R v NG[2006] QCA 218

SUPREME COURT OF QUEENSLAND

1. de JERSEY CJ:  The appellant was on 11 November 2005 convicted in the Childrens Court on three counts of rape.  All offences were committed on 17 June 2003.  At the time, the appellant was aged 14 years and one month.  The complainant girl was aged 14 years and eight months.  On 10 February 2006, a learned District Court judge admitted the appellant to two years probation, and required him to carry out 80 hours community service.  She did not record convictions.  (The appellant had no prior criminal history.)

Circumstances of offences

2. The offences were committed in the following circumstances. The appellant and the complainant were secondary school students. After the lunch break on the day of the offences, at the appellant’s suggestion, they missed classes and went to an area of bushland beside the school oval, supposedly for “a chat”: that was the appellant’s suggestion. On the complainant’s evidence, the appellant twice asked the complainant to commit an act of oral sex upon him, and she refused. He then exposed his penis and forced her to take it into her mouth. The appellant then released her, took down her jeans and digitally penetrated her without her consent. Later, following the complainant’s refusal of further oral sex, the appellant again forced his penis into her mouth.

3. The extended definition of rape meant he thereby committed three offences of rape.

Notification of offences

4. The offences came to light in this way. The complainant informed her friends, the following day, to the effect that the appellant had coerced her into having oral sex with him. One of the complainant’s friends, who it was said was antipathetical towards the appellant (though her evidence was that she merely disliked him), told her own mother, who in turn elicited the relevant information from the complainant. (I do not use the term “elicited” critically.) That mother informed the Deputy Principal of the school. There was no suggestion that what the complainant told that mother was untrue.

5. The Deputy Principal interviewed the appellant and the complainant. Both denied the allegation.

6. The mother then nevertheless took the matter to the police, and their investigation led to the appellant’s being charged on 27 August 2005.

The approach of the school

7. The school authorities determined to deal with the issue under the Education (General Provisions) Act 1989 (Qld).  That resulted in the appellant’s expulsion from that school, with the suggestion he seek enrolment at another.

8. Section 33 of that Act provides that a student may be excluded from a school for disobedience, misconduct, or other conduct prejudicial to the good order and management of the school, where suspension would be inadequate.

9. The Act sets up a procedure to be followed before exclusion. By s 34, if the school principal is reasonably satisfied of the existence of grounds for exclusion, the principal may recommend exclusion, to the principal’s “supervisor”. The principal is obliged to give notice of the recommendation to the student, and invite submissions from the student to the supervisor. In this case, the Principal followed that procedure. The appellant did not make any submissions to the supervisor.

10. By s 36 of the Act, a principal’s supervisor, having received such a recommendation from the principal, may exclude the student, if reasonably satisfied grounds for exclusion exist. The supervisor must give notice of the exclusion to the student, inviting a submission to the chief executive against the exclusion. Again, the requisite procedure was followed, and the appellant did not make any submission to the Chief Executive.

11. Accordingly, by letter of 26 July 2003, the acting Executive Director notified the appellant of his exclusion. He recorded the following findings:

“You have blatantly and consistently failed to comply with the Code of Behaviour of … (the) School causing disruption to the learning of others.

That your persistent refusal to cooperate with school staff and comply with school policies is clear evidence of misconduct, disobedience and conduct prejudicial to the good order and management of the school.”

He expressed the following reasons for the decision to exclude the appellant:

“Due to the seriousness of these incidents and the number of occasions this has occurred over a lengthy period of time

Due to your lack of willingness to amend your behaviour.”

12. It will be noted – as relevant to matters discussed subsequently – that the decision to exclude the appellant was based on misconduct etc which was not confined to the particular conduct involved in the commission of the instant offences, being the offences of which the appellant was convicted in the Childrens Court.

The stay application

13. The appellant applied for an order staying the proceedings in the Childrens Court. He made that application on various grounds: first, that because of s 16 of the Criminal Code 1899 (Qld), since the appellant had been “punished”, through exclusion from the school under the Education (General Provisions) Act, for the “act or omission” constituting the criminal offences, he could not be punished further, so that the prosecution should be stayed; second, because the procedure under the Education (General Provisions) Act had been followed leading to the exclusion of the appellant, the separate prosecution amounted in any event to an abuse of process and should therefore be stayed; third, because by charging the appellant with separate counts in respect of what was one “entire transaction”, the prosecuting authority was proceeding unjustly and prejudicially; and fourth, because a stay was in any case warranted in view of the age of the appellant, the complainant’s initial denial, and the involvement of the mother of the girl who was ill-disposed towards the appellant – the prosecution, it was claimed, was improperly motivated.

