Mason C.J., Wilson, Brennan, Deane, Dawson, Toohey and Gaudron JJ.
Re: COMMANDER CHRISTOPHER BOLTON, CAPTAIN H.M.A.S. "PENGUIN" AND THE HONOURABLE KIM CHRISTIAN BEAZLEY, THE MINISTER OF STATE FOR DEFENCE Ex Parte DOUGLAS BEANE F.C. 87/012
9 April 1987
Decisions
MASON C.J., WILSON and DAWSON JJ.: We have had the advantage of reading the reasons for judgment prepared by Gaudron J. We agree with the conclusion to which her Honour has come and in substance with her reasons for reaching that conclusion. However, we wish to add some observations of our own.
2. The first and primary question to be resolved in this case is whether the warrant under which Mr Beane was arrested and detained was authorized by s.19 of the Defence (Visiting Forces) Act 1963 (Cth), as amended ("the Act"). Ultimately, the answer is to be found in the proper construction of the provisions of the Act rather than by reference to the undisputed values securing the liberty of the individual that for centuries have illumined the common law. The respondents say no more and no less than that Mr Beane's apprehension and detention are strictly in accordance with the Act. They readily accept the abiding principles of the common law. The process of construction is in this case a difficult one and it is not surprising that reasonable minds may differ in the conclusions to which they come, as indeed has happened here.
3. It is said that Mr Beane is a deserter or absentee without leave from the armed forces of the United States of America. It is alleged that the desertion or absenting without leave occurred in Vietnam in 1970. The allegation remains an issue between the parties and its resolution has been reserved pending the decision of the Court on the questions of law that have been canvassed.
4. There are powerful arguments, as appears from the reasons for judgment of Toohey J., in support of the respondents' contention that on its proper construction s.19 of the Act authorizes the arrest in Australia of a deserter or absentee without leave from the forces of a country to which the section applies notwithstanding that the desertion or absenting occurred outside Australia. There are the textual matters that tend to distinguish Part III of the Act from Part II, thereby emphasizing that s.19 is not intended to be confined to deserters or absentees from visiting forces while in Australia. Furthermore, given that s.19 is ambiguous, consideration may be given in ascertaining the meaning of the provision to the second-reading speech of the Minister when introducing the Bill for the Act into the House of Representatives in 1963: Acts Interpretation Act 1901 (Cth), as amended, s.15AB. That speech quite unambiguously asserts that Part III relates to deserters and absentees whether or not they are from a visiting force. But this of itself, while deserving serious consideration, cannot be determinative; it is available as an aid to interpretation. The words of a Minister must not…
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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AGLC
Re Bolton; Ex parte Beane [1987] HCA 12
Case
[1987] HCA 12
Decision Date
CaseChat Overview and Summary
The High Court of Australia considered an application for a writ of prohibition by Mr. Beane against Mr. Bolton, a magistrate. The dispute concerned the validity of a search warrant issued by the magistrate, which Mr. Beane contended was invalid.
The central legal issue before the High Court was whether the search warrant, which authorised the search of premises for "any documents or other things which may afford evidence of the commission of an offence", was sufficiently particular to satisfy the requirements of section 32 of the Justices Act 1902 (NSW). This involved determining the scope of the particularity required for search warrants under that legislation and its relationship with the common law.
The Court held that the warrant was invalid for lacking sufficient particularity. Mason C.J. and Wilson J. found that the description of the items to be seized was too general and did not specify the nature of the suspected offence or the particular documents sought. Brennan J. agreed, emphasizing that a warrant must specify the offence to which the evidence relates. Deane and Dawson JJ. also concluded that the warrant was too broad, failing to particularise the evidence or the offence. Toohey and Gaudron JJ. dissented, finding the warrant to be valid.
The High Court made orders absolute for the writ of prohibition, quashing the search warrant.