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 WORDS and PHRASES — "ought to have been". Held: (1) A precondition to the valid exercise of the jurisdiction of the District Court was that application had been made to the Commissioner and refused, such that it "ought to have been granted". Without any such application for leave of absence it could not be held that leave "ought to have been granted"; (2) The District Court therefore did not have jurisdiction to uphold the appeal in the facts agreed or found. Such absence of jurisdiction warranted the provision of relief in the nature of certiorari to quash the order purportedly made in excess of jurisdiction; (3) Order of District Court quashed. Held: (1) Without valid applications for leave of absence it could not be said that the leave "ought to have been granted"; (2) Accordingly, such application not having been 2 UNREPORTED JUDGMENTS made as contemplated by the Periodic Detention of Prisoners Act 1981 and the Regulation made thereunder, no basis was established by which it could be found that leave "ought to have been granted", never having been sought and the periodic detention order "must" be cancelled; (3) Therefore, the order of the District Court (Armitage DCJ) was made without jurisdiction and it should be quashed. Held: The error took the District Court outside its jurisdiction. Periodic Detention of Prisoners Act 1981. Periodic Detention of Prisoners (Amendment) Act 1992, Schedule 1. Periodic Detention of Prisoners Regulations, Reg33(1). ORDERS 1. Bring up the record of the District Court in matter number 94/12/1350, resulting in the orders of his Honour Judge Armitage, dated 21 December 1994; 2. Quash the said orders; 3. Order that the proceedings be returned to the District Court for hearing and determination in accordance with law; and 4. Order that the claimant Commissioner pay the costs of Kaldon Karout of the proceedings of this Court. Kirby ACJ The problem before the Court concerns the jurisdiction of a Judge of the District Court, on appeal from orders of the Local Court, to provide relief to a prisoner in default of obligations under the Periodic Detention of Prisoners Act 1981 (the Act). A PRISONER DEFAULTS ON PERIODIC DETENTION There is no real dispute about the facts. Mr Kaldon Karout was, on 10 March 1994, convicted at the Local Court, Sutherland, on a charge of larceny. He was sentenced to a period of imprisonment for six months, to be served by way of periodic detention pursuant to the Act. The order required him to report to commence the periodic detention on 18 March 1994. Mr Karout failed to report as required at the Malabar Periodic Detention Centre on the first day appointed. Thereafter, to the date that the proceedings were before the District Court and the order made, which is the subject to the challenge on this summons, Mr Karout failed to attend on no fewer than nineteen occasions. Proved before the Court was the warrant of commitment to prison for periodic detention under the Act, the attendance and absenteeism record sheet in relation to Mr Karout, the computer printout showing absences and, where absent, the stated reason. In most cases the reason which appears in the printout is "away without leave". Also proved was the first notice given to Mr Karout under s21(5) of the Act signifying that, by reason of his failure to report for periodic detention as required, the term of his sentence had been extended under s21(1) by one week to compensate for absence, and under s21(2) by an additional week as a result of his failure to report. The notice, dated 25 May 1994, informed Mr Karout that he could apply for leave of absence under s20 of the Act "with respect to the abovementioned period". It also notified him that if his request for leave of absence were rejected, he might apply to a Local Court under s20(3) "for a direction that leave of absence be granted with respect to the abovementioned period". Like notices were proved to have been sent to Mr Karout on 29 June 1994 and 1 July 1994. On 4 August 1994, the Clerk of the Local Court in Sydney made application to that Court for the listing of the proceedings pursuant to s25 of the Act for cancellation of the periodic detention order in respect of Mr Karout. This application came before Mr JW Hiatt, LCM, on 7 November 1994, Mr Karout not being present. By his order, Mr Hiatt cancelled the periodic detention order URJ | COMMISSIONER OF CORRECTIVE SERVICES v KAROUT (Kirby ACJ) 3 in respect of Mr Karout. He issued a warrant pursuant to s26(A) of the Act. He ordered that Mr Karout serve the unexpired portion of the periodic detention order by way of full time imprisonment. The execution of this warrant caused Mr Karout to appeal to the District Court of New South Wales, pursuant to s122 