High Court of Australia|1994-08-31|Before: Deane J

Re Officer In Charge of the Cells ACT Supreme Court; Ex Parte Eastman [1994] HCA 36; (1994) 123 ALR 478; (1994) 68 ALJR 668 (31 August 1994)

RE OFFICER IN CHARGE OF THE CELLS, A.C.T. SUPREME COURT

[1994] HCA 36; (1994) 123 ALR 478

Eastman for a writ of habeas corpus addressed to the "Police Officer

in Charge of the Cells, A.C.T. Supreme Court, Knowles Place,

Canberra". The application is supported by an affidavit sworn by

Mr Eastman on 29 August last which discloses that he is "currently"

detained in custody in those "Cells". By arrangement between the

authorities and himself, Mr Eastman was brought to the Court and

appeared in person before me. The Director of Public Prosecutions,

Mr Rozenes QC, also appeared to indicate his preparedness to assist

the Court as amicus curiae, should that be desirable.

2. Logically, the first question to be considered is whether a

Justice of this Court possesses jurisdiction to order the issue of a

writ of habeas corpus in the circumstances of this case. The basis

upon which the application was presented is stated in Mr Eastman's

affidavit as being that the "Police Officer" to whom the writ would be

directed is an officer of the Commonwealth "within the meaning of s.75

of the Constitution" presumably with the intended consequence that the

application falls within the original jurisdiction of the Court under

par.(v) of that section. However, the jurisdiction conferred by

s.75(v) is limited to proceedings in which a writ of "Mandamus or

prohibition or an injunction is sought". The present are not such

proceedings. It is true that s.33(1)(f) of the Judiciary Act 1903

(Cth) in terms empowers this Court to "direct the issue of writs ...

of habeas corpus". It has, however, been held that the power to order

the issue of such a writ under s.33(1)(f) can be exercised only as an

incident of the exercise of the original or appellate jurisdiction of

the Court under other provisions ((1) See Jerger v. Pearce [1920] HCA 42; (1920) 28

CLR 588 at 590; Ex parte Williams [1934] HCA 48; (1934) 51 CLR 545 at 548; R. v.

Bevan; Ex parte Elias and Gordon [1942] HCA 12; (1942) 66 CLR 452 at 462, 465, 480; Re

Superintendent of Goulburn Training Centre; Ex parte Pelle (1983) 57

ALJR 679 at 679; 48 ALR 225 at 226; Re Clarkson (1985) 60 ALJR 677 at

678; 69 ALR 286 at 288.). In the course of a careful

argument, Mr Eastman took me to the relevant authorities and submitted

that I should not follow them for the reason that they consisted

essentially of assertions unaccompanied by reasoned explanation. I am

not, however, prepared to decline to follow them at least sitting as

a single judge at first instance. On the other hand, it may well be

arguable that the present proceedings come, or can be framed to

come, within s.75(iii) of the Constitution or some other provision

conferring original jurisdiction upon the Court ((2) Compare, e.g.,

Ex parte Pelle (1983) 57 ALJR at 680; 48 ALR at 228.). In that

regard, Mr Eastman foreshadowed that he would, if necessary, seek to

amend his application to seek relief by way of prohibition or

injunction. However, for reasons which will appear, it is unnecessary

3. The application involves no significant question of

constitutional law and is likely to turn on its own facts. Obviously,

and quite apart from doubts about jurisdiction, it is undesirable that

such an application be initiated in this Court in circumstances where

there is another court, the Supreme Court of the Australian Capital

Territory, which possesses jurisdiction and which is obviously a

more appropriate venue for the resolution of such matters at first

instance. Part of Mr Eastman's affidavit is directed to explaining

why the proceedings were not instituted in the Supreme Court. What is

said there would be relevant if, as would ordinarily be the case, the

question whether the application should be immediately remitted to the

Supreme Court fell to be considered at the outset. Again, however,

for reasons which will appear, it is unnecessary that I pursue that

4. As I read Mr Eastman's affidavit and as he made clear in the

course of his oral argument, the attack which he wishes to launch

upon the lawfulness of his detention in custody is directed to the

circumstances of his arrest by officers of the Australian Federal

Police on 29 July 1994. He has orally informed me that, at the time

of that arrest, he was on bail awaiting trial on a charge of murder.

It was apparently alleged against him that, while on such bail, he had

5. Mr Eastman claims that his arrest was illegal for two distinct

reasons, namely, that the arresting police did not have an original

or complete warrant in their possession and that the whole process of

arrest had constituted an abuse of process in that there had been

deliberate and unjustifiable delay in executing any warrant and that

that delay had been motivated by improper reasons. The affidavit

discloses, however, that Mr Eastman is not at present held in custody

under the authority of any warrant for his arrest. He has been and

is held in custody pursuant to a series of orders made by magistrates

of the A.C.T. Magistrates Court. His claim is that his detention

in custody pursuant to those orders was and remains illegal for the

reason that his original arrest was illegal. For the purposes of

an application for a writ of habeas corpus, however, the answer to

that claim is that, on each occasion when the matter came before a

magistrate of the A.C.T. Magistrates Court, the learned magistrate was

required to consider and determine whether an order could properly be

made, and whether an order should be made, that Mr Eastman be remanded

in custody and that, on each occasion, the magistrate made such an

order. Apparently, none of the orders so made has been overridden

by a subsequent bail order or has subsequently been set aside in

6. The writ of habeas corpus is an important safeguard of liberty

in circumstances where a person is being detained in custody without

lawful warrant or authority. It is not, however, available as a means

of collaterally impeaching the correctness of a judgment or order

made by a court of competent jurisdiction which is not shown to be a

nullity. There is nothing at all in the material before me which

provides an arguable basis for a finding that the order made by any

of the learned magistrates was vitiated by absence or excess of

jurisdiction or is otherwise void. That being so, those orders, while

they stand, provide an answer to Mr Eastman's present application.

7. Accordingly, and quite apart from the question of the

jurisdiction of the Court, the application for a writ of habeas corpus

Re Officer In Charge of the Cells ACT Supreme Court; Ex Parte Eastman [1994] HCA 36; (1994) 123 ALR 478; (1994) 68 ALJR 668 (31 August 1994)

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Judgment (99 paragraphs)

Re Officer In Charge of the Cells ACT Supreme Court; Ex Parte Eastman [1994] HCA 36; (1994) 123 ALR 478; (1994) 68 ALJR 668 (31 August 1994)

Cases Cited (7)