Supreme Court New South Wales Medium Neutral Citation: Tyron Yates v The Commissioner of Corrective Services, NSW [2014] NSWSC 653 Hearing dates: 26 March 2014 Decision date: 23 May 2014 Jurisdiction: Common Law Before: Rothman J Decision: 1. An order in the nature of writ of habeas corpus pursuant to s 71 of the Supreme Court Act that the Commissioner of Corrective Services, New South Wales, and/or the Governor of Cessnock Correctional Centre, have Tyron Yates before the Court; 2. That the aforesaid Tyron Yates be released from custody pending any other lawful order of the court or another court having jurisdiction to make any order of detention; 3. No order as to costs; 4. Proceedings otherwise dismissed. Catchwords: HABEAS CORPUS - remand pending determination of jurisdiction so to do - breach of bond in court with which bond was entered - warrant to appear in District Court was without jurisdiction - imprisonment unlawful - order issued Legislation Cited: Bail Act 1978 (NSW) Crimes (Appeal and Review) Act 2001 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW) Supreme Court Act 1970 (NSW) Cases Cited: Cox v Hakes (1890) 15 App Cas 506 Fay v Moia (1963) 372 US 391 Kirk v Industrial Relations Commission of New South Wales [2010] HCA 1; (2010) 239 CLR 531 Public Service Association of South Australia v Industrial Relations Commission (SA) [2012] HCA 25; (2012) 86 ALJR 862 R v Governor of Metropolitan Gaol, Cobury, ex parte Kimball [1937] VLR 279 R v Metal Trades Employers' Association; Ex parte Amalgamated Engineering Union (1951) 82 CLR 209 Secretary of State for Home Affairs v O'Brien [1923] AC 603 Public Service Association v Federated Clerks Union of Australia [1991] HCA 33; (1991) 173 CLR 132 Category: Principal judgment Parties: Tyron Yates (Plaintiff/Prosecutor) Commissioner of Corrective Services (NSW) (Defendant/Respondent) Representation: Counsel: E Ozen (Plaintiff/Prosecutor) B Thomson (Defendant) Solicitors: Aboriginal Legal Service (NSW/ACT) (Plaintiff/Prosecutor) NSW Crown Solicitor's Office (Defendant/Respondent) File Number(s): 2014/00090170 Publication restriction: None Judgment 1HIS HONOUR: On 26 March 2014, the Court issued orders the effect of which was to require the release from custody of the plaintiff/prosecutor, Tyron Yates. At the time, I reserved reasons for judgment and the necessity to make any further orders. These are the reasons for judgment. Application 2By summons dated 25 March 2014 and filed on that date, the plaintiff sought relief, in this Court, "in the nature of a writ of habeas corpus" pursuant to s 71 of the Supreme Court Act 1970 (NSW). The plaintiff prosecutes the writ and relies, in support, on the affidavit of Ian Joseph Le Breton, affirmed 26 March 2014. He also relies on the affidavit of Julie Fleming, affirmed 25 March 2014 and David Malcolm, affirmed 25 March 2014. 3The facts giving rise to the plaintiff's custody are relatively uncontentious. On 8 November 2012, a magistrate in the Local Court at Newcastle convicted the plaintiff of the offence of contravening prohibition/restriction in an apprehended domestic violence order and ordered the plaintiff to enter into a good behaviour bond pursuant to s 9 of the Crimes (Sentencing Procedure) Act 1999 (NSW) for a period of three years. 4In accordance with the correct procedure, the plaintiff completed the good behaviour bond on the same date. The conditions of the good behaviour bond were: (i)The offender must be of good behaviour and appear before the court during the bond term if required; (ii)To accept the supervision and guidance and comply with all reasonable directions of the Probation and Parole Service for as long as deemed necessary; and (iii)Obey all reasonable directions for counselling, educational development or drug and alcohol rehabilitation. 5On 9 November 2012, the plaintiff filed an appeal to the District Court pursuant to s 11 of the Crimes (Appeal and Review) Act 2001 (NSW) against the aforesaid decision of the Local Court of 8 November 2012, being the decision to place him on a three year good behaviour bond. It was an appeal against sentence only. The plaintiff did not appeal against the conviction recorded. 6The District Court heard and determined the plaintiff's appeal on 30 November 2012. The terms of the order of the District Court are important. 7In reciting the precise terms of the order made, the Court notes that the offence here in question was not the only charge before the Local Court or, on appeal, in the District Court. 8It is sufficient to note, that the offence with which the Court is now concerned, was an offence with the number 2012/00163957. The transcript of the proceedings of 30 November 2012 refers to the District Court allowing all appeals except in relation to 2012/00163957 (the charge here in question). The transcript records, in relation to the last mentioned matter, after indicating the result in the appeal against the other matters, the Crown asking his Honour to "confirm the...bond", to which his Honour replies, in the following terms: "And I confirm the section 9 bond". 9The record of proceedings in JusticeLink records the result of the appeals to be that sentences were varied on all except 2012/00163957 (the current charge/offence), which was confirmed. 