Supreme Court New South Wales Medium Neutral Citation: Green v Severin [2013] NSWSC 495 Hearing dates: 29 April 2013 Decision date: 07 May 2013 Jurisdiction: Common Law Before: Hoeben CJ at CL Decision: Plaintiff's Summons is dismissed pursuant to Rules 13.4(1) and 14.28(1) UCPR. Plaintiff is to pay the defendant's costs of the Motion. Plaintiff is to pay the defendant's costs of the proceedings. Catchwords: PRACTICE AND PROCEDURE - application for Writ of Habeas Corpus by person in custody following trial and sentence - application by defendant to dismiss Summons - application for writ challenges conduct of trial and validity of conviction - application for writ collaterally impeaching order of court - application for writ misconceived - summons dismissed with costs. Legislation Cited: Crimes Act 1900 Crimes (Administration of Sentences) Act 1999 Crimes (Sentencing Procedure) Act 1999 Felons (Civil Proceedings) Act 1981 Cases Cited: General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; 112 CLR 125 Governor of Lewes Prison; Ex parte Doyle [1917] 2 KB 254 Potier v General Manager and Governor, MRRC [2007] NSWSC 1031 Prisoners A - XX inclusive v the State of New South Wales (1995) 38 NSWLR 622; 79 A Crim R 377 R v Deputy Governor of Parkhurst Prison; Ex parte Hague [1992] 1 AC 58 Parole Board (NT) v Gamarrow (1993) 70 A Crim R 189 Re Officer in Charge of Cells, ACT Supreme Court Ex parte Eastman [1994] HCA 36; 68 ALJR 668 Category: Principal judgment Parties: Peter James Green - Plaintiff Peter Severin - Defendant Representation: Counsel: Solicitors: File Number(s): 2013/016012 Judgment 1HIS HONOUR: Nature of Proceedings The plaintiff moves by Summons, filed 17 January 2013, for the following relief: "The immediate release of Peter James Green by Writ of Habeas Corpus." 2Four affidavits, sworn by Rami Subhiyah, have been filed in support of the Summons. While these documents purport to be affidavits, they are in fact submissions. Mr Subhiyah sought leave to appear on behalf of the plaintiff, pursuant to a General Power of Attorney, filed 13 February 2013. The defendant did not oppose Mr Subhiyah appearing on behalf of the plaintiff. Accordingly, the matter proceeded on that basis. 3By Motion, filed 7 March 2013, the defendant sought the following orders: 1. An order that the proceedings be dismissed pursuant to r 13.4(1) of the Uniform Civil Procedure Rules 2005 (UCPR). 2. In the alternative, an order that the whole of the pleadings be struck out pursuant to r 14.28 UCPR. 3. That the plaintiff pay the costs of this Motion. 4. That the plaintiff pay the defendant's costs of the proceedings. 4The defendant's Motion came before the Court for hearing on Monday, 29 April 2013. The plaintiff (who is presently serving a prison sentence) was able to see and hear the proceedings as a result of an audiovisual link. Factual background 5The plaintiff was charged with two counts: 1. Between 1 October 2010 and 21 October 2010 inclusive at Ingleburn in the State of New South Wales he did have sexual intercourse with MS, a person then under the age of 10 years, who was at the time under the authority of [the plaintiff] ("Count 1"). 2. Between 1 October 2010 and 21 October 2010 inclusive at Ingleburn in the State of New South Wales, he did incite MS to commit an act of indecency, she being under the age of 10 years, namely 5 years ("Count 2"). The plaintiff pleaded not guilty and the matter went to trial before Judge Haesler SC and a jury. The trial proceeded in the District Court at Campbelltown between 21 - 24 November 2011. On 25 November the jury found the plaintiff guilty of both counts. 6On 7 May 2012 Judge Haesler SC passed sentence on the plaintiff in respect of both counts. The total effective sentence was imprisonment with a non-parole period of 5 years, commencing 25 November 2011 and expiring 24 November 2016 with a balance of term of 3 years, expiring 23 November 2019. 7On 7 May 2012, P. White, the authorised officer at the Campbelltown District Court, issued to the General Manager sentence warrants to imprison the plaintiff in respect of the offences constituting both counts. The plaintiff was imprisoned in accordance with the warrants and is currently serving the sentence imposed by Judge Haesler SC. 8The sentence imposed by Judge Haesler SC has not been overturned on appeal. Submissions and consideration 9Rule 13.4 UCPR relevantly provides: "13.4(1) If in any proceedings it appears to the court that in relation to the proceedings generally or in relation to any claim for relief in the proceedings: (a) The proceedings are frivolous or vexatious, or (b) No reasonable cause of action is disclosed, or (c) The proceedings are an abuse of the process of the court, the court may order that the proceedings be dismissed generally or in relation to that claim. ..." 