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Court of Criminal Appeal 15 August 2014

Potier v Regina

[2014] NSWCCA 157

Public order & justice offences
CRIMINAL LAW APPEAL INTERLOCUTORY ISSUES PROCEDURE CRIMINAL JUSTICE STAY WARRANT APPLICATION FOR

Citation: Potier v Regina [2014] NSWCCA 157
Court: Court of Criminal Appeal, New South Wales
Date: 15 August 2014
Judge(s): Garling J

Background

The applicant was a non-citizen serving a 12-year sentence of imprisonment, imposed in November 2006, following a jury conviction for soliciting to murder under the Crimes Act 1900 (NSW). His appeal against conviction was pending before the Court of Criminal Appeal, with a hearing date fixed for November 2014.

The applicant was concerned that if granted parole, he would be detained by Commonwealth immigration authorities and deported to the United Kingdom, as his visa only permitted his temporary presence in Australia for the custodial component of his sentence. He feared that once deported, he would be unable to return to prosecute his appeal.

Appearing for himself, the applicant applied to the Court of Criminal Appeal for the issue of a criminal justice stay warrant under s 151 of the Migration Act 1958 (Cth). Such a warrant, if issued, would prevent his removal or deportation from Australia while it remained in force.

  • Whether the Court of Criminal Appeal has power under s 151 of the Migration Act 1958 (Cth) to issue a criminal justice stay warrant.
  • Whether the applicant, as the non-citizen himself, had standing to apply for such a warrant.
  • Whether the application fell within the scope of interlocutory proceedings permitted by an existing vexatious proceedings order made against the applicant.

Decision

Garling J refused to issue the criminal justice stay warrant, finding that the applicant lacked standing to seek one. The court accepted the reasoning of Nathan J in the Victorian Supreme Court decision in Application by Solomon Barudea [1995] VSC 55 and the analysis of French J (as he then was) in Goldie v Commonwealth of Australia [2002] FCA 261. Those decisions held that the provisions in Division 4 of Part 2 of the Migration Act were enacted in the public interest in the administration of criminal justice, and were not intended to create rights or privileges in favour of the unlawful non-citizen.

The warrant mechanism in s 151 operates in the same framework as the stay certificate provisions in ss 148 and 150, which can only be initiated by an authorised official such as the Attorney-General, the Director of Public Prosecutions, or the highest-ranking police officer of a State. Garling J held that a warrant issued under s 151 could have no greater reach than the person entitled to obtain one, and that entitlement did not extend to the non-citizen subject of the warrant.

His Honour also noted several other matters that would have required consideration had standing not been the determinative issue. These included the absence of evidence about the precise terms and conditions of the applicant's visa, uncertainty about any cost implications under s 151(3) of the Act (which makes the warrant applicant responsible for the non-citizen's maintenance and accommodation costs), and the absence of any application from a person representing the public interest in the administration of justice.

On the vexatious proceedings question, Garling J took the view that this application was a form of interlocutory proceeding in connection with the pending appeal, and accordingly fell within the carve-out from the vexatious proceedings order made by McCallum J in February 2014. The court noted that whether any future application by the applicant would similarly fall within that carve-out would depend on its nature and content.

Orders Made

  • The application for the Court to issue a criminal justice stay warrant pursuant to s 151 of the Migration Act 1958 (Cth) was dismissed.

Key Takeaways

  • A non-citizen who is the subject of potential removal or deportation does not have standing to apply for a criminal justice stay warrant under s 151 of the Migration Act 1958 (Cth). That power exists to serve the public interest in the administration of criminal justice, not to confer rights on the non-citizen.
  • The criminal justice stay warrant mechanism in s 151 operates within the same framework as the stay certificate provisions in ss 148 and 150, which are reserved for authorised officials such as the Attorney-General or Director of Public Prosecutions. A stay warrant can have no greater reach than those provisions permit.
  • Under s 151(3) of the Migration Act, the applicant for a stay warrant bears responsibility for the costs of maintaining and accommodating the non-citizen while the warrant is in force. This is a factor a court may need to address before issuing such a warrant.
  • Consistent with earlier Federal Court authority, the Division 4 provisions of the Migration Act are not intended to create rights or privileges for unlawful non-citizens: Goldie v Commonwealth of Australia [2002] FCA 261 at [36].
  • An application by a vexatious litigant for interlocutory relief in connection with a pending appeal may fall within a carve-out from a vexatious proceedings order, depending on the nature and content of the particular application.

Legislation and Cases Referenced

Legislation:
- Migration Act 1958 (Cth), ss 148, 149, 150, 151, 153, 159, 161, 163, 164
- Crimes Act 1900 (NSW), s 26
- Supreme Court Act 1970 (NSW)
- Vexatious Proceedings Act (NSW)

Cases:
- Application by Solomon Barudea [1995] VSC 55
- Attorney-General in and for the State of NSW v Potier [2014] NSWSC 118
- Goldie v Commonwealth of Australia [2002] FCA 261
- Lee v Minister for Immigration and Citizenship [2008] FCA 1023
- Minister for Immigration and Citizenship v Zhang [2009] FCAFC 129