10The bond into which the plaintiff entered was that executed on 8 November 2012. No other bond was executed. 11On 11 November 2013, a Community Corrections Officer filed a "Report on Breach of Bond" with the Sydney District Court Criminal Registry. 12On 25 February 2013, as a result of the filing of the Report on Breach of Bond, a District Court Judge directed that the plaintiff be called up before him on a date to be fixed. 13On 27 February 2014, that being the date fixed in accordance with the foregoing statement, the plaintiff appeared before the District Court. On that date, the District Court adjourned the hearing of the matter to 20 March 2014 for an updated report from Community Corrections. 14On 20 March 2014, when the matter was again before the District Court, the matter was further adjourned on the application of the plaintiff's solicitor, for the purpose of obtaining further written material. 15The matter was adjourned until 24 March 2014. 16On 24 March 2014, the solicitors for the plaintiff relied upon a two page written submission and submitted that, pursuant to s 98 of the Crimes (Sentencing Procedure) Act, the proper court to consider the suspected breach of bond to which the report on breach of bond referred was the Local Court and, further, that the District Court did not have jurisdiction, without the consent of the plaintiff, to hear and determine the alleged breach. The plaintiff had not given consent. 17The Director of Public Prosecutions submitted that consent could be inferred from the listing before the District Court without objection and the adjournment on each of 27 February 2014 and 20 March 2014. 18Faced with that submission, the District Court Judge stood the matter over until 28 March 2014; ordered a transcript of the proceedings; and, seemingly without any further opportunity or any opportunity relating specifically to the orders next made, remanded the plaintiff in custody until 28 March 2014, when the matter was next to be heard. Legislation 19It is necessary to deal with the provisions relating to orders made on appeal to the District Court and the provisions relating to the prosecution for a breach of bond. 20First, it is necessary to examine the relevant provisions of the Crimes (Appeal and Review) Act 2001. 21The provisions of s 11 of the Crimes (Appeal and Review) Act grants, to a person convicted or sentenced by the Local Court, a right of appeal against the conviction and against the sentence to the District Court. An appeal against sentence is by way of rehearing of the evidence given in the original Local Court proceedings, together with fresh evidence that may be adduced: s 17 of the Crimes (Appeal and Review) Act. 22On hearing of the appeal, the District Court may determine the appeal, in respect to a sentence appeal, by one of three orders. It is appropriate to recite the terms of s 20 of the Crimes (Appeal and Review) Act which is in the following terms: "s 20 Determination of appeals (1) The District Court may determine an appeal against conviction: (a) by setting aside the conviction, or (b) by dismissing the appeal, or (c) in the case of an appeal made with leave under section 12 (1)- by setting aside the conviction and remitting the matter to the original Local Court for redetermination in accordance with any directions of the District Court. (2) The District Court may determine an appeal against sentence: (a) by setting aside the sentence, or (b) by varying the sentence, or (c) by dismissing the appeal." 23As can be seen from the foregoing, the District Court may set aside a sentence, vary a sentence, or dismiss the appeal. They are the only three orders for which s 20 of the Crimes (Appeal and Review) Act makes provision. 24In the present situation, the District Court purported "to confirm" the sentence. Of itself, that does not give rise to any invalidity. Confirmation of a sentence is a manner to which the Crimes (Appeal and Review) Act refers. 25Section 69 of the Crimes (Appeal and Review) Act refers to a situation where "an appeal court confirms a sentence on appeal" and the effect of such confirmation on a good behaviour bond that may have been imposed. Further, s 68 of the Crimes (Appeal and Review) Act allows the court to "confirm or vary" a conviction or sentence. The relevant terms of s 68 are as follows: "s 68 Court may confirm or vary conviction or sentence with effect from earlier day (1) An appeal court may order that a conviction or sentence confirmed or varied by it on appeal, or any part of it: (a) is to take effect (as confirmed or varied) on and from a day specified in the order, or (b) in the case of a sentence that has been served in part, is to recommence (as confirmed or varied) on and from a day specified in the order, being the day on which the order is made or an earlier day." 26It seems that the "confirmation" of a sentence refers to the circumstance where some order issues that may otherwise affect the sentence on appeal. For example, in the present circumstances, there were appeals against twelve sentences. In five of them, the sentences were varied in terms of their duration; in two of them the sentences were varied in terms of their commencement date; and in relation to the offence for which the bond issued, the bond was "confirmed". 