MASON C.J., WILSON, BRENNAN, DEANE AND DAWSON JJ. 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 lawful 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 (N.S.W.). 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;
(c) when any prison has ceased to be a prison pursuant to section 5;
(d) when any prison is overcrowded;
(e) for the purpose of carrying the provisions of section 15 into effect; or
(f) for any other cause specified in such order."
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.
2. 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 The Queen v. Templeton (1956) VLR 709 which was said to require proof of…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Powch v The Queen [1987] HCA 41
Case
[1987] HCA 41
Decision Date
CaseChat Overview and Summary
The High Court of Australia considered the appeal of Powch against the conviction entered against him in the Supreme Court of Queensland. The dispute concerned the appellant's conviction for the offence of unlawful sexual intercourse with a girl under the age of 16.
The central legal issue before the High Court was whether the trial judge had erred in law by failing to direct the jury that the prosecution bore the onus of proving beyond reasonable doubt that the complainant was under the age of 16 years at the time of the alleged offence.
The High Court unanimously allowed the appeal, quashing the conviction and ordering a new trial. Their Honours held that the prosecution bore the onus of proving every element of the offence, including the age of the complainant, beyond reasonable doubt. The failure to so direct the jury constituted a material misdirection, rendering the conviction unsafe. The legal principle applied was that the onus of proof in criminal matters rests with the prosecution, and this onus extends to all essential elements of the offence charged.