Wall v The King; Ex Parte King Won [1927] HCA 16;

[1927] HCA 16

High Court of Australia|1927-04-14|Before: Starke JJ

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Court

High Court of Australia

Decision date

1927-04-14

Before

Starke JJ

Source

Original judgment source is linked above.

Judgment (62 paragraphs)

[1]

This matter - apart from the ex parte objection - resolves itself into four propositions of law of general application, each sustained by firm and consistent authority of the highest nature, and one indisputable conclusion of mixed law and fact specially applicable to this case. The propositions of law are: - (1) Every habeas corpus inquiry is primarily and essentially as to the legality or illegality of the cause of imprisonment, in order to determine whether the applicant has a right to liberty. (2) Illegality in the relevant sense means want of jurisdiction to detain the applicant. When, and only when, the Court first decides that for an ascertained cause jurisdiction is wanting for the imprisonment, the Court is empowered and required to order, as a consequential result, the discharge of the applicant, the discharge being then an automatic remedy prescribed by law for the wrong found to exist. (3) Unless stated in the formal order of discharge, the actual decision of the Court as to what was the precise want of jurisdiction constituting the wrongful restraint of liberty, for which it ordered the applicant to be set free, is to be found in its judgment as delivered. (4) That decision, unless lawfully set aside, is for ever conclusive on every Court with respect to the proceeding it concerns and, if it declares the applicant's status, it is final also as to that, and he can never again be put in peril of his liberty contrary to that decision. These propositions I take to be absolutely essential to the preservation of individual liberty from oppressive official proceedings, and the finality of what, in a case such as the present, is virtually an acquittal by summary process of law.

[2]

[9]

2. Discharge connotes Want of Jurisdiction. - It is elementary that the "cause of restraint," whatever it may be, in order to found a right to discharge under habeas, must be one which is illegal in the sense that it is beyond the jurisdiction of the authority directing it. That "cause" may vary indefinitely, and it will presently be my care to indicate how it may be ascertained what was the "cause" which the discharging Court found to exist as justifying the discharge. But for the moment I am concerned with establishing that the "cause" must, apart from the question of bail, possess the characteristic of being jurisdictional. This is clear from a multitude of authorities. Wilmot says[28]: - "In imprisonment for criminal offences, the Court can act upon it only in one of these three manners: - 1st. If it appears clearly that the fact, for which the party is committed, is no crime; or that it is a crime, but he is committed for it by a person who has no jurisdiction, the Court discharges. 2nd. If doubtful whether a crime or not, or whether the party be committed by a competent jurisdiction; or it appears to be a crime, but a bailable one, the Court bails him. 3rd. If an offence not bailable, and committed by a competent jurisdiction, the Court remands or commits." In Ex parte Fernandez[29] Erle C.J. said: - "The commitment being the act of a lawful Court acting within its competency, there can be no invasion of the liberty of the subject in the sense in which the phrase is used. To issue a habeas corpus for the purpose of reviewing the decision of the Judge, would be to my mind a gross abuse of the process." In In re Thompson[30] the right to a habeas turned upon the question of whether the justices had jurisdiction to convict. So in Re Bailey[31]. This was again the ground of the judgment of Hawkins J. in In re Authers[32]. In R. v. Governor of Holloway Prison; Re Siletti[33], Bigham J. says: "I think the only question that this Court can entertain is the question of jurisdiction." This is quoted by Ridley J. in R. v. Governor of Brixton Prison; Ex parte Servini[34].

[11]

In In re Baines[35], a case of habeas, Lord Cottenham L.C. made some observations which are highly important to remember when we find the words "illegal" and "illegality" in connection with habeas corpus. He first refers to an objection that the Court below had improperly exercised its jurisdiction and pronounced an illegal judgment. Then the Lord Chancellor says[36]: - "There may be very many grounds upon which a judgment may be illegal, and in one sense, the Court, in pronouncing such judgment, exceeds its jurisdiction; but that is not the sense in which the expression is used, when applied to such a case as the present. The object of the jurisdiction I am now exercising is to keep the Ecclesiastical Courts within the jurisdiction which the law has assigned, and not to correct any error into which they may fall in the exercise of it. If this distinction be not carefully kept in view, every Court and Judge having authority to issue the habeas corpus would become a Court of appeal from the Court by whose authority the party was committed, and so usurp the jurisdiction which the law has reposed in those Courts to which an appeal is given." Until my impression was recently corrected, I thought that and similar utterances, including those of Marshall C.J. later quoted, went so far as to show that a Court attempting to do what the Chancellor deprecated, namely, to discharge on habeas a person regularly committed by a competent Court - and particularly a Court of exclusive jurisdiction - by its trying the very issue reserved to the committing Court, was itself to that extent acting incompetently - whether it was the Court of Chancery or King's Bench, or Supreme Court of a State, or, by inheritance, the Supreme Court of the Territory. I thought that, though the Court was quite within its competence up to the point that the exclusive jurisdiction of the committing Court appeared, yet at that point its jurisdiction found a barrier against entering the other Court's exclusive domain, and that it could not by a wrong decision give itself a jurisdiction that the law denied it and make itself a competent Court in spite of that law. But I must now judicially consider that an erroneous impression. But at least the Lord Chancellor's words and the authorities quoted point to what is the necessary inquiry, namely, as to the jurisdiction of the committing Court. This is what Lord Halsbury meant in Cox v. Hakes[37] by the expression "the right to an instant determination as to the lawfulness of an existing imprisonment." That now includes an inquiry into the truth of the facts set out in the return, if the return should be sufficient in law[38]. The foundation of the habeas is thus in reality the same as that of prohibition, the remedy, however, being one of wider application and always for more speedy and direct liberation, but none the less final and conclusive in subsequent proceedings as to the matter decided.

