Judicial review for the convicted felon in Australia--a consideration of statutory context and the doctrine of attainder.

Author:Donnelly, Jason
 
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ABSTRACT

The decision of Patsalis v State of New South Wales [2012] NSWCA 307 represents a fundamental development in the common law of Australia. The extent to which the Felons (Civil Proceedings) Act 1981 (NSW) applied to applications for judicial review brought by prisoners convicted of a serious indictable offence or a felony remained unclear before the decision of Patsalis in New South Wales.

This article examines some of the important implications which flow from the decision of Patsalis, such as the fact that "civil proceedings" in the statutory context of the Felons (Civil Proceedings) Act 1981 (NSW) (the FCPA) was held not to apply to applications for judicial review of administrative decisions brought by a prisoner convicted of a serious indictable offence of a felony who sought to challenge his of her incarceration. The article also examines the common law principle of attainder in light of the statutory enactment of the FCPA.

I INTRODUCTION

The judgment of Patsalis v State of New South Wales [2012] NSWCA 307 ('Patsalis') is a decision of significance for the law in New South Wales for various reasons. This paper will explore the implications of the judgment and examine some of the important legal principles that flow from it.

Patsalis represents a bastion of protection for the civil rights of prisoners in New South Wales convicted of serious indictable offences. Moreover, it provides an important analysis of the legal meaning of the phrase 'civil proceedings', delivers a useful discussion of important principles of statutory interpretation more generally and otherwise examines the effect of the common law principle of attainder in Australia.

II THE FACTS

On 24 September 1999, Michael Patsalis (the applicant) was convicted of murder. (1) On 23 February 2000, the applicant was sentenced to imprisonment for 21 years and 6 months, with a minimum term of 16 years. Accordingly, the applicant is serving a sentence for a serious indictable offence. (2)

On 9 May 2011 the applicant filed a statement of claim seeking damages for negligence from the State of New South Wales (the respondent). (3) The negligence was said to relate to the failure of the respondent to protect the applicant from an assault by another inmate, and also the conduct of the respondent in denying him access to his legal documents (the negligence proceedings). (4)

In accordance with section 4 of the Felons (Civil Proceedings) Act 1981 (NSW) (the FCPA), the applicant sought leave to commence the negligence proceedings. (5) The statutory effect of section 4 of the FCPA is that a person who is in custody as a result of being convicted of a serious indictable offence is prohibited from instituting any 'civil proceedings' in any court except by leave of that court.

When the 'leave question' in accordance with section 4 of the FCPA came on for hearing, Schmidt J refused to grant the applicant leave to proceed with his substantive claim against the respondent for access to his legal documents. (6) In a judgment delivered on 26 July 2011, her Honour held that 'leave to commence proceedings in respect of the complaints as to the access given Mr Patsalis to his legal documents, must be refused as an abuse of process'. (7)

The applicant's substantive claim of access to his legal documents was said to be based upon his right of access to the courts and, by extrapolation, his right to petition the Governor under section 76 of the Crimes (Appeal and Review) Act 2001 (NSW) (CARA) 'for review of his conviction or sentence or the exercise of the Governor's pardoning power'. (8)

The applicant sought leave to appeal to the New South Wales Court of Appeal against the decision of Schmidt J 'refusing' the applicant leave to commence proceedings in relation to his claim for access to his legal documents (the appeal proceedings). (9) With the benefit of legal representation in the appeal proceedings, a primary contention advanced by the applicant was that in circumstances where a prisoner seeks judicial review of an administrative decision, section 4 of the FCPA had no application.

Accordingly, in the appeal proceedings, the New South Wales Court of Appeal had to determine a number of important questions of law. First, whether section 4 of the FCPA applied to the applicant's application for judicial review. Secondly, whether section 4 of the FCPA imposes a leave requirement in cases where there had been no disability under the principle of attainder.

