Stratton v Parn [1978] HCA 5; (1978) 138 CLR 182 (14 March 1978)

HIGH COURT OF AUSTRALIA

STRATTON v. PARN [1978] HCA 5; (1978) 138 CLR 182

Prisons (W.A.)

High Court of Australia
Barwick C.J.(1), Stephen(2), Jacobs(3), Murphy(4) and Aickin(5) JJ.

CATCHWORDS

Prisons (W.A.) - Prison offences - Aggravated prison offences - Misconduct - Prison visitors - Complaints heard by justices of the peace - Whether Prisons Act exclusive disciplinary code - Power of Supreme Court to review - Prisons Act, 1903-1971 (W.A.), ss. 36-39, 41, 65 l 276670 Justices Act, 1902-1975 (W.A.), ss. 20, 29, 33, 42, 68, 197.

HEARING

Perth, 1977, September 13,14.
Sydney, 1978, March 14. 14:3:1978
APPLICATION for special leave to appeal from the Supreme Court of Western Australia.

DECISION

1978, March 14.
The following written judgments were delivered: -
BARWICK C.J. Robert David Stratton (the applicant) is, and at relevant times imposed upon him by the Children's Court at Broome. (at p185)

2. On 3rd April 1976, Ronald Holden, the second-named respondent, a prison officer at the Broome Regional Prison, reported that the applicant had been engaged in misconduct, i.e. "making or attempting to make any wound or sore", contrary to s. 38(7) of the Prisons Act, 1903-1971 (W.A.) ("the Prisons Act"). On 21st May 1976, the third-named respondent, James Allan Tully, who is also a prison officer stationed at Broome, reported that the applicant had cut both his wrists whilst in his cell at the prison. This was similarly misconduct contrary to the same sub-section of the Prisons Act. On 24th May, the respondent Mati Parn, an acting senior prison officer stationed at Broome, reported that the applicant had stated that he had taken a dose of "Rat Sak". (at p185)

3. S. F. Lodge, the acting superintendent of the Prison, directed both reports to be placed before the prison visitors. Subsequently, complaint was made before two justices of the peace that the applicant had attempted to wound himself and had been insubordinate. Presumably this complaint was made under s. 36 of the Prisons Act pursuant to a direction given under s. 35, sections to which I shall later refer. The applicant was convicted by the justices who adjudged that he should be imprisoned and kept to hard labour for a term of three months. The warrant of commitment "on a Conviction where the Punishment is by Imprisonment" is with the papers before this Court. (at p185)

4. The applicant thereafter sought and obtained from the Supreme Court of Western Australia an order to review the decision of the justices. The order to review was made pursuant to s. 197 (a) of the Justices Act, 1902 (W.A.), as amended ("the Justices Act"). That section is as follows:

"197. When -
(a) a person who feels aggrieved as complainant,
defendant, or otherwise by the decision of any Justices
shows, by affidavit to a Judge sitting in Court or
chambers, a prima facie case of error or mistake in law
or fact on the part of the Justices, or that the Justices
had no jurisdiction in giving the decision or exceeded
their jurisdiction in giving the decision, or that the
penalty or sentence imposed was, according as the
person aggrieved may allege, inadequate or excessive
in the circumstances of the case;
...
the Judge may, except where the person has the right of
appeal under section one hundred and eighty-three of this
Act, but otherwise, whether any other remedy is provided by
law or not, within two months from the giving of the
decision, grant the applicant (hereinafter called the
'appellant') an order (hereinafter called an 'order to review')
calling upon the party interested in maintaining the decision,
and also, if the Judge for any special reason so directs, upon
the Justices to show cause, at a time to be specified in the
order to review or so soon thereafter as the matter can come
on for hearing, why the decision should not be reviewed." (at p186)

5. The grounds on which the review of the justices' decision was sought were as follows:

"(a) That the conviction of the appellant at the Broome
Prison on 24th May, 1976 of offences contrary to s. 38 (7) and
(9) of the Prisons Act 1903 should be quashed and set aside,
as the hearing of the allegation was contrary to s. 35 of the
said Act.
(b) That the conviction of the appellant of offences
contrary to s. 38 (7) and (9) of the said Act was contrary to
the established principles of natural justice in that the
appellant was required to absent himself on the hearing of
the complaint by the two justices of the peace and that
further evidence against the appellant may have been taken
in camera by the said justices from the Superintendent of the
Broome Prison.
(c) That the conviction of the appellant of offences
contrary to s. 38 (7) and (9) of the said Act should be set aside
on the ground that the appellant, not having pleaded or
admitted the allegations contained in the complaint, should
not have been convicted of the offences in the absence of any
sworn evidence to support the complaints against him.
(d) That the sentences imposed upon the appellant after
his conviction of offences contrary to s. 38 (7) and (9) of the
said Act should be reviewed and set aside on the grounds that
the said justices erroneously exercised their discretion when
imposing the said sentences and that the said sentences were
manifestly excessive, having regard to all the
circumstances." (at p186)

6. The order to review ultimately came before the Full Court of the Supreme Court. There, a preliminary objection was raised by the Solicitor-General on behalf of the respondents that the Supreme Court had no jurisdiction to grant or to entertain an order to review the decision of justices given upon a complaint made under s. 36 of the Prisons Act. It was said in support of the objection that a prison offence is not an offence against the general law nor of a kind with which the Justices Act is concerned: that the jurisdiction to "inquire in a summary way" into the matter of the complaint was derived exclusively from the Prisons Act: that the "inquiry" was an administrative and not a judicial proceeding: and that a decision upon it was not within the scope of s. 197 of the Justices Act. It was said in general support of the objection that the Prisons Act provides its own exclusive code for the maintenance of discipline and good behaviour of prisoners, that the magistrate or justices under the Prisons Act are no more than persons designated to work in the administration of the prisons and that they are chosen because of the office they hold as an earnest of due and fair administration in relation to breaches of prison discipline. (at p187)

7. As appears from its date and that of the Prisons Act, the Justices Act had been passed before that Act. Sections 20, 29, 33, 42 and 68 of the Justices Act then provided and now provide:

"20. Whenever by any Act past or future, or by this Act,
any person is made liable to a penalty or punishment, or to
pay a sum of money -
(a) For any offence made punishable on summary
conviction; or
(b) For any offence, act or omission, and such offence, act
or omission is not by the Act declared to be treason,
felony, a crime, or a misdemeanour, and no other
provision is made for the trial of such person,
the matter may be heard and determined by two or more
Justices in a summary manner under the provisions of this
Act."
"29. Subject to this Act, and notwithstanding the
provisions of any other Act, every complaint for an indictable
offence or a simple offence or other matter shall be heard by
and before two or more Justices:
Provided that, with the consent of all parties concerned,
any such complaint may be heard by and before one Justice,
but a memorandum of such consent shall be forthwith made
and signed by the Justice."
"33. Every Police Magistrate and every Resident
Magistrate shall have power to do alone whatever might be
done by two or more Justices sitting in petty sessions, and
shall have power to do alone any act which by any law is or
shall be directed to be done by more than one Justice.
Every Police or Resident Magistrate hereafter or heretofore
appointed shall be deemed to have and to have had authority
as such throughout the State."
"42. Proceedings before Justices shall be commenced by a
complaint, which may be made or laid by the complainant in
person, or by his counsel or solicitor or other person
authorised in that behalf."
"68. Every complainant shall be at liberty to conduct his
case and to have the witnesses examined and cross-examined
by his counsel or solicitor; and every defendant shall be
admitted to make his full answer and defence to the charge,
and to have the witnesses examined and cross-examined by
his counsel or solicitor." (at p188)

8. The director of the Department of Corrections has the care and direction of all prisons and the custody of all convicted prisoners (s. 13 (1) ) and may with the approval of the Minister make rules for the internal management of any prison (s. 24). Visitors to the prisons may be appointed, of whom two at least shall be justices of the peace (s. 17). A visitor who is a justice of the peace may hear complaints of prison offences and "may examine any person touching any such offence upon oath or otherwise" (s. 33). (at p188)

9. Prison offences are of two classes: minor prison offences and aggravated prison offences. A visiting justice may hear a complaint as to any prison offence but may punish a prisoner only for a minor prison offence in a manner specified in s. 34. If the visiting justice finds that a prisoner has committed an aggravated prison offence, he may deal with it as a minor prison offence, i.e. by using the limited punishment available for such offences. If he does not do so, he may "direct a complaint of such aggravated offence to be made before a Magistrate or two Justices" (s. 35). (at p188)

10. Section 36 provides:

"36. Upon complaint made before a Magistrate or any two
Justices of the Peace against any prisoner charged with an
aggravated prison offence, as hereinafter defined, such
Magistrate or Justices shall inquire in a summary way into
and determine the matter of the complaint, and the offender
shall be liable on conviction - "

then follows a series of punishments which may be ordered. (at p188)

11. Sections 39 and 41 provide:

"39. All complaints of prison offences shall be heard and
determined in the presence of the prisoner charged, and in
the prison where the offence was committed, or some other
suitable place; but the Magistrate or Justices may, if he or
they think fit, adjourn the hearing of an aggravated prison
offence into open court."
"41. The gaoler shall forthwith report to the Director
every punishment ordered under section thirty-six of this Act,
and such report shall state the name of the offender, the date
of the offence, the nature of the offence, and the amount of
punishment ordered." (at p189)

12. I ought at this point to mention Pt VI of the Act which creates offences in relation to prisoners. These are, both in description and in substance, in contradistinction to prison offences, which are related to discipline in the prison. (at p189)

13. Section 65 provides:

"65. Offences under this Act, with the exception of crimes
and of offences for the mode of trial of which express
provision is made by this Act, may be prosecuted summarily
before two or more Justices of the Peace, and in manner
directed by the Justices Act, 1902."

It is apparent to my mind that this section has no bearing on prison offences or inquiry into them. Consequently, an argument for the respondents sought to be based upon the section in support of the general submission for the respondents was, in my opinion, misconceived. (at p189)

14. It was conceded by both counsel appearing on the motion for special leave that no reported decision directly bore on the question raised by the preliminary objection. That question is one of statutory construction. Reference was made to the prior history of legislation with respect to prisons: but, having considered all that was said, and what appears in the reasons for judgment of the judge who dissented in the Full Court, I am unable, with due respect, to gain any assistance from historical considerations in the construction of the two statutes here involved, namely, the Justices Act and the Prisons Act. (at p189)

15. Apart from argument founded on specific expressions used in the text of the Prisons Act, the principal argument for the respondents was that the Prisons Act constituted a code for the control and discipline of prisons and that the maintenance of discipline and peaceful order in prisons required prompt response to prison offences, a promptitude which was unlikely to be attained through the appellate procedures of the judicial system. With that view I have much sympathy, and would expect it to commend itself to the legislature, even in these times. But, though such a consideration might be powerful in the resolution of statutory ambiguity, it can scarcely prevail in the face of unambiguous language of a statute. As some encouragement to the acceptance of the submission that the involvement of justices under the Justices Act with the concomitant appellate procedures was incongruous in relation to prison offences, reference was not only made to the nature of such offences as described in s. 38, but also to observations made in such reported decisions as Arbon v. Anderson (1943) KB 252 ; Fraser v. Mudge (1975) 1 WLR 1132; (1975) 3 All ER 78 and Flynn v. The King (1949) 79 CLR 1 . But, cogent as were the remarks of Goddard L.J. in the first-mentioned case, none of those reported decisions suffice to persuade me not to give effect to what I consider to be the unambiguous language of the statute. (at p190)

16. It is of course quite true that the Prisons Act provides a code for the maintenance of order and discipline in prisons. But it is not that circumstance which, in my opinion, is predominantly relevant. What is important is what the Prisons Act as such a code provides. For the maintenance of order and discipline it creates both minor and aggravated prison offences. Because they are only offences if committed by a prisoner they are, as I have said, in contradistinction to offences against the general law, whether derived from statute or the common law. For the different classes of prison offence, punishments of a very different order are made available. But some provisions of the Prisons Act are equally applicable to the ascertainment whether a prison offence, whether of a minor or aggravated kind, has been committed: e.g. so much of s. 39 as relates to the presence of the prisoner at the proceedings whether by a visting justice or by a magistrate or two justices. But, in other respects, the determination whether a prison offence has been committed and, if committed, the punishment which may be meted out radically differ as between minor prison offences and aggravated prison offences. (at p190)

17. A single justice, being a visitor of the prison, may decide that a prison offence has been committed. He may do so by examination of any person, including the prisoner of whose conduct complaint is made. No formalities beyond those prescribed by ss. 39 and 40 need be observed by the visiting justice. Having found a prison offence to have been committed, he may impose the punishments specified in s. 34. These consist of limited solitary confinement and loss of good conduct remissions to a limited extent. To this extent the Prisons Act does provide for a prompt and final decision on prison offences. But, as I have said, it strictly limits the extent of punishment which may follow on such a decision. (at p190)

18. Section 35 is both relevant and highly significant, in my opinion, in the understanding and construction of the Prisons Act. Should the offence of the commission of which the visiting justice is satisfied prove to be an aggravated prison offence, the visiting justice may not impose any of the punishments which s. 36 specifies in relation to aggravated prison offences. He may only impose the limited punishments for which s. 34 makes provision. If the visiting justice is not content merely to impose such punishment he must direct the laying of an information before a magistrate or two justices. (at p191)

19. It is, in my opinion, precisely at this point that the statute removes the determination of the complaint of the commission of an aggravated prison offence from what I might call the domestic area of prison administration. The prison offence, of course, does not become an offence against the general law, "a simple offence" to use the language of the Justices Act: it remains a "prison offence". But it becomes triable, not by visitors to the prison, but by a magistrate or any two justices, neither of whom need be a prison visitor. The complaint under s. 36 charges the prisoner who, if the prison offence is established, is to be convicted. The procedure of complaint, charge and conviction is the mechanism provided by the Justices Act for the trial of offences: see Pts IV, V and VI. Because it might be thought that the magistrate or two justices may lack jurisdiction to hear and determine prison offences, not being indictable or simple offences, s. 36 imposes a duty on the magistrate or two justices before whom complaint is made "to inquire in a summary way into and determine the matter of the complaint". The inclusion of the words "in a summary way" is emphatic, in my opinion, that the complaint is to be determined in the same manner as the magistrate or two justices would determine a complaint of the commission of a simple offence: see s. 29 of the Justices Act. In the whole collocation of s. 36, the use of the word "inquire" rather than the word "hear" is insufficient, in my opinion, to deny to s. 36 an intention in the case of an aggravated prison offence to remove its determination and punishment from the domestic administrative sequence of which s. 33 is a manifestation. (at p191)

20. The nature of the aggravated prison offence and of the allowable punishments might well be thought to afford sufficient reason for the ascertainment of the commission of the prison offence and the determination of the appropriate punishment to be vested in judicial officers acting judicially. As I have earlier indicated, the legislature might well have been content with vesting these functions in an administrative tribunal as has been done elsewhere, in order to secure prompt and final determination of suggested breaches of prison order or discipline. But clearly enough, in my opinion, the legislature in enacting the Prisons Act was not content to leave the ascertainment and punishment of aggravated prison offences to a visiting justice or to administrative procedures within the prison system. The legislature evidently desired a more formal and perhaps public resolution of these matters; hence the final words of s. 39. The serious nature of the aggravated prison offence (s. 38) and the severe nature of the allowable punishments evidently called for a much deeper examination of the circumstances than that contemplated by s. 33. The Prisons Act does not purport to equip the magistrate or justices with the various powers and authorities necessarily incidental to the determination of a prison offence. The legislature, in my opinion, has assumed the existence of those powers and authorities by reason of the Justices Act. The terms of the Prisons Act are adequate to import the procedural provisions of the Justices Act into the activities of the magistrate or justices under s. 36. (at p192)

21. Section 35 (1), in my opinion, contemplates the laying of a complaint before a magistrate or justices under the provisions of the Justices Act. It intends, in my opinion, that the complaint when so laid will be dealt with as a complaint for a simple offence would be dealt with. It is observable in this connexion that s. 36 does not repeat the authority given to the visiting justice by s. 33 to examine any person upon oath or otherwise. Whilst I would not set much store by the use of the legislature of particular words, the language of s. 36 is more consonant, in my opinion, with the exercise by the magistrate or justices of their ordinary judicial function as under the Justices Act than it is with a conclusion that the magistrate or justices are merely nominated as suitable persons to perform with finality an administrative function in the maintenance of order or discipline in prisons. (at p192)

22. Of course, whether or not the legislature was conscious of that consequence, the vesting of the determination and punishment of aggravated prison offences in the magistrate and justices imported all the available avenues of appeal or correction which the Justices Act provided. Viscount Haldane's remarks in National Telephone Co. Ltd. v. Postmaster-General (1913) AC 546, at p 552 sufficiently indicate the principle. (at p192)

23. Accordingly, I am of opinion that the Supreme Court was competent to review the decision of the justices in this case. Special leave should be granted, the appeal allowed, the preliminary objection of the respondents overruled and the matter remitted to the Supreme Court for the review of the magistrates' decision. (at p193)

STEPHEN J. I agree with the reasons for judgment of the Chief Justice and with the orders which he proposes. (at p193)

JACOBS J. I agree with the orders proposed by the Chief Justice and with the reasons which he has expressed. (at p193)

MURPHY J. I agree with the Chief Justice's conclusions. The Supreme Court of Western Australia has jurisdiction under s. 197 of the Justices Act, 1902 (W.A.), as amended, to review the decision of justices or of a magistrate upon a complaint under s. 36 of the Prisons Act, 1903-1971 (W.A.). (at p193)

2. I note that in Reg. v. Fraser (1977) 2 NSWLR 867 the New South Wales Court of Criminal Appeal declined to treat an adjudication and order that a prisoner be confined to cell for seven days made by a visiting justice (who must be a magistrate) under s. 24 of the Prisons Act 1952 (N.S.W.), as amended, as "mere administrative procedures", and held that the District Court has jurisdiction under s. 122 of the Justices Act, 1902 to hear an appeal from the order. (at p193)

3. I agree with the proposed order. (at p193)

AICKIN J. I agree with the judgment of the Chief Justice, and have nothing to add. (at p193)

ORDER

Application for special leave to appeal granted.

Appeal allowed.

Order that the preliminary objection of the respondents be overruled and the matter be remitted to the Supreme Court for the review of the magistrate's decision.