Cowell V Corrective Services Commission OF NEW South W PDF

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User Name: Jinming Liu Date and Time: Wednesday, 18 March 2020 11:48:00 AM AEDT Job Number: 112729161

Document (1) 1. COWELL V CORRECTIVE SERVICES COMMISSION OF NEW SOUTH WALES AND ANOTHER, (1988) 13 NSWLR 714 Client/Matter: -None-

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Cowell v Corrective Services Commission (NSW) CaseBase | (1988) 13 NSWLR 714 | (1988) 34 A Crim R 364 | (1988) Aust Torts Reports 80-197

COWELL V CORRECTIVE SERVICES COMMISSION OF NEW SOUTH WALES AND ANOTHER — (1988) 13 NSWLR 714 New South Wales Law Reports · 34 Pages

COWELL V CORRECTIVE SERVICES COMMISSION OF NEW SOUTH WALES AND ANOTHER Court of Appeal : Priestley , McHugh and Clarke JJA 29, 30 October 1987, 4 August 1988 Criminal Law — Administration of prisons — Action for false imprisonment — Miscalculation of remissions — Prisoner released after sentence completed — Who is liable for false imprisonment — Prisons Act 1952, ss 41(3), 46. False Imprisonment — Action by prisoner — Prisoner released after sentence completed — Miscalculation of remissions — Who is liable for false imprisonment — Prisons Act 1952, ss 41(3), 46. Criminal Law — Administration of prisons — Custody of prisoner — Who has — Role of Governor of prisons — Role of Corrective Services Commission of New South Wales — Liability for false imprisonment — Prisons Act 1952. Criminal Law — Administration of prisons — Remission system — Nature of an entitlement to remissions discussed A former prisoner brought proceedings for false imprisonment against the Corrective Services Commission of New South Wales (the Commission) and a nominal defendant representing the Government of New South Wales. The prisoner had been confined in prison, unintentionally and non-negligently, for a period longer than the law provided because his entitlement to remissions had been calculated in accordance with the construction of the remission provisions of the Prisons Act 1952 (the Act) deriving from Smith v Corrective Services Commission of New South Wales [1980] 2 NSWLR 171 which was subsequently over-ruled in the High Court: (1980) 147 CLR 134. On appeal from a decision of Yeldham J dismissing the proceedings, Held: (1) (By Priestley and Clarke JJA, McHugh JA dissenting) As the unlawful detention of the prisoner arose from the miscalculation of remissions which was, under s 41(3) of the Act, the responsibility of the Commission and as the Commission had the actual custody of the prisoner under the scheme of the Act, the Commission was directly liable for the false imprisonment and as a statutory body was not protected by s 46 of the Act from such liability. (734F-737E, 739C-F) (2) (By Priestley and Clarke JJA, McHugh JA contra) The Government of New South Wales was not directly or vicariously responsible for the false imprisonment: properly construed the provisions of the Act constituting the Commission as a statutory instrumentality obliged to control and manage prisons indicate that that instrumentality should be the person against whom actions are taken and not the Crown. (740F-741F) Discussion of the responsibility for “custody” of a prisoner, the role of the Governor of a prison and the role of the Corrective Services Commission of New Jinming Liu

Page 2 of 37 COWELL V CORRECTIVE SERVICES COMMISSION OF NEW SOUTH WALES AND ANOTHER South Wales, in relation thereto. Discussion of the nature of and entitlement to remissions under the Prisons Act 1952.

(1988) 13 NSWLR 714 at 715 Note: A Digest — CRIMINAL LAW [695]; MALICIOUS PROCEDURE AND FALSE IMPRISONMENT [43] CASES CITED The following cases are cited in the judgments: Bainbridge v Postmaster-General [1906] 1 KB 178

.

Blacker v Waters (1928) 28 SR (NSW) 406; 45 WN (NSW) 111. Board of Fire Commissioners of New South Wales v Ardouin (1961) 109 CLR 105. Broom v Morgan [1953] 1 QB 597

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Cheetham v McGeechan [1971] 2 NSWLR 222. Collins v Wilcock [1984] 1 WLR 1172

; [1984] 3 All ER 374.

