Page:Report of the Commission Appointed to inquire into the Penal System of the Colony.pdf/8



To His Excellency Lieutenant-Colonel Sir Gerard Smith, Knight Commander of the Most Distinguished Order of Saint Michael and Saint George, Governor and Commander-in-Chief in and over the Colony of Western Australia and its Dependencies, etc., etc., etc

Sir,—

We, the Commissioners, appointed by commission dated the 7th day of September, 1898, to enquire into the existing conditions of the penal system of Western Australia, and to report upon the method now in use for the punishment of criminals, their classification, the remission of sentences, and the sanitary condition of Fremantle Gaol, as well as to enquire into all contracts for supplies of food and other materials for use in the said Gaol, have the honor to submit our Second Progress Report as follows.—

"In our First Progress Report, we intimated that there were certain individual cases of prisoners to which we desired to direct the attention of your Excellency. Some of these cases have been selected by us as typical of various classes of offenders, in regard to whom the kind of punishment inflicted does not seem to be the best suited for their offence. Others we have taken because of peculiar and special features connected with them, such as apparently undue severity in the sentences, or other circumstances which seem to point to the desirableness of a revision of the sentences inflicted.

"No. 10525.——Stealing from the person of a man unknown, five years.—This is a somewhat remarkable case. The prisoner was charged with assault and robbery. The charge of assault was withdrawn, and the prisoner was found guilty of robbery. The person alleged to have been robbed was not known to the Crown, and was not produced. Your Commissioners recommended the case of this prisoner to the Colonial Secretary for consideration, but the Attorney-General thought that his release 'would undermine the discipline of the Gaol.' Your Commissioners fail to see how the discipline of the Gaol would be affected by either the release or the detention of this prisoner. The only question for consideration in this case, as it seemed to us, was whether the prisoner would not have escaped conviction in the absence of a prosecutor, the person alleged to have been robbed, if the prisoner had been defended at his trial. The prisoner conducted his own defence with so little skill that he elicited the fact of previous convictions. The Attorney-General, in his minute 2562/98 speaks of the conviction as one for robbery with violence, but it was for robbery only. From the Crown Solicitor's remarks on the same document it is clear that the prisoner's undoubtedly bad previous record was the main element which led to his conviction. We have selected this as a typical case which opens up a very important point in practical penology, in regard to which there is room for much difference of opinion. Should the previous record of any prisoner have any weight at all at his trial? Theoretically it does not, as far as the jury is concerned; but if, as in this case, the evidence elicited established the fact of previous conviction, it is only natural that the jury should be affected by it, and lead to the conclusion that the prisoner must be guilty of the offence with which he is charged. The evidence is then less critically weighed than would be the case where the prisoner had no previous record. It may, in the interests of society, be desirable that an old offender should be thus handicapped, but we are nevertheless of opinion that every charge should be tried strictly on its own merits, and without any regard to the antecedents of the prisoner. Lord Coleridge went further, and laid it down as a first principle that in every ideal criminal code each offence should be punished by the infliction of the penalty provided for that offence, and without regard to any previous commission by the person convicted of an offence of similar character. In other words, the prisoner should not be specially punished because he has been punished before. On the contrary, he should, whether he, for instance, steals a watch for the first or twentieth time, pay the penalty for watch-stealing, neither more or less. Your Commissioners are not prepared to go quite as far as this, but would strongly advocate the formulation of a code which would prescribe the punishment for every class of offence in a manner which would lead to greater uniformity in sentences than now exists.

"No. 3378.——This is a case which appears to require further investigation. The prisoner was found guilty by a jury at Coolgardie, but from a report of the proceedings, the verdict was arrived at only after considerable hesitation. The prisoner bore an excellent character up to the time of his conviction, the evidence against him being mainly that of a young girl who, it is urged on his behalf by certain petitioners, might easily have made a mistake as to the identification of a person whom she saw in the dark of the evening. The prisoner's own statement to the Commissioners is as follows:&thinsp;—'I was sentenced to two years for alleged larceny at Kalgoorlie. I had nothing to do with the robbery, and, had I the means to pay expenses for witnesses, could have proved an alibi beyond doubt, as, at the time of the robbery, I was away at Boulder City. The cause of my conviction was that I had thrown a bottle at a policeman named Anderson, who came sneaking about my place one night in the dark. I was charged with the assault, but discharged by the magistrate, who remarked that it served the policeman right, as he had no business on my premises. Anderson, however, threatened to "fit me," as he said, before long. Accordingly, I was charged with having stolen a cash-box from Hans Kinsman, and found guilty on the evidence of a little girl of 14, who swore that she saw me enter the window of the premises where the cash-box was. My lawyer was unwell on the day of the trial, and the Crown Prosecutor pressed the matter of my throwing the bottle at the policeman (Anderson), although it had nothing to do whatever with the alleged robbery. This prejudiced the jury. Since I have been in Goal a policeman named Whelan has been to see me, and told me, in the presence of Acting Chief Warder Webster, that he knew that I was innocent, and that he also knew now who was guilty. He added that it was my own fault that I was in Gaol, as I should have told the police at the time who it was who committed the robbery. I had good reasons to know who it was, but I did not consider it necessary to express my suspicion concerning a man who was spending money freely at my place in the course of business. Was it my duty to tell the police that a man was at my place spending money freely, and that I did not think that he earned the money? I understand that Whelan is leaving the