R v Iorlano; Re Mullally; Ex parte A-G

High Court of Australia|1983-07-01|Before: Dawson JJ

High Court of Australia Gibbs C.J. Murphy, Wilson, Brennan and Dawson JJ. R v Iorlano; Re Mullally; Ex parte A-G (Cth) [1983] HCA 43

ORDER In each case: Application dismissed with costs.

These applications, made by the Attorney-General for the Commonwealth, can succeed only if s. 212 of the Customs Act 1901 Cth, on its proper construction, authorizes an officer of customs or of police to detain an arrested person for the purpose of questioning him. Section 212 provides: "Every person arrested may be detained until such time as he can without undue delay be taken before a Justice." It was conceded correctly that a person could not be arrested for the purpose of questioning, but it was submitted that this section gives a wider power of detention than would be allowed by the common law or than would have been conferred if the words "as soon as practicable" had been used instead of the words "without undue delay". The words "as soon as practicable" did appear in s. 211 of the Customs Act, which required an arresting officer to give to the arrested person a statement in writing of the reason for his arrest, but that section has been repealed.

It is unnecessary for present purposes to decide whether s. 212 is intended to give a wider power to detain an arrested person than that which exists at common law. There is simply nothing in the provisions of s. 212, or in the context in which that section appears, that suggests that the fact that the arresting officer desires to question the arrested person affords any legitimate reason for delay in taking him before a justice. The section gives no power to question an arrested person, and does not make justifiable a delay which resulted only from the fact that the arresting officer wished to engage in questioning.

Since the construction of the Act for which the Attorney-General contends is not correct, the applications must fail. It is, therefore, unnecessary to consider whether the Attorney-General could have surmounted the other difficulties that may stand in his way. However, it seems necessary to repeat that it is highly undesirable to interrupt the ordinary course of criminal proceedings by applications for leave to appeal or prerogative relief for the purpose of challenging rulings on questions of admissibility of evidence. The fact that the Court has expressed its conclusion on the substantive question at issue in the present case is not intended to encourage applications of this kind. Both applications are dismissed.

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