Wall v the Queen; Ex parte King Won (No 1) - [1927] HCA 4

THE KING; Ex PARTE KING WON

RESPONDENTS

THE KING; Ex PARTE WAH ON

RESPONDENTS. (No. 1.] High CourtJurisdiction-Appeal from Supreme Court of Northern Territory-

Habeas Corpus-Competent Court-Issue of writ discharging prisoner from custody-Prohibited immigrant-Prisoner held on warrant of commitment--The Constitution (63 &64 Vict. c. 12), sec. 73-Supreme Court Ordinance 1911-1922 (N.T.) (No. 9 of 1911-No. 10 of 1922), secs. 4, 21-Supreme Court Act 1856 (S.A.) (No. 31 of 1855-1856), sec. 7-Immigration Act 1901-1925 (No. 17 of 1901--No. 7 of 1925), secs. 3, 5.

Held, by Knox C.J., Gavan Duffy, Powers, Rich and Starke JJ. (Isaacs and Higgins JJ. dissenting), that sec. 21 of the Supreme Court Ordinance 1911- 1922 (N.T.) does not confer upon the High Court jurisdiction to entertain an appeal from an order made by the Supreme Court of the Northern Territory for the issue of a writ of habeas corpus discharging a prisoner from custody.

39 CLR 246

Held, also, by Knox C.J., Gavan Duffy, Powers, Rich and Starke JJ., that the Supreme Court of the Northern Territory is, by virtue of sec. 4 of the Supreme Court Ordinance 1911-1922 (N.T.) and sec. 7 of the Supreme Court Act 1856 (S.A.), a competent Court to issue writs of habeas corpus, and the fact that the Judge of that Court, on the hearing of an order nisi for habeas corpus, enters into an irrelevant inquiry, or gives insufficient or erroneous reasons for his determination, or makes the order absolute when he should discharge it, does not affect the question whether his order is the order of a [No. 1].

competent Court.

Per Isaacs J.: Although the Supreme Court of the Northern Territory is a Court competent in some circumstances to discharge on habeas corpus, it was not a Court competent to do SO in the circumstances disclosed in this case.

Per Higgins J.: Although the Supreme Court of the Northern Territory was competent to release a prisoner on habeas corpus, it was not competent to release a prisoner who (as in this case) was detained under a valid warrant of committal pending his trial.

Leave to appeal against the decisions of the Supreme Court of the Northern Territory (Roberts J.) rescinded,

APPEALS from the Supreme Court of the Northern Territory.

On 25th May 1926 two informations were sworn at Darwin, in the Northern Territory, by which Alfred George Wall charged King Won and Wah On respectively with being prohibited immigrants within the meaning of the Immigration Act 1901-1925. The informa- tions came on for hearing at Darwin before a Special Magistrate on 26th May and, on the application of the defendants' solicitor, both were adjourned until 28th July 1926. The defendants were there- upon discharged on recognizances to appear at the adjourned hearing. On 5th July the sureties took the defendants before the Special Magistrate, who discharged the sureties and the recognizances and, by warrant, committed the defendants to the custody of the keeper of the Darwin Gaol until 28th July. On 16th…

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: [1927] HCA 4
Decision Date: 18 March 1927

CaseChat Overview and Summary

The case of *Wall v the Queen; Ex parte King Won (No 1)* involved an appeal to the High Court of Australia from an order of the Supreme Court of the Northern Territory. The Supreme Court, presided over by Roberts J., had made absolute orders nisi for writs of habeas corpus, discharging King Won and Wah On from custody. The informant, Alfred George Wall, had charged the respondents with being prohibited immigrants under the *Immigration Act 1901-1925*. Following their committal to gaol pending trial, the Supreme Court ordered their discharge on the basis that they were not immigrants within the meaning of the Act, and therefore the Special Magistrate lacked jurisdiction.

The primary legal issue before the High Court was whether an appeal lay from the Supreme Court of the Northern Territory's order discharging the respondents from custody on habeas corpus. A secondary issue, raised by the appellant, was that even if an appeal generally lay, the Supreme Court of the Northern Territory was not a "competent Court" in this specific instance, thereby rendering its order appealable. The respondents, by way of preliminary objection, argued that no appeal lay from such an order.

A majority of the High Court, comprising Knox C.J., Gavan Duffy, Powers, Rich, and Starke JJ., held that section 21 of the *Supreme Court Ordinance 1911-1922* (N.T.) did not confer jurisdiction on the High Court to entertain an appeal from an order of the Supreme Court of the Northern Territory discharging a prisoner on habeas corpus. They applied the principle established in *Secretary of State for Home Affairs v O'Brien*, that an appeal from a habeas corpus discharge order will not lie unless specifically provided by legislation, and that general words in a statute are insufficient to override the fundamental right of a subject against further questioning of their liberty once discharged. The majority also found that the Supreme Court of the Northern Territory was a competent Court to issue writs of habeas corpus, and that any errors in the judge's reasoning or the grounds for discharge did not affect the competence of the Court itself. Isaacs and Higgins JJ. dissented, with Isaacs J. arguing that the Supreme Court was not competent in the circumstances as it had usurped the exclusive jurisdiction of the Magistrate's Court, and Higgins J. stating it was not competent to release a prisoner detained under a valid warrant pending trial.

Consequently, the High Court rescinded the leave to appeal that had been granted and dismissed the appeals.

Orders