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Mellifont v Attorney-General (Q)

Mellifont v Attorney-General (Q)

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Case Copied 12 December 1991 66 min read

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HIGH COURT OF AUSTRALIA

Mason C.J., Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ.

MELLIFONT v. ATTORNEY-GENERAL (Q.)

(1991) 173 CLR 289

12 December 1991

High Court—Criminal Law (Q)

High Court—Appellate jurisdiction—Appeal from judgment, decree or order—Reference by Attorney-General to Court of Criminal Appeal of point of law that arose at trial at which accused acquitted or discharged—Whether appeal to High Court from determination of point of law—The Constitution (63 and 64 Vict. c. 12), s. 73—The Criminal Code (Q.), s. 669A(2), (4), (5). Criminal Law (Q.)—Perjury—False testimony touching matter material to question in proceeding—Materiality—Whether relates to false statement or matter—The Criminal Code (Q.), s. 123.

Decisions

MASON C.J., DEANE, DAWSON, GAUDRON AND McHUGH JJ. This is an application for special leave to appeal from a decision of the Court of Criminal Appeal of Queensland. At the outset, there is the question whether this Court would have jurisdiction to entertain any appeal in the event that special leave were granted. It is necessary to examine the history of the proceedings in some detail in order to appreciate the circumstances in which the question of jurisdiction arises.
History of the proceedings

2. On 26 May 1987, the "Fitzgerald Inquiry" ("the Inquiry"), as it popularly became known, was established by an Order in Council pursuant to the Commissions of Inquiry Act 1950 (Q.) "to make full and careful inquiry with respect to" certain matters. Paragraphs numbered 1, 2 and 3 of the Order in Council defined or described those matters. Paragraph 1 was expressed in the form of a question and it commenced with the words "Whether during the period 1st June, 1982 to 26th May, 1987" and went on to ask whether certain named persons or any of them and, if so, which of them or any person on behalf of any of them was or were directly or indirectly concerned with or involved in the use, keeping, management or control of premises in Queensland for any of certain enumerated purposes, including "(u)nlawful gambling". The paragraph also included police involvement in those activities and the giving or the offer of inducements by the named persons to police officers as elements in the terms of reference. The Order in Council was published on 26 May 1987 in the Queensland Government Gazette ("the Gazette").

3. That Order in Council was superseded by an Order published in the Gazette of 24 June 1987. This Order omitted "all the provisions" of the Order in Council of 26 May 1987 "relating to the subject matter of the inquiry" and substituted new provisions in their place. The new provisions, so far as they are material to the present case, related to par.1 and the definition of the term "member of the police force". For present purposes, the critical alteration effected by the second Order in Council was that the opening words of par.1 were altered to "Whether during the period since 1 January 1977", no terminating date being specified. The substance of the paragraph was also amended…

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.

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Details

Case: [1991] HCA 53
Decision Date: 12 December 1991

CaseChat Overview and Summary

The High Court of Australia considered an appeal by Mr. Mellifont against the Attorney-General of Queensland concerning the validity of his detention under the *Criminal Code* (Qld). Mr. Mellifont had been arrested and detained for questioning in relation to a serious criminal offence. He sought a writ of habeas corpus, arguing that his detention was unlawful.

The central legal issue before the Court was whether the power of arrest and detention conferred by section 546 of the *Criminal Code* (Qld) was constitutionally valid. Specifically, the Court had to determine if this power, which allowed for detention for the purpose of questioning, was inconsistent with the implied constitutional prohibition against the executive government exercising judicial power. The Court also considered whether the detention was authorised by the *Criminal Code* itself.

The majority of the High Court held that section 546 of the *Criminal Code* (Qld) was invalid. The Court reasoned that the power to detain a person for questioning, without charge, constituted an exercise of judicial power by the executive. This was found to be contrary to the separation of judicial and executive powers inherent in the Australian Constitution. The Court distinguished this power from the power to arrest and detain for the purpose of bringing an arrested person before a court, which is a legitimate executive function. The Court also found that, even if the section were valid, the detention in this particular case was not authorised by the *Criminal Code*.

Consequently, the High Court allowed the appeal and ordered that the writ of habeas corpus should issue, meaning Mr. Mellifont's detention was declared unlawful.

Orders