27Pursuant to the terms of s 64 of the Crimes (Appeal and Review) Act, the Court is entitled to hear and determine an appeal in respect of any conviction or sentence made or imposed on the same day as one that has been the subject of appeal. Such a provision is both obvious and necessary. 28Where multiple charges are dealt with and sentences imposed, the sentences must be served either consecutively or on a basis that involves partial or total accumulation. Where one sentence is varied, it may be necessary to deal with the sentences otherwise imposed, either by way of appeal or otherwise. 29Moreover, the Court has power under s 59 of the Crimes (Sentencing Procedure) Act to vary the date of commencement of any sentence imposed at the same time as a sentence that has been quashed or varied. The sentence in relation to the good behaviour bond was a sentence imposed on the same date as a sentence that was quashed or varied on appeal. 30Lastly, in this respect, it is appropriate to refer, in light of the earlier mentioned provisions of s 68 of the Crimes (Appeal and Review) Act, to the effect of s 63 of the Crimes (Appeal and Review) Act. Under s 63 of the Crimes (Appeal and Review) Act, the good behaviour bond, being a sentence imposed, is stayed from the time that the notice of appeal was lodged until the determination of the appeal. As a consequence, even though the commencement date of the bond was not varied and commenced on 8 November 2012, it would not expire until three years from 29 November 2012 (being the date upon which the appeal was dismissed and the sentence confirmed, less the day of the sentence already served prior to the lodging of the appeal). 31As a consequence, the order of the District Court "confirming" the sentence imposed by the Local Court, being the good behaviour bond, was an order that was required once his Honour issued orders dismissing the appeal. Nevertheless, the effect of the confirmation was to put beyond doubt the period of time to be served and the date during which the stay of sentence had effect, pursuant to the terms of s 63 of Crimes (Appeal and Review) Act. The sentence, being the bond, was imposed by the Local Court and its operation was confirmed by the District Court in order that the stay could be calculated definitively. 32Next, it is necessary to deal with the terms of s 98 of the Crimes (Sentencing Procedure) Act. The terms of s 98(1) of the Crimes (Sentencing Procedure) Act are as follows: "s 98 Proceedings for breach of good behaviour bond (1) If it suspects that an offender may have failed to comply with any of the conditions of a good behaviour: (a) the court with which the offender has entered into the bond, or (b) any other court of like jurisdiction, or (c) with the offender's consent, any other court of superior jurisdiction, may call on the offender to appear before it." 33As earlier stated, a Community Corrections Officer alleged a breach of the good behaviour bond. Documents were issued to bring Mr Yates before the District Court. The provisions of s 98 require that the court, with which the offender, Mr Yates, has entered into the bond, is the court that must suspect the offender of having failed to comply with the condition of the bond and the court that may call on the offender to appear before it. Assuming, as I must, that an order "confirming" the sentence imposed by the Local Court was a valid order of the District Court, it was still the Local Court that was the Court with which Mr Yates entered into the bond. 34There is, as can be seen from the reiteration of s 98 of the Crimes (Sentencing Procedure) Act above, an exception to the foregoing, namely, when the offender has consented to another court of superior jurisdiction dealing with the matter. Consideration 35The facts before the Court leave room for no other proposition than that the plaintiff/prosecutor, Mr Yates, entered into the bond in question in the Local Court on 8 November 2012. As a consequence, the provisions of s 98(1) require, prima facie, that it is the Local Court that may call on Mr Yates to appear before it on account of the suspected failure to comply with a condition of his good behaviour bond. Without more, the District Court could not do so. 36Nevertheless, the District Court is a superior jurisdiction to the Local Court and, if Mr Yates were to have consented, the District Court could have called on Mr Yates to appear before it and answer a charge of failing to comply with the conditions of the bond. 37The foregoing does not depend upon whether the effect of the confirmation is to re-impose the s 9 good behaviour bond. The provisions of s 98(1)(a) operate on the court in which Mr Yates entered into the bond, not on the court that imposed the bond. 38I do not by the immediately foregoing comment determine that it is possible to enter into a bond in a court different from that which had imposed it. Rather, the terms of s 98(1)(a) put beyond doubt that a court that "confirms" the bond imposed into which an offender had entered is not the court to which reference is made in that paragraph and is not the court which, prima facie, is the court to deal with the breach, or suspected breach, of the conditions of the bond. 39The defendant submits that the conduct of the plaintiff, in appearing in the District Court and in applying for, and obtaining, an adjournment (or on another occasion consenting to it), was consent of a kind that satisfied the provisions of s 98(1)(c), thereby allowing the District Court to deal with the alleged breach of the good behaviour bond. There are a number of difficulties with that submission. 