Powch v The Queen [1987] HCA 41

Powch v The Queen [1987] HCA 41

Because the applicant was serving an unexpired sentence of imprisonment and was removed to Cessnock pursuant to an order under s. 27 of the Prisons Act 1952 NSW, s. 39 deemed him to be in the custody of the governor of the Cessnock prison. The validity of the s. 27 removal order did not depend on proof that his custody at Parramatta was lawful, so the custody from which he escaped was lawful.

Jurisdiction
Australia
Procedural Posture
Application for Special Leave to Appeal / High Court of Australia
Outcome
Application for special leave to appeal refused.
Legal Topics
['escape From Lawful Custody' 'lawfulness of Custody' 'removal of Prisoner Between Prisons' 'prisons Act 1952 Nsw']
['criminal Law' 'prisons and Corrections' 'criminal Procedure'] ['escape From Lawful Custody' 'lawfulness of Custody' 'removal of Prisoner Between Prisons' 'prisons Act 1952 Nsw']

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Procedural Posture

Application for Special Leave to Appeal / High Court of Australia

Legal Issues

  1. 1 ["Whether the Crown had to prove that the applicant's detention in the prison at Parramatta was lawful in order to establish that his custody at Cessnock was lawful for an offence of escape from lawful custody." 'Whether an order removing the applicant to Cessnock under s. 27 of the Prisons Act 1952 NSW was invalid because of any absence of proof about how he came to be detained at Parramatta.']

Ratio Decidendi

Because the applicant was serving an unexpired sentence of imprisonment and was removed to Cessnock pursuant to an order under s. 27 of the Prisons Act 1952 NSW, s. 39 deemed him to be in the custody of the governor of the Cessnock prison. The validity of the s. 27 removal order did not depend on proof that his custody at Parramatta was lawful, so the custody from which he escaped was lawful.

Court Disposition

Application for special leave to appeal refused.

Orders

  • ['Application for special leave to appeal refused.']