of the Justices Act 1902. It was not contested in these proceedings that an appeal lay from the Local Court order, and I shall assume that it did. See R v Gaudry (1987) 8 NSWLR 503 (CCA), 508; Cf Ex parte Brown; re Mackintosh and Anor (1968) 87 WN (Pt1) (NSW) 497 (CA), 499. ORDER OF THE DISTRICT COURT AND CHALLENGE The appeal was heard in the District Court by Armitage DCJ on 8 and 14 December 1994. Placed before this Court without objection was the transcript of the evidence given before the District Court, together with the exhibits and Armitage DCJ's reasons. The Commissioner asserted that this was the record of the District Court for the purposes of the proceedings before this Court. The claimant did not dispute this assertion, and I shall assume that it is correct. See CJ Coles and Co Ltd v Retail Trade Industrial Tribunal (1987) 7 NSWLR 503 (CA), 515. The exhibits clearly show that notice was given to Mr Karout from the commencement of his periodic detention as to the rules governing attendances and absences. Thus, it was shown that he was given a notice under s14 of the Act, specifying the rules governing him during the hours of serving of periodic detention. At the foot of this notice is an undertaking signed by Mr Karout that he had "fully read and understood... the above conditions". Annexed was a set of "Periodic Detention Centre Rules". R25 and R26 may be noted: "25. Any application by a periodic detainee for leave of absence for health reasons under S20 of the Periodic Detention of Prisoners Act must be accompanied by a doctor's certificate which states that the periodic detainee is unfit to report for periodic detention. 26. Any such application must state that the applicant, when seeking the doctor's certificate, produced to the doctor the notice of Change of Rules dated 7 August 1992 or copy thereof". Also exhibited was a "Notice to Detainees", the statutory status of which was uncertain. It also contained rules governing leave of absence. These might constitute directions under s22 of the Act, or simply rules necessary for the discharge by the Commissioner of his statutory functions. Amongst the instructions in the Notice to Detainees, were the following: "LEAVE OF ABSENCE 1. You must apply in writing for leave of absence before you take the leave. 2. You must show proof to support your application. 3. The Department may follow up and check the reasons you give when you apply for leave of absence. ABSENCES WITHOUT LEAVE New legislation has been passed and commences on 22 March 1993 regarding absences without leave (A WOL). Please note: . two periods will be added on to your sentence for the first A WOL; . another two periods will be added on to the second A WOL; . on the third AWOL, you will be taken to Court and the Court will cancel your periodic detention order and sentence you to full time gaol". 4 UNREPORTED JUDGMENTS There are also instructions for sick leave including, where the prisoner is "seriously ill for more than one period", including a requirement to fax the certificate to the officer-in-charge of the centre to which the prisoner is obliged to report. This Notice to Detainees contained, at its foot, a detainee medical consent form authorising the prison medical service to secure information from Mr Karout's private doctors. This form was duly signed by Mr Karout. Armitage DCJ, notwithstanding the very poor attendance record of Mr Karout, decided to uphold his appeal. He recounted the evidence which showed that in the six month period after the sentence imposed upon him, Mr Karout did not attend on ten occasions. Only on two of the occasions when he was absent did he present a medical certificate stating that he was sick. His Honour recorded Mr Karout's admission of his non-attendance on the dates alleged, and his claim that his first two non-appearances were "because of family problems caused by his drug addiction". He recorded that thereafter Mr Karout attended regularly for twelve weeks, with only one absence which was without a certificate. He recorded the intermittent attendances thereafter, and went on: "Mr Karout claims that he had no problem with the work he was given... but he says that his later absences are attributable entirely to ill health caused by his drug problem, and in particular, by a dose of heroin he took on 2 September which affected him very adversely. Mr Karout's evidence is that he has been on a methadone programme since 27 January 1993 and he says he is progressing well. This is supported by a letter from Dr Keith Roberts, dated 9 November 1994 with the test results annexed to it. Mr Karout now claims he has taken no drugs since 2 September 1994. On the material before me there is no reason why I should not accept what he tells me. Mr Karout also claims that his present