14. A learned District Court judge refused to stay the proceeding.

15. He held s 16 of the Criminal Code inapplicable for two reasons:  in the first place, the procedure under the Education (General Provisions) Act did not lead to the appellant’s being “punished” within the meaning of s 16; and second, because in any event, the basis of the exclusion “was far more wide ranging than the behaviour alleged to have been committed by the (appellant) on 17 June”.

16. As to the question whether the prosecution amounted to an abuse of process because the school had earlier acted under the Education (General Provisions) Act, or because of the circumstances which led to the laying of the charges, the judge referred to Ridgeway v R (1995) 184 CLR 19.  In that case the High Court discussed the staying of proceedings on the basis they amounted to an abuse of process.  His Honour concluded as follows:

“There is nothing in the circumstances in which the matter was brought to the attention of the school or the police which has been referred to by Mr Connolly, nor in any of the circumstances attendant upon the alleged acts including the age of the complainant and defendant, and the complainant’s original non disclosure, nor in the actual police investigation itself, which lead me to conclude that the bringing of the charges against the defendant in the circumstances can be described as having being attended by any improper purpose, or that the preferring of the indictment against the defendant is an abuse of process.”

17. Finally, as to the appellant’s being charged with multiple counts, the learned judge said:

“…a detailed reading of the acts as particularised by the prosecution reveals that it is not inappropriate for the prosecution to have charged the acts as separate charges.  In fact to have done otherwise might disadvantage a defendant in attempting to appreciate what case he had to answer by reference to a conglomeration of activities all submerged in the one charge.  In the result therefore, I am not satisfied that the form of the indictment in its separate charges is inappropriate, disadvantageous or in any way a ground which can be relied upon by the defendant.”

Grounds of appeal

18. The appellant relies now on 10 grounds of appeal, which are, albeit in much condensed form, conveniently expressed as follows:

1. The stay was wrongly refused: 

1. Section 16 of the Criminal Code applied (and his Honour should have followed Pennisi v Wyvill and O'Sullivan (1994) 74 A Crim R 168).

2. The various acts alleged should have been treated as “a single act of misconduct”.

3. The prosecution was launched on an “improper and unfair basis”, because provoked by the reporting of the girl who was ill-disposed to the appellant.

2./3.A reasonable jury should not have been satisfied beyond reasonable doubt of absence of consent. 

4. The police investigation was precluded because the school followed the procedure under the Education (General Provisions) Act. 

5. The police investigation was inappropriate because “only in matters of grave danger should police be involved when invited by the school authorities to take over and investigate and deal with exceptional matters”.

6. Further, police intervention should be confined to cases where death occurs.

7. The involvement of the court of law was inappropriate because this was “a domestic situation of conflict between children during school attendance”.

8. A child of the age of 14 years should not be burdened with criminal convictions.

9. The Supreme Court, in the exercise of its parens patriae jurisdiction, should intervene to prevent such a prosecution, leaving the resolution of the issue to the school.

10. Section 16 of the Criminal Code invalidates the convictions.

Grounds 4-9

19. It is possible, and convenient, to dispose at once of a number of those grounds. They are grounds four to nine. They essentially postulate that the police service has no legitimate or reasonable role in the investigation and prosecution of criminal activity allegedly committed by minors at schools: that role should be reserved, it was submitted, exclusively to the school authority, save in exceptional cases, as where a death ensues. That contention cannot withstand any reasonable analysis.

20. It must immediately be recognized that the appellant had reached the age of full criminal responsibility (s 29(2) Criminal Code). 

21. Even more fundamentally, however, it would be repugnant to the rule of the law and the separation of powers for the court to intervene – by the mechanism of a stay, for example – to exclude the operation of the Criminal Code, a statute of general application, in particular environments, such as schools.  There is nothing in the Code to found a view it should not operate fully in the particular situations of schools.  The Juvenile Justice Act 1992 (Qld) deals specifically with policing and children:  there is likewise no basis for reading that legislation as not applying to school situations.

