Hazelton v Potter - [1907] HCA 63

HAZELTON POTTER

ON APPEAL FROM THE SUPREME COURT OF Action for false imprisonment - Arrest by police officers on foreign warrant-Justi.

fication / Reasonable belief of defendant-Mistake of law-Notice of action- Act done under authority of law honestly believed to be in force-Law of British possession - Pacific Order in Council 1893, Articles 112, 139.

The Pacific Order in Council 1893 established a High Commissioner's Court with jurisdiction over the Pacific Ocean, and the islands and places therein which were British settlements or under British protection or were under no civilized government, but exclusive of any part of the British dominions or territorial waters within the jurisdiction of the legislature of any British possession. The jurisdiction of the Court was vested in a High Commissioner and Deputy Commissioners. Article 112 of the Order in Council provides that where a person is to be removed for trial or for the execution of a sentence the Judge of the High Commissioner's Court shall issue a warrant (in a pre- scribed form) under which the person may be put ou board a British warship, or some other fit ship, and conveyed to the place named in the warrant and pending removal detained in custody, and that the warrant shall be sufficient authority to the person to whom the warrant is directed and every person acting under it or in aid of the person to whom it is directed, to take and keep the person named in it.

The appellant was convicted at Gizo in the Solomon Islands before a Deputy Commissioner and sentenced to a term of imprisonment at Fiji. The ship on which the appellant was put for the purpose of being conveyed to Fiji ended her voyage at Sydney, and while there the appellant was taken into

5 CLR 446

custody by a Sydney police officer under a warrant purporting to have been made by the Deputy Commissioner at Gizo, but actually signed in Brisbane, directed to the supercargo of the ship by name, who was commanded to convey the appellant to Sydney, and "there to deliver him to the magistrate gaoler or other officer to whom it may appertain to give effect to any sentence passed by the Court there exercising criminal jurisdiction &., that the said sentence may be carried into effect."

In an action in the Supreme Court of New South Wales by the appellant against the police officer for damages for false imprisonment:

Held, that the warrant, even if valid, afforded no justification for the arrest inasmuch as it did not authorize the conveyance of the appellant to Fiji but to Sydney, and whatever authority for the detention of the appellant it purported to confer terminated on the delivery of the appellant to the keeper of the prison in Sydney, and consequently his detention there was not a necessary act in aid of the execution of the warrant.

Held, further, that, although under a warrant duly addressed to the gaoler at Fiji, a temporary…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Hazelton v Potter

Details

AGLC: Hazelton v Potter [1907] HCA 63
Case: [1907] HCA 63
Decision Date: 9 December 1907

CaseChat Overview and Summary

The appellant, Hazelton, brought an action for false imprisonment against the respondent, Potter, a police officer in Sydney, New South Wales. Hazelton had been convicted and sentenced to imprisonment in Fiji, and was being conveyed by ship towards Fiji. The ship stopped in Sydney, where Hazelton was taken into custody by the respondent under a warrant. The warrant, purportedly issued by a Deputy Commissioner in the Solomon Islands, directed the conveyance of Hazelton to Sydney and his delivery to a Sydney magistrate or gaoler for the execution of his sentence. The Supreme Court of New South Wales entered a nonsuit, which the appellant appealed to the High Court of Australia.

The High Court was required to determine whether the warrant afforded justification for Hazelton's arrest and detention in Sydney. Specifically, the Court had to consider the scope and applicability of the Pacific Order in Council 1893, particularly Articles 112 and 139, within New South Wales. This involved assessing whether the warrant was valid on its face, whether it authorised detention in Sydney, and whether the respondent was entitled to notice of action under Article 139.

The High Court held that the warrant did not justify the detention. Even if the warrant were valid, it only authorised the conveyance of Hazelton to Sydney, and any authority for detention terminated upon his delivery to the Sydney gaoler. The Court found that the High Commissioner had no authority to direct a warrant to a Sydney gaoler or to authorise detention in Sydney, rendering the warrant invalid on its face. Furthermore, the Court determined that the respondent was not entitled to the protection of Article 139, which required notice of action, as the arrest was not an act done in pursuance or intended execution of the Order in Council. This was because Article 112, under which the respondent purported to act, was not in force in New South Wales, and the respondent could not establish an honest belief in a state of facts that would have afforded justification under the lex fori.

Consequently, the High Court reversed the decision of the Supreme Court of New South Wales, setting aside the nonsuit and ordering that the appellant's verdict for damages be reinstated.

Orders