Darling Island Stevedoring and Lighterage Co Ltd v Long (1957) 97 CLR 36. Day v The Queen (1984) 153 CLR 475. Enever v The King (1906) 3 CLR 969. Feather v Rogers (1909) 9 SR (NSW) 192; 26 WN (NSW) 27. Flynn v The King (1949) 79 CLR 1. Gibson v Young (1900) 21 LR (NSW) 7; 16 WN (NSW) 158. Griffith v Haines [1984] 3 NSWLR 653. Groves v Commonwealth of Australia (1982) 150 CLR 113 Imperial Chemical Industries Ltd v Shatwell [1965] AC 656

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Little v Commonwealth (1947) 75 CLR 94. London Corporation v Cox (1867) LR 2 HL 239. Mee v Cruickshank (1902) 86 LT 708. Moone v Rose (1869) LR 4 QB 486 Morriss v Winter [1930] 1 KB 243

. .

Murphy v Corrective Services Commission of New South Wales (O'Brien CJ of Cr D, 8 December 1983, unreported). Oceanic Crest Shipping Co v Pilbara Harbour Services Pty Ltd (1986) 160 CLR 626. Parker v Commonwealth of Australia (1965) 112 CLR 295. Platt v Nutt (1988) 12 NSWLR 231. R v Turnbull; Ex parte Taylor (1968) 123 CLR 28. Railways (Western Australia), Commissioner of v Stewart (1936) 56 CLR 520. Rajski v Powell (1987) 11 NSWLR 522. Jinming Liu

Page 3 of 37 COWELL V CORRECTIVE SERVICES COMMISSION OF NEW SOUTH WALES AND ANOTHER Rose v Plenty [1976] 1 WLR 141 Sirros v Moore [1975] QB 118

; [1976] 1 All ER 97. .

Smith v Corrective Services Commission of New South Wales [1980] 2 NSWLR 171; reversed (1980) 147 CLR 134. Sovereignton Pty Ltd v Public Transport Commission of New South Wales [1980] 1 NSWLR 243. Tooth and Co Ltd v Tillyer (1956) 95 CLR 605. Waugh v Waugh (1950) 50 SR (NSW) 210; 67 WN (NSW) 175. Williamson v Inspector-General of Penal Establishments [1958] VR 330. Wilson v Pringle [1987] QB 237

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The following additional cases were cited in argument and submissions: Aboriginal Development Commission v Treka Aboriginal Arts and Crafts Ltd [1984] 3 NSWLR 502. Australian National Airlines Commission v Newman (1987) 162 CLR 466. Barton v Commissioner for Motor Transport (1957) 97 CLR 633. Beckingham v Port Jackson & Manly Steamship Co (1956) 57 SR (NSW) 403; 74 WN (NSW) 338. Brasyer v Maclean (1875) LR 6 PC 398

.

Commonwealth of Australia v Connell (1986) 5 NSWLR 218. Commonwealth of Australia v Introvigne (1982) 150 CLR 258.

(1988) 13 NSWLR 714 at 716 Cox v Journeaux (1934) 52 CLR 282. Crouch v Commissioner for Railways (Qld) (1985) 159 CLR 22. D'Angola v Rio Pioneer Gravel Co Pty Ltd [1979] 1 NSWLR 495. De Rossi v Walker (1902) 2 SR (NSW) 249; 19 WN (NSW) 187. Dixon v Western Australia [1974] WAR 65. Donaldson v Broomby (1982) 60 FLR 124; 40 ALR 525; 5 A Crim R 160. Dugan v Mirror Newspapers Ltd (1978) 142 CLR 583. Duncan v Theodore (1917) 23 CLR 510. Dyer v Mundy [1895] 1 QB 742

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Ellis v Home Office [1953] 2 QB 135

