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 and the particulars of the nine offences. Thereafter the document proceeds :

"Recommendation or Remarks including any Order as to Commencing Date of Sentence and Information as to whether Indicted with Another Accused :

Sentences to be concurrent and to date from the Twentysixth day of September 1968.

The Superintendent Deputy Registrar and Goulburn Training Centre, Sheriff of the Goulburn, N.S.W. Australian Capital Territory (Signature and Seal)" (at p30)

2. It was thus a convenient record of the conviction of the applicant addressed to the gaol authorities at Goulburn Gaol. But there is no statutory authority for it nor is it given any statutory or evidentiary effect. The warrant of transmission signed by the Sheriff, as we were informed, purports to authorize the return of the applicant to the Australian Capital Territory upon the completion of his sentence. We were not referred to any statutory authority for such a document. But in any case nothing turns upon it in this matter. (at p30)

3. The position as at the date of the making of the order nisi and as at the date upon which this Court made it absolute was that the applicant was held by the respondent Alan Jennings Turnbull, the Superintendent of the Training Centre at Goulburn, which I gather is included in Her Majesty's Penitentiary at that place : and the Commonwealth was maintaining that the custody was lawful. The Court on 8th November made absolute the order nisi which included an order for the immediate discharge of the applicant from custody. I now publish my reasons for joining in the making of those orders. (at p30)

4. The Supreme Court of the Australian Capital Territory is a superior court of record whose jurisdiction is wholly derived from Pt II of the Australian Capital Territory Supreme Court Act 1933- 1959 (Cth). Its jurisdiction is territorially limited so far as is presently relevant to the area of the Australian Capital Territory. Its jurisdiction in criminal matters is given by s. 11. There are no statutory provisions as to the form in which its records are to be kept. But I gather that in practice in criminal cases, no formal conviction is drawn up and no warrant of commitment issued. (at p31)

5. By s. 34 (1) the Governor-General is empowered to appoint a Sheriff of the Australian Capital Territory and by s. 36 the Sheriff is charged with

" . . . the service and execution of all writs, summonses, orders, warrants, precepts, process, and commands of the Supreme Court which are directed to him, and shall make such return thereof to the Court, together with the manner of the execution thereof, as he is thereby required, and shall take receive and detain all persons who are committed to his custody by the Court, and shall discharge all such persons when thereunto directed by the Court or by law."

In fact, the Deputy Registrar of the Court for whose office and duties s. 34 (2) provide, is also the Sheriff of the Territory. (at p31)

6. The Removal of Prisoners (Territories) Act 1923-1962 (Cth) (the Act) defines "Territory" as "a Territory under the authority of the Commonwealth". By s. 2A (1) of the Act it is provided that :

"(1) Where there is no office of Administrator in respect of a Territory, the Governor-General may, by order published in the Gazette - (a) declare that an office specified in the order shall, for the purposes of the application of this Act in relation to that Territory, be substituted for the office of Administrator ; or (b) authorize a person named in the order to exercise and perform in relation to that Territory, the powers and functions of an Administrator under this Act."

By s. 3 (1) it is provided that where it appears to the Administrator of the Territory:

"(1) (a) that, by reason of there being no prison in the Territory in which the prisoner can properly undergo his sentence, the removal of the prisoner is expedient for his safer custody or for the more efficient carriage of his sentence into effect ; or (b) that it is likely that the life of a prisoner undergoing his sentence in the Territory will be endangered or his health permanently impaired by further imprisonment in the Territory ; or (c) that the offence was committed wholly or partly beyond the limits of the Territory ; or (d) that the prisoner belongs to a class of persons who under the law of the Territory are subject to removal under this Act. he may recommend to the Governor-General that the prisoner be removed to a State or another Territory, there to undergo his sentence or the residue thereof." (at p31)

7. Upon receipt of such a recommendation the Governor-General 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 so removed. Thereupon the Administrator of the Territory or the person empowered by order under s. 2A 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. By s. 5 (3) the officer-in-charge of any prison on request by the person having the custody of a prisoner under a warrant issued in pursuance of the Act and on payment or tender of such amount for expenses as the Government of the State or Territory in which such prison is situated determines, shall receive and detain him for such time as is requested by the person for the purposes of the proper execution of the warrant. (at p32)

8. By the Removal of Prisoners Ordinance 1933-1938 of the Australian Capital Territory, it is provided that for the purposes of the Act there shall be an Administrator of the Australian Capital Territory who shall be appointed by the Governor-General and hold office during pleasure. The Administrator so appointed shall have and may exercise or execute in the Australian Capital Territory all the powers functions and duties of an Administrator under the Act (s. 2). (at p32)