22. The legislature has reserved to the Police Service (s 2.3 Police Service Administration Act 1990 (Qld)), and the Director of Public Prosecutions (s 11 Director of Public Prosecutions Act 1984 (Qld)), the investigation and prosecution of alleged criminal activity falling within the ambit of the Criminal Code.  Where those agencies are not demonstrably proceeding unfairly or unjustly (and that is certainly not the case here), it is no part of the role of the court – in deference, say, to some piece of social philosophy – to intervene, by imposing a stay, or declaring a conviction unsafe, on the basis police intervention is inappropriate within schoolyards.

23. Section 2.3 of the Police Service Administration Act commits to the Police Service, among other things, “the preservation of peace and good order … in all areas of the State”; “the protection of all communities … and all members thereof … from actions of criminal offenders”; “the prevention of crime”; “the detection of offenders and bringing of offenders to justice”; “the administration … of … the provisions of the Criminal Code” (my underlining).  (See also the police officer’s oath:  s 2.1 Police Service Administration Regulation 1990 (Qld).)

24. Had the legislature wished to exempt, from police investigation, criminal activity involving minors in schoolyards, it could have done so; though most people would consider that inimical to the maintenance of civil order.

25. It would be completely inappropriate for this court to seek to arrogate to itself power to subvert that legislative charter by imposing a stay, or quashing a conviction as unsafe, by reason of police investigation and charging in this sort of situation.

26. Also, to do so would run contrary to the principle of the equal application of the law. It would be grossly discriminatory to engineer a situation whereby a victim of what the legislature has deemed to be rape were denied the security and advantage of a police investigation because she was at the time a minor at school and the offender was similarly placed.

27. Quite apart from the question of lawfulness, the consequences of such intervention would be intolerable. Could it seriously and sensibly be contended, for example, that the police should not be permitted to investigate drug distribution networks should they allegedly exist among school students? This case itself provides another important illustration. The allegations here have involved the intrinsically grave crime of rape.

28. The appellant’s approach pre-supposed the existence of undesirable tension between the treatment of such matters by the school authority, and by the police service. It is not this court’s function to resolve any such tension assuming it existed – which I do not assume. There is indeed evidence in this case of the school and the police working cooperatively side by side. The legislation has to a degree addressed that sort of concern. I refer to s 11 of the Juvenile Justice Act 1992, which obliges an investigating police officer to consider alternatives to prosecution – though not in the case of a “serious offence” as here.  Nothing presented to us suggests that in this case, that interface – police/school authority – was not managed responsibly.  The submission for the appellant, which was intolerably disparaging of the police and DPP services, lacked basic support.

29. These grounds are plainly untenable.

Remaining grounds

30. The remaining grounds may be distilled by asking these questions:

1. Did s 16 of the Criminal Code mean the appellant could not be punished upon conviction in the Childrens Court?

2. Was the appellant wrongly charged (in respect of the counts which led to conviction) with four counts instead of one?

3. Are the convictions unsafe because of evidence bearing on the question of consent or lack of consent?

4. Are the convictions unsafe, separately or in addition, because of the genesis of the complaints – through the mother of the school girl said to have been ill-disposed towards the appellant?

Section 16 Criminal Code

31. Section 16 relevantly provides that “[a] person cannot be twice punished either under the provisions of this Code or under the provisions of any other law for the same act or omission …”.

32. The District Court Judge who refused the stay application drew attention to the definition in s 2 of the Code of “offence”: “[a]n act or omission which renders the person doing the act or making the omission liable to punishment”. He took the view that “the punishment contemplated by s 16 is punishment for an offence either under the provision of the Criminal Code or for an offence under provision of any other law for the same act or omission”.

33. In Pennisi v Wyvill and O'Sullivan, Dowsett J observed, with respect correctly, that s 16 “does not rely for its operation upon punishment following a conviction”, and noted that by contrast with s 17, s 16 does not use the word “offence”, but refers to acts or omissions.  In Pennisi, the same relevant acts founded each charge (charges of breaching particular regulations), so it was held that the second visiting of “punishment” (which was reduction in the police officer’s rank), was not authorised.  The respective charges in that case were brought for breach of the Queensland Police Service Code of Conduct. 

34. For reasons to be explained, I do not consider Pennisi should be followed.  But even assuming the correctness of that decision, the instant situation is quite distinct.   

