Potier v The New South Wales State Parole Authority

1. [1]

   The plaintiff, Malcolm Huntley Potier, commenced these proceedings by way of Summons filed in this Court on 12 November 2015.

2. [2]

   On 19 November 2015, Mr Potier filed a Notice of Motion in proceedings 2015/332753 in which he sought the following orders:

   1. (1)

      That the Court of its own Motion do receive and consider the Applicant’s Information of the 18 November 2015.

   2. (2)

      That the Court do grant the Applicant a Warrant under section 151 of the Migration Act 1958 (Cth) (“the Act”).

3. [3]

   The application made by the plaintiff was listed and heard in the Duty Judge List on Tuesday, 24 November 2015. On that occasion Mr Brendan Lim of counsel appeared on behalf of the Minister for the Department of Immigration and Border Protection (the second defendant) (“the Minister”), and Ms E Sullivan appeared on behalf of the State Parole Authority and the Department of Corrective Services (the first and third defendants).

4. [4]

   On 19 November 2015, the plaintiff filed an affidavit which was sworn by him on 18 November 2015. In it he stated, inter alia:

5. [5]

   On 19 November 2015, the plaintiff also filed a document entitled “Statement of Issues’. In that document, in the nature of submissions, the plaintiff contended:

6. [6]

   The plaintiff also stated in that document:

7. [7]

   The plaintiff in his oral submissions on 24 November 2015, referred to the proceedings instituted by the Summons filed on 12 November 2015 in relation to his submission as to the Court’s jurisdiction under s 23 of the Supreme Court Act 1970.

Submissions

1. [8]

   The plaintiff appeared on his own behalf and made oral submissions in support of the Notice of Motion filed on 19 November 2015.

2. [9]

   Written submissions dated 23 November 2015 were relied upon on by Mr Lim on behalf of the Minister and Ms Sullivan relied upon written submissions dated 23 November 2015 prepared on behalf of the Commissioner for the Department of Corrective Services.

Background

1. [10]

   The background to the plaintiff’s application was conveniently summarised in the written submissions on behalf of the Commissioner. What follows is drawn from paragraphs 4-7 of those submissions.

2. [11]

   The plaintiff has in all been convicted in New South Wales on three charges of soliciting murder. The sentences for the first two of the convictions has expired. The head sentence for the third conviction imposed on 13 November 2006 (see para [16] below) expires on 6 August 2018.

3. [12]

   The earliest possible release date for the plaintiff to parole in respect of the second conviction was 6 August 2013.

History of Further Proceedings

1. [13]

   Subsequent to the imposition of the sentences in respect of the two counts for which Mr Potier was sentenced on 10 May 2002, the Crown filed a Notice of Appeal against the inadequacy of the sentence. Mr Potier appealed against his conviction and made application for leave to appeal the sentence imposed.

2. [14]

   The two sentence appeals were heard together. On 25 August 2004, the Court of Criminal Appeal refused Mr Potier leave to appeal against sentence and allowed the Crown appeal: R v Potier [2004] NSWCCA 136. The Court of Criminal Appeal re-sentenced him as follows:

3. [15]

   On 17 February 2006, the Court of Criminal Appeal dismissed Mr Potier’s appeal against conviction: Potier v R [2006] NSWCCA 27. A Special Leave application filed by Mr Potier in relation to the convictions was subsequently dismissed.

4. [16]

   On 3 October 2006, Mr Potier was convicted of a charge of soliciting a person to murder Ms Oswald between 1 January 2002 and 8 February 2002. On 13 November 2006, Shadbolt DCJ sentenced him to imprisonment for 12 years with a non-parole period of 7 years expiring on 6 August 2013. His subsequent appeal was not heard until 10 November 2014.

5. [17]

   Earlier, on 15 August 2014, Garling J, in the course of case managing the proceedings in the Court of Criminal Appeal, heard an application for the issue of a criminal justice stay warrant pursuant to s 151 of the Act: Potier v R [2014] NSWCCA 157. The application was dismissed. In his Honour’s judgment, he noted that the State Parole Authority was at that time scheduled to conduct a further hearing on 13 August 2014 on the question of whether or not Mr Potier ought to be granted parole. As at the date of Garling J’s judgment the outcome of the scheduled hearing before that Authority was unknown.