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Farnell v Bowman (1887) 12 App Cas 643

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Grain Elevators Board (Vic) v Dunmunkle Corporation (1946) 73 CLR 70. Green v Corrective Services Commission; Murphy v Corrective Services Commission [1982] 1 NSWLR 327. Harvey v R G O'Dell Ltd [1958] 2 QB 78

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Page 4 of 37 COWELL V CORRECTIVE SERVICES COMMISSION OF NEW SOUTH WALES AND ANOTHER Home Office v Dorset Yacht Co Ltd [1970] AC 1004

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Horwitz v Connor (1908) 6 CLR 38. Hudson v Venderheld (1968) 118 CLR 171. Jobling v Blacktown Municipal Council (1969) 17 LGRA 92; [1969] 1 NSWR 129. Kelleher v Corrective Services Commission of New South Wales (1987) 8 NSWLR 423. Kliendienst v A Kliendienst & Sons (1958) 59 SR (NSW) 150; 76 WN (NSW) 203. Kondis v State Transport Authority (1984) 154 CLR 672. McGraw-Hinds (Aust) Ltd v Smith (1979) 144 CLR 633. McLaughlin v Fosbery (1904) 1 CLR 546. Madras Electric Supply Corporation Ltd v Boarland [1955] AC 667

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Maguire v Simpson (1977) 139 CLR 362. Marshall v Watson (1972) 124 CLR 640. Masic v Godbold (1984) 2 SR (WA) 220. Nipper v Watson (1882) 3 LR (NSW) 168. Patterson v Veitch (1956) 58 SR (NSW) 287; 75 WN (NSW) 288. Quinn v Hill [1957] VR 439. R v Toohey; Ex parte Northern Land Council (1981) 151 CLR 170. Racecourse Co-operative Sugar Association Ltd v Attorney-General (Queensland) (1979) 142 CLR 460. Ramsay v Pigram (1968) 118 CLR 271. Shepherd v New South Wales (1957) 97 CLR 673. Skinner v Commissioner for Railways (1937) 37 SR (NSW) 261; 54 WN (NSW) 108. Smith v McGraw-Hinds (Aust) Pty Ltd; Ex parte Smith [1976] Qd R 199; (1976) 36 FLR 436. State Bank of New South Wales v Commonwealth Savings Bank of Australia (1986) 4 NSWLR 549. Staveley Iron & Chemical Co Ltd v Jones [1956] AC 627

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Stoneman v Lyons (1975) 133 CLR 550. Sydney Municipal Council v Commonwealth (1904) 1 CLR 208. Tamlin v Hannaford [1950] 1 KB 18

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Theodore v Duncan (1919) 26 CLR 276. Thorne v Western Australia [1964] WAR 147. Twine v Bean's Express Ltd (1946) 175 LT 131; [1946] 1 All ER 202. Vezitis v McGeechan [1974] 1 NSWLR 718. Williams v Milotin (1957) 97 CLR 465. Wright v London General Omnibus Co (1877) 2 QBD 271

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APPEAL This was an appeal from a decision of Yeldham J dismissing proceedings by

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Page 5 of 37 COWELL V CORRECTIVE SERVICES COMMISSION OF NEW SOUTH WALES AND ANOTHER the appellant, a former prisoner, for damages for false imprisonment. J Basten and T M Lynch, for the appellant. D I Cassidy QC, M J Joseph and F P Donohue, for the respondents. Cur adv vult