[12]

3. How the actual Decision is ascertained. - It is always necessary in a case like the present to go further and inquire what was the precise want of jurisdiction which the discharging Court determined. It may have been limited to one stage of the proceedings, and, if so, imprisonment at another stage would not be for the same cause. It may have been limited to the need of some prior authorization for a warrant, or to some other necessary condition precedent. Those defects being afterwards supplied, a second imprisonment would not be for the same cause. But it may have been a total and incurable want of jurisdiction on the part of the committing tribunal to issue any process against the applicant, or to try him on the charge, that is, even to entertain the proceedings against him on that charge. If so, any subsequent attempts by that tribunal to proceed on that charge against the person discharged is a usurpation of the King's justice. And that is precisely the position here. Unless there exists some screen of technicality which obscures judicial vision, the most casual inspection of the judgment pronounced by Roberts J. makes perfectly plain the ground for Wah On's discharge. The learned Judge says: "This motion was based upon the applicant's claim that he is a member of the Australian community, and therefore not an immigrant within the meaning of the Immigration Act, and not amenable to the jurisdiction of the Magistrate's Court." He also says: "I must decide whether the commitment was made with jurisdiction, or whether the inferior tribunal was and is incompetent to deal with the applicant at all." It is therefore transparently plain that the issue was whether the imprisonment was illegal on the "ground" or for the "cause" that the Magistrate's Court was incompetent - that is, had no jurisdiction - to deal with Wah On at all. It was not that the want of jurisdiction was in relation to the interlocutory commitment only, but that there was a total and absolute want of jurisdiction, of which the particular commitment was only an incident, and its fate was involved in the general incompetency of the Magistrate's Court. This is an illustration of the distinction made in Kwok-a-Sing's Case[39]. Roberts J. has thus stated the issues, examined the facts and the law, and stated his reasons for the conclusions at which he ultimately arrived. His conclusion - that is, his decision as to the wrong of which the applicant complained - is stated in these words: - "My conclusion is that when the applicant landed in Australia in 1924, notwithstanding his long absence, he was returning to an old home which he had never abandoned. He was not an immigrant within the meaning of the Immigration Act 1901-1925. ... As the applicant is not a person amenable to the Act, the Special Magistrate has no jurisdiction to try him, and therefore no power to hold him pending trial." That was the decision. Then followed the legal consequence in these words: "The order will be made absolute" - in other words, "discharge." Which are the reasons and which is the conclusion is not, to my mind, a doubtful matter. I do not think that question vital, because, as I shall show, reasons that are involved in the decision are just as potent for present purposes as the summarized decision. But of the two factors decided by the Supreme Court, namely, (1) that Wah On was not an immigrant, and (2) that the Magistrate's Court had no jurisdiction to try him on the pending charge, it is not rationally possible to say that the first was the ultimate decision as to his right to freedom, and the second was the reason for the first. A Court that so reversed the order of thought would not simply err, it would invert the process of reasoning. It is equally plain, however, from the direct reading of the learned Judge's judgment, that he held, as his ultimate decision as to the substantive right to liberty, that the Magistrate's Court had no jurisdiction to try him, for the reason that the applicant was not an immigrant. Both conclusions were arrived at, but the "non-immigrant" factor was necessarily the initial step declaring innocence and leading up to the decision as to the right to freedom, and the "non-jurisdiction" factor was the final and ultimate step in that decision based on the first conclusion and declaring immunity from the Magistrate's jurisdiction, and being the decision that determined the illegality of the detention complained of, and that called for the automatic remedy of discharge.