6. [18]

   In the application for the issue of a criminal justice stay warrant heard by Garling J Mr Potier had expressed fears that he would not be permitted by the Commonwealth immigration authorities to return to Australia for the purposes of the conduct of his appeal in the Court of Criminal Appeal. Garling J noted at [11] that Mr Potier expressed apprehension that if he was deported to the United Kingdom he would be unable to prosecute his appeal, that it would lapse and that he would not have an opportunity to rectify what he asserted was an erroneous conviction.

7. [19]

   In his judgment Garling J considered the relevant authorities in relation to the provisions of s 151(1) of the Act. His Honour concluded:

8. [20]

   On 3 August 2015, the Court of Criminal Appeal in Application of Malcolm Potier [2015] NSWCCA 199 made orders to the following effect:

9. [21]

   Mr Lim of counsel in the course of his submissions in the present proceedings observed that although the Court of Criminal Appeal in that case had considered the question of jurisdiction under s 151 of the Act, and accepted that it had jurisdiction under that provision to issue a warrant referred to in s 151. The Court, however, had not been referred to relevant authorities, including in particular the judgment of Lindgren J in Lee v Minister for Immigration and Citizenship (2008) 171 FCR 38.

10. [22]

    In his Honour’s judgment on the question of whether a warrant should be issued under s 151, Davies J (with whom Hoeben CJ at CL and Hamill J agreed) observed:

11. [23]

    A little later his Honour observed:

12. [24]

    On 14 September 2015, the Court of Criminal Appeal in Application of Malcolm Potier (No 2) [2015] NSWCCA 249 refused an application under r 50C, the Court noting at [18] that the application attempted to re-argue matters already considered in the previous principal judgment.

Grant of Parole – Plaintiff an Unlawful Non-Citizen

1. [25]

   On 2 October 2015, the NSW State Parole Authority made an order granting the plaintiff parole. By the summons filed on 12 November 2015 – to which reference has been made above – the plaintiff seeks review of the parole order.

2. [26]

   The plaintiff is a national of the United Kingdom. He presently does not hold a visa. Accordingly, he is an unlawful non-citizen within the meaning of s 14 of the Act.

3. [27]

   Section 189(1) of the Act requires an “officer” (defined in s 5 of the Act) to detain a person if the officer knows or reasonably suspects that a person in the migration zone, which includes New South Wales, is an unlawful non-citizen.

4. [28]

   Consistently with that obligation, upon the plaintiff’s release from custody, officers of the Department of Immigration and Border Protection took the plaintiff into immigration detention.

5. [29]

   Pursuant to s 196(1) of the Act the plaintiff will be kept in immigration detention until relevantly he is removed from Australia under s 198. Section 196(1) of the Act prescribes other events which mark the limits of an unlawful non-citizen’s detention under s 189 of the Act.

Proceedings no. 2015/332753

1. [30]

   As stated above, the present application by the plaintiff was brought by way of Notice of Motion filed 19 November 2015 in proceedings No. 2015/332753.

2. [31]

   The proceedings were instituted against “The responsible officer, NSW State Parole Authority (first defendant), the Minister for the Department of Immigration and Border Protection (second defendant) and the NSW Commissioner for the Department of Corrective Services (third defendant)”.

3. [32]

   The relief claimed in the Summons is expressed in the following terms:

4. [33]

   On the same date, 12 November 2015, the plaintiff filed a Notice of Motion in which the orders sought were stated as follows:

5. [34]

   The proceedings that have been brought on the abovementioned Summons remain current and in the ordinary course would be expected to be the subject of case management orders and directions.

The Relevant Legislation

1. [35]

   Part 2, Division 4 of the Act – Criminal justice visitors - contains a number of subdivisions. Subdivision A – Preliminary - sets out, inter alia, interpretative provisions. Subdivision B – Criminal justice certificates for entry - contains provisions whereby the Attorney-General (Cth) may grant a Commonwealth criminal justice entry certificate for the temporary presence in Australia of a non-citizen who is outside Australia for specified purposes: s 145(1)(a).