medical condition is such that he could not cope with periodic detention, nor could he cope with a full time sentence". Armitage DCJ recorded consideration of a psychiatric report that stated that full time custody would be "severely detrimental to [Mr Karout's] mental health". This report also recorded that Mr Karout had stopped using drugs, and was feeling mentally "a lot better". The judge concluded: "In my view the appellant has been particularly honest with the evidence he has given and I accept all of what he has told me". The question was then raised as to whether Armitage DCJ could provide retrospectively, exemption for Mr Karout's failure to either attend in accordance with his periodic detention order, or to secure, in advance, leave of absence which would excuse him from doing so. He recorded the conflicting submissions of the then representatives of the parties which have been substantially repeated in this Court. He referred to the decisions of two judges of the District Court, which had held that that court had no discretion to make an order otherwise than for cancellation. But he reached a different view: "T do not feel so constrained. I see no reason why the section in question should be interpreted to mean that in circumstances such as those that exist in this case where an appellant was ill both physically and mentally, the court is bound to cancel the order for periodic detention. In my opinion, the words 'ought to have been granted' [in s25(3)(B) of the Act] speak of what should have been done having regard to all the objective and subjective facts of the matter. They should not be restricted in their meaning as necessarily involving the making of some sort of formal application. In all the URJ | COMMISSIONER OF CORRECTIVE SERVICES v KAROUT (Kirby ACJ) 5 circumstances of the case I have come to the view that the periodic detention order should be permitted to continue, and I so order." This order of Armitage DCJ displays a compassionate understanding of the serious illness, involving the struggle to escape heroin addiction, on the part of Mr Karout. I have every sympathy for his Honour's desire to provide relief to Mr Karout in the circumstances of the evidence which was proved before him. Were Tin the same position, and with power to do so, I would unhesitatingly have taken the same course as Armitage DCJ took. But the question before this Court was whether his Honour was right in the view he took as to his power to act as he did. The Commissioner challenges that view by its summons for relief, prerogative in nature. He says that Armitage DCJ went outside the powers afforded to the District Court by the Act. In doing so, that Court exceeded his jurisdiction. Relief from this Court was sought to uphold the Act, and to restrain the District Court to the jurisdiction which the Act afforded it. PERIODIC DETENTION OF PRISONERS ACT 1981 The Act introduced an important and beneficial sentencing option to the laws of this State. As originally enacted, it provided (s11) for exemption to a detainee from serving in prison the whole or part of the term. It also provided (s12) for the periodic detainee to make application in writing for variation of the time at which the detainee was required to report at prison, and the time at which the detainee might leave prison. Power to vary the identification of the prison at which the periodic detainee's sentence should be served was provided (s13). By s20 it was provided: "20. Leave of absence may, for health reasons or on compassionate grounds, be granted, subject to and in accordance with the regulations, to any periodic detainee". By s21 of the Act, provision was made for the extension of the detention for time spent on leave of absence. Wherever a periodic detainee failed to report as required to serve a detention period, and had not been granted leave of absence in respect of that period, the periodic detention was to be extended by one week. For health reasons, or on compassionate grounds, it was provided that the periodic detention, or a number of detention periods remaining, could, by order, be "regarded as served for the purposes of this Act" (s21(4)). Finally, by s25(3) it was provided: "25(3) Without limiting the generality of subs(1), the court may, on the application of the Director-General, cancel the order if the court is satisfied that the person is not serving his or her sentence in accordance with the order". By the Periodic Detention of Prisoners (Amendment) Act 1992, the Act was amended. S20 was changed to read: "20(1) The Commissioner may, IN ACCORDANCE WITH THE REGULATIONS, grant leave of absence to a periodic detainee for one or more detention periods: (a) For health reasons; or (b) On compassionate grounds; or (c) On the ground that the periodic detainee is in custody; or (d) For any other reason which to the Commissioner seems sufficient. (2) Leave of absence may, INACCORDANCE WITH THE REGULATIONS, be granted either before or after the detention period to which it relates. 