III IMPLICATION 1--LEGAL MEANING OF 'CIVIL PROCEEDINGS'

The first important implication to be drawn from the decision in Patsalis relates to the statutory construction of the phrase 'civil proceedings' given by the Court of Appeal. The Court had to determine whether section 4 of the FCPA applied to the applicant's application for judicial review. The answer to that question turned ultimately upon whether the phrase 'civil proceedings' in section 4 of the FCPA was co-extensive with judicial review proceedings.

The Court unanimously held that in the statutory context of the FCPA, the phrase "civil proceedings" was not to be reconciled with 'judicial review proceedings'. This meant that the applicant did not need leave at all to proceed with his judicial review action against the decision of the Commissioner of Corrective Services refusing him access to all of his legal documents in his prison cell. (10) However, this finding by the Court has much wider consequences for the law in New South Wales.

First, since the statutory enactment of the FCPA in 1981, the general trend of jurisprudence in New South Wales had been to apply the leave requirement imposed by section 4 to prisoners in custody who were convicted of a serious indictable offence and who otherwise sought to commence judicial review proceedings in a New South Wales court. (11)

Accordingly, in finding that the phrase 'civil proceedings' in the FCPA does not encapsulate judicial review proceedings, Patsalis has effectively overturned 31 years of jurisprudence in those cases which have found to the contrary--albeit, without really deciding the question but merely assuming the FCPA applied to a prisoner in custody convicted of a serious indictable offence who sought to commence judicial review proceedings in a New South Wales court.

Secondly, more expressly, Patsalis appears to have directly overturned the decision in Potier v Director-General, Department of Justice [2011] NSWCA 105 ('Potier'). In Potier, Handley AJA held that the implication from the statutory text and background to the enactment of the FCPA 'is that proceedings are either civil or criminal, and proceedings which are not criminal are civil'. (12)

Accordingly, Potier held that section 4 of the FCPA applied even where a prisoner in custody convicted of a serious indictable offence sought judicial review of an administrative decision. Despite this finding, Basten JA in Patsalis held:

Contrary to the intimation in Potier, the historical background does not support the proposition that all legal proceedings are necessarily either criminal or civil proceedings. Nor as a matter of policy does there seem to be any good reason why a prisoner should be able to bring criminal proceedings without leave, but not civil proceedings. (13) Thirdly, the decision of Patsalis appears to have settled an apparent disquiet or ambiguity in relation to the question of whether the FCPA has application where a prisoner in custody convicted of a serious indictable offence or felony seeks judicial review of an administrative decision.

As noted previously, the general trend of cases in New South Wales have applied the FCPA in circumstances where a prisoner in custody convicted of a serious indictable offence or felony seeks judicial review. Despite this trend, the apparent 'disquiet' or 'ambiguity' appears in the fact that there are a series of other cases in New South Wales which have permitted prisoners in custody convicted of a serious indictable offence or felony to commence judicial review proceedings without any consideration of the FCPA at all.

For example, in Potier v General Manager & Governor, MRRC (Metropolitan Reception & Remand Centre) [2007] NSWSC 1031, Potier (a person convicted of a serious indictable offence) brought an application for writ of habeas corpus in order to prepare his appeal with better facilities and access to his legal team. Rothman J dismissed the application. Importantly, his Honour did not deal with the FCPA at all, despite stating that: 'These are civil proceedings; not criminal'. (14)

Fourthly, all three judges in Patsalis expressly provided an important analysis of what was meant by the phrase 'civil proceedings' in the statutory context of the FCPA--it appears that such an analysis had not been undertaken in any great detail before the decision of Patsalis. In Australia and England, the expression 'civil proceedings' has been the subject of judicial consideration on various occasions.

In Cheney v Spooner (1929) 41 CLR 532 ('Cheney'), the High Court of Australia held that a public examination by a liquidator was a "civil proceeding" within the meaning of section 16(1) of the Service and Execution of Process Act 1901 (Cth). In Cheney, Starke J stated that: 'A civil proceeding ... includes any application by suitor to a Court in its civil jurisdiction for its intervention or action'...

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