Morrell v Director-General, Department of Community Safety
[2015] QSC 46
•6 March 2015
SUPREME COURT OF QUEENSLAND
CITATION:
Morrell v Director-General, Department of Community Safety & Anor [2015] QSC 46
PARTIES:
WAYNE JOHN MORRELL
(plaintiff/respondent)
v
DIRECTOR-GENERAL, DEPARTMENT OF COMMUNITY SAFETY(first defendant)
THE STATE OF QUEENSLAND
(second defendant/applicant)
FILE NO/S:
No 2186 of 2014
DIVISION:
Trial Division
PROCEEDING:
Application
ORIGINATING COURT:
Supreme Court at BrisbaneDELIVERED ON:
6 March 2015
DELIVERED AT:
Brisbane
HEARING DATE:
26 February 2015
JUDGE:
Ann Lyons J
ORDER:
I will hear from Counsel as to the form of the Order and as to Costs.
CATCHWORDS:
PROCEDURE – MISCELLANEOUS PROCEDURAL MATTERS – DECLARATIONS – OTHER MATTERS –where the second defendant/applicant makes an application for a declaration pursuant to s 95(2) of the Corrective Services Act 1988 (Qld) (Reprint No. 1) – whether the plaintiff/respondent was unlawfully at large pursuant to s 95(2) of the Corrective Services Act 1988 (Qld) (Reprint No. 1)
Acts Interpretation Act 1954 (Qld) (Reprint No. 6), s 35
Civil Proceedings Act 2011 (Qld), s 10
Corrective Services Act 1988 (Qld) (Reprint No. 1), s 10, s 94 and s 95
Uniform Civil Procedure Rules 1999 (Qld), r 5Carrion v R (1993) 69 A Crim R 230, cited
In Re Thrun (1986) 42 SASR 481, cited
Jumbunna Coal Mine v Victorian Coal Miners’ Association (1908) 6 CLR 309, followed
Re Stone [1995] 2 Qd R 681, followed
COUNSEL:
A Duffy and S Williams for the plaintiff/respondent
K Philipson for the second defendant/applicant
SOLICITORS:
Schultz Toomey O’Brien for the plaintiff/respondent
Crown Law for the second defendant/applicant
ANN LYONS J:
This application
The plaintiff/respondent commenced proceedings on 21 May 2013 against the Director General of the Department of Community Safety and the State of Queensland seeking a declaration that he was wrongfully imprisoned, and claiming general damages of $658,000 together with economic loss of $32,250 and aggravated damages of $150,000 for his unlawful detention. He argues that he was held in custody in Queensland for 329 days after his full time discharge date due to an incorrect calculation of the time he was unlawfully at large which included the period of time he was actually in custody in New South Wales.
This is an application by the applicant/second defendant, State of Queensland, pursuant to section 10 of the Civil Proceedings Act 2011 (Qld) (CPA), for a declaration that:
(a)on the proper construction of section 95(2) of the Corrective Services Act 1988 (Qld) (Reprint No. 1) (CSA), a person remains unlawfully at large within the meaning of that section until the said person is admitted to and detained in a prison or police gaol in Queensland; or
(b)in the alternative, that the period of imprisonment which the respondent was serving when he absconded from lawful custody in Queensland on 21 March 1994 recommenced when he was arrested and detained in Queensland on 16 September 1995.
Background
The Amended Statement of Claim[1]and the Amended Defence of the First and Second Defendant[2] plead the following facts:
[1] Amended pursuant to r 378 of the Uniform Civil Procedure Rules 1999 (Qld) on 20 May 2014.
[2] Amended pursuant to Orders of Atkinson J of 27 May 2014.
·On 23 September 1988, the plaintiff/respondent was sentenced in the Brisbane Supreme Court to 10 years’ imprisonment in Queensland for four counts of burglary and one count of entering a swelling house with intent.
·On 15 October 1993, the plaintiff/respondent was granted a release to work or leave of absence.
·On 21 March 1994, the plaintiff/respondent absconded and was unlawfully at large.
·On 22 March 1994, a warrant was issued for the arrest of the plaintiff/respondent for being unlawfully at large.
·On 8 September 1994, the plaintiff/respondent:
owas arrested in New South Wales by New South Wales police for escaping from lawful custody in Queensland but was not charged with that offence;
owas charged by New South Wales police service with a number of counts of armed robbery allegedly committed in New South Wales; and
owas detained overnight in the Burwood Local Court watchhouse (the NSW Watchhouse).
·On 9 September 1994, the plaintiff/respondent appeared in the Burwood Local Court and was remanded in custody in New South Wales in relation to the armed robbery charges in New South Wales and was refused bail.
·From 9 September 1994 to 3 August 1995, the plaintiff/respondent was detained in the Long Bay Correctional Facility in New South Wales (the NSW prison).