9. Apparently at some time before the making of this Ordinance, a former Solicitor-General of the Commonwealth was appointed to be the Administrator of the Australian Capital Territory, presumably for the purposes of the Act. But there would seem to have been no authority for this appointment. No appointment, however, was made under the Removal of Prisoners Ordinance : and no order was at any time made in relation to the Australian Capital Territory under s. 2A of the Act. Consequently, at the relevant time, there was no person to consider whether any of the matters mentioned in s. 3 (1) of the Act were appropriate to the case of the applicant. No such recommendation was made : no order of the Governor-General was obtained : and no warrant for the removal of the applicant issued as provided by s. 4 (1) of the Act. It was submitted for the applicant that in these circumstances the applicant ought not to have been removed from the Australian Capital Territory and that the first-named respondent had no authority to hold him in the State of New South Wales. (at p32)

10. The Commonwealth appeared by its Solicitor-General who also represented the first-named respondent. He conceded, as it was inevitable that he should, that if the Act applied to the Australian Capital Territory and was the exclusive source of authority for the removal of a prisoner from that Territory, the applicant's submission was well founded and that the order nisi must be made absolute. (at p33)

11. But the Solicitor-General submitted that the Act provided only an alternative method for the removal of prisoners from the Australian Capital Territory and did not displace the power of the Supreme Court to order, and of the Sheriff in any case to effect, the removal of a prisoner from the Territory for detention anywhere in Australia but particularly in the State of New South Wales. These powers were said to derive from a combination of s. 120 of the Constitution, the continued operation in the Australian Capital Territory of the Crimes Act, 1900 of the State of New South Wales and of the Prisons Act, 1899 of that State, and of the Australian Capital Territory Supreme Court Act. (at p33)

12. Before dealing with this submission, I should dispose of a suggestion made during argument that the Act did not apply to the Australian Capital Territory and that it was not in operation there. For this, two possible reasons seem to have been suggested : first, that the Act only applied in relation to Territories which were administered by an Administrator, as in the case, for example, of the Northern Territory and that the Australian Capital Territory was not so administered : and, secondly, that in any case, for want of the appointment of an Administrator to exercise the powers and functions granted by the Act, it did not operate in relation to the Australian Capital Territory. (at p33)

13. 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 (1550) 1 Plowd 35 (75 ER 57): though by special authority he might convey a prisoner through another county to a place of imprisonment named in the authority (1550) 1 Plowd 35, at p 37 (75 ER 57, at p 61) 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. (at p34)

14. The second reason suggested for the inoperation of the Act in the Australian Capital Territory is equally, in my opinion, clearly untenable. Of course, in default of an Administrator or a person appointed under s. 2A, the authority to remove a prisoner from the Australian Capital Territory for which the Act provides cannot be exercised : but that does not mean that the Act is inapplicable or inoperative. The Act none the less is operative in and in relation to the Australian Capital Territory. Clearly, for example, s. 2A itself is so operative and the powers of appointment which it creates are available in respect of that Territory. The Act, in my opinion, provides for the removal of prisoners from that Territory and imposes obligations on State officials in relation to them, obligations which of course depend in the particular upon compliance with the provisions of the Act, as is evident from the terms, for example, of such sections as ss. 6, 7 and 8. (at p34)

15. I can find no basis whatever for the adoption of either of the reasons somewhat tentatively put forward for the proposition that the Act does not operate in the Australian Capital Territory or, put another way, for holding that the Australian Capital Territory is excluded from those territories to which the Act does apply. Indeed, although these suggestions were made, when expressly asked whether he submitted that the Act was inapplicable or inoperative to or in the Australian Capital Territory, the Solicitor-General expressly and in terms disowned any such proposition or submission. In my opinion, he was right to do so. (at p35)

16. I turn now to the Solicitor-General's principal submission. He says that, quite apart from the Act, the Supreme Court of the Australian Capital Territory could, in sentencing a convicted person, order his removal from the Territory to serve his sentence anywhere in Australia and that any State gaoler to whom he was presented for detention was bound to receive and hold him with no other warrant than the oral order of the Supreme Court, presumably communicated to him, if only orally. Appreciating that even if there were such a power no such order was in fact made by the Supreme Court in this case, the Solicitor-General further submitted that, without any such order being made, the Sheriff of the Territory upon his own initiative could cause the removal of the prisoner to any part of Australia, with the same consequences for the gaoler to whom he was delivered as I have just mentioned. Further, it was said that in any case each of these propositions is true in relation to the removal of a prisoner to and the detention of a prisoner in the State of New South Wales. (at p35)