35. In the first place, the expulsion (by contrast with the reduction in salary and reduction in rank which arose in Pennisi, where it appears to have been assumed they were “punishments”), did not constitute “punishment” for the conduct which led ultimately to the punishment imposed in the Childrens Court.  The exclusion from the school was not punishment imposed under the provisions of the Education (General Provisions) Act for an act or omission.  The District Court judge who determined the stay application referred to provisions of that Act which could lead to punishment for acts or omissions, which would then exclude further punishment for those acts or omissions.  They are exemplified by s 47, which, among other provisions, renders it an offence wilfully to disturb the good order or management of a school (though those offences cannot be committed by students).

36. When s 16 of the Code speaks of “punishment” for an “act or omission”, either under the Code or some other statute, it has in mind the punishment provided for by the Code (cf. s 650), or another generally applicable statute (for example, the Penalties and Sentences Act 1992), or by a more particular statute such as the Education (General Provisions) Act (ss 47, 48).  The contention for the appellant has been that the exclusion, imposed consequent upon the operation of the last mentioned Act, was punitive in its effect upon the appellant.  It may be that the appellant feels he has been punished, but in truth the treatment accorded him was not punishment:  rather, it bore the character of a regulatory direction by the educational authority directed at least primarily to the maintenance of good government within that particular school.

37. Section 16 of the Criminal Code has analogues in s 7 of the Criminal Code Act 1899 (Qld) and s 45 of the Acts Interpretation Act 1954 (Qld).

38. Section 16 of the Code provides, in full:

“16Person not to be twice punished for same offence

A person cannot be twice punished either under the provisions of this Code or under the provisions of any other law for the same act or omission, except in the case where the act or omission is such that by means thereof the person causes the death of another person, in which case the person may be convicted of the offence of which the person is guilty by reason of causing such death, notwithstanding that the person has already been convicted of some other offence constituted by the act or omission.”

39. Mr B G Campbell appeared for the respondent. He drew attention to the exception under s 16, dealing with the situation of conviction. The provision overall is to my mind based on punishment following conviction, or where there is liability to be convicted. The circumstances which led to the exclusion of the appellant from his secondary school were plainly different.

40. There is a line of authority, dealing with similar situations, supporting the conclusion that a decision like this exclusion from a school should not be considered “punishment” for the purpose of s 16 of the Criminal Code. 

41. A position of some broad comparability was considered by the Judicial Committee of the Privy Council in Kariapper v Wijesinha [1968] AC 717, where the subject legislation imposed “civil disabilities” on Members of Parliament against whom allegations of bribery had been sustained, including the loss of their seats in Parliament.  The question arose whether they had been punished.  Sir Douglas Menzies, delivering the judgment of the Board, said (p 736):

“… the disabilities imposed by the Act are not, in all the circumstances, punishment.  It is, of course, important that the disabilities are not linked with conduct for which they might be regarded as punishment, but more importantly the principal purpose which they serve is clearly enough not to punish but to keep public life clean for the public good.”

42. He later referred (p 737) to the decision of the High Court in R v White; Ex parte Byrnes (1963) 109 CLR 665:

“Speaking generally, however, their Lordships would observe that it is not readily to be assumed that disciplinary action, however much it may hurt the individual concerned, is personal and retributive rather than corporate and self-respecting.  The distinction between discipline and punishment is one which the High Court of Australia has drawn recently in Reg v White, Ex parte Byrnes.  The question was whether the chief officer of a commonwealth department who, in the exercise of powers conferred by section 55 of the Public Service Act found an officer of his department guilty of an “offence” in refusing to have obeyed a lawful order and imposed a fine therefore exercised “judicial power”.  Section 55 made wilful disobedience to a lawful order an “offence” for which punishment was provided.  The court having observed the difficulty discovered in the case was apparent rather than real and arose from the choice of language that had been made, said:

‘Section 55, in creating so-called “offences” and providing for their “punishment”, does no more than define what is misconduct on the part of a public servant warranting disciplinary action on behalf of the Commonwealth and the disciplinary penalties that may be imposed or recommended for such misconduct; it does not create offences punishable as crimes.’”

43. In Re Tracey; Ex parte Ryan (1989) 166 CLR 518, dealing with the judicial functions of service tribunals, Brennan and Toohey JJ described (p 572) the powers considered in R v White; Ex parte Byrnes as relating “merely to domestic discipline, not to the imposition of punishments as for the commission of criminal offences”.  In Police Service Board v Morris & Martin (1985) 156 CLR 397, 407 Murphy J (albeit dissenting) referred to R v White; Ex parte Byrnes, and said:

“Despite the serious nature of some of the penalties, the offences are not criminal.  They amount only to breaches of a disciplinary code, dealt with administratively and not judicially …”

44. There is Victorian authority to which additional reference might helpfully be made. (I am indebted to Mackenzie J for the reference to these authorities.)

