Psaila v Dept of Corrective Services

SUPREME COURT OF QUEENSLAND

CITATION:

Psaila v Dept of Corrective Services [2005] QCA 16

PARTIES:

PAUL ANTHONY PSAILA
(applicant/respondent)
v
CHIEF EXECUTIVE, DEPARTMENT OF CORRECTIVE SERVICES
(respondent/appellant)

FILE NO/S:

Appeal No 11059 of 2004
SC No 8255 of 2004

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

11 February 2005

DELIVERED AT:

Brisbane

HEARING DATE:

2 February 2005

JUDGES:

de Jersey CJ, Williams JA and Mackenzie J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER:

Appeal allowed1.     

Declaration made on 15 December 2004, together with the order for costs, be set aside2.     

Declaration that none of the period between the respondent’s release on post-prison community-based release on 23 November 1998, and the respondent’s recommencing to serve the unexpired portion of his term of imprisonment, on 6 May 2003, is to be regarded as time served in respect of that term of imprisonment3.     

A warrant issue for the arrest of the respondent, to lie in the Registry for seven days prior to any execution of the warrant4.     

The respondent pay the appellant’s costs of the hearing below, and of the appeal, to be assessed on the standard basis5.     

CATCHWORDS:

CRIMINAL LAW – PROBATION, PAROLE, RELEASE ON LICENCE AND REMISSIONS – QUEENSLAND – where respondent’s parole was cancelled under s 185 Corrective Services Act 1988 (Qld) – where s 190(1) of that Act provided that no time of prisoner’s release on parole is regarded as time served in respect of that term – whether cancellation of parole constituted a transaction past and closed – whether, by virtue of s 268 Corrective Services Act 2000 (Qld), s 152 of that Act applied so that time between respondent’s release on parole and his breach of parole condition counts as time served.

Service and Execution of Process Act 1992 (Cth)

Acts Interpretation Act 1954 (Qld), s 20(2), s 20(3)
Corrective Services Act 1988 (Qld), s 32(1), s 33(1), s 185, s 189, s 190(1)
Corrective Services Act 2000 (Qld), s 6(1), s 7(1), s 8(1), s 85, s 150, s 152, s 268

Geraldton Building Co Pty Ltd v May (1977) 136 CLR 379, 400, followed

COUNSEL:

P A Keane QC, with M O Plunkett, for the appellant
R J Douglas SC, with G R Mullins, for the respondent

SOLICITORS:

Crown Solicitor for the appellant
Quinn Scattini for the respondent

Introduction

1. de JERSEY CJ: The Corrective Services Act 2000 (Qld) (“the new Act”) repealed the Corrective Services Act 1988 (Qld) (“the old Act”), as from 1 July 2001. Each Act contains provisions relating to post-prison community-based release (to which I will refer, for convenience, as parole), including as to the consequences of cancellation of parole where a condition of the parole has been contravened.

1. Under the old Act (s 190), on the resumption of imprisonment, consequent upon the cancellation of parole for breach, no part of the period…