CATECHACGRES Criminal Gaw & Procedure - power of arrest conferred by 5.5(8) Commonwealth Prisoners Act, 1967 upon revocation of parole order - arrest under this power for foreign surpose - whether power of arrest spent ~ whether arrest valid. Ex parte Shepherd (1940) 2 D.L-R. 396 - Con. Emith v. Corrective Servicas Commission (1980) 147 C.L.R. - Con. Brown v. G.J. Coles & Coy, unreported, Federal Court - 4 April 1985 - con. Criminal Law & Procedure - power of arrest - requirements of Commonwealth Prisoners Act, 1967 not complied with - whether Prosecution can rely upon its own illegality. etatutes (Interpretation) - s.33(1) Acts Interpretation Act, i901 - whether #.33(1)} can validate arrest void far anauthorised purpose - whether 5.32(1) can validate arrest vo1d for number of times power employed - whether "contrary intention" indicated in Commonwealth Prisoners Act, 1967. Scarfe v. Federal Commissioner of Taxation (1920) 28 C.L.R. 271 - Con. DENNIS SAMUEL VELLA v. SONALD ALWYN GREY, COlIMESSICNER OF THE AUSTRALIAN FEPERAL POLICE No. NEW G150 of 1985 BOWEN, C.J., BEAUMONT AND WILCOX JJ. 3 AUGUST 1985 SYONEY IN THE FEDERAL COURT OF AUSTRALIA ) 3 = NEW SCUTH WALES DISTRICT REGISTRY ere - GENERAL DIVISICN ON APPEAL FROM A SINGLE JUCGE OF THE FEDERAL COURT OF AUSTRALIA BETWEEN : DENNIS SAMUEL VELLA Appellant AND: RONALD ALWYN GREY, COMMISSIONER OF THE AUSTRALIAN PEDERAL POLICE Respondent MINUTE OF ORDER JUDGES MAKING ORDER Bowen C.J., Beaumont and Wilcox Jd. DATE OF ORDER : 8 August 1985 WHERE MADE > Sydney THE COURT ORDERS THAT: Ll. Order that the appeal be allowed. 3. Order that the order made by a single Judge of the Court madé on 14 June 1985 be set aside. 3. Declare that no member of the Australian Federal Police is entitled to arrest the appellant by reason of the revocation on 11 December 1234 of the parole order made on 6 December 1992. 4. Discharge the existing interim ordes made cn 25 July 2Bac. Be Order that the respondent pay the appsllant's: costs of the appeal. 6. Reserve libecty to the appellant to aopliy for furthers relief on such notices, if any, as a Judge shall allow. Note - Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules Il!) THE FEDERAL COURT OF AUSTRALIA ) \ NEW SOUTH WALES DISTRICT REGISTRY } Ky No, NSW G150 of 1985 GENERAL DIVISION ' ON APPEAL FROM A SINGLE CUDGE OF THR FEDERAL CQUPT OF AUSTRALIA BETWEEN : DENNIS SAMUEL VELLA Appellant AND: RONALD ALWYN GREY, COMMISSIONER OF THE AUSTRALIAN FEDERAL POLICE Respondent CORAM: Bowen, C.J., Beaumont and Wilcox, Jd. DATED: 8 August 1985 REASONS FOR JUDGMENT THE COURT: On 3 March 1973, che appellant, [Tennis Samuel ane CURE P Vella, was convicted at the District Court, Sydney, of an offence against s.233B(1)(d) of the Customs Act 19¢1. Cn Fh oO that date, he was sentenced to a term o years' imprisonment. such sentence to aate from 13 February 1372 with a non-parsle period expiscing or 29 June 1982. Pursuant to the sentence, the appellant was detained in varicus gexisons in New South Wales. On € Zeptember 1982. the Governor-General, acting pursuant to s.5 of the Commonwealth Peisoners Act 1957, dirscted that tne appellant ke relsased som 2risen con the day, not being before 20 Saptember 1982, on which the Superintendent or officer-in-charge if the peison in yYuestion received the order, subject to certain conditions expressed in the order. In fact, the appellant was veleased from prison on parole on 19 September 1982. On 11 December 1284. by order in writing pursuant to 5.5(5) of the Commonwealth Prisoners Act, the Governor-General revoked the parcle order. On 17 January 1985, the appellant was arrested by officers of the Australian Federal Police. At the time of his arrest, the appellant was ainformed by the police that his parole order had been revoked. He was then taken to the Central Industrial Prison at Long Bay. On 21 January 1985, the appellant was released from prison. At the time he received a "Discharge Certificate" and was informed by the Deputy Superintendent of the prison that he was réleased unconditionally. However, on 25 Februacy 1985, the appellant's solicitoce was informed by an officer of the Tepartment of the Attorney-General that, in the opinion of the Department, the appellant should not have been released because he still had 496 days of his sentence to serve. The Department claimed that an error had been made in the calculation of Che appellant's term or imprisonment. The given the order reveling the parcl= order and would arrest the appellant on that authority. rel] fe 'oi a) wy F a roy fu fa) ct lard by th DB E(0) cr be cr [= ct Q ro) mi [a] is) wu iy fe p ba) ire) wm Br re} ct =e If ul t ra) co ry ct u fel] ty rey = mn cP} ty mM a ie (p I, ray c ty faa c if co ct a ct hy r ot wu. c iy t+. mM a a C + it Oo ei a nm ize vu ry Hy iw ts by 5.398 of the Judiciary