4 August 1988 PRIESTLEY JA. I agree with the conclusions reached by Clarke JA in this appeal and with his reasons for them. A central question in regard to the liability of the first respondent, the Corrective Services Commission, is the meaning of the Prisons Act 1952, s 46. Questions concerning its meaning as it bears upon the Corrective Services Commission can be framed in various ways, choice among which may produce different answers. One way is to ask, looking at nothing more than s 46 itself, whether “person” includes the Corrective Services Com mission. Another way is to ask whether “person” in s 46 includes the Corrective Services Commission when s 46 is read with cl 15 of Schedule 3 of the Act. A third variant of the question is to treat it as asking whether “person” in s 46 includes the Corrective Services Commission when read with the whole of the Act, (including cl 15 of Schedule 3), understanding the language of the Act in light of the history of the common law concerning wrongful imprisonment, the need to give appropriate protection to officials trying in good faith to carry out custodial duties, the history of the legislation itself, and, the matter mentioned by Clarke JA, the importance the law accords to the freedom of the individual. It seems to me that a court can best approach the meaning of the words of s 46 by having as background to its consideration of the section the matters mentioned in the last suggested way of stating the question. The various matters mentioned are not to my mind controlling or decisive, but necessary equipment for someone trying to grasp what is being communicated by the words in the statute. They are the matters I have taken into account in agreeing with Clarke JA's construction of s 46. I agree with Clarke JA that prisoners become entitled to remission of sentence as a matter of law and not of grace. Section 41(3) says: “Prisoners shall be granted remission of sentences as prescribed by regulations under this Act.” For the reasons given by Clarke JA I think this subsection (not all of which I have quoted) plainly makes remission entitlement a matter of law. Thus the facts of the case show that the power of the State has wrongly confined a citizen of the State. In considering the general question raised by these facts, the court must choose between stark alternatives. The question is, whether the person wrongly imprisoned should have a remedy for that wrong, or whether, because the wrongful imprisonment happened without moral fault on the part of any official and was an unintended and nonnegligent by-product of the routine operation of the State system, the State, through the court, should be able to say to the wrongfully imprisoned person: “Despite the fact that the State has confined you in custody for a period longer than the State law provides, that same State law has no remedy for the

(1988) 13 NSWLR 714 at 718 State's unlawful treatment of you.” The fact that the imprisoned person had committed serious crimes seems to me irrelevant to the answer to the question, one way or the other. In the present case, I think that Clarke JA's reasoning shows the answer to be that the first respondent must pay damages to the person wrongfully kept in custody. Jinming Liu

Page 6 of 37 COWELL V CORRECTIVE SERVICES COMMISSION OF NEW SOUTH WALES AND ANOTHER I add one observation to what I have said concerning the argument that entitlement to remissions is not a matter of law. I once saw a vivid example of the contrary view in action. I happened to be in court when the special leave application in Smith v Corrective Services Commission of New South Wales (1980) 147 CLR 134 (the case which is directly responsible for the present proceedings) came before the High Court. Although the application was for special leave, the Court came straight to the substantive question involved and immediately formed the opinion that the remission calculated on the proper construction of the remission provisions gave rise to a release date already past. The Court ordered Mr Smith's release forthwith. Reasons were published a month or so later. No-one watching the Court that day could doubt that remission-entitlement was taken for granted to be a matter of law, and a matter of law which, regardless of the merits or demerits of the persons to whom it applied, it was important should be strictly observed. I agree with the orders proposed by Clarke JA. McHUGH JA. The questions in this appeal are: (1) whether either of the respondents was guilty of falsely imprisoning the appellant by holding him in prison after the expiration of his sentence; and (2) if so, whether the provisions of s 46 of that Act prevent an action for damages from being brought against either of the respondents. The appeal is brought by John Edwin Cowell against an order made by Yeldham J in the Supreme Court dismissing his action for damages against the Corrective Services Commission of New South Wales and a nominal defendant appointed pursuant to the Claims Against the Government and Crown Suits Act 1912, s 3. The nominal defendant was sued in respect of the acts and omissions of the governors of the prisons in which the appellant was imprisoned. The appellant sought damages for false imprisonment and negligence. The claim for negligence is no longer pursued. The primary facts of the case are not in dispute. In 1973 the appellant was sentenced to a term of seven and a half years penal servitude to be served concurrently with other sentences. All sentences were to commence on 13 August 1973. In 1975 he was released on parole. But in 1976 his parole was revoked and he received a further sentence of two years imprisonment to commence at the end of the sentence which he was serving. He was released from custody on 13 October 1980. The date upon which the appellant should have been released is disputed. But it is common ground that, by reason of the failure to take account of remissions to which he was lawfully entitled, the appellant was detained in prison for a period after his sentence expired. The parties agree that neither the Commission, the governors of various gaols where the appellant was incarcerated, nor any servant or officer of the Commission was negligent or activated by malice in calculating the appropriate date for the appellant's release or in retaining him in custody. They also agree that during the relevant period 24 October 1979 to 13 October 1980 the Governor of the Central Industrial Prison or such other

