KIRK v GOVERNOR OF THE PARRAMATTA GAOL [1994] NSWCA 166

KIRK v GOVERNOR OF THE PARRAMATTA GAOL SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MAHONEY AP, SHELLER and POWELL JJA 3 December 1993, 15 February 1994

[1994] NSWCA 166

Application for Prerogative Relief — District Court Order cancelling order for periodic detention because of non compliance in absence of applicant — Applicant claimed that he was prevented from attending because of illness, that the Court was notified and that a Court Officer said, "That's alright, we'll get the hearing to another date" — Not accepted that Court Officer so said — Application dismissed — Orders made on dismissal of application — Reasons for judgment now delivered.

Mahoney AP, Sheller and Powell JJA On 3 December 1993 Peter John Kirk applied to the Court of Appeal for an order quashing an order made by the District Court on 20 August 1993 as the result of which he was arrested and taken to gaol. After hearing Mr Stratton for Mr Kirk and Mr Bartley for the respondents, it concluded that the application should be dismissed. As Mr Kirk was in custody it was appropriate that the Court formally determine the application and it ordered that it be dismissed with costs. It indicated that it would subsequently deliver its reasons for that order. It now does so.

Mr Kirk's imprisonment resulted from his cultivation of a prohibited plant. On 7 May 1992 he was convicted for doing so at a Local Court and sentenced to 150 hours community service. He failed to comply with the community service order. On 7 January 1993 he was, because of that failure, sentenced to six months imprisonment, to be served by periodic detention. He appealed against that order, but it appears that on 19 March 1993 the sentence was confirmed by the District Court at Newcastle: he was to serve six months imprisonment by way of periodic detention, to commence on 26 March 1993. Again he failed to comply with his obligations. Notices were sent to him. On 12 July 1993 he was notified that application would be made to the District Court on 20 August 1993 for cancellation of the order for periodic detention and for his sentence to be served by imprisonment.