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R v Bevan; ex parte Elias and Gordon

R v Bevan; ex parte Elias and Gordon

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Case Copied 8 July 1942 70 min read

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BEVAN AND OTHERS; Ex PARTE ELIAS AND GORDON. Defence-Navy-Commonwealth ships and personnel unconditionally transferred to

the King's naval forces-Murder on transferred ship by transferred personnel Court-martialPower to impose death sentence-Naval Discipline Act 1866 (Imp.) (29 &30 Vict. c. 109), secs. 45, 53 (1)-Naval Discipline (Dominion Naval May 4;

Forces) Act 1911 (Imp.) (1 &2 Geo. v. c. 47), sec. 1-Defence Act 1903-1941 July 8.

(No. 20 of 1903-No. 4 of 1941), secs. 88, 98-Naval Defence Act 1910-1934 (No. 30 of 1910-No. 45 of 1934), secs. 5, 35, 36, 42. Constitutional LawDefence-Courts-martial-Legislative power of Commonwealth

-The Constitution (63 &64 Vict. C. 12), sec. 51 (vi.), (xxxix.). High CourtJurisdictionConstitutional question-Complete jurisdiction over whole

matter-Habeas corpus-Officers of the Commonwealth-State officers-The Constitution (63 &64 Vict. c. 12), sec. 75 (v.)-Judiciary Act 1903-1940 (No. 6 of 1903-No. 50 of 1940), secs. 30, 33.

Officers and seamen of the Commonwealth naval forces who are transferred unconditionally to the King's naval forces pursuant to sec. 42 of the Naval Defence Act 1910-1934 are placed at the disposal of the admiralty" within the meaning of the proviso to sec. 1 (1) of the Naval Discipline (Dominion Naval Forces) Act 1911 (Imp.). The Naval Discipline Act 1866 (Imp.) as amended applies to such officers and seamen without any modifications or adaptations made by Commonwealth law in applying that Act to the Com-

Held, accordingly, by the whole Court, that a seaman of the Commonwealth naval forces who has been unconditionally transferred to the King's naval forces and who has been found guilty of murder by a court-martial may be sentenced to death in accordance with sec. 45 of the Naval Discipline Act 1866 (Imp.), notwithstanding the provisions of sec. 98 of the Defence Act

66 CLR 453

Held, further, by Starke, McTiernan and Williams JJ., that legislation providing for the trial by court-martial of members of the defence forces is a valid exercise of the defence power.

The matter came before the Court upon the return of a rule nisi for a writ of habeas corpus directed to the members of a court-martial which had con- Commonwealth naval forces to the King's naval forces, and to two officers of the State of New South Wales, in whose custody the convicted seamen were.

Held, by Rich J., that the Court had no jurisdiction SO far as concerned monwealth by Starke and Williams JJ., that, as the interpretation of the Constitution was involved, the Court was clothed with the full authority essential for the complete adjudication of the matter and that the Court's jurisdiction was not lost by reason of the rejection of the constitutional point.

RULES NISI for habeas corpus, or, alternatively, prohibition.

Rules nisi had been obtained by Edward Joseph Elias and Albert Ronald Gordon, members of the naval forces of the Commonwealth, calling upon the respondents to show cause why a writ of habeas corpus should not be issued directed to them to have the bodies of Elias and Gordon before the…

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: [1942] HCA 12
Decision Date: 8 July 1942

CaseChat Overview and Summary

The case of *R v Bevan; ex parte Elias and Gordon* concerned two members of the Commonwealth naval forces, Elias and Gordon, who had been convicted of murder by a court-martial and sentenced to death. They sought a writ of habeas corpus or, alternatively, a writ of prohibition, arguing that the court-martial lacked the power to impose a death sentence. The respondents included the members of the court-martial and state officials holding the applicants in custody. The matter was heard by the Full Court of the High Court of Australia.

The central legal issue was whether a court-martial convened under Commonwealth legislation had the power to sentence members of the Commonwealth naval forces to death for murder, notwithstanding the provisions of section 98 of the *Defence Act 1903-1941* which restricted the death penalty to specific offences and required confirmation by the Governor-General. This question involved the interpretation of the *Naval Defence Act 1910-1934*, the *Naval Discipline Act 1866* (Imp.), and the *Naval Discipline (Dominion Naval Forces) Act 1911* (Imp.), particularly in circumstances where Commonwealth naval personnel had been unconditionally transferred to the King's naval forces. A further issue concerned the jurisdiction of the High Court to grant the requested relief.

The Court held that officers and seamen of the Commonwealth naval forces unconditionally transferred to the King's naval forces under section 42 of the *Naval Defence Act 1910-1934* were placed "at the disposal of the admiralty" within the meaning of the *Naval Discipline (Dominion Naval Forces) Act 1911*. Consequently, the *Naval Discipline Act 1866* applied to them without modification or adaptation by Commonwealth law. Section 45 of the *Naval Discipline Act 1866* prescribes death as the penalty for murder. Therefore, the court-martial had the power to impose the death sentence, notwithstanding section 98 of the *Defence Act 1903-1941*. The Court also determined that legislation providing for the trial by court-martial of members of the defence forces was a valid exercise of the defence power. Regarding jurisdiction, while one judge initially questioned the Court's authority to issue habeas corpus against state officers in this context, the majority found that the involvement of a constitutional question clothed the Court with full jurisdiction to adjudicate the entire matter.

The applications for writs of habeas corpus and prohibition were refused.

Orders