2. [36]

   Section 146 makes provision for an authorised official of a State to give a certificate that the presence of a non-citizen in Australia is required for the administration of criminal justice by the State: s 146(1).

3. [37]

   Subdivision C – Criminal justice certificates etc staying removal or deportation - contains provisions that are relevant to the present proceedings.

4. [38]

   Section 147 provides power in the Attorney-General (Cth) to give a certificate for the stay of a non-citizen’s removal or deportation, required for the administration of criminal justice.

5. [39]

   Section 148 similarly confers power on an authorised official for a State to issue a State criminal justice stay certificate where the official considers that the non-citizen should remain in Australia temporarily for the purposes of the administration of criminal justice in relation to an offence against a law of the State: s 148(1).

6. [40]

   Section 150 of the Act provides that if a criminal justice stay certificate about a non-citizen is in force, the non-citizen is not to be removed or deported.

7. [41]

   The present proceedings are concerned with the provisions for the issue of a criminal justice stay warrant in respect of a non-citizen.

8. [42]

   Section 151 is in the following terms:

9. [43]

   Subdivision D – Criminal justice visas - makes provision for the issue of a criminal justice visa permitting a non-citizen to travel to and enter and remain temporarily in Australia (known as a criminal justice entry visa): s 155.

10. [44]

    Section 158 provides the criteria for criminal justice visas.

11. [45]

    Finally subdivision E is concerned with the cancellation etc of criminal justice certificates and criminal justice visas.

12. [46]

    In subdivision A, section 144 states the objects of Division 4 of Part 2 of the Act. It is in the following terms:

13. [47]

    The term “administration of criminal justice” is defined in s 142 to mean:

14. [48]

    The provisions of s 142 are to be brought into account in the consideration of the provisions of s 151 of the Act.

15. [49]

    The provisions, inter alia, of s 151 has been the subject of detailed consideration by the Federal Court (Lindgren J) in Lee v Minister for Immigration and Citizenship (2008) 171 FCR 38.

16. [50]

    In Lee Lindgren J considered that the references in the definition of “administration of criminal justice” to investigation, prosecution and punishment:

17. [51]

    In so concluding, Lindgren J had regard in particular to the scheme established by the provisions of Division 4. In particular:

18. [52]

    In the written submissions for the Minister, supplemented by oral submissions at the hearing, the scheme for criminal justice visitors under the Act was addressed in detail, it being submitted on behalf of the Minister that s 151 of the Act is not a source of power to issue a criminal justice stay warrant as the plaintiff contends and that there is an absence of any other identified power to issue a warrant: Written Submissions for the Minister at [11].

19. [53]

    As to the scheme, it was observed that Part 2 of the Act is generally concerned with the control of the arrival and presence in Australia of non-citizens. Unlawful non-citizens in the migration zone must be detained and are liable to removal from Australia: s 189(1) and s 198.

20. [54]

    It was submitted that the general provisions in the Act in respect of applications for visas do not apply to criminal justice visas: s 44(1).

21. [55]

    It was noted at [15] of the written submissions for the Minister that Division 4 of Part 2 of the Act provides for non-citizens to be brought to, or allowed to stay, in Australia “… if the administration of criminal justice requires their presence in Australia”: s 141.

22. [56]

    The provisions conferring power on the Attorney-General (Cth) or an authorised official for a State in respect of a “criminal justice stay certificate” was addressed and contrasted with those provisions concerned with a “criminal justice stay warrant” as defined in s 142 (being a warrant described in s 151).

23. [57]

    Submissions were made in respect of the statutory language employed in Division 4 in respect of the expression “criminal justice entry certificate” which is defined in s 142, inter alia, as a certificate “given under” s 145 or s 146(1). The expression “criminal justice stay certificate” is defined (in s 142) as a certificate “given under” s 147 or s 148. However, the expression “criminal justice stay warrant” is described as meaning “a warrant described in s 151” (emphasis added). The choice of language, it was submitted, in effect, was intentional and reflect the nature of a criminal justice stay warrant under s 151.

