Wall v the Queen; Ex parte King Won (No 1)

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.