[15]

In O'Brien's Case[40] Lord Birkenhead says it was established in Cox v. Hakes[41] "that if upon the return to the writ it was adjudged that no legal ground was made to appear justifying detention, the consequence was immediate release from custody, and if discharge followed, the legality of such discharge could never again be brought in question." Lord Birkenhead did not mean merely that the "discharge" itself was unassailable, but he meant that the right to the discharge in the circumstances then existing was for ever established. That appears from his words on pp. 611-613. The Attorney-General in that case attempted to do just what the Crown is attempting to do here, namely, say that all the Supreme Court did was, and all that such a Court ever does is, to say that the habeas should issue and the applicant should be discharged. The whole essence of O'Brien's Case[42] is opposed to such a contracted view of the matter, and if we were to assent to the Crown's argument we should be in direct conflict with the letter and the spirit of that case. The passage quoted from Lord Birkenhead's judgment makes it clear (1) that the judgment of the Supreme Court of the Territory is as to the right of Wah On to his freedom; (2) that the order for the issue of the habeas and for discharge is respecting only procedure to obtain, and the legal consequence of, the decision as to Wah On's right to freedom; (3) that the right to liberty so determined, whatever it may be shown to have been, can never again be disputed. In the same case Lord Dunedin puts the matter with equal clearness. He emphasises the point that the issue in habeas is whether the applicant is "entitled to be discharged." His Lordship says[43]: "The right to an order for discharge and discharge itself are only the corollaries of the judgment that the applicant is entitled to liberty." Nothing, in my opinion, could be more distinct. Lord Dunedin also refers to the "cardinal principle" of the English law that "a person once found entitled to liberty should not be liable to have that determination again called in question." Of course, it is all conditioned by the expression "by a competent Court," but the Supreme Court must now be taken to the full to have been a "competent Court."

[17]

I am, perhaps, anticipating what I have presently to say, but it is necessary at this point to make one observation. The doctrine of res judicata is a branch of the law of estoppel. Estoppel is a short term, the essential significance of which is that in the circumstances justice requires in the particular case that facts or law must be assumed as finally determined. Its growth has been gradual. Here and there we may find landmarks where Judges have nobly performed their great functions by not hesitating to adjust the inner principles of law to the conditions of society, so as more fully to effect the justice those principles were originally intended to secure. An instance is Pickard v. Sears[45]. Another illustration - consisting now of many instances - is afforded by the method of establishing that certain issues are to be regarded as res judicata, and therefore closed against judicial re-examination. To a great extent this has arisen from the changing methods of judicial procedure. What at one time was the subject of elaborate and formal and laboured recordation is frequently now to be gathered from less formal but more speedy and equally effective methods of trial. An order nisi for habeas is not an inapt instance. Reference to Holdsworth's History of English Law, vol. ix., p. 144 and subsequent pages, will elucidate this subject. It is sufficient here to say, in confirmation and further illustration of the learned author's exposition of the advancing application of this doctrine of the Courts, that there is signal evidence of the advance in the judgments of the Privy Council. Much of its modern adaptation to the growing activities of the community the law owes to the decisions of that tribunal in recent years. And the cause of justice has, in my humble judgment, never been more conspicuously served than in the common-sense rulings of the Privy Council with respect to the available sources for discovering whether or not an issue arising in a case has been already litigated and decided. I shall cite some of those rulings. In Maharaja Jagatit Singh v. Rajah Sarabjit Singh[46] Lord Hobhouse for the Privy Council says: "When a decree simply dismisses a suit, it is necessary to look at the pleadings and judgment to see what were the points actually heard and decided." In Sri Raja Rao v. Sri Raja Inuganti[47] it was said: "The decree declares the plaintiff entitled to the substantial relief claimed in the plaint; and although it does not contain a declaration that the plaintiff is the nearest reversioner, the judgment may be and ought to be looked at to see what was decided." Then their Lordships refer to a contention that the plaintiff's title had not been declared, and add the following: - "And if only the decree could be looked at, there might be some reason for it, but it would be wrong to look only at the decree. In Kali Krishna Tagore v. Secretary of State for India2(1888) L.R. 15 Ind. App. 186, at pp. 192, 193. the High Court did this, saying: We cannot look to the judgment as we were asked to do in order to qualify the effect of the decree, and then their Lordships on appeal held that in order to see what was in issue in a writ, or what has been heard and decided, the judgment must be looked at. They said: - The decree according to the code of procedure is only to state the relief granted or other determination of the suit. The determination may be on various grounds, but the decree does not shown on what ground, and does not afford any information as to the matters which were in issue or have been decided." In Hook v. Administrator-General of Bengal[49] Lord Buckmaster for the Judicial Committee examined the judgment of the Calcutta Court as pronounced, to ascertain what points were decided, and held that on those points there was estoppel. In Hoysted v. Commissioner of Taxation[50] the Judicial Committee, speaking by Lord Shaw, held that a question which was not formally stated in an earlier judgment was foreclosed for the purposes of a later case, because on examination of the law their Lordships found "it was fundamental to the earlier decision." I take leave to say that, when the habeas proceedings and judgment are examined as I have above examined them, nothing could be more properly said to be "fundamental" to the habeas decision than the declared incompetency of the Magistrate's Court, because of Wah On's Australian status. It is perfectly obvious that if recourse for this purpose to the terms of the judgment were not permissible, the basic principle of res judicata would be defeated in perhaps the most essential class of cases.

Wall v The King; Ex Parte King Won [1927] HCA 16;

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Wall v The King; Ex Parte King Won [1927] HCA 16; (1927) 39 CLR 266 (14 April 1927)