17. There is one other thing I should say before dealing with the submission. The principal question in this case, in my opinion, is whether or not any authority existed other than that given by the Act for the removal of the applicant from the Australian Capital Territory. Of course, that question becomes material because the lawfulness of the first-named respondent's custody of the applicant is called in question. The Act deals with both matters, authority for the removal and justification of the possession of the prisoner by means of a warrant. But it is the existence or non-existence of the authority to remove which, in my opinion, is the principal matter. The Solicitor-General did not seem to dispute the proposition that, apart from statute, there was no common law power or authority in Australia to remove or to direct the removal of a prisoner from the territory in which he was convicted. For the purposes of applying that law, each colony in its time, and each State now, is a separate territory. Each territory of the Commonwealth is equally separate from each State. Again, the Solicitor-General did not attempt to argue to the contrary. (at p35)

18. The commencing point in the argument to sustain the submissions of the Solicitor-General was that, as the Supreme Court of the Territory was a superior court of record, the Sheriff, or gaoler, certainly if he were present in court at the time the sentence of imprisonment was pronounced, did not need to possess or produce a warrant in order to justify his detention of the prisoner conformable to that sentence. It was said that the Supreme Court of the Territory did not draw up any warrant of commitment pursuant to the imposition of a sentence of imprisonment and that in this respect its practice was similar to that of the Royal Courts of Justice : see Williamson v. Inspector-General of Penal Establishments(1958) VR 330 and Reg v Hodgkinson (1954) VLR 140 and the cases cited in those decisions. So much may be granted in respect of such a detention within the territory over which the court of sentence had jurisdiction and in which the relevant common law was in force. Although he claimed that these authorities were applicable to the Australian Capital Territory and its Supreme Court, the Solicitor-General conceded that the authorities to which he referred went no further than to permit justification of the sentence without warrant by the Sheriff or official gaoler, in respect of custody within the jurisdiction and that they would not provide the first-named respondent with any justification for the detention of the applicant in New South Wales. The authorities would show that at common law, not being an official of the Territory, he would need a warrant : see King v. Clerk(1697) 1 Salk 349 (91 ER 305) (at p36)

19. 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 (1914) 2 KB 378, at p 385 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. (at p37)

20. He sought to find an extension of the common law justification for the custody by a sheriff or gaoler without warrant where a superior court of record sentences a prisoner in a combination of constitutional and statutory provisions. The first of these was s. 120 of the Constitution. No doubt this provision does bind the States to receive and hold federal prisoners including accused as well as convicted persons : and in a proper case the section could give rise to judicial proceedings at the instance of the Commonwealth to enforce the obligations it creates. But in the first place the section does not create any right in any person to remove a prisoner from the territory in which he was convicted and sentenced. It is not in any sense addressed to that matter except in so far as it authorizes legislation by the Parliament ; secondly, it does not create any rights or source of justification in any individual to hold another person his prisoner : and, thirdly, it relates in any case only to prisoners who are proffered to the State to be held by the State or on its behalf in circumstances and for a period in and during which that prisoner may lawfully be held. It is quite evident to my mind that the constitutional provision contemplates that the Parliament will make the necessary detailed provision at least for all these matters, authority to remove, authority to hold and the legality of the detention, not merely as between the Commonwealth and the State but vis-a-vis the person presented for detention by the State gaoler, and the persons concerned in the removal and in that detention. Section 120 imposes on the State the obligation to provide places of detention and to receive and hold federal prisoners : but, in my opinion, it gives no relevant power or jurisdiction to the Supreme Court of the Australian Capital Territory or to its Sheriff or to the State gaoler. (at p37)

21. The Solicitor-General then relied upon the provision of s. 433 of the Crimes Act of the State of New South Wales and ss. 6 and 40 of the Prisons Act, 1899 of tat State. These Acts in their pre-1911 form he claimed remain operative in the Australian Capital Territory by reason of s. 6 of the Seat of Government Acceptance Act 1909 (Cth) and s. 4 of the Seat of Government (Administration) Act 1910 (Cth) not having been repealed or amended meantime in relation to that operation. But, granted that this is a correct statement, it does not follow, in my opinion, that either the Supreme Court of the Australian Capital Territory or the Supreme Court of New South Wales in relation to the Australian Capital Territory could exercise the powers given to the Supreme Court of New South Wales in relation to the State of New South Wales. The mere continuation of the law of New South Wales in the Territory after it had become severed from and ceased to be part of that State did not work any transmutation of the terms of that law so that it applied, for example, to the Supreme Court of the Australian Capital Territory, mutatis mutandis. Nor did it do so in the period before the creation of that Court, a period in which this Court exercised jurisdiction including criminal jurisdiction in and in relation to the Territory : see s. 8 of the Seat of Government Acceptance Act 1909. (at p38)

