Re Officer in Charge of Cells, ACT Supreme Court; Ex parte Eastman

[1994] HCA 36

HIGH COURT OF AUSTRALIA

DEANE J

RE OFFICER IN CHARGE OF THE CELLS, A.C.T. SUPREME COURT

(1994) 123 ALR 478

31 August 1994

Orders

Application dismissed.

Decision

DEANE J Before me is an ex parte application by Mr David Harold Eastman for a writ of habeas corpus addressed to the "Police Officer
in Charge of the Cells, A.C.T. Supreme Court, Knowles Place, Canberra". The application is supported by an affidavit sworn by Mr Eastman on 29 August last which discloses that he is "currently" detained in custody in those "Cells". By arrangement between the authorities and himself, Mr Eastman was brought to the Court and appeared in person before me. The Director of Public Prosecutions, Mr Rozenes QC, also appeared to indicate his preparedness to assist the Court as amicus curiae, should that be desirable.

2. Logically, the first question to be considered is whether a Justice of this Court possesses jurisdiction to order the issue of a writ of habeas corpus in the circumstances of this case. The basis upon which the application was presented is stated in Mr Eastman's affidavit as being that the "Police Officer" to whom the writ would be directed is an officer of the Commonwealth "within the meaning of s.75 of the Constitution" presumably with the intended consequence that the application falls within the original jurisdiction of the Court under par.(v) of that section. However, the jurisdiction conferred by s.75(v) is limited to proceedings in which a writ of "Mandamus or prohibition or an injunction is sought". The present are not such proceedings. It is true that s.33(1)(f) of the Judiciary Act 1903 (Cth) in terms empowers this Court to "direct the issue of writs ... of habeas corpus". It has, however, been held that the power to order the issue of such a writ under s.33(1)(f) can be exercised only as an incident of the exercise of the original or appellate jurisdiction of the Court under other provisions ((1) See Jerger v. Pearce (1920) 28 CLR 588 at 590; Ex parte Williams (1934) 51 CLR 545 at 548; R. v. Bevan; Ex parte Elias and Gordon (1942) 66 CLR 452 at 462, 465, 480; Re Superintendent of Goulburn Training Centre; Ex parte Pelle (1983) 57 ALJR 679 at 679; 48 ALR 225 at 226; Re Clarkson (1985) 60 ALJR 677 at
678; 69 ALR 286 at 288.). In the course of a careful argument, Mr Eastman took me to the relevant authorities and submitted that I should not follow them for the reason that they consisted essentially of assertions unaccompanied by reasoned explanation. I am not, however, prepared to decline to follow them at least sitting as a single judge at first instance. On the other hand, it may well be arguable that the present proceedings come, or can be framed to come, within s.75(iii) of the Constitution or some other provision conferring original jurisdiction upon the Court ((2) Compare, e.g., Ex parte Pelle (1983) 57 ALJR at 680; 48 ALR at 228.). In that regard, Mr Eastman foreshadowed that he would, if necessary, seek to amend his application to seek relief by way of prohibition or injunction. However, for reasons which will appear, it is unnecessary that I pursue that question.

3. The application involves no significant question of constitutional law and is likely to turn on its own facts. Obviously, and quite apart from doubts about jurisdiction, it is undesirable that such an application be initiated in this Court in circumstances where there is another court, the Supreme Court of the Australian Capital Territory, which possesses jurisdiction and which is obviously a more appropriate venue for the resolution of such matters at first instance. Part of Mr Eastman's affidavit is directed to explaining why the proceedings were not instituted in the Supreme Court. What is said there would be relevant if, as would ordinarily be the case, the question whether the application should be immediately remitted to the Supreme Court fell to be considered at the outset. Again, however, for reasons which will appear, it is unnecessary that I pursue that question.

4. As I read Mr Eastman's affidavit and as he made clear in the course of his oral argument, the attack which he wishes to launch upon the lawfulness of his detention in custody is directed to the circumstances of his arrest by officers of the Australian Federal Police on 29 July 1994. He has orally informed me that, at the time of that arrest, he was on bail awaiting trial on a charge of murder. It was apparently alleged against him that, while on such bail, he had been making "offensive phonecalls".

5. Mr Eastman claims that his arrest was illegal for two distinct reasons, namely, that the arresting police did not have an original or complete warrant in their possession and that the whole process of arrest had constituted an abuse of process in that there had been deliberate and unjustifiable delay in executing any warrant and that that delay had been motivated by improper reasons. The affidavit discloses, however, that Mr Eastman is not at present held in custody under the authority of any warrant for his arrest. He has been and is held in custody pursuant to a series of orders made by magistrates of the A.C.T. Magistrates Court. His claim is that his detention in custody pursuant to those orders was and remains illegal for the reason that his original arrest was illegal. For the purposes of an application for a writ of habeas corpus, however, the answer to that claim is that, on each occasion when the matter came before a magistrate of the A.C.T. Magistrates Court, the learned magistrate was required to consider and determine whether an order could properly be made, and whether an order should be made, that Mr Eastman be remanded in custody and that, on each occasion, the magistrate made such an order. Apparently, none of the orders so made has been overridden by a subsequent bail order or has subsequently been set aside in appellate proceedings.

6. The writ of habeas corpus is an important safeguard of liberty in circumstances where a person is being detained in custody without lawful warrant or authority. It is not, however, available as a means of collaterally impeaching the correctness of a judgment or order made by a court of competent jurisdiction which is not shown to be a nullity. There is nothing at all in the material before me which provides an arguable basis for a finding that the order made by any of the learned magistrates was vitiated by absence or excess of jurisdiction or is otherwise void. That being so, those orders, while they stand, provide an answer to Mr Eastman's present application.

7. Accordingly, and quite apart from the question of the jurisdiction of the Court, the application for a writ of habeas corpus must be dismissed.