Citation: Potier v The State of New South Wales [2014] NSWSC 1271
Court: Supreme Court of New South Wales
Date: 18 September 2014
Judge(s): Garling J
Background
The plaintiff was a prisoner serving a 12-year sentence imposed in November 2006 following his conviction for soliciting to murder while already in custody. His non-parole period of seven years had expired in August 2013, and the question of his parole was before the State Parole Authority. He was also preparing to represent himself at a Court of Criminal Appeal hearing fixed for November 2014.
The plaintiff applied for a writ of habeas corpus, arguing that his initially lawful imprisonment had become unlawful on two distinct grounds. This was not his first such application: Garling J had dismissed a previous habeas corpus application in 2012, and earlier applications had been dismissed in 2007 and 2008 by other judges.
The State was represented by counsel for the Attorney General, who did not contest the procedural irregularity arising from the plaintiff's failure to name the correct respondent.
Legal Issues
- Whether conditions of imprisonment can render otherwise lawful custody unlawful, so as to justify the issue of a writ of habeas corpus
- Specifically, whether the plaintiff's alleged lack of adequate access to audio evidence needed for his pending appeal constituted such a condition
- Whether the State Parole Authority's deferral of the plaintiff's parole consideration was beyond its statutory authority
- Whether any such excess of power by the Parole Authority could, in any event, convert lawful imprisonment into unlawful imprisonment justifying habeas corpus
Decision
Issue 1: Conditions of imprisonment (access to audio materials for appeal preparation)
The plaintiff contended that his inability to access audio files and tapes from his 2006 trial prevented him from adequately preparing for his pending appeal, and that this deficiency rendered his custody unlawful. Garling J found this ground was not made out on the facts, noting that an application for access had only recently been made and had not yet been finally resolved. More fundamentally, the court found no legal authority supporting the proposition that inadequate access to appeal preparation materials converts an otherwise lawful imprisonment into unlawful imprisonment warranting habeas corpus.
Issue 2: State Parole Authority's deferral of parole consideration
The plaintiff argued that the Parole Authority had acted beyond its statutory powers by adjourning consideration of his parole and seeking further reports, rather than making a substantive determination. Garling J rejected this, finding that the Authority had an express statutory power to adjourn and request further reports, and that the evidence established the Authority had met and recorded its decisions in accordance with that power. The submission that the absence of formal minutes meant no proper meeting had occurred was also rejected.
Issue 2 (fundamental point): Effect of any Parole Authority error on lawfulness of custody
Garling J went further, holding that even if the Parole Authority had acted beyond power (which he found it had not), that error would not transform a lawful imprisonment into an unlawful one. The plaintiff's detention rested on a valid warrant of commitment. Without a parole order actually being made, the original warrant remained operative and the detention remained lawful. Habeas corpus could not issue on that basis.
Orders Made
- The application for a writ of habeas corpus is dismissed.
- The applicant is to pay the respondent's costs.
Key Takeaways
- Lawful imprisonment does not become unlawful merely because a prisoner lacks adequate access to materials for preparing a pending appeal; no authority supports that proposition in NSW.
- Even if a statutory authority such as the State Parole Authority acts beyond its powers in failing to properly consider parole, that error does not convert an otherwise lawful imprisonment into unlawful imprisonment for the purpose of habeas corpus.
- Where no parole order has been made, the original warrant of commitment remains operative and the prisoner's detention continues on a lawful basis.
- In dismissing the application, Garling J reaffirmed that the writ of habeas corpus addresses the lawfulness of detention itself, not every administrative failure or unsatisfactory condition that arises during an otherwise lawful period of imprisonment.
- This was the plaintiff's fourth unsuccessful habeas corpus application, with courts on each occasion declining to extend the writ to grievances about prison conditions or procedural shortcomings in ancillary processes.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900
- Crimes (Administration of Sentences) Act 1999
- Crimes (Sentencing Procedure) Act 1999
- Felons (Civil Proceedings) Act 1981
Cases
- Middleweek v Chief Constable of Merseyside [1990] 3 WLR 481
- Potier v General Manager & Governor, M.R.R.C [2007] NSWSC 1031
- Potier v Ruddock & MRRC [2008] NSWSC 153
- Potier v The General Manager, MSPC Area 2 Long Bay Correctional Centre [2012] NSWSC 233
- Prisoners A-XX Inclusive v State of New South Wales (1995) 38 NSWLR 622
- Ex Parte Hague [1992] 1 AC 58
- R v Potier [2005] NSWCCA 336