Flynn v The King

The applicant, Flynn, sought special leave to appeal from a decision of the Supreme Court of Western Australia. Flynn had been convicted of manslaughter and sentenced to life imprisonment in 1935. He claimed that under the Prison Regulations 1923, his life sentence was deemed to be a period of twenty years, subject to remission through a "marks system," and that he had served this period and was therefore unlawfully detained. The respondent was the King, represented by the Comptroller General of Prisons.

The High Court was required to determine whether the Prison Regulations 1923, specifically regulation 155, conferred a legal right upon a prisoner serving a life sentence to be released after a deemed period of twenty years, subject to remission under the marks system. Further, the Court had to consider whether any such right, if it existed, was preserved by section 17 of the Interpretation Act 1918-1938 (W.A.) after the repeal of the 1923 regulations and the subsequent amendments to the prison regulations.

The Court held that regulation 155 did not confer a legal right to release upon a prisoner, but rather granted a power to prison authorities to release prisoners under certain conditions. The word "may" in the regulation indicated discretion, not an entitlement. Even if regulation 155 could be interpreted as creating a right, such a right had not accrued to the applicant by the time the 1923 regulations were repealed in 1940, as he was still in the process of earning remissions. Furthermore, subsequent amendments to the prison regulations in 1940 and 1943 altered the application of the marks system for life sentence prisoners, limiting its purpose to considerations for the Royal Prerogative of mercy. Consequently, the applicant was not entitled to release based on the earlier regulations.

The application for special leave to appeal was refused, with the Court finding that the applicant was lawfully in custody.