45. In Wright v Mooney [1966] VR 225, Winneke CJ considered (p 228) that the imposition of a penalty for “infringements of disciplinary codes of a domestic nature such as those established under the Police Regulation Act 1958 (Vic), the Public Service Act 1958 (Vic), and the Teaching Service Act 1958 (Vic), which are dealt with by special tribunals which are not courts”, did not involve “punishment” within the meaning of the time limitation provisions of the Justices Act 1958 (Vic).

46. Adopting a similar approach, in Attorney-General (Vic) v Riach [1978] VR 301, Kaye J held that penalties which might be applied for breach of a Public Service Act obligation (admonition through to dismissal) were not within the purview of the privilege against self-incrimination and exposure to suffering penalty (pp 307-8).

47. Finally, there is Bodna v Deller & Public Service Appeals Tribunal [1981] VR 183.  A public servant had been charged with the theft of a roll of wire from a prison.  A charge brought against him in the Magistrates Court was dismissed.  He was then separately subjected to disciplinary proceedings under the Public Service Act, in which he was charged with misconduct.  Section 28 of the Acts Interpretation Act 1958 (Vic) provided that where an act or omission constituted an offence under two or more Acts or both under an Act and at common law the offender should, unless the contrary intention appear, be liable to be prosecuted and punished under either or any of those Acts or at common law, but should not be liable to be punished twice for the same offence.  McInerney J held (p 196) that “the word ‘offence’ in s 28…means an offence cognizable and punishable by conviction in one of the ordinary courts of the State, and when s 28 speaks of prosecution and punishment it is speaking of prosecution and punishment in those courts.  It is not speaking of domestic courts or of disciplinary tribunals in professional bodies or of proceedings before public service tribunals.”

48. This line of authority provides good reason to doubt the correctness of the apparent assumption underlying Pennisi that the reduction in rank and reduction in salary amounted to “punishment” within the meaning of s 16 of the Criminal Code.  My view is they were not, and that Pennisi should not be followed.  The decision in Pennisi, as I have noted, was apparently given ex tempore, without agitation of the present issue.

49. The reach of the appellant’s approach, if correct, may be illustrated by this example. If a medical practitioner committed rape upon a patient and had been convicted and sentenced, he could not, on the appellant’s approach, be disbarred from practice. Similarly, in the present case, had the appellant been convicted in the Childrens Court and punished by that court, on the appellant’s approach to s 16 the school could not then have excluded him – with potentially deleterious consequences to the good order of the school.

50. In any event, this exclusion was explained by circumstances more broadly far reaching than the particular events of 17 June 2003, a point made with appropriate emphasis by the judge who refused the stay application. The breadth of the range of misconduct basing this exclusion may be gathered from the school principal’s report dated 26 June 2003.

Multiple charges

51. The complainant gave evidence of a series of acts, for which the appellant was responsible, separated in time (although occurring over a short period), and by nature and occurrence distinguishable. The acts were, to adopt the language of R v Morrow & Flynn [1991] 2 Qd R 309, 312, “separate and distinct in time or circumstance”.  Each did on the complainant’s evidence amount to a separate offence. 

52. Mr Connolly, who appeared for the appellant, referred us to cases including Director of Public Prosecutions v Merriman [1973] AC 584, 607, R v Brombey [1952] QWN 32 and R v Redgard [1956] St R Qd 1, 6.  The reasoning in none of those cases excludes the course adopted by the Crown here. 

53. The Crown was entitled to bring separate charges, and that was justified, because it may have been suggested – for example – that one or more acts was or were consensual. When I say the Crown was “entitled” to raise separate counts, it may be the Crown could equally have brought one charge of rape (R v T [1993] 1 Qd R 454, 455, 459, 460).  But whether the indictment survived in that form, would likely have depended on the attitude of the defence. 

54. The appellant was ultimately not prejudiced anyway, because the sentencing judge took a global approach to her assessment of the appellant’s culpability and the appropriate penalty.

Unsafe verdicts?

55. This issue raises the complainant’s approach to the matter during the course of the investigation – the initial denial, her claim not to want to get the appellant into trouble, the intervention of the girl said not to have been well disposed towards the appellant and that girl’s mother, the circumstance that the complainant did not seek to leave the scene although she could have, that she could have called for help from those engaged in the sporting activity nearby, and so on.