10Rule 14.28 UCPR relevantly provides: "14.28(1) The court may at any stage of the proceedings order that the whole of any part of a pleading be struck out if the pleading: (a) Discloses no reasonable cause of action or defence or other case appropriate to the nature of the pleading, or (b) Has the tendency to cause prejudice, embarrassment or delay in the proceedings, or (c) Is otherwise an abuse of the process of the court. ..." 11In this application, the defendant does not argue that the plaintiff requires leave, pursuant to s4 of the Felons (Civil Proceedings) Act 1981. The plaintiff does not challenge the warrants committing him to imprisonment. Rather, the plaintiff challenges the trial process as a result of which he was convicted and sentenced. 12In his affidavit of 17 January 2013 Mr Subhiyah specified the grounds for the issuing of the Writ of Habeas Corpus as: "(a) A failure to comply with statutory procedure. (b) Lack of jurisdiction. (c) Abuse of discretion. (d) Acting for improper collateral purpose. (e) On the face of the record. (f) Breach of the principles of natural justice. (g) Notice of constitutional matter." 13In relation to (a), (b) and (c) Mr Subhiyah challenged the conduct of the trial and the validity of the findings of guilt. He submitted that there was evidence that should have been adduced but which was not. He identified matters upon which prosecution witnesses should have been cross-examined but were not and was critical of the conduct of the plaintiff's legal representatives at the hearing. 14The nature of the submissions supporting (a), (b) and (c) can be seen from the subheadings: (i) The plaintiff's defamation during proceedings by KK, the mother of the victim, MS. (ii) KK's Facebook posts. (iii) KK's lack of concern for the victim after the allegation. (iv) KK initiating intercourse with [the plaintiff] on the night of the victim's allegation. (v) Inconsistency in victim's interviews. (vi) Evidence of false memory implantation in victim. (vii) KK's relationship with a witness involving a conflict of interest. (viii) Victim admitting KK showed her the sexually explicit picture. (ix) The victim's history of lying. (x) The Officer in Charge prompting the victim during the interview. (xi) No motive explained to jury. (xii) Lack of grounds to use KK's history and character in the proceedings. (xiii) General negligence and dishonesty by the plaintiff's counsel at trial and the solicitor. 15In relation to section (d), "Acting for improper collateral purpose", Mr Subhiyah made submissions concerning the payment of the legal practitioners generally and payment of the plaintiff's legal representatives at trial. 16In relation to section (e), "On the face of the record", Mr Subhiyah referred to statements allegedly made by his Honour during the sentencing proceedings. He submitted that "There is no substantial evidence in the record of [the plaintiff] being guilty of this allegation against him. Haesler DCJ can confirm any doubt THE COURTS may have that this is not a verdict beyond reasonable doubt." In essence, there is an attack on the validity of the findings of guilt at trial. 17In section (f), "Breach of the principles of natural justice", submissions were made alleging the offence of false imprisonment, contrary to s16C of the Crimes Act 1900. It was submitted that "for the imprisonment to be false, the prisoner must be innocent, in which for [the plaintiff's] case there is no credible evidence proving he is guilty of this crime and therefore [the plaintiff] should still, by rule of law, be innocent of any crime until proof of his guilt is established by proceedings according to law. If the proceedings also did not comply with law, then there is an unquestionable justification for his release". The challenge is to the validity of the finding of guilt. Complaint was also made concerning the plaintiff's conditions of detention at the Silverwater facility before he was transferred to the Long Bay Correctional Centre. 