24. [58]

    It was further submitted that the provisions of s 151 do not operate so as to confer a power on a court to issue a criminal justice stay warrant:

25. [59]

    It was submitted for the Minister that the statements of the Court of Criminal of Appeal in Application of Malcolm Potier [2015] NSWCCA 199 at [56] and Application of Malcolm Potier (No 2) [2015] NSWCCA 249 at [17], were erroneous and that the decisions in those cases are not binding on this Court in circumstances in which the relevant statutory issues considered in Lee v Minister for Immigration and Citizenship were not argued before the Court of Criminal Appeal in either of those cases, it appearing that, for reasons not readily apparent, there was no appearance for the Crown in the former of those proceedings.

26. [60]

    It was further submitted for the Minister that there is no alternative source of power for the Court to grant a criminal justice stay warrant. At the hearing, Mr Potier stated that he relied on the provisions of s 23 of the Supreme Court Act 1970. The written submissions for the Minister advert to an observation made by Garling J in the decision of Potier v Regina [2014] NSWCCA 157 in which his Honour noted that whether s 23 of the Supreme Court Act conferred the relevant power was a “nice question.”

27. [61]

    It was submitted for the Minister that there is nothing incongruous in a conclusion that there is no power to issue a criminal justice warrant. The purpose of s 151 is simply to leave open the possibility that the various legislatures, including the State legislatures, might make provisions for courts to grant such warrants. It was contended that the scheme of the Act would not be undermined by the absence of such a power. The Act itself, it was noted, conferred power on identified officials to grant criminal justice stay certificates and that these adequately fulfil the central purpose of Division 4.

28. [62]

    A submission was also made on behalf of the Minister that it would not be open to conclude that this Court may exercise a power of its own motion to grant a criminal justice stay warrant. In support, reference was made to the provisions of s 151(3) which imposes responsibility for the costs of the non-citizen’s maintenance and accommodation on “the applicant for the warrant”.

29. [63]

    It was submitted that the Explanatory Memorandum to the legislation also provides support for this proposition.

30. [64]

    It was submitted for the Minister that the Notice of Motion filed on 19 November 2015 should be dismissed with costs.

31. [65]

    Ms Sullivan who appeared on behalf of the Commissioner for the Department of Corrective Services relied upon written submissions of Ms Mitchelmore of counsel dated 23 November 2015. Ms Sullivan additionally relied upon the submissions made by Mr Lim on behalf of the Minister.

32. [66]

    It was submitted on behalf of the Commissioner, similarly to the submissions for the Minister, that the Court does not have power to grant a warrant under s 151 of the Act in the absence of an application from a law enforcement agency: Written Submissions at [3]. It was formally submitted that the decision of the Court of Criminal Appeal in Potier v R [2015] NSWCCA 199 should not be followed.

33. [67]

    It was also submitted for the Commissioner that the court would in any event not be satisfied that this is a case in which it would be appropriate to grant a warrant.

34. [68]

    The submissions for the Commissioner referred to and relied upon observations of French J (as his Honour then was) in Goldie v Commonwealth [2002] FCA 261 in respect of ss 147-148 of the Act, and in addition the observations of Lindgren J in Lee.

35. [69]

    It was noted that the expression “administration of criminal justice” does not bear its ordinary meaning but is an expression that is defined from the perspective of the administrators of the criminal justice system: Written Submissions for the Commissioner at [17].

Consideration

1. [70]

   The terms of s 151 do not confer upon any person or class of persons other than persons described by Lindgren J as “administrators of the criminal justice system” a right to make an application for the issue or grant of a criminal justice stay warrant.

2. [71]

   The terms of s 151 do not, in particular, empower or vest any rights upon an unlawful non-citizen to make application for a criminal justice stay warrant.

3. [72]

   The provisions of s 141 – Objects of Division, and those in s 142 defining “criminal justice stay warrant” together with the provisions of s 151 (in particular s 151(3)), all indicate that “the applicant for the warrant” is a person other than “a non-citizen”.

4. [73]

   Further, the provisions of s 151 are expressed in terms that “this Act [the Migration Act] does not prevent a court issuing for the purposes of the administration of criminal justice … etc.” does not create or confer jurisdiction to issue a warrant (a criminal justice stay warrant) in the Supreme Court of New South Wales.