·On 3 August 1995, the plaintiff/respondent was committed for trial on 3 counts of armed robbery and was remanded in custody until trial.
·On 3 August 1995, the plaintiff/respondent escaped from lawful custody in New South Wales.
·On 16 September 1995, the plaintiff/respondent was arrested in Queensland and subsequently detained in prison in Queensland until his release on or about 2 May 2012.
It is not contested that the plaintiff/respondent was detained in lawful custody in New South Wales for a period of 329 days from 8 September 1994 to 3 August 1995. The real question is whether during that period he was “unlawfully at large” for the purpose of section 95(2) of the CSA from the time he was detained in lawful custody in New South Wales for a period of 329 days from 8 September 1994 to 3 August 1995.
Was the plaintiff/respondent “unlawfully at large” for the purpose of section 95(2) of the CSA?
At the commencement of the hearing of the application, the plaintiff/respondent argued that the application by the second defendant/applicant was misconceived, as it was brought late in the proceedings, the relief sought went to the central issue in the proceeding, and there was no evidence before the Court which could found the declarations sought. I was satisfied, however, that it was appropriate to proceed given the state of the pleadings and the lack of any real controversy in relation to the facts. Section 10 of the CPA also makes it clear that such an application may be made without granting any other relief. I also was satisfied that the application was appropriate given the clear statement in rule 5 of the Uniform Civil Procedure Rules 1999 (Qld) that the purpose of the rules is to facilitate the just and expeditious resolution of the real issues in civil proceedings at a minimum of expense.
Section 95 of the CSA provides:
“Period while unlawfully at large not to count as part of term of imprisonment
95. (1) Where a prisoner escapes from lawful custody or is otherwise unlawfully at large no part of the period during which the prisoner is unlawfully at large shall count as part of the term of imprisonment or period of detention being served by the prisoner when the prisoner escaped or otherwise became unlawfully at large.
(2) For the purposes of subsection (1) a person remains unlawfully at large until the person in admitted to and detained in a prison or police gaol.”
(my emphasis)
The terms “prison” and “police gaol” are defined in section 10 of the CSA as follows:
“Interpretation
10. In this Act-
"police gaol" means any police lockup or watchhouse;
"prison" means any premises or place declared or deemed to have been declared as a prison pursuant to the Act;”
Significantly s 35(1)(b) of the Acts Interpretation Act 1954 (Qld)[3] (AIA) provides that “a reference to a locality, jurisdiction, or other thing is a reference to such a locality, jurisdiction or other thing in or of Queensland”.
[3] (Reprint No. 6).
The plaintiff/respondent argues, however, that the interpretation of s 95 of the CSA that would serve the purpose of the Act is to be preferred to any other interpretation. Reliance, in particular, is placed on the High Court decision of Project Blue Sky Inc v The Australian Broadcasting Authority,[4] and it is argued that s 95 of the CSA is properly construed as a penal provision which imposes a restraint on personal liberty, and as such the liberty of the subject should only be placed in jeopardy where the legislature’s intention is clear. It is argued that s 95(1) of the CSA, therefore, operates where a person is unlawfully at large and it is not constrained by s 95(2). It is argued that to be “unlawfully at large” one must actually be “at large”, and the plaintiff was not at large as he was in custody in NSW in either a prison or police gaol. The plaintiff/respondent argues that the AIA should not constrain the true meaning of s 95 of the CSA, and that as the words “unlawfully at large” are not defined in the CSA, then that act can provide no assistance as to the resolution of the meaning.
[4] (1998) 194 CLR 355.
The plaintiff/respondent also argues that the decisions of Frugtniet v Attorney General of New South Wales[5] (Frugtniet) and Morrison v Regina[6] (Morrison) support an interpretation which means that a person is “at large” when they are not in custody. It is argued that for the period of 329 days when the plaintiff/respondent was detained in NSW he was not “at large” or “unlawfully at large”. Counsel for the plaintiff/respondent submits that the construction agitated by the second defendant/applicant on the pleadings produces an absurdity, as it would mean that despite being lawfully detained in custody in NSW and having his personal liberty denied, he would nevertheless be “unlawfully at large” in Queensland. I do not accept the submission that such an interpretation would produce an absurdity. In my view that is the clear intention of the section and results in a situation that sentences imposed in Queensland are required to be served in Queensland bearing in mind of course that issues of totality will always operate.
[5] (1997) 41 NSWLR 588.
[6] [2009] NSWCCA 221.