18In section (g), "Notice of constitutional matter", submissions were made about the plaintiff not being able to afford a legal practitioner with appropriate expertise when the matter was tried. Submissions were made concerning the operation of the "Silverwater facility and the Long Bay Correctional Centre". 19In support of its Motion, the defendant made submissions as follows: (a) The plaintiff was found guilty of the offences in Counts 1 and 2 following a trial by jury on 25 November 2011. His sentence was imposed by Judge Haesler SC in valid exercise of the District Court's jurisdiction to do so. (b) Following the imposition of that sentence, an authorised officer issued warrants for the commitment of the plaintiff pursuant to s62(1) of the Crimes (Sentencing Procedure) Act 1999 (CSP Act). By s62(3) a warrant issued under that provision is sufficient authority for any police officer to convey an offender to the correctional centre identified in the warrant and for the Governor of the correctional centre to keep the offender in his or her custody for the term of the sentence. (c) Part 2 of the Crimes (Administration of Sentences) Act 1999 ("CAS Act") applies to offenders who have been sentenced to imprisonment by way of fulltime detention. By s4(1) of the CAS Act, Part 2 applies to a person who is subject to a warrant for commitment issued under s62 of the CSP Act. By s72 of the CAS Act, while held in custody in a correctional centre, an "inmate" is taken to be in the custody of the General Manager of the correctional centre to which the inmate has been committed or the correctional centre to which the inmate has been transferred. (d) By virtue of the warrants for commitment issued on 7 May 2012, the plaintiff will lawfully remain in custody in a correctional centre until the expiry of his sentence or unless he is released to parole before that expiry under Part 6 of the CAS Act. 20The defendant noted that the warrants for commitment issued on 7 May 2012 were addressed to the "General Manager". The warrants did not specify the correctional centre to which the plaintiff was to be transported and imprisoned. The defendant submitted that even if this were a defect, it would not render illegal the detention in custody of a person pursuant to a lawful conviction (Governor of Lewes Prison; Ex parte Doyle [1917] 2 KB 254 at 269 (Viscount Reading CJ); Parole Board (NT) v Gamarrow (1993) 70 A Crim R 189 at 202 (Kearney J). The defendant noted that the grounds relied upon to support the Writ of Habeas Corpus were not directed to the validity of the warrants for commitment. 21The defendant submitted that the grounds relied upon by the plaintiff in support of the application for a Writ of Habeas Corpus constituted a collateral attack on the convictions, which remain valid and effective. The defendant submitted that as a result, no basis had been established for the issuing of the writ. Consideration 22The defendant's submissions are correct and the Summons must be dismissed. The Summons constitutes a collateral attack on convictions, lawfully obtained, which remain effective and as such, is misconceived. No basis for the issue of a Writ of Habeas Corpus has been made out. 23The legal basis for the writ was considered in Prisoners A - XX inclusive v the State of New South Wales (1995) 38 NSWLR 622 at 627B; 79 A Crim R 377. Sheller JA (with whom Meagher and Powell JJA agreed) said: "In a broad sense and absent some statutory provision, the writ of habeas corpus subjiciendum is available to secure the liberty of a person improperly detained: Halsbury's Laws of England 4th ed vol 11 par 1452. The process the writ initiates enables the Court at the instance of a person aggrieved to command the production of the person detained and inquire into the cause of imprisonment. A legal justification for detention is that the person is held under an actual order or sentence of a superior court; Ex parte Williams (1934) 51 CLR 545 at 549-550). The production of the person detained with the order or sentence of the superior courts efficiently answers the writ of habeas corpus: Young v Registrar, Court of Appeal (No 3) (1993) 32 NSWLR 262 at 285." 24At 630B Sheller JA (referring to R v Deputy Governor of Parkhurst Prison; Ex parte Hague [1992] 1 AC 58) said: "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." 