Act, 1902, inter alia, restrainin pp Q H the respondent, as Commissioner £ the Australian Federa Police. and all members of that force from arresting the appellant ox detaining him in custody. A single judge of the Court dismissed the application for the reascns he then gave. The appellant now appeals from that decisicn. Before turning to the arguments advanced in the appeal, it is necessary to refer to the legislation upon which the respondent relies to justify his power now to arrest the appellant. By s. 5(5)(b) of the Commonwealth Prisoners Act, 1967 the Governor-General may, at any time before the axpication of the parole period, by order in writing, revoke a parole order made oursuant to s.5(1). Where a parole order in relation to a person is revoked, a constable may, without warrant, arrest the person 5.5(8) (ar}. Where a constable arrests a person in pursuance of s.5(8), he shall, as soon as practicable, take the person before a prescribed authectty, (i.e. a Magistrate) in the $ cr w Tv ( are aw ryHe cr os jo a which the person was arrested (5.5(9)). {It is disturking to nete that no attempt was made to comply with ¢.5(9) in the present case). Where a perscn has been brought befcre a prescribed authority in pursuance of z.5(9) and the authority ais satisfied that the parole order has been vevoked, the authority shall issue a warrant authorizing any 4. cr ray constable to convey the perscn concerned BYrison and directing that the person be detained in prison to undergs amprisonment for the part cf the term of imprisonment to which the parcle order relates that he has not served (s.7). It 15 further provided that where a parole order is made in ur relation to a person, he shali be deemed to be still under zentence of imprisonment and not to have served the part of the term of imprisonment that remained to be served at the commencement of the parole period, until the parole period expires without being revoked or cancelled or until he is otherwise discharged from that imprisonment (s.17(1)). A number of arguments are advanced on behalf of the appellant in support of his claim for injunctive relief. In the circumstances, it is necessary t deal cniy with tre a) farst of them, although it should be mn pecificaliy manticned that, inter alia, the appellant joins issue, as a matter of law, with the respondent''s contention that an error occurred in the calculation of the appellant's term of imprisonment. He] i, arrest conferred 37 s.5(8) if not available to the polices for the purpose of now arresting him. In 30 submitting, the appellant concedes that this statutory power of arrest without warrant was available tc the polite at an earlier peint of time and for a different epurpose; that 15 to say, for the curpose, which was in fact avanled sf. sf arresting Ti ta i) i the appellant on17 January 1985 as a consequence of the revocation of the parole order on 11 December 1984. But, the appellant says, the power of arrest is no longer available in the events which have happened. Specifically, he argues, the power of arrest conferred by s.5(8) (and no other power 1s sought to be relied on), is not available for the purpose of returning to prison a prisoner who has been voluntarily discharged(cf. Hawkins, Pleas of the Crown, 8th ed. at p.193). The position is analogous, he says, with that of an executed warrant, which, once executed 1s spent and cannot be revived for the purpose of effecting a fresh arrest (see Re Mackie (1932) 59 Can. Crim. Cases 68; Ex parte Shepherd (1940) 3 D.L.R. 396; cf. R. v. Governor of Pentonville Prison; Demer v. Cook (1903) 67 J.P. 206). In our opinion, this contention should be upheld. The question is, of course, to be determined first, in the light of the established principle of statutory anterpretation which:requires strict construction of a penal statute or an Act which affects the personal liberty of the subject (see Smith v. Corrective Services Commission of New south Wales (1980) 147 C.L.R. 134 at p.139); and secondly, against the background of the common law that authorises a police officer to arrest a person whom the officer, with reasonable cause, suspects of having committed a crime for the purpose of taking that person before a justice to be 6. dealt with according to law providing the cfficer does so without unreasonable delay and by the most reasonably direct route (see Bales v. Parmeter (1935) 35 S.R. (N.S.W.) 182 at pp.188-189; R. v.