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 2004DIVISION:
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 madeORDER:
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 268Geraldton 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 respondentSOLICITORS:
Crown Solicitor for the appellant
Quinn Scattini for the respondent
Introduction
de JERSEY CJ: The Corrective Services Act 2000 (Qld) (“the new Act”) repealed the Corrective Services Act 1988 (Qld) (“the old Act”), as from 1 July 2001.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.
Under the old Act (s 190), on the resumption of imprisonment, consequent upon the cancellation of parole for breach, no part of the period…
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- Case
- [2005] QCA 16
- Decision Date
CaseChat Overview and Summary
The court had to determine if the cancellation of parole constituted a transaction past and closed, and if so, whether section 152 of the 2000 Act applied. The court considered the interaction between sections 185, 190(1), 268, and 152 of the Corrective Services Act 2000 (Qld). The respondent argued that the cancellation of parole should not be regarded as a transaction past and closed, and that the time spent on parole should count as time served. The Department of Corrective Services contended that the cancellation of parole constituted a transaction past and closed, and that the time spent on parole should not count as time served.
The court held that the cancellation of parole did constitute a transaction past and closed, but that section 152 of the 2000 Act did not apply. Therefore, the time between the respondent's release on parole and his breach of parole condition did not count as time served. The court set aside the previous declaration and order for costs, and issued a declaration that none of the period between the respondent's release on parole and his recommencing to serve the unexpired portion of his term of imprisonment counted as time served. A warrant was issued for the arrest of the respondent, to lie in the Registry for seven days prior to any execution of the warrant. The respondent was ordered to pay the appellant's costs of the hearing below and of the appeal, to be assessed on the standard basis.
Orders
Orders of the court
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.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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