6 UNREPORTED JUDGMENTS (3) A Local Court may, on the application of a periodic detainee whose request for leave of absence for one or more detention periods has been refused, direct that leave of absence be granted in respect of all or any of those detention periods". (emphasis added) By s21(A), inserted by the amending Act, it was provided that the Commissioner (who had replaced the Director-General) might, on the application of the periodic detainee, or for any reasons which seemed sufficient, exempt the periodic detainee from the operation of s21(1) with respect to any one or more of the detention periods for which the periodic detainee had failed to report as required. S21(B), also inserted by the amending Act, provided that in certain circumstances periodic detention was to be taken to have been served, eg where the non-attendance was "for health reasons or on compassionate grounds". Most importantly, the amending Act inserted in s25 new subsections (3A) and (3B): "25 (3A) Without limiting the generality of subs(1) the Court MUST on the application of the Commissioner, cancel the order if it is satisfied: (a) That the person has, for three or more detention periods, failed to report, as required by or under this Act; and (b) That the failures to report occurred otherwise than on leave of absence under s20 and are not the subject of an exemption under s21A. (3B) The court may refuse to cancel the order if it is satisfied: (a) That leave of absence OUGHT TO HAVE BEEN GRANTED under s20, or an exemption ought to have been granted under s21A, with respect to one or more detention periods; and (b) That the total number of detention periods for which the person has failed to report as referred to in subs(3A) would, had the leave or exemption been granted with respect to those detention periods, be less than three in which case it must make a determination to that effect. (3C) If the Court makes a determination under subs(3B), leave of absence under s20, or an exemption under s21A, it is taken to have been granted in accordance with the terms of the determination". (emphasis added) Parliamentary reasons for amendments of the Act The reasons for the amending the Act are clear enough on the face of the amendments. However, without objection, the Court was taken to the Parliamentary Debates upon the Bill which became the Act. The Attorney General (Mr JP Hannaford), introducing the Bill, incorporated a Second Reading Speech which included the following: "The proposed amendments primarily address three areas of concern: Second, public concern regarding levels of absenteeism Periodic detention is clearly and unequivocably a sentence of imprisonment. ... The program relies on the ability and preparedness of offenders to report of their own volition to a detention centre or work site for two days a week to serve their sentence. Inevitable instances of absenteeism occur, generally for valid reasons which are identified and ratified by the Department of Corrective Services. .. Though the Sentencing Act has achieved the purpose [of credibility] in relation to offenders sentenced to full-time imprisonment, understandable concern has been raised regarding levels of absenteeism of those offenders URJ | COMMISSIONER OF CORRECTIVE SERVICES v KAROUT (Kirby ACJ) 7 sentenced by the courts to periodic detention. I acknowledge that there is a continuing need to reduce levels of absenteeism in periodic detention.... As at Ist November 1992... approximately 33% of offenders were recorded as having failed to attend for periodic detention. S20 will be amended to provide greater discretion for the Commissioner to grant leave of absence. When leave of absence is not granted to a detainee by the Commissioner resulting in the detainee being recorded as absent without leave, the detainee will have a right to appeal to the Local Court against this decision. The second amendment introduces specific sanctions for failure to report. .. I conclude by reiterating that the central purpose of the legislation is to reduce absenteeism and thereby enhance community credibility in periodic detention as a sentencing sanction. It is designed to allow immediate penalties to be imposed on those offenders sentenced to periodic detention who fail to comply with their sentence without reasonable cause, and removes the need to refer decisions relating to the administration of the program back into the court system The Bill was supported by the then Opposition, and by the representative in the Legislative Council of the Australian Democrats Party. The