R v Turnbull; Ex parte Taylor

[1968] HCA 88

High Court of Australia|1968-07-01|Before: Owen JJ, Edward Arthur J

View original source

At a glance

Source facts

Court

High Court of Australia

Decision date

1968-07-01

Before

Owen JJ, Edward Arthur J

Source

Original judgment source is linked above.

Judgment (83 paragraphs)

[1]

High Court of Australia Barwick C.J. McTiernan, Taylor, Windeyer and Owen JJ. R v Turnbull; Ex parte Taylor [1968] HCA 88

[2]

The applicant to make absolute the order nisi for the issue of a writ of habeas corpus was sentenced on 26th September 1968 by the Supreme Court of the Australian Capital Territory in respect of nine offences, four of malicious injury to property, two of break enter and steal, and three of wilful and unlawful damage to property, to which he had pleaded guilty in a court of petty sessions in that Territory (see Court of Petty Sessions Ordinance 1930, as amended, s. 90A). All the events out of which the charges arose occurred during the one evening. He was sentenced to three months' imprisonment on each of the nine counts, the sentences to commence on that day, each sentence to be served concurrently. There is no evidence as to what occurred to the applicant on 26th September after the pronouncement of sentence upon him. He was in court when sentenced and I would gather from the transcript of the proceedings that he was removed from the court immediately the sentences were imposed. We are told that there is a lock-up in Canberra in the Australian Capital Territory which has three cells but that there is no gaol capable of holding prisoners in any number over any substantial period of time. The next we know of the applicant is that on 27th September he was delivered into the custody of "the gaol authorities" at Her Majesty's penitentiary at Goulburn (presumably by a police officer), and that the only documents delivered to those authorities along with him were a return of convictions, a warrant of transmission signed by the Sheriff of the Supreme Court of the Australian Capital Territory and an inventory of the applicant's property. The return of convictions was a document signed by the Deputy Registrar and Sheriff of the Australian Capital Territory. This document is as follows:

[29]

But, with the definition of prisoner and territory in s. 2 of the Act and particularly with the presence in the Act of ss. 2A, 8A and 10A the submission that the Act was not intended and does not apply to the Australian Capital Territory is, in my opinion, clearly untenable. The Act is evidently in part an exercise of the constitutional power given to the Parliament by s. 120 of the Constitution and intended to operate universally in relation to all persons convicted of offences against the laws of the Commonwealth, an expression wide enough in its context to cover Ordinances made for the Territories. Its enactment recognizes the well understood common law position that a prisoner may not be removed from the territorial jurisdiction within which and by whose courts he was convicted and sentenced, without special authority, to be derived, in general, from some legislative provision. The Sheriff, for example, at common law could not remove his prisoner from his county: see Platt v Sheriffs of London [1] : though by special authority he might convey a prisoner through another county to a place of imprisonment named in the authority [1] . Nor could a court at common law order the detention of a prisoner in some place other than that in which it exercised jurisdiction. What was true of the Royal Courts of Justice must be at least equally true of a statutory court such as the Supreme Court of the Australian Capital Territory. Transportation as an alternative to capital punishment at the outset depended upon an election made available to a convicted person by statute (22 Charles II, c. 5, s. 4): and was maintained for many years by means of a conditional pardon, conditioned on the transportation of the convicted person; and thus theoretically depended upon consent derived from the acceptance of the pardon. Later, transportation as a compulsive sentence was authorized by statute first apparently by 4 Geo. 1, c. 11: see also 8 Geo. 3, c. 15. Thus, the Act primarily operates as an authority to the Executive to remove a convicted person from the Territory in which he was convicted and, secondly, it works out some of the machinery by which the States shall perform their obligations under s. 120 of the Constitution. Bearing in mind these purposes of the Act, no reason can, in my opinion, be found for excepting the Australian Capital Territory from its operation. As I have mentioned, s. 2A positively indicates to the contrary.

[37]

Attention was called in this connexion to s. 36 to which I have already referred. But it seems to me that this section only lays a duty upon the Sheriff to take, receive and detain persons who are committed to his custody by the Court. This section, in my opinion, calls for some specific order or command of the Court. Whilst it may be that if the Sheriff is present at the sentencing by himself or his deputy, it may be concluded that impliedly the prisoner is by the sentence of the Court committed to his custody, it is not so clear that the same is true if he is not present either in person or by deputy. The office of Sheriff of the Territory is not traditional but purely statutory. It is one thing for the Sheriff with traditional common-law functions and duties to justify his possession of a prisoner on the common law footing of the cases to which reference has been made: it is quite another, in my opinion, to provide the conditions precedent to the commencement of a statutory duty and the creation of a concomitant statutory right under s. 36. The views expressed in R. v Lydford [4] derive from the fact that the Sheriff in that case held a traditional office to which duties were attached by the common law and which were not displaced by the statute which consolidated the law with respect to the Sheriff in England. In any case, in my opinion, the commitment of the prisoner can be only to the Sheriff who, in my opinion, upon the proper construction of s. 36, must hold the prisoner in the Territory, either himself or by some person he authorizes and over whom he has such authority that the custody of that person can be held to be the custody of the Sheriff. As will appear from what follows, in my opinion, neither the Supreme Court nor the Sheriff has any authority to order or to permit the removal of a prisoner from the Territory. That, in my opinion, could only be done by compliance in all respects with the Act. But this anticipates my conclusion on the Solicitor-General's submissions.

