both counts but, after a trial lasting a little over a month, verdicts of guilty were returned by the jury in respect of each count. On 10 May 2002, Hosking DCJ imposed sentences on Mr Potier for each of the two counts which he ordered to be served entirely concurrently. Each of those sentences was for a period of 6 years and 8 months, commencing on 8 May 2000 with a non-parole period of 5 years. 7Mr Potier appealed against his conviction and sought leave to appeal against the sentence. The Crown sought leave to appeal against the leniency of the sentence. 8On 25 August 2004, the Court of Criminal Appeal (Wood CJ at CL, Simpson and Bell JJ) determined the Crown appeal on sentence. The Court allowed the appeal and varied the sentences by making the head sentence on Count 1 cumulative on Count 2 by a period of 2 years. The adjustment to the non-parole period meant that Mr Potier would serve a total of 6 years and 3 months non-parole rather than the 5 years which Hosking DCJ had imposed. 9The consequence of the sentence imposed by the Court of Criminal Appeal was that the total of the sentences would expire on 8 January 2009 and the non-parole period would expire on 7 August 2006. The Court's reasons are to be found at R v Potier [2004] NSWCCA 136. 10A different Court of Appeal was constituted to hear Mr Potier's appeal against conviction. Having the heard the appeal in the course of 2005, the Court of Criminal Appeal (McClellan CJ at CL, Hislop and Rothman JJ) in a judgment delivered on 17 February 2006, dismissed the appeal against the convictions: Potier v R [2006] NSWCCA 27. 11According to material provided to the Court, in December 2011, Mr Potier filed an application for special leave to appeal, including an application for extension of time within which to lodge the application for special leave to appeal, in the High Court of Australia. He is seeking leave to appeal against the decision of the Court of Criminal Appeal to dismiss his appeal against his conviction in respect of the two counts. 12In part, as I understand it, that application is based upon a submission that the Court of Criminal Appeal made one or more factual errors in its judgment. Mr Potier informs me that he seeks an order from the High Court of Australia to remit the matter to the Court of Criminal Appeal for rehearing as occurred in Burrell v The Queen [2008] HCA 34; 238 CLR 218. Second Offence - 2002 13Whilst awaiting sentence with respect to the first offence, in April 2002 Mr Potier was charged with a further offence of soliciting to murder which was alleged to have been committed whilst he was in custody. 14A trial took place in the Sydney District Court in the period from August to October 2006, at the conclusion of which Mr Potier was found guilty. He was sentenced to a period of imprisonment of 12 years with a non-parole period of 7 years. As a consequence of that sentence, he will become eligible for parole consideration in 2013. As I understand it, although the material before the Court is not precise, the non-parole period of this second sentence commenced at the conclusion of the previous non-parole period. 15A Notice of Intention to Appeal to the Court of Criminal appeal has been filed by Mr Potier against his conviction. As yet, that appeal has not been heard. 16I recount these events, not to make any comment upon them or to indicate any view as to whether the application to the High Court of Australia, with respect to conviction for the first offence, has any prospect of success. I do not know. However, these events form the history and background to Mr Potier's application for the issue of a writ of habeas corpus. Legal Principles to Ground a Writ of Habeas Corpus 17Mr Potier accepted, in oral submissions to me, that the legal principles for the issue of a writ of habeas corpus were correctly summarised in the judgment of Rothman J in another of Mr Potier's applications: Potier v General Manager and Governor, Metropolitan Reception and Remand Centre [2007] NSWSC 1031. 18It is appropriate however that I set out, in relatively brief form, my understanding of the principles of law that govern an application such as this. 19This Court has the power by the issuing of a writ of habeas corpus to peremptorily and swiftly bring an end to any case of illegal restraint or confinement: Secretary of State for Home Affairs v O'Brien [1923] 1 AC 603 at 609 per the Earl of Birkenhead; Hicks v Ruddock [2007] 156 FCR 574 at [35]. 20The writ provides a swift and peremptory remedy because of the historical acceptance that, in common law jurisprudence, a member of the Executive was not entitled to interfere with the liberty of an individual and hence every imprisonment was prima facie unlawful, unless the member of the Executive can, if called upon, justify the legality of the detention: Liversidge v Anderson [1942] 1 AC 206 at 245; Eshugbayi Eleko v Government of Nigeria [1931] 1 AC 662 per Lord Atkin at 670; Khawaja v Secretary of State for the Home Department [1984] 1 AC 74 at [62]-[64] per Lord Scarman. 21As Rothman J said in Potier at [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 ... 