56. The complainant gave clear evidence the acts were non-consensual. On the day after the offences, she complained spontaneously to her friends. She explained not complaining to the school authority on the basis she did not want to get the appellant (who was her friend) into trouble. There was evidence of a tear to the complainant’s hymen, consistent with digital penetration, though it could not reliably be aged.

57. I have reviewed the evidence in the context of the particular issues raised in the material advanced for the appellant. The jury was properly and fairly instructed. I am not satisfied that the jury should, acting reasonably, have acquitted the appellant.

58. Much was made of what was asserted to be the improper motivation for the prosecution, which Mr Connolly chose to describe as “founded on spite and revenge”. I have to say, with respect to counsel, that there was no even remotely arguable basis for that characterization. Even if there were, it would be a matter bearing on the credibility of the evidence, falling within the purview of the jury. There has been no criticism of the trial judge’s directions to the jury.

Parens patriae

59. Mr Connolly, making substantial reference to cases including Secretary, Department of Health and Community Services v JWB & SMB (Marion’s case) (1992) 175 CLR 218 and Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112, submitted that this court should, by some unspecified means, invoke its parens patriae jurisdiction in aid of the appellant.

60. The submission was premised on the view that the criminal justice system, in its application to children, works unjustly, warranting this Court’s intervention to ensure criminally errant children are not exposed to it. Merely stating the submission exposes its fallacy.

61. The Juvenile Justice Act represents the parliament’s conscientious effort to craft a system for the appropriate treatment of juvenile offenders and their victims, and it operates humanely in the interests of all.

62. But the submission fundamentally misconceived the role of the courts of law, which is not to intervene to frustrate the effective operation of reasonable mechanisms established by statute. The parens patriae jurisdiction “springs from the direct responsibility of the Crown for those who cannot look after themselves …” (Marion’s case, p 259).  This is a case where the law already provides appropriate means for the resolution of the issue raised by the allegations of the commission of criminal offences made by this complainant against this appellant.  Those issues fell to be resolved through the ordinary operation of the criminal justice system.  That is the rule of law.

Miscellaneous matters

63. Two particular matters advanced in support of the appellant’s contention that the matter should have been left with the school authority alone, should specially be mentioned, lest the Court’s silence be taken as implicit acceptance of the assertions made.

64. First, the written submissions for the appellant pejoratively described the police service as a “para military” organisation ill-suited to investigate this sort of crime involving minors in a school situation. The point is simply irrelevant, but it should not be thought the court would agree with that factual characterization, which ignores modern and enlightened approaches to contemporary police training.

65. Second, the appellant’s submissions chose to ignore the jury verdict, insofar as they characterized what occurred as amounting to mere “sexual experimentation” between sexually immature teenagers. Again, the appellant’s characterization is irrelevant, but the jury’s verdict does in any case establish that it is simply wrong.

Order

66. I would dismiss the appeal.

67. KEANE JA:  I agree with the reasons prepared by the Chief Justice.

68. I wish to add only two comments. The first is a brief response to the argument advanced on behalf of the appellant that the appellant's expulsion from school was a "punishment" within the meaning of that term in the context of s 16 of the Criminal Code 1899 (Qld).

69. In the course of his submissions on behalf of the appellant, Mr Connolly of counsel referred to the appellant's perception that his expulsion from school was a punishment and to evidence from one of the Crown witnesses to similar effect. Counsel sought to rely upon this evidence as supporting the proposition that the expulsion was "punishment" within the meaning of s 16 of the Criminal Code.

70. It is to be emphasised that whether or not a person is subject to "punishment" by virtue of an order made under an Act is not to be resolved by a consideration of the subjective appreciation of the person against whom action is taken, or the views of the person authorised to take such action, but by reference to the nature and purposes of the legal regime which provides for the taking of the action. It is the purpose of the law which provides for the adverse consequences of conduct which determines whether those adverse consequences should be characterised as punishment and not an impressionistic or idiosyncratic view of the impact of action upon an affected individual uninstructed by an understanding of the nature and purposes of the law pursuant to which the action was taken.