(1988) 13 NSWLR 714 at 719 governor of a prison in which the appellant was incarcerated had custody of him pursuant to the Prisons Act 1952, s 39. The liability of the respondents for false imprisonment: The governor:

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Page 7 of 37 COWELL V CORRECTIVE SERVICES COMMISSION OF NEW SOUTH WALES AND ANOTHER Leaving aside the operation of the Prisons Act 1952, s 46, the governor of any prison in which the appellant was detained after the expiration of his sentences is liable for damages for detaining him beyond the date he could be lawfully imprisoned: Moone v Rose (1869) LR 4 QB 486 and Mee v Cruickshank (1902) 86 LT 708. The Corrective Services Commission: The liability of the Corrective Services Commission for the wrongful detention of the appellant is not so easy to determine. The appellant has abandoned his case of negligence against the Commission. His case of false imprisonment against that body depends upon the proposition that the Commission had custody of the appellant and unlawfully detained him beyond the period authorised by his sentence. But in my opinion that claim against the Commission must fail on the ground that, under the Prisons Act 1952, the governor and not the Commission had the custody of the prisoner while he was in a prison under the control of the governor. The Prisons Act 1952 makes provision for the establishment, regulation and control of prisons and the custody of prisoners. The governor is given power to declare any building, premises or place to be a prison (s 5). Subject to the Act and to the direction of the Minister, the Commission has the care, direction, control and management of all prisons. However, s 39 enacts: “Every prisoner shall whilst detained in prison be deemed to be in the custody of the governor of the prison to which he has been committed or removed and the liability of the Sheriff or other person delivering such prisoner shall cease on delivery of such prisoner to the governor of the prison.”

Unless the context or subject matter otherwise requires, “governor of a prison” means the superintendent, governor, gaoler, or other officer for the time being in charge of the prison (s 4). Every governor of a prison has the charge and superintendence of the prison for which he is appointed and is liable to answer for the escape of any prisoner from his custody whenever the escape happens by or through his neglect or default (s 40). Where a court of record or a judge thereof or any coroner is satisfied that it is desirable that a prisoner should be in attendance before him for the purposes of any legal proceeding or inquest, the court, judge or coroner may make an order “directing the governor of the prison in whose custody the prisoner is to produce such prisoner” (s 44(1)). A prisoner while in hospital or other place for medical attendance or treatment is deemed to be in the custody of the governor of the prison from which he was removed (s 28(2)). The Act also provides that, by order of the Commission a prisoner may be permitted to be temporarily absent from prison for a purpose in aid of the administration of justice or for the purpose of attending to a number of specified matters (ss 12, 29). While the prisoner is so absent from prison, he is deemed to be in the custody of the governor of the prison from which he was taken or absent (s 29A). Upon the death of a prisoner “the governor of the prison in whose

(1988) 13 NSWLR 714 at 720 custody the prisoner was when he died” is to give notice of the death to the coroner (s 43). The conclusion to be drawn from these provisions of the Act concerning custody is that, while a prisoner is in a particular prison, he is in the custody of the governor of that prison and nobody else. I do not think that it is a Jinming Liu

Page 8 of 37 COWELL V CORRECTIVE SERVICES COMMISSION OF NEW SOUTH WALES AND ANOTHER tenable construction of the Act that, because the Commission has the care, direction, control and management of all prisons, it, therefore, has the custody of every prisoner in New South Wales. The Commission is given ...