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." 22Because a writ of habeas corpus is a basic protection of liberty, its scope ought not be unduly confined. Its scope has been described as " broad and flexible ": Al-Kateb v Godwin [2004] HCA 37; 219 CLR 562 at [25] per Gleeson CJ; and as a writ which is " ...quite capable of adapting itself to the circumstances of the times .": R v Secretary of State for the Home Department; Ex parte Muboyayi [1992] 1 QB 244 at 258 per Lord Donaldson of Lymington MR. 23But the writ is not available in all circumstances. As Deane J said in Re Officer in charge of cells, ACT Supreme Court; Ex Parte Eastman [1994] HCA 36; 68 ALJR 668: "The writ of habeas corpus is an important safeguard of liberty in circumstances where a person is being detained in custody without lawful warrant or authority. It is not, however, available as a means of collaterally impeaching the correctness of a judgment or order made by a court of competent jurisdiction which is not shown to be a nullity." 24There is an outstanding question whether an otherwise lawful imprisonment may be rendered unlawful by reason only of the conditions of detention. Alternatively put, the question is whether a writ of habeas corpus can extend to provide a remedy with respect to the conditions under which a person is held in otherwise lawful detention. In R v Deputy Governor of Parkhurst Prison; Ex Parte Hague [1992] 1 AC 58, Lord Bridge of Harwich said at 165: "I sympathise entirely with the view that the person lawfully held in custody who is subjected to intolerable conditions, ought not to be left without a remedy against his custodian, but the proposition that the conditions of detention may render the detention itself unlawful, raises formidable difficulties." 25However, his Lordship was not persuaded in the circumstances of the particular case that a writ of habeas corpus extended to deal with such issue. 26The Court of Appeal in Prisoners A-XX inclusive v State of New South Wales (1995) 38 NSWLR 622, found it unnecessary to decide whether: "a prisoner enjoys a right of 'residual liberty' vis-a-vis the State and whether the writ of habeas corpus runs where a person is illegally held in a prison within a prison." 27Their Honours also did not determine whether there was any authority to support the submission that " intolerable conditions " were sufficient to enable a court to issue a writ of habeas corpus. Mr Potier's Application 28Mr Potier's application to the Supreme Court to issue a writ of habeas corpus consisted of the following documents filed on 15 December 2011: (a)writ of habeas corpus, (b)notice of motion seeking: (i) a summons and writ of habeas corpus to be issued by the Court in favour of the applicant on such terms as the Court sees fit. (ii)leave, if leave be required, for the applicant to bring these proceedings under the Felons (Civil Proceedings) Act 1981. (iii) any other Orders that this Court shall see fit to grant, (c)supporting affidavit of Mr Potier, sworn 14 December 2011, (d)written submissions in support of the application, and (e)summons seeking leave to commence proceedings, if leave be required under the Felons (Civil Proceedings) Act. 29In addition, Mr Potier relied on a folder of documents referred to as MHP-1, being the appeal book from his application for review of bail on 1 November 2011 before the Court of Criminal Appeal. He also relied on a document referred to as MHP-2, a copy of a letter of 1 November 2011 written by Mark Rumore, Mr Potier's solicitor during his first trial. 30Mr Potier's submissions can be conveniently categorised as follows: (1)The writ of habeas corpus is available as Mr Potier has exhausted all other available options, to secure his release from custody. (2)The Court ought issue the writ because: (i)a miscarriage of justice occurred in his first trial, which subsequently infected his second trial. (ii) preparation for appeals from both trials is restricted whilst Mr Potier is in custody (iii) the appellate pathways for both trials, if successful as Mr Potier contends, would not result in Mr Potier's release from custody before he is eligible for parole, which is manifestly unjust. Exhaustion of bail options 31Mr Potier submitted that it was necessary for him to demonstrate to the Court, as a precondition to any successful application for the issue of a writ of habeas corpus, that he had exhausted all other avenues of obtaining his release from custody, including applying for, but being refused bail. 32In his supporting affidavit and oral submissions, he outlined his attempts to be released on bail. Ultimately, the position is that the Court of Criminal Appeal heard his application on 1 November 2011, and he was refused bail (CCA File 2005/14700). 