Milligan v State of New South Wales

1. [1]

   A Statement of Claim in these proceedings was filed on 25 November 2024. The plaintiff claimed damages as a consequence of sexual abuse whilst a juvenile between September 2001 and December 2001, during which time he was detained at the Orana Youth Justice Centre.

2. [2]

   On 9 January 2025, the plaintiff filed a Notice of Motion seeking the following relief:

3. [3]

   The orders sought in the Notice of Motion call up for consideration the provisions of ss 4 and 5 of the Felons (Civil Proceedings) Act 1981 (“the Felons Act”). Those provisions are:

4. [4]

   In support of the Notice of Motion, the plaintiff relies upon the affidavit of Karen Rose Torres sworn dated 8 January 2025.

5. [5]

   Relevantly, her affidavit includes the following:

6. [6]

   Ms Torres annexed to her affidavit an exchange of emails between her and the solicitor acting for the plaintiff in his criminal proceedings on the topic of the plaintiff’s custodial status.

7. [7]

   On 3 December 2024, Mr Peter Anderson, solicitor, sent an email in the following terms:

8. [8]

   Although Mr Anderson referred in his email to the definition of “serious indictable offence” in s 4 of the Crime Act, the definition is not applicable to the Felons Act. It is a definition restricted to the phrase when used in the Crimes Act.

9. [9]

   The phrase “serious indictable offence” in the Felons Act is to be interpreted by reference to the Dictionary which forms part of the Interpretation Act 1987: see s 3(3).

10. [10]

    Applying that definition, the offences with which the plaintiff has been charged fall within the phrase “serious indictable offence”.

11. [11]

    Part of the evidence put before the Court in the affidavit of Ms Torres was the record created by the Department of Corrective Services of convictions, sentences and appeals relating to the plaintiff which was dated 20 December 2024.

12. [12]

    Insofar as that record is relevant to the current application, it shows that the plaintiff was taken into custody on 14 April 2023. He had earlier been released from custody on 20 January 2023, as a consequence of a parole order which had been made.

13. [13]

    It appears that on 26 April 2023, the State Parole Authority revoked the parole order which had resulted in the plaintiff’s release from custody three months earlier and had ordered that he serve the balance of his sentence, which was for a period of 1 year 2 months and 21 days. The balance of his sentence commenced on 14 April 2023 and expired on 4 July 2024.

14. [14]

    It appears that thereafter, the plaintiff remained in custody on remand, because of the charges described above at [7] which by then had apparently been preferred against him.

15. [15]

    I note that the criminal charges appear to have been listed for sentence on 17 December 2024, but no material has been put before this Court as to what occurred on that occasion.

16. [16]

    On the evidence tendered in support of the Motion, it is clear that as at 25 November 2024, being the date upon which the proceedings were commenced, the plaintiff, whilst he was in custody, was not being held as a result of having been convicted of any offence at all, let alone a serious indictable offence. So much appears from the correspondence of his solicitor and the record of the Department of Corrective Services.

17. [17]

    It seems clear that the plaintiff had either entered a plea of guilty to the offences described, or else had indicated an intention to plead guilty although a formal arraignment and entry of the plea may not have occurred and would not have occurred before the date fixed for sentencing. Whatever be the position about his entry of the pleas of guilty, the evidence does not permit a conclusion that the plaintiff had been “found to have committed” any offence at all. A plea of guilty is an admission by a person to having committed an offence. It does not constitute a finding that such offence has been committed.

18. [18]

    The reason there is such a distinction is that, depending on all of the circumstances, it remains within the discretion of a sentencing Judge to decline to accept a plea of guilty. It is unnecessary, in this judgment, to canvass the circumstances in which that might occur. One obvious circumstance is where a Court is not satisfied that, at the time the plea of guilty is made, the offender has the capacity to enter such a plea.

19. [19]

    In all of the circumstances demonstrated by the material before the Court, I cannot be satisfied that the plaintiff is a person to whom s 4 of the Felons (Civil Proceedings) Act applies (the “Felons Act”).

20. [20]

    I should note, although it has been unnecessary to determine this for the purpose of this judgment, that the phrase “a serious indictable offence” where it appears in s 4, is not defined in the Felons Act.

Conclusion

1. [21]

   A plea of guilty to one or more offences which carry a penalty of a term of imprisonment for at least five years, in the absence of the entry of a conviction, and prior to the imposition of sentence, does not mean that the person has been “… convicted of, or found to have committed …” an offence for the purposes of s 4 of the Felons Act.

2. [22]

   The plaintiff in these proceedings has not demonstrated that he needs leave under the Act to commence proceedings.

3. [23]

   It is my opinion that the plaintiff did not fall within the requirements of the Felons Act as a person who requires leave before he commences civil proceedings. The consequence of this opinion is that the Notice of Motion filed 9 January 2025 will be dismissed.

Orders

1. [24]

   I make the following orders:

   1. (1)

      Notice of Motion filed 9 January 2025 is dismissed.

   2. (2)

      Each party pay their own costs of the Notice of Motion.