Wall v R; Ex parte King Won [1927] HCA 4;

[8]

An appeal is now brought to this Court from the order of the Supreme Court, and the respondent, by way of preliminary objection, has argued that an appeal does not lie to this Court from such an order. A recent case in the House of Lords, Secretary of State for Home Affairs v. O'Brien[1], in which the previous authorities are cited and examined, establishes the proposition that, according to the law of England, no appeal lies from an order of a competent Court for the issue of a writ of habeas corpus discharging a prisoner from custody unless an appeal is specifically given by the Legislature, and that the Courts should not hold that such an appeal is given merely because of general words in their natural meaning sufficient for such a purpose. By virtue of the Supreme Court Ordinance 1911, as amended by Ordinance No. 10 of 1922, appeal from the Supreme Court of the Northern Territory to this Court will lie by leave of this Court from any conviction, sentence, judgment, decree or order of the Supreme Court of the Northern Territory, whether in Chambers or in Court, including also any refusal of such Judge to make any order (Porter v. The King[2]). Applying to the present case the rule laid down by the House of Lords, we think we are bound to say, in the words of the Earl of Birkenhead L.C., that an enactment couched in terms so general does not avail to deprive the subject of an ancient and universally recognized constitutional right. The appellant denied the existence of the rule which we have stated, and relied in the first place on the case of United States of America v. Gaynor[3]. In that case the Privy Council allowed an appeal from an order of a Judge made in circumstances not unlike those in the present case. The Privy Council had given special leave to appeal, and we were not furnished with any report of the proceedings when the leave was given. On the appeal itself no argument was made with respect to the validity of the appeal, and indeed none could well be made in view of the leave already given. It may very well be too, that the right of appeal to the Privy Council by special leave is by its very nature outside the rule laid down in O'Brien's Case, but it is unnecessary to discuss that question further. In the next place the appellant relied on a case in this Court, Attorney-General v. Ah Sheung[4]. This case was followed without argument in Lloyd v. Wallach[5], and approved of by our brother Isaacs in subsequent cases, but that approval rested on the nature and function of the Constitution of the Commonwealth. It is enough to say that Ah Sheung's Case dealt with the judicial power of this Court under Chapter III. of the Constitution, and with that power only.

[9]

On the assumption that the rule which we have stated does exist, the appellant presented an alternative argument. He said that in this case the Supreme Court of the Northern Territory was not a competent Court within the meaning of the rule. He alleged this for two reasons. In the first place, he argued that in determining that the respondent was not an immigrant within the meaning of the Immigration Act 1901-1925 the learned Judge of the Supreme Court exercised a jurisdiction which belonged to this Court alone, either because his decision involved an interpretation of the Constitution, or, alternatively, because it involved a decision on a question as to the limits inter se of the constitutional powers of the Commonwealth and of a State. In the second place, he urged that, in assuming to determine the question as to whether the respondent was or was not an immigrant, the learned Judge of the Supreme Court had usurped a faculty which belonged to and was being exercised by the Police Court at Darwin. We cannot allow the validity of either of these contentions. With respect to the first contention, we think that the learned Judge did no more than determine for himself the meaning of the word "immigrant" in the Immigration Act 1901-1925, the relevant portions of which he assumed to be within the powers of the Constitution, as indeed this Court has determined them to be in a catena of cases ending with Williamson v. Ah On[6]. With respect to the second contention, it may well be that the learned Judge should have discharged the order after having ascertained that the proceedings were properly before the Police Court and that in the course of those proceedings the order for commitment was one authorized by law. There was no doubt that the Police Court was not only authorized, but was bound, to proceed on the information sworn against the respondent by Mr. Wall, and it was no less clear that the Police Magistrate was at liberty to commit the respondent to gaol when his sureties desired to be free from their undertaking, but the mere fact that the learned Judge entered into an irrelevant inquiry or gave insufficient or erroneous reasons for his determination or made the order absolute when he should have discharged it does not affect the question as to whether his order was the order of a competent Court. It was a competent Court, because it had cognizance of all pleas, civil, criminal and mixed, and jurisdiction in all cases whatsoever as freely and amply in the Northern Territory as the Court of King's Bench, Common Pleas and Exchequer or either of them lawfully had in England (Supreme Court Ordinance 1911-1922 N.T., sec. 4; Supreme Court Act 1856 S.A., sec. 7), and therefore had authority to make the very order which it did make; it had jurisdiction to come to a right or to a wrong conclusion on the questions submitted for its determination, namely, whether the writ of habeas should or should not issue, and to make an order consequential on that determination.