22. When in 1933 by the Australian Capital Territory Supreme Court Act (Cth) the Supreme Court was created, it was given, amongst other things, the same original jurisdiction both civil and criminal as immediately before 1st January 1911 the Supreme Court of New South Wales had in relation to that State (s. 11). Assuming that by a combination of this section and of the continued operation of the Crimes Act 1900, the Supreme Court of the Australian Capital Territory was given the power of directing an offender to be imprisoned in any gaol - it could only have been a power to direct such imprisonment in a gaol in the Australian Capital Territory. By no means could it be regarded as a power to direct imprisonment in any gaol in the State of New South Wales. Thus it seems to me that the continued application of s. 433 of the Crimes Act to the Territory does not advance the Solicitor-General's submission : even less for similar reasons does the operation in relation to the Territory of s. 40 of the Prisons Act, 1899. (at p38)

23. The Solicitor-General then pointed out that, applying the decision in Lamshed v. Lake (1958) 99 CLR 132, the Australian Capital Territory Supreme Court Act, as a statute passed by virtue of s. 122 of the Constitution, operates throughout Australia. But even so, it only operates according to its terms and the jurisdiction of the Supreme Court which it creates is territorially limited to the Australian Capital Territory, so far as is presently relevant. Nothing in that Act supports the view that the Supreme Court can order imprisonment outside the Territory of persons sentenced by the Court for offences committed there. (at p39)

24. I conclude therefore that apart from the Act no power existed in the Supreme Court of the Australian Capital Territory or in the Sheriff to order the removal of or to remove a prisoner from the Territory. That power is only to be found in the Act. (at p39)

25. I should wish to add that, in any case, it is to my mind abundantly clear that the Act was intended as the exclusive source of any such power. Throughout it makes the treatment of the prisoner in the gaol of a State or of another Territory depend upon his removal pursuant to the Act : see, for example, ss. 4, 5, 6, 7, 8 and 8A. Thus, even if contrary to my own view, there existed prior to its enactment some powers of removal of a prisoner, they were, in my opinion, supplanted by the enactment of the Act. There would be no room whatever for the concurrent existence of separate powers of removal. The Act clearly manifests an intention to provide an exclusive method of removing and holding prisoners out of the Territory. In the result, in my opinion, the removal of the applicant from Canberra was without authority and the custody of the applicant by the first-named respondent without a warrant was unlawful. Consequently, the right in the applicant to the writ of habeas corpus is made out and the return to it by the first-named respondent insupportable. The order nisi was properly made absolute. (at p39)

MCTIERNAN J. I did not agree that a writ of habeas corpus should issue. (at p39)

2. It appeared that the Sheriff of the Australian Capital Territory had sent the applicant, after he was sentenced by the Supreme Court at Canberra, to the prison in New South Wales under a transmission warrant signed by the Sheriff. The prison was, under s. 120 of the Constitution, a place where the applicant could be lawfully detained as punishment for the offences of which the Supreme Court convicted him. The committal of the applicant to the custody of the authorties at the prison was within the authority of the Sheriff under ss. 36 and 37 of the Australian Capital Territory Supreme Court Act 1933-1966 (Cth). It was not necessary for the Supreme Court to authorize, by any warrant of its own, the committal of the applicant to a prison in New South Wales. The order of the Supreme Court that the applicant serve a term of imprisonment, together with s. 120, was sufficient authority for the action taken by the Sheriff after sentence. As regards the need of further authority from the Supreme Court in addition to its order, I think that the dicta in R. v. Lydford (1914) 2 KB 378, at p 385 and in Williamson v. Inspector-General of Penal Establishments (1958) VR 330, at p 334, should lead reasonably to the conclusion that no such further authority was needed. I am unable to draw from the provisions of the Removal of Prisoners (Territories) Act 1923-1962 (Cth) that it was any part of the legislative intention to abrogate the authority of the Sheriff under ss. 36 and 37 to execute an order o imprisonment made by the Supreme Court. This I think is the real obstacle to the issue of a writ of habeas corpus in this case. (at p40)

TAYLOR J. The legislative steps which have now been taken by Parliament make the occasion of the publication of the reasons of the majority of the Court for making absolute the rule nisi for habeas corpus of less importance than it otherwise would have been, and were it not for the fact that the Court has divided on the matter I should have been content merely to express my agreement with the observations of the Chief Justice and of Owen J. But in the circumstances I propose to say briefly why I joined in making the order absolute. (at p40)

2. First of all I wish to make it clear that I did not understand the Solicitor-General to contend that the Removal of Prisoners (Territories) Act 1923-1962 (Cth) was not applicable to the Australian Capital Territory. He acceded readily enough to the obvious proposition that it was not possible to remove a prisoner pursuant to its provisions unless an officer had been authorized to exercise and to perform, in relation to the Territory, the powers and functions of an Administrator under the Act. But as I understood the argument it was not suggested that the Act was not operative in or applicable to the Territory in the sense that it was not currently in force there. (at p40)

