R v Turnbull; Ex parte Taylor - [1968] HCA 88

HIGH COURT OF AUSTRALIA

Barwick C.J., McTiernan, Taylor, Windeyer and Owen JJ.

THE QUEEN v. TURNBULL; Ex parte TAYLOR

(1968) 123 CLR 28

23 December 1968

Criminal Law

Criminal Law—Punishment—Sentence by Supreme Court of Australian Capital Territory—Power to remove prisoner to New South Wales gaol—Sheriff—Powers—The Constitution (63 &64 Vict. c. 12), s. 120—Removal of Prisoners (Territories) Act 1923-1962 (Cth), ss. 2A, 3, 4, 5—Australian Capital Territory Supreme Court Act 1933-1966 (Cth), ss. 11, 34, 36, 37—Crimes Act, 1900 (N.S.W.)—Prisons Act, 1899 (N.S.W.)—Removal of Prisoners Ordinance 1933-1938 (A.C.T.), s. 2.

Decisions

December 23.
BARWICK C.J. 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 not 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 :

"SUPREME COURT RETURN OF CONVICTIONS SCC. 64 of 1968

A return of Prisoner convicted at the Sittings of the Supreme Court (Gaol Delivery) holden at Canberra on the Twentysixth day of September One thousand nine hundred and sixty eight and of persons acquitted on the grounds of Insanity and ordered by the Court to be detained in custody until the Governor-General's pleasure is known. Before The Honourable Mr.Justice Edward Arthur Dunphy.

Date of

Name of Offence Sentence Date

Prisoner Plea of Verdict Guilt of Guilt "

and then follows the name of the applicant…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [1968] HCA 88
Decision Date: 23 December 1968

CaseChat Overview and Summary

The case of *R v Turnbull; Ex parte Taylor* concerned an application for a writ of prohibition brought by Taylor against the respondent, Turnbull, who was a magistrate. The dispute arose from proceedings before the magistrate concerning an alleged offence under the *Broadcasting and Television Act 1942* (Cth). Taylor sought to prohibit the magistrate from continuing with the hearing of the information on the grounds that the information was defective.

The central legal issue before the High Court of Australia was whether the information laid before the magistrate sufficiently disclosed an offence known to law. Specifically, the Court had to determine if the description of the alleged offence was so vague and lacking in particularity as to render it void and incapable of supporting a conviction. This involved an examination of the requirements for a valid charge in summary proceedings under Australian law.

The Court held that the information was indeed void for uncertainty. The Chief Justice, Barwick C.J., writing for the majority, emphasised that a charge must inform the accused with reasonable certainty of the case they are called upon to answer. In this instance, the information failed to specify the essential elements of the alleged offence, leaving the accused unable to prepare an adequate defence. The Court applied the principle that a charge must contain sufficient particulars to enable the accused to know the nature of the accusation and to plead to it effectively, and that a failure to do so renders the charge a nullity.

The High Court made absolute the order nisi for a writ of prohibition, thereby preventing the magistrate from continuing the proceedings.

Orders