Powch v The Queen

High Court of Australia|1980-05-25|Before: Dawson JJ, Lee J

High Court of Australia Mason C.J. Wilson, Brennan, Deane and Dawson JJ. Powch v The Queen [1987] HCA 41

ORDER Application for special leave to appeal refused. Sept. 10 Mason C.J. delivered the judgment of the Court: -

The applicant was convicted before the District Court of New South Wales of an offence of escape from lawful custody. The indictment charged that the applicant on 25 May 1980 at Cessnock in the State of New South Wales, "then being a prisoner in the lawful custody of George Phillip Cornford, The Superintendent of Her Majesty's Prison at Cessnock, did escape from such custody". The applicant claims that it was not shown that the custody from which he had escaped was not custody. He had been sentenced to a term of imprisonment, the relevant sentence having been imposed by the Court of Criminal Appeal in New South Wales on 29 September 1972. The term of his imprisonment had not expired on 25 May 1980. Prior to that day he had been removed from the prison at Parramatta to the prison at Cessnock pursuant to an order made under s. 27 of the Prisons Act 1952 NSW. That section provides:

Any prisoner may be removed from one prison to another prison by order of the Commission -

(a) where the prison in which such prisoner is detained is to be repaired, altered, enlarged or rebuilt;

(b) in case of an outbreak or threatened outbreak of contagious or infectious disease in a prison;

(e) for the purpose of carrying the provisions of section 15 into effect; or

The term "prisoner" includes, inter alia, a person under sentence of imprisonment imposed by any court: see the definitions of prisoner and convicted prisoner in s. 4. A prisoner who is removed pursuant to an order made under s. 27 from one prison to another is deemed to be in the custody of the governor of the prison to which he is removed whilst he is detained there: s. 39. It follows that unless the order pursuant to which he was removed was invalid, the applicant was deemed to be in the custody of the governor of the prison at Cessnock at the time of his escape.

Prior to his removal to the prison at Cessnock, the applicant was detained in the prison at Parramatta, but there was no evidence showing whether he had been committed or removed to that prison. The ground of this application is that it was necessary for the Crown to establish, and the Crown did not establish, that the applicant's detention in the prison at Parramatta was lawful. In the absence of proof of his lawful custody at Parramatta, so the argument runs, his custody at Cessnock cannot be shown to be lawful. This submission was founded on the decision in Reg. v Templeton [1] which was said to require proof of the lawfulness of the detention of a prisoner at all times from his first imprisonment under the sentence, until the time of his escape. That proposition is too wide, as the judgments in Day v The Queen [2] show.

[1956] V.L.R. 709. 2. (1984) 153 C.L.R. 475.

What must be proved is the lawfulness of the custody from which the accused is alleged to have escaped. The lawfulness of the custody stated in the charge depends upon the terms of the sentence, the warrant of commitment (if any), the statutory provisions governing the custody of prisoners and, when there is a statute which authorizes administrative steps to be taken to place a prisoner in that custody, the steps actually taken. Day shows that the particular statutory provisions are of critical importance. The Prisons Act NSW contains provisions different from the provisions of the Prisons Act 1903 WA on which Day was decided, as Lee J. and the Court of Criminal Appeal pointed out in Kelleher v Corrective Services Commission [3] .

In the present case, the lawfulness of the custody of the applicant by the governor of the prison at Cessnock rests on the sentence of imprisonment imposed by the Court of Criminal Appeal on 29 September 1972, coupled with the order for removal made under s. 27 of the Prisons Act. The power to make that order under s. 27 was not contingent on the lawfulness of the custody of the prisoner in the particular prison in which he was held when the order was made. The power was available simply by reason of his status as a prisoner and his being detained in a prison. It was immaterial to consider how and in what circumstances the applicant had come to be in the custody of the governor of the prison at Parramatta. Being a prisoner detained in a prison, he was subject to removal and, upon removal to the prison at Cessnock pursuant to an order under s. 27, he came into the lawful custody of the governor of that prison.

The application for special leave is, therefore, refused.

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