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Telford v Severin

Telford v Severin

Case [2007] SASC 176 17 May 2007

Retrospective Legislation

Judicial Review

Certiorari

Mandamus

Administrative Discretion

Criminal Law

Administrative Law

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SUPREME COURT OF SOUTH AUSTRALIA
(Full Court: Application for Judicial Review)
TELFORD v SEVERIN & ANOR
[2007] SASC 176
Judgment of The Full Court
(The Honourable Justice Duggan, The Honourable Justice White and The Honourable Justice Kelly)
17 May 2007
CRIMINAL LAW - ADMINISTRATION OF PRISONS - MISCELLANEOUS MATTERS - SOUTH AUSTRALIA
Application by plaintiff for release on home detention – amendments made to the Correctional Services Act (CSA) after plaintiff sentenced and prior to application for release on home detention – amendments increased the period of time to be served by a prisoner before being eligible for home detention - plaintiff seeks declaration that his application be determined in accordance with provisions of the CSA as at the time of sentencing – plaintiff also seeks judicial review in nature of certiorari to quash decision of the Chief Executive Officer to refuse to consider application and in nature of mandamus to compel Chief Executive Officer to consider plaintiff's application – the common law presumption against retrospective operation does not apply - amendments to the CSA operate prospectively to regulate any future release on home detention – decision to release on home detention at absolute discretion of the Chief Executive Officer – home detention provisions administrative in nature - no statutory right conferred on the plaintiff – plaintiff does not possess an accrued or acquired right within the meaning of s 16 of the Acts Interpretation Act – Held: application for declaration refused. Application for judicial review in nature of certiorari and mandamus dismissed.
Acts Interpretation Act 1915 s 16(1) and s 16(2); Correctional Services Act 1982 s 22(2), s 24(1), s 27(1) and (2), s 37A; Industrial Relations Act 1988 (Cth) s 127A(2), referred to.
Robertson v City of Nunawading [1973] VR 819; In re a Solicitor's Clerk [1957] 1 WLR 1219, applied.
Mathieson v Burton (1971) 124 CLR 1; Doro v Victorian Railway Commissioners [1960] VR 84; Gerrard v Mayne Nickless Ltd (1996) 135 ALR 494; Maxwell v Murphy (1957) 96 CLR 261; In Re Athlumney; Ex parte Wilson [1898] 2 QB 547, distinguished.

TELFORD v SEVERIN & ANOR
[2007] SASC 176
Full Court: Duggan, White and Kelly JJ

DUGGAN J. On 22 April 2002 the plaintiff was sentenced on fraud charges to imprisonment for 14 years with a non-parole period of nine years and six months. The court ordered that the head sentence and non-parole period commence on 8 April 2002.
The plaintiff applied for release on home detention on 28 November 2006. However, he was advised by the Department of Correctional Services (“the Department”) that he was not eligible for release on home detention because of an amendment to s 37A of the Correctional Services Act 1982 (“the Act”) which provides that the release of a prisoner on home detention is not to occur earlier than one year before the end of a prisoner’s non-parole period. The amendment came into operation on 17 November 2005.
At the time the plaintiff was sentenced,…

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.

Continue reading Telford v Severin

Details

AGLC: Telford v Severin [2007] SASC 176
Case: [2007] SASC 176
Decision Date: 17 May 2007

CaseChat Overview and Summary

In the matter of Telford v Severin, the plaintiff, a prisoner in South Australia, sought a release on home detention, arguing that his application should be assessed under the Correctional Services Act (CSA) as it existed at the time of his sentencing. The case arose after amendments to the CSA increased the time prisoners must serve before becoming eligible for home detention. The plaintiff's application for home detention was denied by the Chief Executive Officer (CEO) of the Department of Correctional Services, and the plaintiff sought a declaration that his application should be processed under the earlier provisions of the CSA. Additionally, he sought judicial review in the form of certiorari to overturn the CEO's decision to refuse to consider his application and a mandamus to compel the CEO to consider it.

The legal issues in the case revolved around the retrospective application of the amended CSA provisions and the nature of the statutory right, if any, conferred by the CSA. The plaintiff argued that the common law presumption against retrospective legislation should apply, and that the amendments to the CSA should not affect his eligibility for home detention. He also contended that he had an accrued or acquired right to have his application assessed under the original CSA provisions. The court had to determine whether the amendments applied prospectively and if the plaintiff had a statutory right that could be enforced by the court.

The court held that the presumption against retrospective legislation did not apply in this context. The amendments to the CSA were prospective and did not affect the plaintiff's eligibility for home detention under the new regime. The court further found that the decision to release a prisoner on home detention was within the absolute discretion of the CEO and did not confer a statutory right on the plaintiff. The home detention provisions were administrative in nature, and the plaintiff did not possess an accrued or acquired right as defined under section 16 of the Acts Interpretation Act. Consequently, the court refused the plaintiff's application for a declaration and dismissed his application for judicial review.

Orders