25In Re Officer in Charge of Cells, ACT Supreme Court Ex parte Eastman [1994] HCA 36; 68 ALJR 668 Deane J, sitting as a single judge of the High Court, considered an application for a Writ of Habeas Corpus by a prisoner in custody, pursuant to orders of the Magistrates Court of the Australian Capital Territory. The prisoner submitted that his detention was illegal because his initial arrest had been unlawful. At the time of his arrest, he was on bail awaiting trial on a charge of murder. It was alleged against him that while on such bail, he had been making "offensive phone calls". 26Deane J said: "5. ... The affidavit discloses, however, that Mr Eastman is not at present held in custody under the authority of any warrant for his arrest. He has been and is held in custody pursuant to a series of orders made by magistrates of the A.C.T. Magistrates Court. His claim is that his detention in custody pursuant to those orders was and remains illegal for the reason that his original arrest was illegal. For the purposes of an application for a writ of habeas corpus, however, the answer to that claim is that, on each occasion when the matter came before a magistrate of the A.C.T. Magistrates Court, the learned magistrate was required to consider and determine whether an order could properly be made, and whether an order should be made, that Mr Eastman be remanded in custody and that, on each occasion, the magistrate made such an order. Apparently, none of the orders so made has been overridden by a subsequent bail order or has subsequently been set aside in appellate proceedings. 6. 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. There is nothing at all in the material before me which provides an arguable basis for a finding that the order made by any of the learned magistrates was vitiated by absence or excess of jurisdiction or is otherwise void. That being so, those orders, while they stand, provide an answer to Mr Eastman's present application. 7. Accordingly, and quite apart from the question of the jurisdiction of the Court, the application for a writ of habeas corpus must be dismissed." 27Observations to similar effect were made by Rothman J in Potier v General Manager and Governor, MRRC [2007] NSWSC 1031 in relation to an application for a Writ of Habeas Corpus by a person serving a prison sentence as a result of a conviction. His Honour said: "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)." 28In reaching the conclusion which I have, I am mindful of the principles which have to be applied in a strike out application of this kind. In General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; 112 CLR 125 (a strikeout case) Barwick CJ, after referring to the review which he had made of the case law on the subject, said (at p129): "8. It is sufficient for me to say that these cases uniformly adhere to the view that the plaintiff ought not to be denied access to the customary tribunal which deals with actions of the kind he brings, unless his lack of a cause of action - if that be the ground on which the court is invited, as in this case, to exercise its powers of summary dismissal - is clearly demonstrated. The test to be applied has been variously expressed; "so obviously untenable that it cannot possibly succeed"; "manifestly groundless"; "so manifestly faulty that it does not admit of argument"; "discloses a case which the Court is satisfied cannot succeed"; "under no possibility can there be a good cause of action"; "be manifest that to allow them" (the pleadings) "to stand would involve useless expense"." 29Applying those principles, I have concluded that the plaintiff's Summons does not disclose a reasonable cause of action and is otherwise an abuse of process of the Court. Accordingly, the Summons must be dismissed pursuant to both Rules 13.4(1) and 14.28(1) UCPR. 30Since the defendant has succeeded in its Motion and the effect of that success is that these proceedings should be dismissed, I see no reason why costs should not follow the event. Accordingly, the orders which I make are as follows: (1) The plaintiff's Summons is dismissed pursuant to Rules 13.4(1) and 14.28(1) UCPR. (2) The plaintiff is to pay the defendant's costs of the Motion. (3) The plaintiff is to pay the defendant's costs of the proceedings. ********** 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: 07 May 2013