Powch v The Queen [1987] HCA 41

High Court of Australia Mason C.J. Wilson, Brennan, Deane and Dawson JJ. Powch v The Queen [1987] HCA 41

ORDER Application for special leave to appeal refused. Sept. 10 Mason C.J. delivered the judgment of the Court:—

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 not 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 NSW. 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.