Nolan v Clifford

Nolan, the appellant, appealed an interlocutory judgment of the Supreme Court of New South Wales, which had dismissed his application for a writ of habeas corpus. The application sought the release of Clifford, the respondent, who had been arrested by a constable without a warrant. The dispute centred on the legality of this arrest, which was purportedly made under section 352 of the *Crimes Act 1900* (NSW) for an alleged offence under section 47 of the *Impounding Act 1898* (NSW).

The primary legal issue before the Full Court of the High Court of Australia was whether the constable had the lawful power to arrest Clifford without a warrant for the offence under the *Impounding Act*. This required the Court to construe section 352 of the *Crimes Act*, specifically the phrase "such crime," and determine if it encompassed offences created by other statutes, such as the *Impounding Act*. A secondary issue arose concerning whether the appeal, which concerned an interlocutory judgment, could proceed without leave, and whether the point regarding the absence of a warrant, not having been taken in the court below, could be raised on appeal.

The Court held that section 352 of the *Crimes Act* conferred power on a constable to arrest without warrant for any crime, felony, or misdemeanour, and that the term "such crime" was not limited to crimes created by the *Crimes Act* itself. Instead, it referred to any crime that a constable had reasonable grounds to suspect had been committed. The Court further determined that the offence under section 47 of the *Impounding Act* constituted a crime for the purposes of section 352. Regarding the procedural points, the Court found that an appeal from an interlocutory judgment generally required leave, but that the specific circumstances of the case, particularly the fundamental nature of the question of lawful arrest, warranted allowing the appeal to proceed without leave. The Court also permitted the point regarding the warrant to be raised on appeal, as it was a matter of law that went to the root of the respondent's detention.

The High Court allowed the appeal, set aside the order of the Supreme Court, and remitted the matter to the Supreme Court with a declaration that the arrest was lawful.