3. The argument which was advanced was that side by side with the procedure provided by the Removal of Prisoners (Territories) Act 1923-1962 (Cth) for the removal of prisoners from, inter alia, the Australian Capital Territory and for their custody whilst serving their sentences in State gaols, there exists in the Sheriff of the Australian Capital Territory a common law power to execute, without a formal warrant, a sentence of the Supreme Court in the Territory, and, as I understand the argument, the pronouncing of the sentence in this case not only authorized the Sheriff to execute it, but also to remove the applicant from the Territory and surrender his custody to a superintendent of prisons in and of the State of New South Wales, to whom, in turn, the sentence of the Court was a sufficient warrant for his detention. (at p41)

4. I agree that this proposition is not supportable either by authority or by reference to principle and that it should be rejected. But it is also apparent from even a cursory examination of the provisions of the Act that it is intended to provide exhaustively and exclusively for the circumstances and means by which prisoners convicted in the Territory may be removed to a State or another Territory in order there to undergo a sentence of imprisonment and for the custody and control of such prisoners during the period of their respective sentences. I refer by way of illustration to the provisions of ss. 5, 6, 7, 8 and 8A (2), all of which apply only in the case of prisoners removed in pursuance of the Act and it is unthinkable that there should be another class of removed prisoners to whom such provisions could not apply. (at p41)

WINDEYER J. The alteration which Parliament made in the law after this Court made its order in this matter seems to make that decision of little importance in other cases. However, I think I should state why I was unable to concur in the order which by majority was made. Further consideration has done nothing to lessen the misgivings which I had at the time. (at p41)

2. The prisoner sought an order that a writ of habeas corpus issue to the gaoler at Goulburn in New South Wales where he was imprisoned. He had been sentenced to three months' imprisonment by the Supreme Court of the Australian Capital Territory on each of several offences, nine in all, of damaging property and breaking, entering and stealing. The sentences, which were made concurrent, were pronounced on 26th September 1968 and dated from that day. The offences were all committed in the Australian Capital Territory. The applicant pleaded guilty when charged before the Court of Petty Sessions. He was thereupon committed to the Supreme Court of the Australian Capital Territory to be dealt with according to s. 90A of the Court of Petty Sessions Ordinance 1930, as amended. By that provision (sub-s. 7) the Supreme Court was empowered to sentence the prisoner as if he had been there arraigned and had pleaded guilty to an offence charged on indictment. The conviction was clearly valid. It is not suggested that it was not. The applicant did, in separate proceedings from this application, seek leave to appeal to this Court, but not against the conviction, only against the sentence as too severe. Without any hesitation we dismissed that application as the sentence was manifestly not excessive. (at p41)

3. In the present proceedings the applicant claims that his imprisonment in New South Wales is unlawful, although imprisonment in the Territory would have been lawful. This claim was based on the provisions of the Removal of Prisoners (Territories) Act 1923-1962 (Cth). It was said that, unless the procedure prescribed by that Act be followed, a prisoner cannot be removed from a Territory to undergo his sentence in a State or another Territory. For reasons which I shall give, I do not think the provisions of that Act were applicable in the Australian Capital Territory. I shall therefore consider first the position apart from the Act, as the Solicitor-General invited us to do. (at p42)

4. It seems that no warrant in writing for the detention of the applicant in prison in New South Wales was issued to the New South Wales gaoler by any person who could command him to receive and imprison the prisoner. The only relevant documents seem to be a summary note of sentence signed by the Judge's Associate, a document headed "Supreme Court Return of Convictions", and what is described, in an affidavit, as a "transmission warrant", said to have been signed by the Sheriff of the Territory. The transmission warrant is not before us. Perhaps it may be regarded as comparable with a mittimus at common law ; but not knowing more about it I cannot assume that of its own force it had any relevant effect. It and the return of convictions were the only documents sent to the prison authorities at Goulburn. A copy of the former is before us ; and to it I turn. (at p42)

5. It may seem pedantic to examine this document critically : but, as it seems to be taken to be the authority by which the gaoler held the prisoner, at least a glance at it is called for ; and a glance at once raises questions and doubts. It is disturbing to find any record of a superior court of record, as by statute the Supreme Court is, to be untrustworthy. Especially in the administration of the criminal law, scrupulous care is required in following established procedures and correctly recording what was done. (at p42)

6. The document is expressed to be "A return of Prisoner (sic) 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". Then follows the name of the present applicant, with brief descriptions of the nature of his offences, statements that he pleaded guilty, that a verdict of guilty was returned and of the sentences imposed. Little of this is true. The return is not, as it is expressed to be, a record of convictions before the Court and of acquittals on the ground of insanity. It deals with one person only, the prisoner, and he was not before the Court for trial, but pursuant to an order made under s. 90A of the above-mentioned Ordinance. He was not called upon to plead before the Court and no verdict was there given ; he had already been convicted. Moreover, whether the Supreme Court is correctly described as sitting for a gaol delivery seems to me doubtful. This may not matter as, apart from the need for formal accuracy, if the learned judge had power to order imprisonment, the record that he did so is to be held good, as "the best shall be taken for the king" : see Hale, Pleas of the Crown, vol. ii, p. 35. I would therefore say only that the Court was not delivering any specified gaol. The applicant had been on bail, not in gaol. This too may not matter because, as was said by Hale, "If a person be let to bail, yet he is in law, in prison, and his bail are his keepers, and therefore the justices of gaol delivery may take an indictment against him, as well as if he were actually in gaol" : Hale, Pleas of the Crown, vol. ii. p. 35. (at p43)