[21]

The writ of habeas applied for here was not a writ of course, though a writ of right. It had to be moved for, and a proper case had to be shown. No writ was ever issued, but where a writ may be issued, the Court, under the rules, may act promptly as if the writ had been issued, the issue of the writ being treated as an unnecessary formality. In order, however, to see whether the Court had jurisdiction to issue the writ, the nature of the case as it appears before the Court has to be examined. That is so, because, as stated by Lord Chief Justice Wilmot in his opinion to the House of Lords[26], on the writ of habeas the Court "inquires after the cause of his imprisonment." If on the application - and it may be ex parte - the right is clear or even probable, the writ may issue. The return, however, may set up facts which, if true, show that the person brought up must not be discharged, because, inter alia, the matter relied on cannot be inquired into by the Court. But if, as here, no writ is issued, but an order nisi is granted, and on its return it clearly appears on the inquiry into the cause of imprisonment that the matter relied on is not within the competency of the Court to determine, the Court has no legal power to issue the writ, and its decision to the contrary is unauthorized and appealable. It is, in that case, a misuse of language to call it a "competent Court." The very condition stated in the House of Lords cases referred to, namely, that the discharging Court must be "competent" in order to prevent appeal under the general power of appeal, shows that its own view as to its competency does not, if that be challenged, finally determine the matter, but is examinable by an appellate tribunal. That is the vital factor in this problem, and the respondent's argument entirely overlooks it. But whether the want of jurisdiction appears at once or only at a later stage, the moment it does appear the Court dealing with the habeas application is incompetent to discharge the applicant, and must hold its hand. Lord Chief Justice Wilmot laid down the law on this point, with illustrations, in the most lucid manner. At p. 122 of the work quoted, in exemplification of the principle that the Court in habeas has no jurisdiction to substitute its own determination of the governing facts and law for the different method prescribed by law for their determination, whatever that other method may be, the Lord Chief Justice says: - "Suppose an action brought upon a bond for any given sum of money, and the party is arrested upon it, and he pleads that he never executed the bond; suppose he could show by affidavits ever so clearly, that he did not execute the bond, or, by a copy of the Register, that he was not born when it is dated. The Court could not interpose; why? Because the law says, the fact must be tried by a jury: the Judges have no more cognizance or power to try it than if they were not Judges." Yet the applicant here would say that the Judges, if they disregarded the law and ordered the discharge, were for that purpose "a competent Court"! And be it noted, the Lord Chief Justice was speaking of the Court of King's Bench and the other English superior Courts, whose authority the Supreme Court of the Territory inherits. Wilmot C.J. gives another instance[27]: - "If a man is arrested and in custody, in a civil action, ... the Court will not, even for the purpose of discharging him out of custody, enter into any examination of the reality of the debt, though there is the most clear and undoubted proof laid before the Court of the falsity of the demand; it must be tried by a jury. The Court cannot look at it." With reference to the case of a recruit claiming release from habeas when about to be sent abroad for service, the Lord Chief Justice observes[28]: "If the case was ever so remediless, I think we are not warranted to impeach, by affidavits, the truth of the return of an officer, acting under an Act of Parliament, which the law says ought to be impeached by a verdict."