33Mr Potier accepts that one way in which his arguments might be addressed is by a grant of bail with respect to his pending appeal in the High Court of Australia, or else his pending appeal in the Court of Criminal Appeal. However, he submits that all of his previous applications for bail have failed and that the probabilities are that the Court would not exercise any discretion to allow him bail. Restricted preparation for application for special leave to the High Court 34In oral submissions, Mr Potier puts that he has difficulty preparing material with respect to his appeal to the High Court of Australia with respect to his first conviction, and to the Court of Criminal Appeal in respect of his second conviction, in circumstances where he is essentially appearing himself, and if not appearing for himself, having to do much of the preparatory work himself, because of the very restricted facilities in prison. He submits that these conditions of imprisonment are sufficient to justify the issue of a writ of habeas corpus. 35If there is a residual discretion in a court to issue a writ of habeas corpus having regard to " intolerable " conditions of imprisonment, then there is nothing in the evidence or in the submissions about the conditions of imprisonment to which Mr Potier is subjected which could possibly fall within that description. A lack of adequate facilities, if there be one, to pursue legal remedies, is not a ground for the issue of a writ of habeas corpus. 36In addition, it should be noted, Mr Potier states in his written submissions at [20] that this "is not a complaint about prison conditions, which could be rectified, by negotiation; rather a fundamental right to have all matters, for release from custody, considered by the [Supreme Court of NSW]". 37This submission seems implicitly to accept that his conditions of incarceration, whatever they may be, do not fall anywhere near the concept of amounting to a " prison within a prison " to which the earlier authorities have referred as a possible residual basis for a grant of a writ. 38Accordingly, I do not find it necessary to form any concluded view as to whether the authorities establish that such a basis exists for the issue of a writ. Manifest injustice of further incarceration pending appeals 39Mr Potier submits that the Court ought conclude that his first conviction was a miscarriage of justice and that as a consequence his imprisonment on that conviction cannot be justly or lawfully maintained. He further submits on appeal from his first conviction, the Court of Criminal Appeal made an error in deciding certain evidence was not fresh evidence. 40Mr Potier next submits that if his convictions in respect of the first matter are quashed, then it would follow that there has been a miscarriage of justice in his second trial because, during the course of that trial, tendency and coincidence evidence arising form his conduct in respect of the first offence, together with evidence of his earlier convictions, was admitted, and was before the jury. 41His submission moves from those conclusions with respect to his two current convictions to the submission that a writ of habeas corpus ought to issue because his detention in prison is wrongful having regard to the likely outcome of the application to the High Court of Australia which is yet to be determined with respect to the conviction for the first offence. 42In putting these submissions, Mr Potier accepted that his application for the issue of a writ would necessarily involve a collateral attack on the convictions which presently stand. However, he submitted that since the determination of an application for issue of a writ of habeas corpus was an exercise of the civil, rather than criminal, jurisdiction of the Supreme Court, the respect paid to the convictions entered consequent upon jury trials, and in the case of the first conviction, maintained, after an unsuccessful appeal by Mr Potier, does not constrain this application. 43It was accepted by Mr Potier that the non-parole period imposed with respect to the first set of convictions has expired and it was also accepted that the whole of the maximum term of imprisonment for the first convictions expired in 2009. 44Mr Potier accepted, as is the fact, that his present imprisonment is wholly based upon the term of imprisonment to which he was sentenced in the Sydney District Court on 13 November 2006. It is to be remembered that he received a 12 year imprisonment term with a 7 year non-parole period which was expressed to commence on 7 August 2006 (the expiry of his previous non-parole period) and to continue until 6 August 2013. 45Mr Potier submits that the prospect of him progressing through his appeals, if successful, and being acquitted, before August 2013 is " dim". He submits that this, in the context of what he describes as the miscarriages of justice in his trials, further adds to the appropriateness of the issue a writ of habeas corpus. He submits that his ongoing detention is wrongful and a manifest injustice because it does not recognise that his convictions are highly likely to be set aside upon the basis of a miscarriage of justice at his trials. Discernment 46Because his present imprisonment is due to the sentence imposed in the Sydney District Court in 2006, after a finding of guilty by the jury with respect to the second offence, he must demonstrate that there is evidence before the Court, or else some material available which would indicate that his imprisonment is unlawful. 