Habeas Corpus and the NSW Department of Corrective Services

Friday 27 July 2012: Kernaghan & Associates made an unprecedented application to the NSW Local Court for a petition for habeas corpus, something not usually done in a Local Court.

The application was bought in circumstances where officers of the NSW Department of Corrective Services working in the cells of Wollongong Court House could not present persons in their custody to the court in a reasonably timely fashion – apparently providing as a reason that they were either understaffed or over-burdened by the numbers of persons in custody.

Aaron Kernaghan, Solicitor who today made the application observed after court, 

“It is unclear if the reason Correctives Officers were unable to present a defendant before the court today are to do with the lack of adequate staff to service the demands at Wollongong Court house or if it is to do with their unpreparedness for the number of persons in custody. Either way, it is an outrage that our justice system is left waiting indefinitely for a person presumed innocent until proved guilty to be produced from the cells for a bail application. 

What if a person who would otherwise be released to bail by a Court is denied that opportunity because while waiting to be allowed by Corrective Services to have their moment in court they suffer a heart attack or some other medical emergency? With the apparent tendency by Police to refuse bail on even the most minor of assaults and offences, the risk to persons in custody waiting for a bail hearing may be unacceptably high.”

On Friday, Wollongong Court House had the Local and the District Courts sitting. According to local prominent barrister Bernadette O’Reilly of Sir Owen Dixon Chambers, difficulties frequently arise at Wollongong Court House with getting persons up from custody for their hearing before a court. Also on Friday, a in the Local Court was forced to commence in the absence of the accused, because he was still in custody and apparently could not be bought up to the court by Correctives Officers.

“It is not unusual for both the Local and District Court to be sitting. Both Magistrates and Judges of the District Court have previously commented on the restrictions on the timely hearing of matters in the court house due to apparently inadequate staffing of Corrective services at the centre. When persons are having their hearings conducted in their absence, and when people are languishing in custody awaiting their bail application, the problem is large enough for a full enquiry into the court-based operations of Corrective Services.

A habeas corpus action is a serious step and one rarely used (thankfully, it is rarely needed). However if Corrective Services can’t do its job properly, or has decided to “go slow”, then it may be seen more often,” said Aaron Kernaghan.

Is Corrective Services running NSW Courts by telling them what they can do? One court today at Wollongong was forced to adjourn until Corrective Services had enough staff to present defendants in custody before the court – an unacceptable waste of court time, to say nothing of the plain degradation of a defendant’s rights to be properly and promptly delivered up to the court for their day in court.

Inquiries: (02) 4244-0339.

Habeas Corpus is a legal petition which requires a person under arrest to be brought before a judge or into court. The right is ancient and has its origins in the 1600s (if not before) in Britain.