7. The document was subscribed and sealed by someone described as "Deputy Registrar and Sheriff of the Australian Capital Territory". We were told this denotes one person. I assume it means that he is both Deputy Registrar of the Supreme Court and Sheriff of the Territory. Section 34 of the Australian Capital Territory Supreme Court Act 1933-1966 (Cth), in the form it has had since 1964, provides for the appointment by the Attorney-General of (a) a Registrar, Deputy Registrars, and other officers of the Supreme Court and (b) a Sheriff and Deputy Sheriffs of the Territory. It also provides that the persons respectively holding the offices when the amending Act came into force should continue to hold office as if appointed under the amending Act. This section, in this form and in the form it had from 1957 until 1964, is, it seems, read as authorizing, and to have authorized, the appointment of the same person to be both an officer of the Court and the Sheriff of the Territory. I think that for present purposes, I must assume this to be correct, notwithstanding some doubts created by the language of the enactment, in its present form and its earlier form. The Solicitor-General in his argument that the applicant's detention was lawful relied heavily upon the powers a sheriff has at common law by virtue of his office. I assume that the officer who subscribed the document was validly appointed as the Sheriff of the Territory. (at p43)

8. A sheriff is not at common law simply an officer of a court, although his duties are today mainly in aid of the administration of justice. In England he holds within his country or city an ancient office under the Crown. By the time Blackstone wrote, his powers and duties could be described as being "either as a judge, as the keeper of the king's peace, as a ministerial officer of the superior courts of justice, or as the king's bailiff". The third head of a sheriff's duties, as an officer of the courts of justice, is the one which is important in Australia today and for the purposes of the present argument. By the common law, as stated by Blackstone, this was described as follows :

"In his ministerial capacity the sheriff is bound to execute all process issuing from the king's courts of justice. In the commencement of civil causes, he is to serve the writ, to arrest, and to take bail ; when the cause comes to trial, he must summon and return the jury ; when it is determined, he must see the judgment of the court carried into execution. In criminal matters, he also arrests and imprisons, he returns the jury, he has the custody of the delinquent, and he executes the sentence of the court, though it extend to death itself."

By the common law of England sheriffs must in person attend the judges of oyer and terminer and gaol delivery. They "shall give their attendance for the due executing of the Commandments and Precepts of the said Judges in matters concerning the execution of their offices and ministration of Justice ; and to take the charge of all prisoners committed to the prison". This is old law. The passage I have quoted is from Dalton on the Office and Authority of Sheriffs (1682), p. 369. Later in the same work it is said (p. 370) :

"The Sheriff is also safely to carry, convey and conduct unto every such place and places as shall be lawfully assigned, all prisoners committed to his charge, or custody, or to his Gaoler, for any manner of misdemeanour, criminal cause, or other offence whatsoever, there to receive their trial, judgments, and punishments for the same. The command of the Judge (without writ, or warrant) is a sufficient warrant to do execution upon a prisoner condemned." (at p44)

9. In Australia today the office of sheriff does not have the prestige or the precedence that by ancient custom it has in England. But the duties of a sheriff in relation to the execution of the judgments and processes of a court are still much the same as in olden times. Section 36 of the Australian Capital Territory Supreme Court Act 1933-1966 (Cth) formulates these duties of the Sheriff of the Australian Capital Territory. The Solicitor-General relied upon this enactment, so I set it out.

"36. The Sheriff shall be charged with the service and execution of all writs, summonses, orders, warrants, precepts, process, and commands of the Supreme Court which are directed to him, and shall make such return thereof to the Court, together with the manner of the execution thereof, as he is thereby required, and shall take receive and detain all persons who are committed to his custody by the Court, and shall discharge all such persons when thereunto directed by the Court or by law."