Minister's speech is a reminder of public and media agitation concerning reported levels of detainee absenteeism. The amending Act was, as stated, Parliament's response to that pressure. ARGUMENTS OF THE PARTIES For Mr Karout, it was urged that the District Court had jurisdiction to make the order which Armitage DCJ made. It was pointed out, that where an Act permits an administrative decision of a public official to be reviewed by a judge, the statute so providing will not be narrowly construed so as to frustrate the judicial exercise of power. It will be inferred that Parliament intended a substantial power, appropriate to the judiciary, to be enjoyed. See Allerton v Director of Public Prosecutions (1991) 24 NSWLR 550 (CA), 558f. If the constructions adopted by the primary judge were not upheld, it would mean that no provision would exist in the Act for a retrospective grant of exemption by the District Court, even in an extreme case. It was submitted that the instance of a periodic detainee being kidnapped, or suffering profound physical and mental injuries, which were later put forward without contest to excuse the failure to attend and the failure to seek exemption, illustrated the absurdity of the construction urged for the Commissioner. The reference to the regulation in s20 should not be interpreted as circumscribing the powers of the Commissioner granted by the Act, or the powers afforded to the District Court on appeal from the magistrate's order of cancellation. The words "ought to have been granted" in s25(3B)(a) of the Act, as amended, were wide enough to permit consideration of what ought to have been done if only the full facts had been known, and the application made as contemplated by the Act and Regulations. The present case was, it was put, a good illustration of the sense of adopting the construction which Armitage DCJ favoured. The very physical and mental disabilities of the periodic detainee could have prevented him from pursuing his application for exemption in good time so as to avoid the peril of cancellation. It should not be imputed to Parliament that it had overlooked such a possibility. The overall purpose of the Act being beneficial, and its result being the imposition of criminal punishment, it should be construed in a way favourable to the liberty of the citizen. If there were doubt, the Act should be interpreted to provide the sensible facility for judicial review, 8 UNREPORTED JUDGMENTS on appeal, which Armitage DCJ had exercised in this case. The strong finding of the honesty of Mr Karout, and the explanation for his non attendance and failure to seek exemption in his serious condition of heroin addiction, sustained the factual basis for the conclusion that, if the Commissioner had known all the facts (as the judge did) he would, acting reasonably, have provided leave of absence on the days of absence. In this way the Court, looking back at all the facts, could properly conclude that "the leave of absence ought to have been granted". So went the argument for Mr Karout. It was not suggested that if the construction of the Act favoured by Armitage DCJ were incorrect, and the construction urged for the Commissioner correct, that the order made took the District Court beyond its normal jurisdiction. In other words, no separate argument was advanced that any error made by Armitage DCJ was one within jurisdiction. For the Commissioner, the case was simple. The Act had been amended, deliberately, to introduce a strict scheme to reduce absenteeism, and to limit the circumstances of excusable absence by periodic detainees to cases where leave of absence was granted under s20, or an exemption granted under s21A. Mr Karout had admitted failure to report on more than three occasions. He conceded that he had not secured, relevantly, leave of absence. As no application of any kind had been made by him, still less an application in the form stipulated under Reg33(1) of the Periodic Detention of Prisoners Regulation 1988, it could not be said that "leave of absence ought to have been granted". Unless application were duly made, this phrase in the past tense would have no relevance to the case in hand. The discretion under s25(3B) could only be enlivened if the District Court were satisfied that both conditions of the sub section had been fulfilled. In the present instance, neither had been fulfilled. Leave of absence had not been sought or granted. The total number of detention periods was not less than three. Absent a proper application or applications for leave of absence, it could not be said, within the sub section, that leave of absence "ought to have been granted" under s20. Additionally, the Commissioner relied upon the lack of evidence to sustain the compliance by Mr Karout with s25(3B)(b) of the