[23]

In Ex parte Andrews[29] an application on habeas corpus for discharge from alleged illegal detention was made on the ground of a second imprisonment on the same judgment. On habeas it appeared that the detention was on chancery process. Coltman J. said: "This Court has no power to enter into an inquiry as to the regularity of process issuing out of the Court of Chancery." Cresswell J. and V. Williams J. agreed. That case shows very plainly that the real subject matter for a Court in such a case is the matter alleged as constituting the illegality of detention, and not the general unqualified alternative of imprisonment or liberty, irrespective of reasons. So in In re Newton[30] it was held that the Court could not entertain the application for a habeas on the ground that a person was convicted without jurisdiction at the Central Criminal Court, inasmuch as it had been wrongfully found there that the offence charged had been committed within its jurisdiction. That, held Jervis C.J. and the other Judges, was a matter for the Central Criminal Court to investigate and determine, and not a matter for habeas. And see In re Smith[31] and Attorney-General v. Hunt[32]. Obviously it is immaterial for present purposes whether or not the habeas in such a case is applied for before or after trial. If the applicant is immune from the inferior Court before trial, he is immune afterwards - a nullity remains a nullity, however it is attempted to act on it. Judgment and execution would not make the inferior Court competent. In Carus Wilson's Case[33] Lord Denman C.J. said: "we may decide the question before us by considering the principle of the exception that runs through the whole law of habeas corpus, whether under common law or statute, namely, that our form of writ does not apply where a party is in execution under the judgment of a competent Court." The whole of the judgment is worth perusal. Its real significance is that the superior Court cannot arrogate to itself functions which the law denies it and confers on some other of the King's Courts.

[35]

However, even if it were our duty to treat the principle of the cases in the House of Lords as applicable to our Constitution and the Acts and Ordinances thereunder, it is my opinion that the order made by the learned Judge of the Supreme Court was made without jurisdiction. It is true that he had jurisdiction to release the prisoner if he were detained without legal justification; but he had no jurisdiction to release the prisoner on any other ground; and here he ordered the release on the express and sole ground that the prisoner was not an immigrant. That fact the Judge had no jurisdiction to try; that fact was for the Special Magistrate to try. What the Judge had to try was the question whether the warrant of committal for safe custody during an adjournment of the hearing before the Special Magistrate was a valid ground for detention; and the Judge did not apply himself to the consideration of that warrant at all. No doubt, the Supreme Court of the Territory was competent to release a prisoner on habeas corpus; but it was not competent to release a prisoner who was lawfully detained; and he was lawfully detained unless the warrant of committal pending trial was invalid. The learned Judge had no power, no jurisdiction, to release the accused unless the warrant was unlawful; and yet he releases him because he is not, in the opinion of the Judge, an immigrant. We must not be misled by the word "competent," as used in O'Brien's Case[61] - as a young Magistrate in East Africa was some years ago, when in an action for the price of a cow sold and delivered, he sentenced the plaintiff to three months' imprisonment for fraud. Moreover, a Judge cannot take a case, or the issues of a case, from another tribunal which has to try the case and the issues (R. v. Bolton[62]; Ex parte Huguet[63]; R. v. Maurer[64]; R. v. Morn Hill Camp Commanding Officer; Ex parte Ferguson[65]). The case of In re Castioni[66] is an exception which proves the rule. Under the Extradition Act the fugitive was not to be surrendered if the offence charged were one of a political character. Castioni was arrested and committed in England as for the offence of murder committed in the Ticino. He moved for a writ of habeas, and was released on the ground that the offence was of a political character, although the Magistrate had held that it was not. But in that case the Act specifically provided for such an interposition of the Court on a writ of habeas (sec. 11, and see R. v. Morn Hill Camp Commanding Officer; Ex parte Ferguson[67]). The view taken of the Act by the Judges of the Queen's Bench Division was that they had power under sec. 11 to decide whether it was or was not a political offence.

Wall v R; Ex parte King Won [1927] HCA 4; - HCA 1927 case summary — Zoe

At a glance

Court

Decision date

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Judgment (64 paragraphs)

Wall v R; Ex parte King Won [1927] HCA 4; (1927) 39 CLR 245 (18 March 1927)

Parties

Legislation Cited (2)

Cases Cited (1)