I also consider that the decision of Frugtniet, is clearly distinguishable on the basis that not only did it relate to a completely different factual situation where the question was whether a person who was on bail was “at large” for the purposes of the Magistrates (Summary Proceedings) Act 1975 (Vic) (Magistrates Act) but it also involved an analysis of specific provisions of the Prisoners (Interstate Transfer) Act 1982 (NSW). In my view, it is authority for the meaning of s 20 of the Magistrates Act in the circumstances of that case. Relevantly, Beazley JA held:[7]
“Accordingly, and notwithstanding that s 20 of the repealed Act has not been re-enacted in its entirety, I consider that the phrase “at large” continues to include persons who are on bail, that is, who are not in custody. In the case of s 66, that means not in custody in Victoria — the statute not having extra territorial operation, a matter about which there was no dispute: see generally Jumbunna Coal Mine (No liability) v Victorian Coal Miners Association (1908) 6 CLR 309 at 363.”
[7] Frugtniet v Attorney General of New South Wales (1997) 41 NSWLR 588 at page 599.
Similarly, the decision of Morrison involved very different circumstances and legislation, a consideration of the concept of conditional liberty, and the rationale for it being an aggravating factor in a sentencing hearing when an offence is committed whilst subject to conditional liberty.
Although s 95 of the CSA is a penal provision which imposes a restraint on personal liberty I consider the meaning of the section to be clear. I do not consider there is an ambiguity particularly since the actual meaning of s 95(2) of the CSA was specifically considered by Helman AJ in Re Stone.[8] His Honour determined that the reference in s 95(2) to a ‘police goal’ was a reference to a ‘police gaol in Queensland’ due to the provision of s 35 of the AIA. His Honour specifically held that any time spent in custody in another state did not count as part of the term of imprisonment being served at the time of escape from lawful custody. His Honour held:[9]
[8] [1995] 2 Qd R 681 at page 683.
[9] Re Stone [1995] 2 Qd R 681 at pages 682-684.
“The applicant’s argument, as put to me by Ms Holmes, comes down to this: the applicant is entitled to count two years and 20 weeks in custody in Victoria from the day of his surrender when he was taken into custody in the St. Kilda Police Complex and then the Russell Street Watch House added to the six weeks he served in Queensland before his escape making two and one half years so entitling him to be considered for parole, in accordance with the recommendation of Matthews J., on 23 May 1991.
The Corrective Services Commission, the respondent to this application, contends that the applicant will not be eligible for release on parole until 12 September 1993.
At common law not even escape from custody had the effect of preventing a term of imprisonment from continuing to run (see Whan v. McConaghy (1984) 153 C.L.R. 631, at 636), but in this case the law is regulated by s. 95 of the Corrective Services Act 1988 which is as follows:
‘95. Period while unlawfully at large not to count as part of term of imprisonment.
(1) Where a prisoner escapes from lawful custody or is otherwise unlawfully at large no part of the period during which he is unlawfully at large shall count as part of the term of imprisonment or period of detention being served by him when he escaped or otherwise became unlawfully at large.
(2) For the purposes of subsection (1) a person remains unlawfully at large until he is admitted to and detained in a prison or a police gaol.’
The interpretation section, s. 10, provides that in the Act, unless the contrary intention appears, the word ‘‘prison’’ means ‘‘any premises or place declared or deemed to have been declared as a prison pursuant to this Act’’, but there is no definition of the term ‘‘police gaol’’. That being so, Ms Holmes argued that although admission to and detention in a Queensland prison is necessary before subs. (2) can apply the term ‘‘police gaol’’ does not just refer to police gaols in Queensland but applies to any police gaol outside Queensland as well. The result of that argument is, Ms Holmes submitted, that the Russell Street Watch House in Melbourne is a police gaol within the meaning of those words in s. 95 and so once her client was admitted to and detained there he ceased to be unlawfully at large and so is entitled to have his time in custody thereafter in Victoria taken into consideration in relation to Matthews J.’s recommendation.
That construction of the section would lead to an anomalous, and, it could fairly be said, absurd result: time spent after admission to and detention in a prison outside Queensland not administered by police officers would not be taken into account in the reckoning, but time spent after admission to and detention in a gaol administered by police officers would. Such result cannot, one might think, have been intended.
To 30 June 1991, s. 35 of the Acts Interpretation Act of 1954, as amended, insofar as it is relevant to this case, was as follows:
‘35. References to particular officers, etc. In every Act, unless the contrary intention appears –
(b) References to localities, jurisdictions, and other matters and things shall be construed as references to such localities, jurisdictions, and other matters and things in and of this State.’
By operation of s. 29 of the Acts Interpretation Amendment Act 1991 that section was omitted and a new s. 35 inserted from 1 July 1991:
‘35.(1) In an Act –
(b) a reference to a locality, jurisdiction or other matter or thing is a reference to such a locality, jurisdiction or other matter or thing in and of Queensland.’
Since this application is concerned with a privilege possibly acquired before the new s. 35 came into operation, the previous section probably applies to this case (Acts Interpretation Act s. 20). Whichever section is applicable to this case, however, the result is the same: by operation of s. 35 of the Acts Interpretation Act the words ‘‘police gaol’’ in s. 95(2) of the Corrective Services Act should be interpreted as referring to a police gaol in Queensland.