These words are copied out of cl. 11 of the Charter of Justice of New South Wales with one, not insignificant, alteration. By the Charter of Justice the Sheriff of New South Wales was required "to receive and detain in prison" persons committed to his custody by the Supreme Court of New South Wales: but the Sheriff of the Territory is required only to take, receive and detain persons committed to his custody. It is not supposed that he is himself a gaoler, or has any command of any prison such as at the time of the Charter of Justice sheriffs in England commonly had. (at p45)

10. The so-called return of convictions, although carelessly compiled, 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 (1954) VLR 140, at p 145 If so, it seems it is a mere memorial, not of its own force a warrant: see R. v. Antrobus(1835) 6 C &P 784 (172 ER 1462), especially the judgment of Patteson J. (1835) 6 C &P, at p 805 (172 ER, at pp 1470, 1471); Reg. v. Bourdon (1847) 2 C &K 366 (175 ER 151) 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 (1958) VR 330, per Smith J (1958) VR, at p 334, 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 (1550) Plowd 35, at p 37 (75 ER 35, at p 61) , 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. (at p46)

11. In short, there is nothing inherently unlawful in the imprisonment in a New South Wales gaol of a person convicted in Canberra of an offence there. And in my opinion there is nothing to prevent the Sheriff of the Territory taking there whatever steps he can which may result in this. His Honour when sentencing the prisoner did not specify where he was to serve his sentence. Had he done so, and specified some gaol, outside the Territory but within a State, where the gaoler would in fact receive him, then the Sheriff would, I think, have had power under the common law to take him or cause him to be taken there: cf. Dalton, Office and Authority of Sheriffs (1682), p. 23. I do not read his Honour's sentence as meaning that imprisonment was to be in the Territory. We were told, and it was not disputed and is a matter of common knowledge, that there is no prison in the Territory. This must have been well known to the learned judge when he sentenced the applicant. Persons sentenced to imprisonment in the Territory have in practice been sent to a gaol elsewhere, most often in New South Wales. A prisoner might I assume be lawfully imprisoned, for a short period at all events, in a police station or lock-up in the Territory. But I cannot assume that his Honour meant any such thing. I assume he had in mind that the sentence would be executed as such sentences of the Supreme Court ordinarily have been for years past, and that his sentence was intended to be and should be thus understood. I accept the argument of the Solicitor-General that, unless the provisions of the Removal of Prisoners (Territories) Act stand in the way, the prisoner was lawfully taken to Goulburn and could be lawfully imprisoned there. Does that Act prevent this? The application was founded on the proposition that it does and that it has supplanted the common law. I turn to it. (at p47)

12. I do not doubt that when the Act can be applid in respect of any territory, its provisions must govern the removal of prisoners from that territory. But I think that it cannot govern the present case, because I think it could not at any relevant time have been applied in relation to the Australian Capital Territory. It provides for the removal of a prisoner from a territory to be accomplished by a procedure in which the Governor-General and the Administrator of the Territory participate. By s. 2A where there is no office of Administrator in respect of a territory the Governor-General may declare that in relation to that territory some other office be substituted; or that some person named in the order be authorized to exercise the powers and functions of an Administrator under the Act. In respect of some dependent territories, Cocos Islands and Christmas Island, the office of Official Representative there has thus been substituted for that of Administrator. In those places the Official Representative is the title of an office which is comparable in a general way with the office which in Papua and New Guinea, Norfolk Island and Nauru is, or was, called Administrator. There is an Administrator of the Northern Territory. But there is no Administrator of the Australian Capital Territory, and no one has been authorized by s. 2A (1) to exercise the functions of an Administrator under the statute. (at p47)

13. As far as I am aware there never has been an Administrator of the Capital Territory. True it is that in 1933 an Ordinance called the Removal of Prisoners Ordinance was made for the Territory. As amended in 1938 it reads as follows:

"2. (1) For the purposes of the Removal of Prisoners (Territories) Act 1923, there shall be an Administrator of the Territory, who shall be appointed by the Governor-General and shall hold office during his pleasure. (2) The Administrator, appointed in pursuance of this section shall have, and may exercise or execute, in the Territory all the powers, functions and duties of an Administrator under the Removal of Prisoners (Territories) Act 1923."

In 1933 Sir George Knowles was appointed as Administrator in this limited sense. Of this I would say only that as I read the Removal of Prisoners (Territories) Act, when it refers to "an Administrator of a Territory" it means a person who occupies the constitutional office of Administrator which in relation to a territory is comparable with, and in the Act is coupled with, that of Governor of a State. An Administrator in that sense is appointed by the Crown in right of the Commonwealth under statutory authority. He administers the government of his territory according to law and its constitution. I am not satisfied that the office of "Administrator of a Territory", within the meaning of the Act, can be, or was, lawfully constituted for the purpose only of enabling someone to exercise powers which under the Act are vested in the Administrator. Moreover the office said to have been constituted by Ordinance in 1933 has not been filled since Sir George Knowles died in 1947. He we were told was the only person ever appointed to it. Section 2A of the Act did not come into force until 1957; and, as I have said, no appointment under it was made for the Capital Territory. The Act was thus, it seems to me, not capable of being applied in the Territory when the applicant was sentenced. I think that the position was then, and for years before had been, governed by common law rules and the prevailing practice under them. Since 1947 hundreds of persons sentenced in the Territory to imprisonment have been imprisoned for the term of their sentences in State gaols. And sentences of imprisonment passed in the Territory have been understood as directing this. I was unable to join in the conclusion that in this case the prisoner, who it is conceded was lawfully convicted and could lawfully have been held a prisoner in the Territory, was unlawfully imprisoned in Goulburn. However, an unsatisfactory state of the law has now had the attention of Parliament. (at p48)

