COMMISSIONER OF CORRECTIVE SERVICES v KAROUT AND ANOR [1995] NSWCA 86

COMMISSIONER OF CORRECTIVE SERVICES v KAROUT SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KIRBY ACJ, SHELLER and COLE JJA 31 July 1995, 24 August 1995

[1995] NSWCA 86

CRIMINAL LAW and PROCEDURE periodic detention — leave without absence failure to apply for absence — Act and Regulation require making of prior application for leave of absence — periodic detention cancelled — District Court restores — held: The precondition to holding that leave "ought to have been granted" was that leave had been sought — no jurisdiction to make order — order quashed.

SENTENCING — periodic detention — leave without absence — jurisdiction of District Court to cure.

ADMINISTRATIVE LAW — judicial error.

CRIMINAL LAW and PROCEDURE — imprisonment — periodic detention absence without leave from service of sentence — many absences — no application for leave — magistrate cancels order for periodic detention — prisoner appeals to District Court pursuant to Justices Act 1902, s122 — Judge of District Court (Armitage DCJ) orders, purportedly under Periodic Detention of Prisoners Act 1982, s25(3A) that leave "ought to have been granted" — refers to evidence of prisoner before him which he accepts — accepts that prisoner's absences were explained by illness arising from his heroin addiction — sets aside cancellation of periodic detention — absences from prison admitted — failure to apply for leave admitted — upon summons for judicial review in the nature of certiorari to the Court of Appeal

SENTENCING — periodic detention — absence from prison — failure to seek leave — whether application for leave of absence a precondition to its grant whether the failure to seek such leave made it impossible to hold that the leave" ought to have been granted"

ADMINISTRATIVE LAW — jurisdiction — cancellation of order of periodic detention because of absences of prisoner without leave — appeal from magistrate to judge — width of Court's jurisdiction — precondition to exercise of District Court's jurisdiction — whether if precondition of application not proved, the purported exercise of power was unlawful and without jurisdiction — whether error within or outside jurisdiction