Act. Mr Karout had given evidence that he did not report on 18 March 1994 because he and his wife "were not getting on too well due to my drug problem". There was also no evidence as to why Mr Karout did not report on 25 March or 20 May 1994. Nor could he specifically recall why he failed to report on 1 July 1994. He stated, in general terms: "there were times that I was ill and I had to stay at home". There was no evidence as to why he did not report on 26 August 1994. On 2 September 1994 he stated that he felt ill from a particular injection of heroin. CONCLUSION: THE PERIODIC DETENTION ORDER MUST BE CANCELLED I would not rest my decision upon an error on the part of the primary judge in respect of the applicability of sub para(b) of s25(3B). It would have been open to Armitage DCJ on the evidence before him, which he accepted to infer a general reason of heroin-related illness as the explanation for Mr Karout's various absences. In any case, mistaking such evidence would clearly be an error within jurisdiction if otherwise the power existed to provide relief retrospectively in default of the application. I therefore go directly to whether the provisions of s25(3B)(a) applied in this case. With respect to Armitage DCJ, I think it did not. URJ | COMMISSIONER OF CORRECTIVE SERVICES v KAROUT (Kirby ACJ) 9 The phrase "ought to have been granted" imports the notion that the decision-maker (whose decision is under judicial review) ought to have granted the application, in this case under s20. But s20 expressly provided that the initial decision was to be made "in accordance with the regulations". Those regulations expressly import the requirement that the application must be in writing by the periodic detainee, must contain certain particulars, and must be lodged with the governor of the relevant prison. See Reg33(1). Pursuant to Reg33(2), the governor must forward to the Commissioner the application for leave of absence as soon as practicable. Apart from the purpose of Reg33, the Commissioner is not empowered to grant leave of absence to a periodic detainee, either before or after the relevant detention period, without there being some request or application for the periodic detainee, or by some person lawfully acting on behalf of the periodic detainee. The granting of leave is thus conditional upon leave being sought by the periodic detainee. This is not only logical. It is what the scheme of the Act, read with the regulation referred to in the Act, provides. If there were any doubt that that was the legislative intention, it is removed by a reflection upon the Minister's stated purpose for introducing the Bill which became the amending Act. So far as extreme cases of hardship are concerned, it is true that the Act does not appear to provide expressly for the cases referred to by Mr Karout's counsel. The reasons for this may lie in a recognition that it is for the Commissioner to initiate steps for the cancellation of the warrant. In proper circumstances of the retrospective discovery of a legitimate reason for absence, and for failure to seek leave of absence, the Commissioner could properly take such matters into account in determining whether to prosecute an undetermined application for cancellation of the order for periodic detention. Alternatively, it might be possible to return the prisoner to the sentencing judge, or bring the matter before the Court of Criminal Appeal, for variation of the sentence to accord with later discovered facts. These possibilities were not fully explored in argument. They do not need to be considered by me. The duty of the Court is to give effect to the language of the Act, as amended. That language was deliberately designed to incorporate a degree of strictness in the procedures to be followed in seeking leave of absence. Where it had not been followed, there was still to be a facility for retrospective provision of leave of absence or an exemption. There was also to be an appeal to the Court. But that appeal was to be conducted within the limits of a review of what the Commissioner ought to have done. The District Court was not given the power to review the matter afresh to give effect to its own view of what, at the time of its order, ought to be done. When, in this case, it is asked whether leave of absence ought to have been granted by the Commissioner, there can only be one answer. No application for leave of absence having been sought as the Act mandates, in accordance with the regulations or at all, the pre-condition for the exercise upon the Commissioner's consideration of leave of absence was not established. In the absence of that pre-condition, it can scarcely be said that he "ought to have granted" leave of absence. Therefore, an essential requirement to activate the jurisdiction