OWEN J. On 8th November 1968 the Court, by a majority, made absolute against the first-named respondent Turnbull, who is the Superintendent of Her Majesty's Penitentiary at Goulburn in the State of New South Wales, an order nisi, obtained by the applicant Taylor, for a writ of habeas corpus. Costs were ordered against both respondents. At the time of making the order absolute we said that we would give our reasons at a later date. (at p49)

2. The facts are that on 19th September 1968 before the Supreme Court of the Australian Capital Territory the applicant pleaded guilty to nine counts, comprising four charges of malicious injury to property, two charges of breaking, entering and stealing and three charges of wilfully and unlawfully damaging real property. He was sentenced to three months' imprisonment on each count, the sentences to be concurrent. A document headed "Supreme Court Return of Convictions" addressed to "The Superintendent, Goulburn Training Centre, Goulburn, N.S.W.", which set out the applicant's name, the offences charged against him, the date of the convictions and the sentences imposed, was made out and signed and sealed by the Deputy Registrar of the Supreme Court and Sheriff of the Territory. This return, together with what is described in the affidavit in support of the application as a "transmission warrant signed by the Sheriff", was handed to an officer of police in Canberra, and armed with these documents an officer, on 27th September 1968, took the applicant from Canberra to Goulburn and there handed him over to the custody of the gaol authorities who detained him, presumably in that part of the gaol which was described in the Supreme Court Return of Convictions as the "Goulburn Training Centre". The "warrant of transmission" is not before us but it and the return of convictions are the documents relied upon as justifying the removal of the applicant from the Territory and his confinement in the gaol at Goulburn. (at p49)

3. Section 120 of the Commonwealth Constitution provides that :

"Every State shall make provision for the detention in its prisons of persons accused or convicted of offences against the laws of the Commonwealth, and for the punishment of persons convicted of such offences, and the Parliament of the Commonwealth may make laws to give effect to this provision."

Pursuant, no doubt, to this provision and to s. 122 of the Constitution, the Parliament enacted the Removal of Prisoners (Territories) Act 1923-1962 (Cth). It defines "Prisoner" as "any person sentenced to imprisonment in a Territory" and "Territory" as "a Territory under the authority of the Commonwealth". Section 2A (1) provides that :

"Where there is no office of Administrator in respect of a Territory, the Governor-General may, by order published in the Gazette - (a) declare that an office specified in the order shall, for the purposes of the application of this Act in relation to that Territory, be substituted for the office of Administrator ; or (b) authorize a person named in the order to exercise and perform, in relation to that Territory, the powers and functions of an Administrator under this Act."

And s. 2A (2) is in these terms :

"A reference in this Act to the Administrator of a Territory shall, in relation to a Territory in respect of which an order is in force under the last preceding sub-section, be read as a reference to - (a) the person occupying, or acting in, the office specified in the order ; or (b) the person named in the order, 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". (at p51)

4. For the respondents, however, it was submitted that under the common law the Sheriff may lawfully execute any punishment awarded by a superior court and that no warrant authorizing or directing him to do so is necessary. In support of this submission we were referred to Williamson v. Inspector-General of Penal Establishments (1958) VR 330 and the authorities therein mentioned, and to R. v. Lydford (1914) 2 KB 378, at p 385 . No doubt this is so, but the submission does not dispose of the case. In the first place, the order made by the Supreme Court was that the applicant should be imprisoned for three months. The order of the Court could not, in my opinion, of its own force authorize or direct imprisonment in some place outside the Australian Capital Territory. It follows that in takig the prisoner to the gaol at Goulburn there to serve his sentence the Sheriff was not executing any order made by the Court. In the next place, I am of opinion that the powers and duties of a Sheriff cannot, in the absence of some valid enactment, be exercised outside the limits of the territory of which he is the Sheriff. Finally, and even if at common law a Sheriff might lawfully remove a prisoner outside the territory of which he is the Sheriff, I think it clear that the Removal of Prisoners (Territories) Act was intended by the Parliament to provide the only means by which a prisoner, who has been sentenced to a term of imprisonment in a territory, may be removed from within that territory to a place of imprisonment outside it and there confined and that, unless the procedures for which the Act provides are followed, there can be no lawful justification for taking such a person out of the territory and holding him in gaol in a State or another territory. (at p51)

Orders

It was for these reasons that I was of opinion that the order should be made absolute against the first-named respondent.