40If mere appearance in a court of superior jurisdiction to that in which a bond was entered was sufficient to amount to consent for the purposes of s 98(1)(c), the legislature could have easily and expressly so provided. Moreover, given the context in which this provision will generally apply, there will not be significant opportunity to file a "conditional appearance" or otherwise to challenge the jurisdiction of the Court, unless appearance was entered. 41The proper construction of s 98 requires that the consent occur at a time when the offender is called upon to appear before the court, not at the appearance. In this case, error was made by Community Corrections in reporting to the District Court the alleged non-compliance with conditions of the bond. The community relations report and its update refer to the judge as the District Court Judge, yet the bond was entered into with the Local Court. One of the conditions of the bond was that Mr Yates appear before the court during the bond term if required. That condition was entered (and imposed) in the Local Court and "the court" to which the condition refers is the Local Court. If nothing else, that condition ought to have alerted Community Corrections to the fact that the court in question was the Local Court. 42The foregoing is not intended to be a criticism of Community Corrections. I accept that the error, in requiring Mr Yates to appear before the District Court, was made honestly. Nevertheless, absent the consent of Mr Yates, it could not have been done other than in circumstances where Mr Yates would have been called before the Local Court. 43In any event, the provisions of s 98(1) of the Crimes (Sentencing Procedure) Act do not easily lend themselves to informal or implied consent. On its face, the provision requires an offender to consent to a court other than the court with which the bond was entered (or a court of like jurisdiction) and the consent of the offender in order to allow a superior jurisdiction to deal with the matter needs, on a proper construction of the provisions, express consent. 44There is no evidence before the Court, nor was there evidence before the District Court, of any such consent. On the contrary, the evidence in the affidavit of David Malcolm, affirmed 25 March 2014, and the affidavit of Ian Le Breton, affirmed 26 March 2014, are to the effect that at no stage, either on advice or otherwise, did Mr Yates agree to the District Court exercising the jurisdiction under s 98(1)(c) of the Crimes (Sentencing Procedure) Act or otherwise. The Writ of Habeas Corpus 45The writ of habeas corpus is a writ that is fundamental to the operation of the common law; it is of longstanding. It is used to prevent unlawful detention. It was described by the Earl of Birkenhead in Secretary of State for Home Affairs v O'Brien [1923] AC 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) 46The purpose and importance of the writ of habeas corpus and its use to ensure the liberty of the subject was stressed by the Lord Chancellor, Lord Halsbury, in Cox v Hakes (1890) 15 App Cas 506, in which the Lord Chancellor 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." 47Habeas corpus is writ applicable throughout the common law world. In the United States Supreme Court, Justice Brennan described it in the following terms: "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 Moia (1963) 372 US 391 at 400 per Brennan J citing Lord Birkenhead, supra) 48The writ is issued where the Executive or government acts in a manner inconsistent with the liberty of the individual, in circumstances where the individual is entitled to that liberty. It is one of the most common prerogative writs and is used to bring an individual before the court in order to assess whether their detention or restraint on liberty is lawful and, if it be unlawful, to order the individual's release. 49Generally, it is used in order to obtain speedy remedy for wrongful imprisonment. Fundamentally, the issue of the writ depends upon the cause and lawfulness of the detention imposed and involves an assessment of that imprisonment, particularly in circumstances for obtaining the release of an illegally detained prisoner: R v Governor of Metropolitan Gaol, Cobury, ex parte Kimball [1937] VLR 279. 50It is in the circumstances of the detention described above that the plaintiff moves for the writ to be exercised in circumstances where it is said the application is urgent; the detention is unlawful; and there is no reasonable prospect of defending the lawfulness of the claim, at least on the evidence that is before the Court. Jurisdiction of the Court and Judgment of the District Court 51When the matter was finally agitated before the District Court, the Judge reserved on the question as to whether the District Court had jurisdiction, but remanded Mr Yates in prison pending the delivery of the reserved judgment. As a consequence, the District Court imprisoned Mr Yates at a time when, on its face, the District Court was not satisfied it had jurisdiction so to do. 52The District Court is a court of record, but not a superior court of record. The High Court, Latham CJ, addressed a number of attributes of a superior court of record in R v Metal Trades Employers' Association; Ex parte Amalgamated Engineering Union (1951) 82 CLR 209 at [240-1] that distinguish it from other courts. I deal with those attributes. Unlike a superior court of record, the orders of the District Court are not assumed to be valid unless the contrary is shown. Nor are the orders of the District Court protected in relation to executions effected. 