47Alternatively put, to use the phrase of Justice Deane in the High Court of Australia in Eastman , he is obliged to show that his conviction in 2006, for the second offence (and hence his sentence) is a nullity. 48Mr Potier did not make a submission in those terms. Rather, he submitted, as I have referred to earlier, that the overwhelming likelihood was that once his first conviction had been set aside by either the High Court of Australia or the Court of Criminal Appeal (on referral from the High Court of Australia), then it would follows automatically that his second conviction would be set aside because of the wrongful admission in that second trial of evidence relating to his first conviction. 49I was not provided with the record, including the transcript of his second trial in 2006, and so I could not undertake an examination of those proceedings. Accordingly, it is not possible to formulate a view, even if this were an appropriate approach, that his conviction was wrongful, or else would be likely to be set aside. 50Mr Potier merely contented himself with assertions of the likely outcome of his appeal against the conviction for the second offence. These submissions do not provide an adequate basis for any relief. Summary 51It follows that I am not satisfied that Mr Potier has put before the Court any material which can suggest that: (a)his conviction (and sentence) are a nullity; (b)there is a high probability that either of his convictions would be set aside; (c)his ongoing imprisonment is a manifest injustice against which the Court would grant relief. 52In summary, I am not satisfied that there is any basis for the issue of a writ of habeas corpus. 53Because I have reached that conclusion, there is no need for me to seek the assistance of a representative of the Crown and no useful purpose to be served in relisting the matter for further argument. Previous habeas corpus applications by Mr Potier 54This is not the first application made by Mr Potier for the issue of a writ of habeas corpus. An application made on 24 August 2007 was dismissed by Rothman J on 30 October 2007. His Honour there held that Mr Potier was imprisoned pursuant to an extant order of a Court with jurisdiction to make the order - referring to the sentence of imprisonment consequent upon his first conviction. His Honour then went on to determine the application in this way: "15. However, a court ought not issue a writ of habeas corpus that would be inconsistent with the 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 SALR 54 (Full Court)." His Honour declined to issue a writ noting that the statutory remedy available to Mr Potier was an application for bail. 55On 3 March 2008, Justice Hidden heard an application made by Mr Potier seeking the issue of a writ of habeas corpus. It was submitted to his Honour that it was necessary for Mr Potier to obtain leave under s 4 of the Felons (Civil Proceedings) Act . His Honour ultimately determined that leave should not be granted because he was not satisfied that Mr Potier had established a prima facie ground for issue of the writ of habeas corpus. The application to Hidden J was based upon Mr Potier's stated need to be released from custody so that he could prepare documents and make arrangements to enable the filing of an application for special to appeal to the High Court of Australia. His Honour recorded that in the proceeding before him, Mr Potier did not dispute that "...he has been lawfully imprisoned in accordance with the order of the Court." It is apparent that the basis for Mr Potier's challenge to his imprisonment and the appropriateness of the issue of a writ of habeas corpus, was based upon the conditions of his imprisonment. 56That application was dismissed because Hidden J held that it was unsustainable in light of the Court of Appeal's decision in Prisoners A-XX to which I have earlier made reference. 57Although I have not relied upon the fact that those applications have been unsuccessful, the fact is that my conclusion is not inconsistent with those decisions. The same result has been reached in each case by reason of an application of the same legal principles, namely that until Mr Potier can show that his imprisonment is unlawful because his conviction (and sentence) for the second offence is a nullity, there is no basis for his release from custody. Felons (Civil Proceedings) Act 1981 58Since I have not been persuaded as a matter of substance, that any grounds exist for the issue of a writ of habeas corpus, I prefer not to express any view on whether the Felons (Civil Proceedings) Act requires that an applicant for a writ of habeas corpus is obliged to obtain a grant of leave under the Act before proceeding. 59I prefer not to express a view because it is unnecessary so to do, and because I have not had the benefit of full argument on the issue. Orders 60I make the following orders: (1)Application for issue of writ of habeas corpus dismissed. (2)No order for costs. ********** 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. Decision last updated: 16 March 2012