71. The distinction between a disciplinary regime and a punitive regime is well recognised in our jurisprudence.^[1]  Indeed, as McHugh J said in Chu Kheng Lim v Minister for Immigration,^[2] and as Kirby J agreed in Fardon v Attorney-General for the State of Queensland,^[3] even imprisonment, the sanction usually regarded in our community as the ultimate form of legal punishment, will not be characterised as a punishment where "the purpose of the imprisonment is to achieve some legitimate non-punitive object".

72. This distinction may sometimes be difficult to draw. Indeed, as Gummow J said in Al-Kateb v Godwin,^[4] punitive and non-punitive purposes may sometimes coincide.  But there can be no doubt that the Education (General Provisions) Act 1989 (Qld) ("the Act"), pursuant to which the appellant was expelled from his school, cannot be characterised as retributive, or deterrent, or in any other way punitive. 

73. The purpose of the Act, and particularly those provisions pursuant to which the appellant was disciplined, is to facilitate the management of schools for the benefit of the school community and the community as a whole. Disciplinary measures against disruptive individuals such as the appellant are but a necessary aspect of the maintenance of order for the benefit of pupils and teachers engaged in the State enterprise of universal education. The idea that individual students may be subjected by school authorities to punishment, of the kind visited by the courts upon criminals, is entirely alien to the regime established by the Act.

74. The second comment that I would add is that I agree with the Chief Justice that the decision in Pennisi v Wyvill and O'Sullivan^[5] should not be followed.  That decision seems to be based upon the assumption (which appears to have been uncontested) that administrative measures taken for the better management and discipline of the police force are to be equated with "punishment" within the meaning of s 16 of the Criminal Code.  That assumption was not justified in the light of authority^[6] to which it would appear that the learned judge who decided the case was not referred.

75. I agree with the Chief Justice that the appeal should be dismissed.

76. MACKENZIE J:  I agree with the reasons of the Chief Justice and Keane JA.  I will only add comment with regard to the appellant’s reliance on s 16 of the Criminal Code.  Section 16 prohibits a person from being twice “punished” for the same act or omission. 

77. The fundamental problem with reliance on it in the circumstances of this case is that the argument assumes that action taken against a student pursuant to ss 33 to 36 of the Education (General Provisions) Act 1989 after a conviction, for rape within the extended modern definition in this case, results in a person being “punished” twice for the same act or omission.

78. There is a well established principle that regimes which regulate behaviour within an organisation do not involve punishment in their relevant sense. (R v White; Ex parte Byrnes (1963) 109 CLR 665; Tankey v Adams (2000) 104 FCR 152, 163-165; Kariapper v Wijesinha [1968] AC 717, in the context of “judicial power”: and in more general contexts, Wright v Mooney [1966] VR 225; Attorney-General (Vic) v Riach [1978] VR 301; and Bodna v Deller & Public Service Appeals Tribunal [1981] VR 183).  Where action is taken under disciplinary provisions regulating the behaviour of those subject to them, it may have a variety of consequences that affect the subject of the action detrimentally.  But the fact that the person suffers a detriment and may consider it to be punishment does not mean that it is punishment for the purposes of s 16. 

79. Often, there will be an element of protecting standards of conduct essential to the proper functioning of the organisation (Clyne v New South Wales Bar Association (1960) 104 CLR 186, 201-202; New South Wales Bar Association v Evatt (1968) 117 CLR 177, 183-184; Adamson v Queensland Law Society Incorporated [1990] 1 Qd.R. 498, 504). Action of a self-protective nature, even though it may have dire consequences for the subject of the action, is equally not punishment for the purposes of s 16.

80. In the present case, the action taken was not solely based on the offences committed by the appellant. The documents show that an accumulation of conduct inimical to the good order and discipline of the school, of which they were one component, led to the appellant’s exclusion. The essentially disciplinary or protective character of the action taken is clear from those documents.

81. In the light of the authorities referred to above, Pennisi v Wyvill and O'Sullivan (1994) 74 A.Crim.R. 168 should not, in my opinion, be followed.  It may well be thought that the learned trial judge reached a pragmatic result in a case where the facts were highly unusual; conflicting outcomes had been reached on essentially the same issue because the decisions of the primary decision maker were reviewable by two separate review authorities.  It appears to have been an ex tempore decision and there is nothing to indicate that the line of authority above was brought to the trial judge’s attention.  The underlying assumption seems to have been that an officer subject to police disciplinary processes was “punished” for the purposes of s 16 of the Code by having a sanction imposed upon him.  That is not consistent with relevant authority.  Pennisi should not be followed. 

82. I agree with the order proposed by the Chief Justice.