Ms Holmes also submitted that the wider construction she had argued for should be given to s. 95 because, as I understand the argument, it could not have been intended that that provision should be inconsistent with the provisions of the Service and Execution of Process Act 1901 (Cth) relating to the execution of the warrants of Queensland courts in other States.
Even assuming there is an inconsistency, I do not think that consideration would be sufficient to displace what appears to me to be the construction which properly reflects the intention of the legislature. The return of prisoners under the Commonwealth Act is something that is done with a minimum of delay, and it is a big step indeed from a consideration of the application of s. 95(2) to such cases to arrive at a construction which allows admission to and detention in a police gaol anywhere in the world outside Queensland and for any reason to be taken into account in the way contended for.
In the result I conclude the application should be dismissed.”
I consider, therefore, that by operation of s 35(1)(b) of the AIA, the words "police gaol" and "prison" in s 95(2) of the CSA refer only to a police goal and/or prison in Queensland. I accept the second defendant/applicant’s submission that there have been no material amendments to the CSA which would alter that position.[10]In any event the plaintiff/respondent was clearly in ‘prison’ from 9 September 1994 as he was in the Long Bay Correctional Facility but it was not a ‘prison’ which was deemed to have been declared to be ‘prison’ pursuant to the CSA.
[10] Outline of Submissions on behalf of the Applicant dated 26 February 2015 at page 6.
The decisions of Carrion v R (Carrion),[11] and In Re Thrun,[12] also support that interpretation. In Carrion, the Court of Criminal Appeal NSW held that a South Australian sentence was not to be treated as a NSW sentence and that the period of imprisonment to which an absconding prisoner is liable commences with the prisoner’s physical presence in the sentencing state, and in that case, the prisoner resumed serving his sentence when he returned to NSW after serving a sentence for other matters in South Australia. The decision of In Re Thrun was in similar terms as well.
[11] (1993) 69 A Crim R 230.
[12] (1986) 42 SASR 481.
Therefore, I do not consider that the NSW Watchhouse or NSW prison would fall within the definitions of “police gaol” or “prison” in the CSA.
It is also important to note that a statute is not presumed to have extra territorial effect.[13] Accordingly, I also accept the second defendant/applicant’s submission that, absent any express statutory provision, “a prisoner cannot serve a sentence imposed in a court in one State somewhere else.”[14]
[13] Jumbunna Coal Mine v Victorian Coal Miners’ Association (1908) 6 CLR 309 at 363.
[14] Outline of Submissions on behalf of the Applicant dated 26 February 2015 at page 4.
I also note that at the hearing of the application, Counsel for the plaintiff/respondent sought to rely on s 94 of the CSA to argue that once he was arrested in NSW and taken into custody, he must by operation of that section be considered to have been in a ‘prison’ or ‘police gaol’ as required by s 95(2) of the CSA and was not therefore unlawfully at large.
Section 94 of the CSA is in the following terms:
“Apprehension of prisoners
94.(1) Where a prisoner—
(a) escapes from lawful custody; or
(b) having been released on leave of absence or to serve a period of home detention is or is preparing to become unlawfully at large or fails to comply with any condition of the instrument authorising the prisoner’s release;
a correctional officer or a police officer may arrest the prisoner without warrant or may make written application to a justice for the issue of a warrant for the apprehension of the prisoner.
(2) If a justice is satisfied of the matter of an application, the justice may issue the justice’s warrant directed to all police officers and all custodial correctional officers and the warrant may be executed by any of them.
(3) A prisoner arrested pursuant to this section shall be taken to and detained in a prison or in a police gaol until the prisoner can be conveniently taken to a prison.”
The provisions of the AIA are quite clear however, and s 94 of the CSA applies only in relation to apprehensions in Queensland and Queensland prisons and police gaols. In my view s 94 could have no operation outside Queensland.
Importantly, whilst the plaintiff/respondent was brought before the Magistrates Court in NSW pursuant to the warrant, he was never charged for absconding from Queensland when he was arrested by New South Wales Police on 8 September 1994. He was remanded into custody in New South Wales only in relation to the armed robbery charges committed in New South Wales. Therefore, whilst he was lawfully detained in New South Wales on remand for the NSW offences, he was not serving the sentence imposed upon him in Queensland on 23 September 1988.
It would seem to me that when the plaintiff/respondent absconded on 21 March 1994 he became unlawfully at large and was unlawfully at large when a warrant was issued in Queensland for his arrest on 22 March 1994.
However in the circumstances of this case and on the material currently before me I consider that there should be a declaration in terms of Paragraph One of the Application filed on 11 February 2015.
ORDER
I will hear from Counsel as to the form of the Order and as to Costs.
0
5
4