[63]

The so-called return of convictions, although carelessly complied, is perhaps to be regarded as, in a sense, the equivalent of the record which at the end of a sittings of a court of gaol delivery is given to the gaoler so that he may know the sentences passed upon prisoners in his custody: see Reg. v Hodgkinson [1] . If so, it seems it is a mere memorial, not of its own force a warrant: see R. v Antrobus [2] , especially the judgment of Patteson J. [3] ; Reg. v Bourdon [4] . The document in the present case does however shew that the Sheriff of the Territory was aware of the sentence imposed on the applicant. He needed no direction to execute it. The sentence itself of a superior court is the authority for the execution of the punishment it orders: Williamson v Inspector-General of Penal Establishments [5] , per Smith J. [6] , and cases there cited. The question then is whether the Sheriff could lawfully cause the applicant to be imprisoned by the Superintendent, Goulburn Training Centre, Goulburn, N.S.W. The Goulburn Training Centre is the name of the gaol or part of the gaol where the applicant was in fact imprisoned. The Superintendent is the gaoler there and the first-named respondent in these proceedings. It is not suggested that the Sheriff could command the gaoler in Goulburn to receive the prisoner. The question is whether, the gaoler being willing to do so, and to hold him for the term of his sentence, the imprisonment was unlawful because in New South Wales, and not in the Territory of the Sheriff. I am aware that there is much ancient common-law learning and there have been many learned disputes as to limitations of the authority of a sheriff by the territorial limits of his bailiwick. Those who are interested in the topic can find a wealth of information in the very old case of Platt v Sheriffs of London [1] , which is still referred to as an authority in modern writings. From it and other early sources, including those referred to in Bacon's Abridgment, I think it emerges that a sheriff's authority is to do acts within his own bailiwick. But if in his own bailiwick he arranges for a prisoner, duly sentenced there, to be held elsewhere, not in a foreign country, to undergo his sentence, I am not persuaded that the imprisonment is at common law unlawful. I appreciate that there is a distinction between the sheriffs of separate counties in England, all under the one government, and the sheriffs of places under different governments such as the Australian States and Territories. Nevertheless I do not regard Goulburn seen from Canberra as being for these purposes like a foreign country or a place beyond the seas. The Supreme Court of the Australian Capital Territory has jurisdiction in relation to the Territory, and in respect of crimes committed there - and also in relation to the Antarctic Territory and to Heard Island and McDonald Islands. To exercise its jurisdiction it can sit in Canberra or anywhere in Australia that the Governor-General specifies. He has specified Sydney and Melbourne. The Sheriff can, indeed I assume ought, by himself or a deputy to attend it wherever it sits. By s. 120 of the Constitution every State must make provision for the detention in prison of persons convicted of offences against the laws of the Commonwealth, which I take it means convicted of such offences anywhere by any court of competent jurisdiction.

[79]

as the case may be. The Administrator of a territory is empowered, by s. 3 (1), to recommend to the Governor-General in certain circumstances that a prisoner be removed to a State or another territory there to undergo his sentence or the residue thereof. One of the cases in which such a recommendation may be made is if it appears to the Administrator that there is no prison in the territory in which the prisoner can properly undergo his sentence. Another such case arises if it appears to the Administrator that the life of a prisoner will be endangered or his health permanently impaired by further imprisonment in the territory. By s. 3 (2) the Governor-General, upon the receipt of such a recommendation, may with the concurrence of the Government of the State or territory to which it is proposed to remove the prisoner, order that the prisoner be removed to that State or territory there to undergo his sentence or the residue thereof. When such an order is made the Administrator of the territory may, by warrant under his hand, direct the prisoner to be removed to the State or territory mentioned in the order and for that purpose to be delivered into the custody of the person named or described in the warrant and to be held in custody and conveyed to that State or territory there to undergo his sentence or the residue thereof until returned in pursuance of the Act or discharged (s. 4 (1)), and every warrant so issued is to be forthwith executed according to its tenor (s. 4 (3)). A prisoner removed pursuant to the Act is to be dealt with in the State or territory to which he is removed as though his sentence had been duly imposed in that State or territory (s. 5 (1)) and, by s. 5 (3), the officer in charge of any prison, on request by any person having the custody of a prisoner under a warrant issued pursuant to the Act is to receive the prisoner and detain him for such time as is requested by the person for the purpose of the proper execution of the warrant. In the case of the applicant these procedures were not followed since at no relevant time was there, in the Australian Capital Territory, any person who answered the description of "The Administrator".