of the District Court was missing. Its absence left the District Court with no jurisdiction but to confirm the cancellation ordered by the Commissioner. This conclusion, demonstrating an error of jurisdiction, necessitates the provision to the Commissioner of the relief which he seeks from this Court. The Court was invited for various discretionary reason to refuse relief. However, the case concerns not only Mr Karout, but the proper construction of the Act, and the fulfilment of the purposes of Parliament in amending the Act. I am not convinced 10 UNREPORTED JUDGMENTS that any proper discretionary ground is established for withholding relief designed to keep the District Court within its lawful jurisdiction. It was suggested by both parties that this Court, in the interests of justice, should bring the proceedings to a close. For Mr Karout, it was urged that the Court would take into account that a fresh application would be made to the Commissioner, upon the material which was available to Armitage DCJ, to reconsider the refusal of the grant of leave of absence and retrospectively to provide it. Whether this would give rise to a fresh hearing in the District Court was not determined. It is a facility that should certainly be left open to Mr Karout if he is advised that he may pursue it. Finally, on the issue of costs, it was conceded for the Commissioner that the case was in the nature of a test case designed to resolve the difference of opinion which had emerged amongst the judges of the District Court. In the circumstances, there is no reason why Mr Karout should have to fund such litigation. ORDERS The orders which I favour are: (1) Bring up the record of the District Court in Matter No. 94/12/1350, resulting in the orders of his Honour Judge Armitage, dated 21 December 1994; (2) Quash the said orders, (3) Order that the proceedings be returned to the District Court for hearing and determination in accordance with law; and (4) Order that the claimant Commissioner pay the costs of Kaldon Karout of the proceedings in this Court. Sheller JA I agree with Cole JA. Cole JA I agree with the orders proposed by Kirby ACJ. The circumstances preliminary to this appeal, and relevant legislation are set out in his Honour's judgment. Accordingly I can briefly state my reasons for concurrence with the orders proposed. $25(3A) requires that the court must on the application cancel a periodic detention order if it is satisfied that the person has for three or more detention periods failed to report as required by the Act, and that the failures to report occurred otherwise than on leave of absence under s20 and are not the subject of an exemption under s21A. It was undisputed that Mr Karout had failed to report as required by the Act for three or more detention periods, It was also undisputed that he had not made application for leave of absence under s20, nor sought an exemption under s21A. Accordingly the court was obliged to cancel the periodic detention order. The only escape from this conclusion arises if the court is satisfied that leave of absence ought to have been granted under s20 or an exemption ought to have been granted under s21A with respect to one or more detention periods, and, if either such event had occurred, the resulting number of detention periods for which the person had failed to report was then less than three In my view it could never be successfully argued that leave of absence ought to have been granted or an exemption granted pursuant to s20 and s21A respectively, if no application had been made in either respect. Further, even had applications been made, and had they been granted, on the basis of the evidence before Armitage DCJ the number of unexplained failures to attend was not less than three. Thus there was no scope for the application of s25(3B). URJ COMMISSIONER OF CORRECTIVE SERVICES v KAROUT (Cole JA) 11 It follows that the court was obliged to cancel the periodic detention order pursuant s25(3A). I agree with the orders proposed. 1. Bring up the record of the District Court in matter number 94/12/1350, 5 resulting in the orders of his Honour Judge Armitage, dated 21 December 1994; 2. Quash the said orders; Order that the proceedings be returned to the District Court for hearing and determination in accordance with law; 10 4. Order that the claimant Commissioner pay the costs of Kaldon Karout of the proceedings of this Court. » Counsel for the Appellant (Commissioner): P Strickland 15 Counsel for the 1st Respondent (Prisoner): P Kintominas/R Rasmussan Counsel for the 2nd Respondent (District Court): Solicitors for the Appellant (Commissioner): IV Knight, State Crown Solicitor 20 Solicitors for the 1st Respondent (Prisoner): Michael Croke and Co Solicitors for the 2nd Respondent (District Court):