5. [74]

   In general terms, statutory provisions that confer upon judicial officers or other officials or tribunals a power to issue warrants of specified kinds (for example, for the issue of search warrants, surveillance device warrants or warrants for possession) are issued upon application made to authorised officers. There is no basis for the submission made by the plaintiff that this Court may, of its own motion, issue a criminal justice stay warrant under s 151. Mr Potier, I note, accepted that he does not have standing to apply for such a warrant.

6. [75]

   The provisions of Division 4, construed as a whole, indicate that the evident purpose of s 151 is to facilitate the administration of criminal justice in permitting a non-citizen to remain in Australia for the purpose of, or in relation to what is prescribed in s 142:

7. [76]

   The “applicant for the warrant” referred to s 151(3) is clearly intended as a reference to an application made by a person or persons involved in the activities or processes concerned with the administration of criminal justice in one or more of the matters referred to in [75] above (investigation, prosecution and/or punishment of a person).

8. [77]

   Whilst the Court of Criminal Appeal in Application of Malcolm Potier [2015] NSWCCA 199 proceeded on the basis that the Court of Criminal Appeal had jurisdiction under s 151 of the Act, I accept, as was submitted on behalf of the Minister, that that aspect of the decision is not binding on this Court, it does not form part of the ratio of the case. Further, the question of whether the Court had jurisdiction under s 151 was not addressed or argued in light of the relevant authorities: Written Submissions for the Minister at [24]. Unusually, as noted in those submissions there appears to have been no appearance for the Crown in those proceedings, Mr Potier appearing in person.

Supreme Court Jurisdiction: Section 23 Supreme Court Act 1970

1. [78]

   The plaintiff additionally relied in the course of his oral submissions upon the Court’s jurisdiction as stated in s 23 of the Supreme Court Act 1970 (NSW) which is in the following terms:

2. [79]

   The Supreme Court is a superior court of record and as such has an inherent jurisdiction in addition to its specific statutory jurisdiction. The jurisdiction of the Court under its inherent jurisdiction and under s 23 is limited by the requirements of the administration of justice.

3. [80]

   In this respect, the plaintiff points to the fact that the proceedings commenced by him by way of Summons filed on 12 November 2015 are current proceedings in this Court which it may be presumed will be the subject of case management directions. The plaintiff has contended that his presence in the jurisdiction for the purpose of conducting those proceedings would support the grant of relief by way of stay based on the jurisdiction under s 23 of the Supreme Court Act, thereby providing him with the ability to conduct the proceedings. If he were to be deported to the United Kingdom, he submitted, difficulties may be expected to confront him in pursuing the proceedings.

4. [81]

   I have earlier referred to the relief sought in the Summons filed on 12 November 2015 and the Notice of Motion the subject of the present hearing.

5. [82]

   The nature of the alleged “injustice” in respect of which relief is claimed in the Summons, and the bases or grounds relied upon for the orders sought, are not framed in precise terms. The centre of the relief sought in the Summons appears to be based on a challenge to the decision whereby the plaintiff was released to parole.

6. [83]

   I note that the document prepared by the plaintiff entitled “Statement of Issues” contains the following statements:

7. [84]

   In addition it is asserted in the Statement of Issues:

8. [85]

   The written submissions relied upon by the plaintiff, filed on 19 November 2015, do not elaborate upon these issues and there is no evidence by the plaintiff from which the prospects of the plaintiff obtaining any form of relief sought can be evaluated. There is, in my opinion, an onus upon the plaintiff, in a case in which relief in the nature of a stay order is sought, to establish that he has reasonable prospects in the proceedings which have been instituted by him in this Court. That has not been established.

9. [86]

   In any event, as I have earlier indicated, this Court does not have jurisdiction on any basis to grant relief in the nature of a criminal justice warrant under s 151 of the Act. No other basis exists in these circumstances for the exercise of the Court’s jurisdiction under s 23 of the Supreme Court Act. In particular, it has not been established that the exercise of the jurisdiction under s 23 is necessary for the administration of justice in New South Wales.

10. [87]

    I have accordingly concluded: