Day v R [1984] HCA 3; (1984) 153 CLR 475 (9 February 1984)

HIGH COURT OF AUSTRALIA

DAY v. THE QUEEN [1984] HCA 3; (1984) 153 CLR 475

Criminal Law (W.A.)

High Court of Australia
Gibbs C.J.(1), Mason(1), Wilson(1), Brennan(2) and Dawson(1) JJ.

CATCHWORDS

Criminal Law (W.A.) - Escape from lawful custody - Commital to prison of prisoner convicted of indictable offence - Transfer to another prison - Escape - Whether custody at second prison lawful - Calendar prepared in accordance with Criminal Practice Rules showing conviction and sentence - Calendar tendered in evidence at trial for escape from lawful custody - No other evidence of lawfulness of custody - Prisons Act 1903 (W.A.), s. 53 - Criminal Practice Rules, O. 8, r. 2.

HEARING

Perth, 1983, October 28;
Canberra, 1984, February 9. 9:2:1984
APPLICATION for special leave to appeal from the Supreme Court of Western Australia.

DECISION

1984, February 9.
The following written judgments were delivered: -
GIBBS C.J., MASON, WILSON AND DAWSON JJ. On 20 April 1983 the applicant was on 26 June 1979 at Karnet he being in lawful custody under sentence of imprisonment after conviction of an indictable offence, escaped from such custody. He was convicted. He now seeks special leave to appeal from a majority decision of the Court of Criminal Appeal (Brinsden and Olney JJ., Burt C.J. dissenting) dismissing his appeal from that conviction. The application involves a question of substance, namely, whether the Crown failed to prove at his trial that at the time of his escape he was in lawful custody. (at p477)

2. The applicant does not contest that at his trial the Crown adduced evidence of the following facts:

1. On 10 January 1978 the applicant pleaded guilty to two counts of an indictment presented against him in the District Court at Perth. On 6 February 1978 he was sentenced to be imprisoned for five years on the first-mentioned count (breaking, entering and stealing) and two years cumulative on the second (stealing). The minimum period to be served was fixed at four years.
2. On 27 March 1979 the applicant, while under sentence for the offences referred to, was transferred in custody from Fremantle Prison to Karnet Rehabilitation Centre ("Karnet"). Each of these establishments is a prison within the meaning of the Prisons Act 1903 (W.A.) as amended ("the Prisons Act" or "the Act").

3. On 26 June 1979 the applicant escaped from Karnet.
4. On 26 October 1982 he was arrested in Sydney on a provisional warrant for

escaping from Karnet. (at p477)

3. At the conclusion of the Crown case, the applicant submitted that there was no case to answer for the reason, so far as is here relevant, that the Crown had failed to prove that he was in lawful custody in Karnet at the time of his escape. The submission was overruled by the learned trial judge. Thereafter the applicant gave evidence in his defence, the main thrust of which, according to Olney J., was that he did not intentionally and wilfully liberate himself from Karnet. In the course of his evidence the applicant testified that he had been held in custody in Fremantle Prison between the time when sentence was imposed in February 1978 and his transfer to Karnet. (at p477)

4. Mr. Wallwork, for the applicant, argues that it was for the Crown to prove that the prisoner had lawfully been transferred to Karnet. If that was not proved then whatever the legality of his imprisonment in Fremantle Prison it could not be said that he escaped from lawful custody when he walked out of Karnet. Reliance is placed on s. 53 of the Prisons Act and on the decision of the Full Court of the Supreme Court of Victoria in the case of Reg. v. Templeton (1956) VLR 709 . In that case the warrants in question specifically committed the applicant to the keeping of the gaoler in charge of the Ballarat Gaol. These warrants were adduced in evidence by the Crown to prove the lawfulness of the custody in the Ballarat Gaol from which it was alleged that the applicant had escaped. However, it transpired that subsequent to his imprisonment in the Ballarat Gaol he was transferred to Pentridge Gaol in accordance with a warrant issued by the Inspector-General under s.24(1) of the Gaols Act 1928 (Vict.). Thereafter he was returned to the Ballarat Gaol under authority of a gaol order under s. 29 of the Gaols Act but the precise implications of such an order were obscure. The Court held in effect that there was a real question to be tried as to the lawfulness of his custody in the Ballarat Gaol at the time of his escape. Their Honours referred to s. 8 of the Habeas Corpus Act 1679 (31 Car.II c. 2), by which it is provided that if any person shall be committed to any prison or in custody of any officer or officers whatsoever for any criminal or supposed criminal matter, the said person shall not be removed from the said prison and custody into the custody of any other officer or officers, unless it be by habeas corpus or some other legal writ, or in certain particular cases specified in the section. While acknowledging that the operation of the section has, for reasons of convenience, been restricted by the enactment of a number of statutory provisions authorizing the removal of prisoners in particular cases additional to those specified in the Habeas Corpus Act itself, the Court stated the position as it then saw it in these words (1956) VLR, at p 713 :
"But subject to the exceptions provided for in the Habeas Corpus Act and in subsequent statutes the general rule still operates, so that the removal of a prisoner from one gaol to another is unlawful unless the case falls within one of the exceptions."
After acknowledging the availability of the presumption of regularity to assist a jury in coming to a conclusion in favour of the lawfulness of the applicant's custody in Ballarat Gaol, their Honours continued:
"But they were not bound to find that such removal" (i.e., from Pentridge) "and detention were lawful. And in view of the Crown's failure to prove what may be called a documentary chain of title, or other specific facts, showing that the removal from Pentridge to the Ballarat Gaol fell within one of the exceptions to the prohibition against removal which is contained in the Habeas Corpus Act, they might well have felt doubtful on the point. There was therefore a real issue of fact to be determined by the jury as to whether the removal to the Ballarat Gaol and the subsequent detention there were lawful." (at p479)

5. We have referred at some length to Templeton because it presents precisely the applicant's submission in the present case. It is that the Crown failed to prove the lawful authority for his removal from Fremantle Prison to Karnet. In so far as the defect may have been overcome by resort to the presumption of regularity, the trial judge had failed to leave the question to the jury. (at p479)

6. The Crown's submission is that the statutory framework in Western Australia is different from that which led to the decision in Templeton. In order to consider the submission, it is necessary to refer to some matters of criminal practice in Western Australia and to the relevant provisions of the Act. The Criminal Code provides in effect (s. 19(1)) that a person who is convicted of an indictable offence may be sentenced to a term of imprisonment not exceeding the maximum term prescribed. As is the case elsewhere, the sentence being imposed by a superior court is itself sufficient authority for its execution: Williamson v. Inspector-General of Penal Establishments (1958) VR 330 ; Reg. v. Turnbull; Ex parte Taylor [1968] HCA 88; (1968) 123 CLR 28, at pp 36, 45, 51 . For this purpose the District Court is a superior court: District Court of Western Australia Act 1969, ss. 42(1), 44. However, the Criminal Practice Rules made pursuant to s. 747 of the Criminal Code take the matter further. Order 8, r. 2 requires that a calendar be prepared in duplicate at the end of each sittings listing the persons who have been tried and containing a formal record of the proceedings in the form prescribed. It is signed by the Judge and the Clerk of Arraigns. One copy is sent to the Registrar of the Court and the other to the Director of the Department of Corrections. Order 8, r. 4 authorizes the Clerk of Arraigns at the conclusion of any trial to prepare and sign a certificate of the findings of the jury and of the judgment of the Court. The certificate may be delivered by him to the Director or handed to the gaoler in attendance at the Court. In practice, the function of the certificate is to provide documentary evidence of the sentence pending the completion of the calendar at the end of the sittings. Order 8, r. 3 provides that both the calendar and the certificate shall be sufficient authority for the execution of the sentence. (at p479)

7. The Prisons Act provides, so far as relevant, as follows:
"13. (1) The Director shall, subject to the exemptions hereinafter contained, and to the control of the Minister, have the care and direction

of all prisons, and the custody of all convicted prisoners.
. . .
45. Every prisoner confined in a prison shall be deemed to be in the custody of the gaoler, and the liability of the Sheriff or other person delivering such prisoner shall cease on such delivery to the gaoler.
46. Every gaoler shall have the charge and superintendence of the prison for which he is appointed, and the custody of all persons imprisoned within the same; and he shall be liable to answer for the escape of any such person from his custody whenever such escape shall happen by or through his neglect and default, but not otherwise.
. . .
53. Prisoners may be removed from one prison to another prison by order of the Director -
(1) for the purpose of enabling any prison to be repaired, altered, enlarged or rebuilt;
(2) in case of contagious or infectious disease breaking out in any prison;
(3) when any prison has been closed by order of the Governor;
(4) when any prison is overcrowded; or
(5) for any other cause, to be specified in such order.
Any prisoners removed from any prison in pursuance of this section may, by order of the Director, be taken back by the gaoler to the prison from which they were removed, or be removed to any other place in which they can legally be imprisoned." (at p480)

8. It is against this background that the Solicitor-General, Mr. Parker, argues for the Crown that neither s. 8 of the Habeas Corpus Act nor the principle of a documentary chain of title as enunciated in Templeton has any application in Western Australia to the custody of prisoners sentenced to imprisonment after conviction of an indictable offence. The distinction which is of critical importance is that the prisoner is not committed to the custody of a particular person nor is he sentenced to be imprisoned in a particular prison. Neither the calendar nor the certificate of the Clerk of Arraigns names any gaol or gaoler or other officer. In each case the document is delivered to the Director to whom is committed, pursuant to s. 13 of the Prisons Act, the custody of all convicted prisoners. (at p480)

9. In our opinion, the Crown's submission should be accepted. The calendar which was proved in evidence is authority for the execution of the sentence in any prison in Western Australia. Without more, it authorized the applicant's detention in Karnet in precisely the same way as it authorized his detention in Fremantle Prison. It is conceded for the applicant that had he been sent directly to Karnet after being sentenced then the calendar would have established the lawfulness of that custody. Of course, that is not to say that the Director is not obliged to observe the requirements of s. 53 and give an order setting out the reason for the applicant's removal from Fremantle to Karnet. We shall return to s. 53 later in these reasons. It suffices for the moment to say, first that there is no suggestion in the evidence or from the applicant that s. 53 was not observed and, secondly, that a failure to do so would not affect the lawfulness of the custody of the applicant in Karnet. (at p481)

10. In Templeton (1956) VLR 709 , the charge was of escaping from the lawful custody of Lionel Charles Wenn. At the time Wenn was the chief warder of the Ballarat Gaol and its keeper. The warrant under which he was originally imprisoned in the gaol was specifically directed to the Ballarat Gaol and the keeper thereof. It was issued pursuant to the Justices Act 1928 (Vict.) and in this respect may reflect a procedure which corresponds more nearly to the practice in Western Australia under the Justices Act 1902 (W.A.) with respect to commitment to prison following conviction of a simple offence. The warrant of commitment under the last-mentioned Act is addressed to the superintendent or keeper of a named prison or gaol as the case may be. (at p481)

11. In contrast, the indictment in the present case, laid in terms of an offence under s. 146 of the Criminal Code, is not at all concerned with the particular custodian in whose charge the applicant was at the time of his escape. The allegation is that at a named time and place he "being in lawful custody under sentence of imprisonment after conviction of an indictable offence, escaped from such custody". The lawfulness of the custody is established by the calendar. If for any reason it is desired to name the custodian then we think the Act creates a dual custody, encompassing both the officer in charge of the particular establishment where the prisoner is held and the Director. Burt C.J., in his dissent, expressed the opinion that the custody which the Act confers on the Director is not the kind of custody to which s. 146 of the Criminal Code refers. It is descriptive of a legal relationship from which the prisoner cannot escape. His Honour referred with approval to another decision of the Victorian Full Court, namely, Reg. v. Scott (1967) VR 276, at p 279 , where Barry J. described the custody of the Director-General in Victoria as "a notional as distinct from an actual custody". With all respect, we think the provisions in the two cases are markedly different. Barry J. sets out s. 14 of the Gaols Act 1958 as follows:
"Every person who is in custody under any sentence of imprisonment shall be deemed to be in the legal custody of the Director-General during the time of such sentence remaining in force."
There are several aspects of this provision which ground a conclusion that it refers to a notional custody. The reference to "legal custody", and to "the time of such sentence remaining in force" - i.e., whether or not the prisoner has escaped - are not suggestive of actual custody. The impression is confirmed by the resort to the legislative device of deeming something to be that which it is not: Pearce, Statutory Interpretation in Australia, 2nd ed. (1981), par. 61. On the other hand, s. 13 of the Act which is set out earlier in these reasons declares plainly that subject to the qualifications mentioned the Director shall have the care and direction of all prisons and the custody of all convicted prisoners. There is no resort here to "deeming". It is not dealing in a fiction. We are unable to see why, through the agency of his officers, the Director's custody is not an actual and effective physical custody. Sections 45 and 46 of the Act referring to the gaoler's custody may present some difficulties of construction. The "deeming" provision of s. 45 may have regard to the fact that by s. 13(2) the Sheriff retains the custody of all unconvicted prisoners. Section 46 may be intended to fix the gaoler of a particular prison with clear responsibility for its management and with liability for any escapes therefrom occurring through his neglect or default but not otherwise. We do not think that either section derogates in any way from the force of s. 13(1) in so far as it vests in the Director the custody of all convicted prisoners. (at p482)

12. It remains to consider s. 53. The fact that the origins of this section may be traced back to the Habeas Corpus Act may serve to underline its significance as an "important constitutional safeguard" (Templeton (1956) VLR, at p 713 ). Matters touching the propriety of procedures relating to the custody of prisoners will always be taken seriously in any community which cherishes the liberty and dignity of the individual. The manner in which a society treats its prisoners affords a measure of its standing as a civilized community. On the other hand, it may be legitimate to question the fundamental importance of the provision in present times. The evil which, in the reign of Charles II, s. 8 was designed to remedy was the practice of the authorities in moving prisoners from place to place and thereby frustrating the efficacy of habeas corpus procedures. The preamble to the statute alludes to the problem:
"WHEREAS great delays have been used by sheriffs, gaolers and other officers, to whose custody any of the King's subjects have been committed for criminal or supposed criminal matters, in making returns of writs of habeas corpus to them directed, by standing out an alias and pluries habeas corpus, and sometimes more, and by other shifts to avoid their yielding obedience to such writs, contrary to their duty and the known laws of the land, whereby many of the King's subjects have been and hereafter may be long detained in prison, in such cases where by law they are bailable, to their great charges and vexation:"
It may be doubted whether the same evil exists today so as to invest s. 53 of the Act with the same importance as attached to s. 8 of the Habeas Corpus Act. As we have said, the different statutory context in Western Australia supplied by the form and authority of the calendar and s. 13 of the Act serves to render s. 8 inapplicable to the case of a person in custody after conviction for an indictable offence. It may be that, having regard to the exhaustive manner in which the Act deals with the movement of prisoners (see ss. 47, 52, 53, 54, 55, 64B, 64C, 64D, 64I, 64J, 64Q), s. 8 no longer has any application in Western Australia. (at p483)

13. But whatever be the position in Western Australia with regard to s. 8 of the Habeas Corpus Act, it nevertheless continues to be the law that prisoners are not liable to be moved from prison to prison for no good reason. Section 53 is an important provision which in effect has a dual operation. On the one hand, it enumerates the circumstances in which the Director may effect the removal of a prisoner from one prison to another. On the other hand, it says plainly that (subject to any other express provision in the Act, e.g. s. 9) prisoners may not be removed in any circumstances not covered by that section. Viewed positively, the section serves a valuable purpose in furnishing the Director with ample authority, conditioned only by the making of an order and the existence of cause, to remove prisoners from one prison to another. In other words, it facilitates the good management of the prison system while affording a basic measure of protection to the prisoner. In many cases the existence of the authority conferred by s. 53 will work to the advantage of prisoners; apart from reasons of health and the relief of overcrowding, the section will frequently be resorted to in upgrading the custody of prisoners from maximum security establishments to those of lesser security. This was apparently the case with the present applicant. (at p483)

14. For these reasons, we are of the opinion that s. 53 on its proper construction is directed to safeguarding the interests of prisoners and to the administrative efficiency of the Department of Corrections. It is a statutory injunction which is to be observed by the Director in all cases to which it applies. We do not think it has any relevance to the question of the lawfulness of any particular custody under sentence following conviction for an indictable offence. The matter may be tested by reference to the facts of the present case. Let it be assumed that the applicant was removed from Fremantle Prison to Karnet without the authority of the Director pursuant to s. 53 of the Act. The fact remains that by force of O.8, r. 3 the calendar continues to provide the authority for the execution of the sentence. That authority is not conditioned so as to require his imprisonment in any particular prison. Upon the sentence being imposed the prisoner is thenceforth in the custody of the Director and it is for the Director to determine the prison or prisons in which that sentence is to be served. Neither the order of the court nor the calendar makes that determination for him. If a prisoner having been lodged in a particular prison is moved thereafter to another prison without compliance with s. 53 then there is a breach of the statute for which the Director may be held responsible. But we can find no warrant for a conclusion that such an unauthorized removal renders unlawful the continued custody of the prisoner in the Director. The authority of the calendar is not affected by the breach. (at p484)

15. It is unnecessary to determine whether the same conclusion follows in the case of a commitment to prison under the Justices Act. As we have said, the procedure under that Act is for a warrant of commitment to be addressed to the keeper of a named prison. There may be much to be said for the view that in such a case the authority of the original warrant is spent if the prisoner is removed to a different prison from that named in the warrant. In that event, unless there is in existence an order authorizing the removal in conformity with s. 53 of the Act the gaoler of the prison to which the prisoner is removed would seem to have no authority for detaining the prisoner in his custody. It would be no answer to rely on the provisions of s. 13(1) of the Act which place the custody of all convicted prisoners in the Director, because he must nevertheless be able to point to the instrument which authorizes that custody. However, the question does not arise in the present case. (at p484)

16. It is also unnecessary to determine a question to which brief reference was made in the course of argument, namely, whether in the event that the existence of an effective order under s. 53 of the Act was essential to proof of the lawfulness of the applicant's custody in Karnet the Crown could have relied on a presumption of regularity. It is to be noted that Burt C.J. would have found an affirmative answer to that proposition "difficult to accept". On the other hand, in Templeton (1956) VLR, at pp 713, 716 the Full Court appeared to accept that the presumption would be available in an appropriate case. The Privy Council has recently affirmed as established principle the proposition that there is no room for presumptions in favour of the Crown to prove the existence of facts which are central to an offence: Dillon v. The Queen (1982) AC 484, at p 487 . (at p485)

17. It is common ground that the learned trial judge erred in directing the jury that as a matter of law it had been established that the accused had been in lawful custody at the time of his escape from Karnet. That was a question of fact which ought to have been left to the jury. However, we respectfully agree with their Honours who formed the majority in the Court of Criminal Appeal that in the circumstances of the case the irregularity did not occasion a miscarriage of justice. (at p485)

18. We would grant special leave to appeal, but dismiss the appeal. (at p485)

BRENNAN J. The applicant, John William Day, was convicted before the District Court at Perth on an indictment charging him with an offence under s. 146 of the Criminal Code 1913 (W.A.), namely, that on 26 June 1979 at Karnet he "being in lawful custody under sentence of imprisonment after conviction on an indictable offence" escaped from such costody. An appeal to the Court of Criminal Appeal was dismissed. The applicant seeks special leave to appeal to this Court. The question raised on the application is whether it was proved that on 26 June 1979 the applicant, then being under sentence of imprisonment after conviction on two indictable offences, was "in lawful custody" at the Karnet Rehabilitation Centre. The sentence had been imposed on 6 February 1978 by the District Court at Perth. The applicant had been sentenced to imprisonment for a total period of seven years. He had to serve a minimum period of four years. (at p485)

2. The applicant was lodged first in the Fremantle Prison and, on 27 March 1979, he was removed to the Karnet Rehabilitation Centre. Both institutions are prisons for the purpose of the Prisons Act 1903 (W.A.) ("the Act") which was in force. There is no dispute as to the lawfulness of his custody in the Fremantle Prison. The Crown tendered a certified copy of the calendar or list of prisoners setting out the applicant's convictions before the District Court and the sentences imposed upon him on 6 February 1978 signed by the judge. If statutory authority were needed for the execution of the sentences thus imposed, it was provided by r. 3 of O. VIII of the Criminal Practice Rules which provides that such a calendar or list is sufficient authority for the execution of a sentence imposed by the District Court. (at p485)

3. It is not the practice for a judge, when imposing a sentence of imprisonment or directing the filling up of the calendar or list thereafter, to direct that the prisoner be committed to a particular gaol. That is a matter for the Director of the Department of Corrections in exercise of the powers conferred upon him by s. 13(1) of the Act which provides:
"The Director shall, subject to the exemptions hereinafter contained, and to the control of the Minister, have the care and direction of all prisons, and the custody of all convicted prisoners."
This provision confers ample power upon the Director to decide upon the prison in which he will confine a prisoner coming into his custody after conviction. The Fremantle Prison is in charge of an officer who is defined by s. 4(1) of the Act to be a "gaoler". When the applicant was imprisoned in the Fremantle Prison, ss. 45 and 46 of the Act took effect:
"45. Every prisoner confined in a prison shall be deemed to be in the custody of the gaoler, and the liability of the Sheriff or other person

delivering such prisoner shall cease on such delivery to the gaoler.
46. Every gaoler shall have the charge and superintendence of the prison for which he is appointed, and the custody of all persons imprisoned within the same; and he shall be liable to answer for the escape of any such person from his custody whenever such escape shall happen by or through his neglect and default, but not otherwise." (at p486)

4. A gaoler's custody of a convicted prisoner does not displace the Director's custody of the same prisoner. The prisoner is in the custody of both the Director and of the gaoler to whom "the Sheriff or other person" has delivered him. However, the Act makes specific provision for changes in the prisoner's custody. The Governor may by Order in Council direct that a prisoner be transferred from a prison to a reformatory prison, or vice versa, in the circumstances specified in Pt VIA of the Act. The Minister is empowered to authorize the taking of a prisoner, temporarily, from a prison to any place in the State in aid of the administration of justice (s. 55). The Director is authorized to order that a prisoner be brought up before a court (s. 52), removed from one prison to another (s. 53) or from a prison to a hospital (s. 54). An officer acting in execution of an order under s. 52 has custody of the prisoner whilst the prisoner is absent from prison. A prisoner in hospital pursuant to a s. 54 order is deemed to be in the legal custody of the gaoler of the prison from which he was removed. (at p486)

5. The only provision which might have given authority for the removal of the applicant from the Fremantle Prison to the Karnet Rehabilitation Centre was s. 53 which provides:
"Subject to section 56A of this Act, prisoners may be removed from one

prison to another prison by order of the Director -
(1) for the purpose of enabling any prison to be repaired, altered, enlarged or rebuilt;
(2) in case of contagious or infectious disease breaking out in any prison;
(3) when any prison has been closed by order of the Governor;
(4) when any prison is overcrowded; or
(5) for any other cause, to be specified in such order.
Any prisoners removed from any prison in pursuance of this section may, by order of the Director, be taken back by the gaoler to the prison from which they were removed, or be removed to any other place in which they can legally be imprisoned." (at p487)

6. Section 53 governs the exercise of the Director's power over the removal of prisoners. The Director's custody of convicted prisoners, conferred in general terms by s. 13(1), cannot lawfully be exercised in contravention of the express limitations contained in s.53. The respondent's argument is that if the Director removes a prisoner from one prison to another without complying with s. 53, the prisoner is nonetheless still in the lawful custody of the Director and comes into the lawful custody of the receiving gaoler. To accede to that argument is to make s. 53 a dead letter. Section 53 is not merely facultative; its limitations upon the exercise of the Director's power protect the prisoners in his custody. (at p487)

7. There are at least two ways in which s. 53 protects a prisoner. First, by requiring the cause of removal, other than a cause specified in sub-ss. (1) (2) (3) and (4), to be specified in the order of removal: s. 53(5). This requirement precludes what might otherwise be a serious detriment to a prisoner, namely, his removal from one prison to another without acknowledgment of the grounds for removing him. This is an important safeguard against the exercise of the power of removal in order to punish a prisoner. Having regard to the provisions of the Act relating to the enforcement of prison discipline (see ss. 33 to 44), it does not appear that the power of removal can be exercised punitively, though it may need to be exercised for disciplinary reasons - e.g., to separate a group of recalcitrant prisoners. (at p487)

8. Secondly, s. 53 fulfils the same purpose as s. 8 of the Habeas Corpus Act 1679 (31 Car. II C. 2) which provided
"That if any person or persons, subject of this realm, shall be committed to (any) prison or in custody of any officer or officers whatsoever, for any criminal or supposed criminal matter, that the said person shall not be removed from the said prison and custody into the custody of any other officer or officers; unless it be by habeas corpus or some other legal writ; or where the prisoner is delivered to the constable or other inferior officer to carry such prisoner to some common gaol; or where any person is sent by order of any judge of assize or justice of the peace to any common work-house or house of correction; or where the prisoner is removed from one prison or place to another within the same county, in order to his or her trial or discharge in due course of law; or in case of sudden fire or infection or other necessity; . . ."
The restriction thus imposed upon the alteration of a prisoner's place of confinement was essential to remedy an abuse which revealed a procedural defect in habeas corpus. Prisoners were moved from gaol to gaol, as the Earl of Clarendon acknowledged in his defence against the fourth article of his impeachment (1663-1667) 6 ST 291, at p414 . Such movements made it impossible to serve the proper gaoler with a writ (see Sharpe, The Law of Habeas Corpus (1976), p. 17 and Cohen, "Habeas Corpus Cum Causa - The Emergence of the Modern Writ", Can. Bar Rev., vol. 18 (1940) 172, at p. 191). A writ will give no remedy if it is directed to a gaoler in charge of a gaol who has lost control over a prisoner (Barnardo v. Ford (1892) AC 326, at pp 333-334 ). Sections 45 and 46 facilitate the direction of writs of habeas corpus to the gaoler in charge of the gaol in which a prisoner is in fact confined. That is one of the purposes of provisions of this kind in prisons legislation, as the Privy Council pointed out in Dillon v. The Queen (1982) AC 484, at p 489 . Once the prisoner is confined in a particular gaol, s. 53 performs the same function as s. 8 of the Habeas Corpus Act by limiting the exercise of the power of removal from gaol to gaol. In Reg. v. Templeton (1956) VLR 709 , the Supreme Court of Victoria rightly regarded the rule against alteration of a prisoner's place of confinement as an "important constitutional safeguard", and said (1956) VLR, at p 713 :
". . . subject to the exceptions provided for in the Habeas Corpus Act and in subsequent statutes the general rule still operates, so that the removal of a prisoner from one gaol to another is unlawful unless the case falls within one of the exceptions." (at p488)

9. The respondent sought to distinguish Templeton and the earlier case of Reg. v. Melville (1856) 2 VLT 209 by pointing to the terms of the warrants of commitment in those cases. It was submitted that the principle of those cases applies only where the Habeas Corpus Act applies and where the prisoner is committed to a specified gaol; here the applicant's place of confinement was not specified by the sentencing judge. The attempted distinction mistakes both the language and the purpose of the Habeas Corpus Act. Section 8 of the Habeas Corpus Act was not restricted to cases where the prisoner was committed to a specific gaol; it took effect also whenever a prisoner was committed "in custody of any officer or officers whatsoever". The purpose of enacting s. 8 was not to reinforce obedience to directions given by a judge imposing sentence; it was enacted to limit the gaoler's power to remove a prisoner from gaol to gaol whereby the ascertainment of the proper gaoler to serve with the writ was impeded. Sections 52, 53 and 55 cover substantially the same events as the exceptions mentioned in s. 8 of the Habeas Corpus Act. I see no valid ground for distinguishing Templeton and Melville from the present case so far as those cases relate to the lawfulness of the custody which follows an unlawful removal from a gaol. In enacting the Act the legislature was alive to the problem of ensuring an effective remedy by the writ of habeas corpus. Section 50 of the Act is calculated to preclude the gaoler of a particular prison from taking captious objections to the description of his prison in any writ, warrant or other instrument addressed to him. (at p489)

10. In my opinion a prisoner who in accordance with the Act has been lawfully received into a prison under a sentence of imprisonment cannot lawfully be removed to another prison except in conformity with s. 53 or some other provision of the Act in that behalf. If that conclusion be right, the appeal must succeed, for the Crown could not establish the lawfulness of the applicant's custody at Karnet unless the Director had made an order in accordance with s. 53. There was no evidence of such an order, and in the absence of that evidence a central fact in the Crown case was not proved. The Crown is unable to rely upon a presumption of regularity for it is "contrary to fundamental principles of law that the onus should be upon a prisoner to rebut a presumption that he was being lawfully detained" (Dillon v. The Queen (1982) AC, at p 487 ). (at p489)

11. I would grant special leave to appeal, allow the appeal, and quash the conviction. A retrial cannot be ordered merely to give the Crown an opportunity to make good the deficiency in their evidence at the trial. I would therefore direct a judgment and verdict of acquittal to be entered. (at p489)

ORDER

Application for special leave to appeal granted.

Appeal dismissed.