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Supreme Court 28 January 2004

Gargan v Director of Public Prosecutions and anor

[2004] NSWSC 10

Also reported as 144 A Crim R 296
Assault & violence
PREROGATIVE WRIT HABEAS CORPUS AD SUBJICIENDUM JURY NOTICE OF INTENTION TO APPEAL FILED DAMAGES FOR WRONGFUL DETENTION DIRECTOR OF PUBLIC PROSECUTIONS

Citation: Gargan v Director of Public Prosecutions and anor [2004] NSWSC 10
Court: Supreme Court of New South Wales
Date: 28 January 2004
Judge(s): O'Keefe J

Background

A self-represented plaintiff filed proceedings in the Supreme Court seeking a writ of habeas corpus on behalf of a prisoner who had been convicted in the District Court at Penrith of assault with intent to rob and sentenced to two years' imprisonment. The prisoner had lodged a notice of intention to appeal to the Court of Criminal Appeal against both conviction and sentence, but had not yet filed a formal notice of appeal or grounds of appeal.

The plaintiff named the Director of Public Prosecutions (DPP) as the original defendant, later adding the Governor of Silverwater Correctional Centre. The plaintiff also filed a Statement of Claim seeking damages for alleged wrongful detention, framed as a liquidated sum under the Crimes Act 1914 (Cth) or alternatively as damages in trespass. The Attorney-General for New South Wales intervened following notices served under s 78B of the Judiciary Act 1903.

The anticipated ground of appeal, which emerged during argument, was that the trial had miscarried because the jury was permitted to separate after retiring to consider its verdict but before returning that verdict. The validity of s 54(b) of the Jury Act 1977 (NSW), which permits such separation, was challenged as allegedly repugnant to English common law and inconsistent with the Australia Acts 1986.

  • Whether a writ of habeas corpus should issue to secure the prisoner's release from custody
  • Whether the DPP had any power of arrest or detention such that it could be made a proper respondent to habeas corpus proceedings
  • Whether the warrants and orders authorising the prisoner's detention were valid
  • Whether s 54(b) of the Jury Act 1977 (NSW), permitting jury separation after retirement to consider a verdict, was valid or repugnant to English common law
  • Whether the Australia Acts 1986 were themselves valid
  • Whether bail should be granted pending the prisoner's anticipated appeal to the Court of Criminal Appeal
  • Whether damages for wrongful detention were available on the facts

Decision

O'Keefe J refused the writ of habeas corpus. The court found that the warrants and orders authorising the prisoner's detention were valid on their face and provided lawful authority for his imprisonment. The DPP was found to have no power of arrest or detention under the Director of Public Prosecutions Act 1986, making it an inappropriate respondent to habeas corpus proceedings. The Governor of Silverwater Correctional Centre, as the person having actual custody of the prisoner, was the appropriate respondent.

On the jury separation question, the court examined the common law position and the operation of s 54(b) of the Jury Act 1977. O'Keefe J concluded that the section was valid and that jury separation after retirement did not, of itself, constitute a fatal irregularity vitiating the trial. The argument that s 54(b) was repugnant to the law of England, and that such repugnancy rendered it invalid, was rejected. The court also rejected the challenge to the validity of the Australia Acts 1986, finding the arguments raised in support of that challenge to be without merit.

The claim for damages was dismissed. No basis was established for treating the prisoner's detention as unlawful, and accordingly no claim for wrongful detention could succeed. On bail, the court found that no special or exceptional circumstances existed justifying a departure from the usual practice of keeping a convicted prisoner in custody pending appeal under s 30AA of the Bail Act 1978. O'Keefe J also expressed the view that the proposed ground of appeal concerning jury separation lacked merit, reinforcing the conclusion that bail was inappropriate.

Orders Made

  • Writ of habeas corpus refused
  • Summons, Statement of Claim and Notice of Motion dismissed
  • The plaintiff to pay the costs of both defendants and of the Attorney-General for New South Wales

Key Takeaways

  • The DPP holds no power of arrest or detention under the Director of Public Prosecutions Act 1986 and is not a proper respondent to habeas corpus proceedings; the person with actual physical custody of the prisoner is the appropriate respondent.
  • Section 54(b) of the Jury Act 1977 (NSW), which permits jury separation after retirement to consider a verdict, was found to be valid; the argument that it was repugnant to English common law and therefore invalid was rejected.
  • Challenges to the validity of the Australia Acts 1986 based on repugnancy to English law were dismissed as without merit.
  • Under s 30AA of the Bail Act 1978 (NSW), bail pending an appeal against a conviction on indictment requires special or exceptional circumstances; the mere existence of a proposed ground of appeal concerning jury separation, without more, did not satisfy that threshold.
  • A habeas corpus application brought by a third party on behalf of a prisoner, where the prisoner's detention rests on valid warrants and a lawful conviction, will not succeed simply because an appeal is contemplated.

Legislation and Cases Referenced

Legislation:
- Supreme Court Act 1970 (NSW) ss 17, 69, 71
- Jury Act 1977 (NSW) s 54(b)
- Director of Public Prosecutions Act 1986 (NSW) s 4, Part 3
- Bail Act 1978 (NSW) ss 30AA, 32
- Criminal Appeal Act 1912 (NSW) s 5
- Crimes (Sentencing Procedure) Act 1999 (NSW) s 62
- Crimes (Administration of Sentences) Act 1999 (NSW) s 23
- Australia Act 1986 (Cth) s 1; Australia Act 1986 (UK)
- Colonial Laws Validity Act 1865 (UK) ss 2, 3
- Judiciary Act 1903 (Cth)
- Habeas Corpus Act 1679 (UK)
- Coronation Oath Act 1689 (UK)

Key Cases:
- Brownlee v The Queen (2001) 207 CLR 278
- Chamberlain v The Queen (No 1) (1983) 153 CLR 514
- Regina v Wilson (1994) 34 NSWLR 1
- Regina v Southgate (1960) 78 WN (NSW) 44
- Sue v Hill (1999) 199 CLR 462
- Kable v DPP (1996) 189 CLR 51
- Re Application by Public Service Association of NSW (1947) 75 CLR 430
- Union Steam Ship Co of Australia Pty Limited v King (1988) 166 CLR 1
- Regina v Moffatt (1998) 2 VR 229
- Ah Poh Wai v The Queen (1995) 15 WAR 404