- Banner (1970) V.R. 240 at p.249; R. v. Ieriane (1983) 50 A,L.R. 291; Brown v. G.J.. Toles & Zo7. Limited, unreported, Full Faderal Court, 4 April 1985). It is trite law that where the imposition of a physical restraint is authorised by law it may be imposed only for the purpose for which it is authorised (see Bales v. Parmeter, supra, at p.188). The power of arrest now sought to be relied on is conferred in =.5 of the Commonwealth Prisoners Act for the express purpose of enabling the temporary detention of a person whose parole order has been revoked pending his being taken before a erescribed authority who, in turn, is authorised to 1ssue a warrant for his detention. In the present case, in our opinion, this power 15 sought to be invoked for a foreign or ulterior purpose, being the arrest of a prisoner who has been scéleased from prison because of a self-induced misapprehension by the prison authorities of the term of his impeiscnment. In cur view, the provisions of 5.5(3)} oF the Commonwealth Prisoners Act are not available for such 4 purpose (sea Dickinson vy. Brown (1794) 1 Esp. 217; 170 E.R. 234). "Jl . usefully contrasted with §.352AA(1) of the Crimes Act, 1900 (N.S.W.) inserted by the Crimes (Powers of Arrest) Amendment Act, 1985 (N.S5.W.). Under that measure, a constable may, without warrant, apprehend any person whom the constable, with reasonable cause, suspects of being a prisoner unlawfully at large and take the person before a Magistrate who may, by warrant, commit the person to prison. It was suqgested in argument that s.33(1) of the Acts Interpretation Act, 1901 applies to the exercise of the power of arrest conferred by s.5(8) of the Commonwealth Prisoners Act. If so, the power could be exercised from time to time as the occasion required. But s.33(1) can have no application where the contrary intention appears (see Scarfe v. The Federal Commissioner of Taxation (1920) 28 C.L.R. 271 at p.275) and a nice question, which 1t is presently unnecessary to resolve, could arise as to whether s.5(8) displays any such intention. More importantly, 1t could not be suggested that s.33(1) could be called in aid to uphold what would othesvise be a bad exercise of the power conterred by s.5(8), where the arrest is vitiated by the existence of a purpose which is foreign or ulterior to the purpose for which an arrest is authorised by s.5(8). Here, the exercise of the power is void for want of a proper purpose rather than for the number of times it is employed. Although s.33(1) of the Acts Interpretation Act may preclude a challenge based on the latter ground of attack, it cannot 8. zave an arrest made for a purpose not authcrised by 2.5/8) cr of the Commonweaith Prisoners Ac nor Ww In short, in our view, that provision i rs] x. (a) ~ tr hed available for the purpose of apprehending a pers yeason of an oversight on the part of the prison authorities, may have been prematurely dischacged from prison. The respondent endeavoured to seek some comfort in the circumstance that when arrested and taken to prison on 17 January 1985, the appellant was not taken before 2 prescribed authority as required by s.5(9) of the Commonwealth Prisoners Act. The suggestion was made that the consequence of failure to comply with the procedures gstirpulated in 5.5 was that it was not cpen to the appellant to submit that the arrest made on 17 January 1985 exhaustad the powers of arrest conferred by s.5(8) because that arrest was itself illegal. This submission must be rejected. On any view of the matter, the Crewn could take no advantage of its own professed illegalit,. Thi o = 7 en -- = 15 =speciaily so when a "matters touching the propriety of procedures relating ts the custody of prisoners will always be taken seriously in any community which cherishes the liberty and dignity of the individual" (see Day v. R. (1983) Sl A,EL.R. 353 at p.383). fn any event, even if the argument were otherwise valid, the fundamental chjection remains that the power of arrest now 3. scught to be axercised would be used for a purfose not authorised by s.5(38). The appellant advanced a number of independent arguments in support of his claim for injunctive relief buc it is wnnecessary to consider them. We would allow the appeal with costs and set aside the order of the learned Judge dismissing the applicaticn. In lisu of that order, we would declare that no member of the Australian Federal Police is antitied to arrest the appellant by reason of the revocation on 11 December 1984 of the parole order made on 6 September 1982. On the assumption that, in the circumstances, it is not necessary that the respondent be enjoined for present purncses, we wculd reserve liberty to the appellant to apply for further relief upon such notice, 1f fa ny, as a judge shall direct. We would further discharge the existing interim restraint. Date of Hearing 25 July i935 Date Judgment delivered & Auguse 1385 Counsel and Sclicitors Mr. J. Basten for Appellant instructed by Redfern Leqal Counsel and Solicitors for Respondent Mr. 3.7. Coles sas instructed by the Director of Public Prosecutions. ~ T certify that thissaad the preceding ages are a true co-e of che reasons for a) ' jocgmens hers of che Court