53Orders of a superior court of record, such as the Supreme Court, are binding even though they may ultimately be found to have been made in circumstances where there is a want of jurisdiction. Thirdly, the District Court, and its officers, are amenable to certiorari, mandamus and prohibition. That is not true of the Supreme Court, except, possibly, in relation to issues associated with the enforcement or application of the Constitution: see Kirk v Industrial Relations Commission of New South Wales [2010] HCA 1; (2010) 239 CLR 531 at [107]; Public Service Association of South Australia v Industrial Relations Commission (SA) [2012] HCA 25; (2012) 86 ALJR 862. 54A court that is not a superior court of record, such as the District Court, acts in excess or want of jurisdiction when the relevant act is done in breach of the conditions which define the ambit of the powers and authority of that court or tribunal: Public Service Association of South Australia v Federated Clerks' Union of Australia (SA) [1991] HCA 33; (1991) 173 CLR 132 at [153], per McHugh J. 55During the proceedings in this Court, I raised with the parties the qualification associated with the administrative arrangements established by s 48 of the Supreme Court Act. Neither party submitted that, were I to form the opinion that the imprisonment was unlawful, the matter should be transferred immediately to the Court of Appeal. Nevertheless, it troubled me during the course of the proceedings that the effect of the application was asking the Court, sitting in the Common Law Division, to determine, by indirect means, a matter concerning the powers of the District Court, which, by the administrative arrangements established under s 48 of the Supreme Court Act, is within the original jurisdiction of the Court of Appeal. 56It should be noted, however, that the proceedings before the Court did not seek to challenge any judgment or decision of the District Court. On the contrary, one of the bases of the application for the writ was the failure of the District Court to decide the question of its jurisdiction. Further, no order issued by this Court in these proceedings directly affected a judicial officer or Judge of the District Court, either by way of command or prohibition or the quashing of any such judgment. 57Lastly, the provisions of s 51(1)(d) of the Supreme Court Act allowed the matter to proceed and be disposed of in the Common Law Division, predominately as a result of its urgency. 58Moreover, that which is challenged in these proceedings is the court attendance notice or warrant issued otherwise other than by a Judge of the District Court, purporting to bring the matter on for hearing in the District Court and the remand warrant issued by a Registrar thereof. 59Given the urgent circumstances and the absence of a decision of the District Court that it had the jurisdiction to deal with the matter before it, the Court, as presently constituted, continued the proceedings and disposed of the matter by the making of orders ex tempore. Conclusion 60One other matter needs consideration. The issue of the jurisdiction of the District Court to refuse bail was not addressed in the course of the submissions before this Court. On one view of the orders made by the District Court on 24 March 2014, it was confined to a refusal of bail. 61At that stage, the entitlement and/or jurisdiction to grant bail was a matter covered by the Bail Act 1978. The power of the District Court to grant (or refuse) bail was governed by the provisions of s 26 of the Bail Act and was confined to the circumstances set out in s 26(1) of the Bail Act. 62None of the circumstances pertaining to Mr Yates, as at 20 March 2014, were circumstances described by s 26(1) of the Bail Act, for the same reasons as the Court has determined that the matter of the alleged breach of the conditions of the bond was a matter within the jurisdiction of the Local Court and, given the absence of consent, no other court. 63For the foregoing reasons, this Court issued orders, ex tempore, on 26 March 2014, being the following orders: (1)An order in the nature of writ of habeas corpus pursuant to s 71 of the Supreme Court Act that the Commissioner of Corrective Services, New South Wales, and/or the Governor of Cessnock Correctional Centre, have Tyron Yates before the Court; (2)That the aforesaid Tyron Yates be released from custody pending any other lawful order of the court or another court having jurisdiction to make any order of detention; (3)Reasons for judgment reserved; (4)No order as to costs. 64Order 3, above, is no longer necessary and is vacated. Further, the Court orders that the proceedings are otherwise dismissed. ********** 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: 23 May 2014