Potier v General Manager, Dawn De Loas Correctional Centre [2012] NSWCA 352

Potier v General Manager, Dawn De Loas Correctional Centre [2012] NSWCA 352

The application for an extension of time was refused because the proposed appeal disclosed no arguable error by Garling J: the applicant was detained under an extant sentence of a superior court that had not been set aside, the habeas corpus application was an impermissible collateral attack on existing criminal orders, and there was no legal error in the primary judge refusing to issue the writ without bringing the Crown before him where no basis for the writ was shown.

Jurisdiction
Australia
Judgment Date
23 October 2012
Procedural Posture
Application for Extension of Time to File and Serve a Notice of Appeal Against Dismissal of an Application for a Writ of Habeas Corpus / Court of Appeal Interlocutory Application Before a Single Judge
Outcome
Application for extension of time refused with costs.
Legal Topics
['extension of Time' 'no Arguable Error by Primary Judge' 'custody Under Extant Sentence' 'collateral Attack on Criminal Convictions' 'absence of Respondent at First Instance']
['practice and Procedure' 'habeas Corpus' 'criminal Procedure'] ['extension of Time' 'no Arguable Error by Primary Judge' 'custody Under Extant Sentence' 'collateral Attack on Criminal Convictions' 'absence of Respondent at First Instance']

Case Brief

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Procedural Posture

Application for Extension of Time to File and Serve a Notice of Appeal Against Dismissal of an Application for a Writ of Habeas Corpus / Court of Appeal Interlocutory Application Before a Single Judge

Legal Issues

  1. 1 ["Whether time should be extended to file and serve a notice of appeal against Garling J's decision refusing habeas corpus." 'Whether the primary judge made an arguable error in refusing to issue the writ of habeas corpus where the applicant remained in custody under an extant sentence of a superior court.' 'Whether the primary judge erred by dealing with the habeas corpus application in the absence of the Crown.' 'Whether complaints about conditions of custody or preparation for a special leave application could support an argument of unlawful detention.']

Ratio Decidendi

The application for an extension of time was refused because the proposed appeal disclosed no arguable error by Garling J: the applicant was detained under an extant sentence of a superior court that had not been set aside, the habeas corpus application was an impermissible collateral attack on existing criminal orders, and there was no legal error in the primary judge refusing to issue the writ without bringing the Crown before him where no basis for the writ was shown.

Court Disposition

Application for extension of time refused with costs.

Orders

  • ['The application for an extension of time to file and serve the notice of appeal against the decision of Garling J made on 16 March 2012 is refused with costs.']