( 87 )
Q-I mean on the literal construction of it. Now that it is put to you in this way, do you not think that punishment by a Visiting Justice of a fresh offence created by Rule 277 is precluded by the latter part of Rule 275 ?
A-As the Rule reads ?
Q-That is all you are to be guided by, I am afraid.
A-Most certainly it does.
Q-Do you not think that the reasonable construction of Rule 277 is that the Super- intendent may order a flogging for any offence under that Rule?
A-Yes.
Q--That the words "Any act of insubordination, &c." in Rule 274 are to be inter- preted by reference to Rule 277?
A-Yes.
Q-That the words "Any other act of gross misconduct or insubordination requiring &c." in the third part of Rule 277 are to be construed in relation to gross misconduct and insubordination when under punishment?
A-No.
Q-Can you give me your reason?
A-I am referring to the Home Prison Regulations. On page 58 of the Home Prison Regulations, section 57, the cases detailed which render a prisoner liable to cor- poral punishment are set out in exactly the same way as the offences mentioned in Rule 277 of the Victoria Gaol Regulations. The offences for which a prisoner may be flogged under the Rules for the Government of Convict Prisons, section 107 on page 22, are enumerated in exactly the same way as those enumerated in section 57 in the Locs! Prison Code, and sub-section 3 of Rule 57 is divided up into two sections in the Rules for the Government of Convict Prisons. Rule 107 of the Convict Prison Rules, sub- section 3, contains the following words:-"when under punishment wilfully making a disturbance tending to interrupt the order and discipline of the Prison." Then there is a separate section-section 4-which follows it. It states-" Any other act of gross misconduct or insubordination requiring to be suppressed by extraordinary means. Therefore "when under punishment" does not apply to sub-section 4 of Rule 107, and so I fail to see how it can be interpreted as applying to any other act of gross miscon- duct or insubordination requiring to be suppressed by extraordinary means in sub-section 3 of Rule 57 in the Local Prison Code, which is word for word the same as Rule 277 the Victoria Gaol Regulations.
5
Q-Then it comes to this: that the third section of Rule 277 is taken from the Local Prison Code verbatim?
A-Verbatim.
Q-But that in the regulations for Convict Prisons this same sub-section 3 s divided into two parts?
A-That is so: sub-sections 3 and 4 of section 107.
Q-To sum up, the main difficulty in construing these regulations turns on the words "
any act of insubordination &c." Do you not consider that these words cannot include any offence for the punishment of which provision has been made under another Rule?
A-If the act is repeated, then I consider it to be au act of insubordination the punishment for which is insufficient as provided in other Rules, and that I am justifie l in whipping a prisoner for that act of insubordination under Rule 274.