Ex parte Williams [1934] HCA 48; (1934) 51 CLR 545 (2 November 1934)

I agree. I think the order of the Supreme Court of New South Wales is that of a Court authorized by law to determine its own jurisdiction conclusively, and the validity of the order cannot be questioned upon an application for a writ of habeas corpus. Moreover, I am of opinion that, even if the same question as was dealt with upon the application for special leave (Williams v. The King [No. 2][1]) could be raised upon the return of an order nisi, an even division of opinion upon the Bench would result in the failure of the application, because it would be one in which the order of the Supreme Court would be called in question within the meaning of sec. 23 (2) (a) of the Judiciary Act.

In my opinion, the application should be refused, for two reasons. The first is that the Constitution and the Judiciary Act confer no jurisdiction upon this Court to grant a writ of habeas corpus in this case. The grant of the writ by this Court must attach itself either to the appellate or to the original jurisdiction. There is no appeal, and the appellate jurisdiction cannot be invoked. The original jurisdiction depends upon the provisions of the Constitution, sec. 75, and of the Judiciary Act, sec. 30. The provisions of sec. 75 of the Constitution do not warrant the application, for there is no matter within that section. The contention then is that sec. 30 of the Judiciary Act warrants the application, because, it is said, it is a matter "arising under the Constitution or involving its interpretation." But the only matter involved is the interpretation of the Criminal Appeal Act of New South Wales. The constitutional validity of sec. 39 of the Judiciary Act is not involved in the application. The second reason is that a writ of habeas corpus does not lie where a person is in execution on a criminal charge after judgment in due course of law (see Short and Mellor, Practice of the Crown Office, 2nd ed. (1908), p. 310).

I agree in thinking that the rule nisi should be refused. This matter arises in a curious way. The prisoner was sentenced to eighteen months' imprisonment by a Court of Quarter Sessions in New South Wales, after conviction upon indictment for an offence against the laws of the Commonwealth. Upon an appeal by the Federal Attorney-General to the Supreme Court, under sec. 68 of the Judiciary Act, and sec. 5D of the Criminal Appeal Act 1912-1924 of New South Wales, his sentence was increased. From that order increasing the sentence, he sought special leave to appeal to this Court, and upon that application his counsel argued matters which included the construction of sec. 5D of the State Criminal Appeal Act and of sec. 68 of the Commonwealth Judiciary Act, and the validity of the law resulting from the combination of those two enactments. This Court being equally divided in opinion, the application for special leave failed. The Chief Justice was among the Justices who took a view favourable to the prisoner. The original sentence of eighteen months has now expired, and the prisoner seeks to challenge, by a writ of habeas corpus, the legality of his continued imprisonment under the order of the Supreme Court, which, he says, is invalid as made without jurisdiction.

If I thought it possible for the prisoner to obtain by this method the benefit of the provision in the Judiciary Act, sec. 23 (2) (b), which makes the opinion of the Chief Justice prevail in an equally divided Court, when there is not called in question a decision of the Supreme Court or of a Justice of the High Court, I should not have been disposed to refuse him his order nisi, although, of course, the opinion which I expressed upon the application for special leave would lead me to think that the order nisi on its return should be discharged. But, in my opinion, it is not possible for him to obtain by that method the advantage of the effect given by sec. 23 (2) (b) to the Chief Justice's view. It may be that the dismissal of the application for special leave does not operate as an estoppel by judicial decision binding the parties to the habeas proceedings, which ought, therefore, to be decided by the members of the Court according to the opinions which they have already expressed if they continue to entertain them. But even so, there appear to be two barriers to success.

I am of opinion that it is not possible to challenge upon habeas corpus proceedings the validity of such an order of the Supreme Court as that which increased the prisoner's sentence. That writ cannot be granted when the prisoner is held under an actual order or sentence, unless the Court making the order exceeded its jurisdiction so that the order is a nullity. But the Supreme Court is a superior Court of record having general jurisdiction. It may not be true that such a Court has in all cases an authority to determine its own jurisdiction, which makes it impossible ever to treat its orders as nullities, but it is in this particular instance true that it had authority conclusively to determine the existence of its own jurisdiction, and so, whether it correctly determined it or not, to make an order which was a valid judicial order, and not a mere nullity operating to give no authority to hold the prisoner. By virtue of sec. 39 of the Judiciary Act, the Supreme Court is invested, not only with all the Federal jurisdiction which the Parliament has conferred on this Court, but also, subject to immaterial exceptions, with all the Federal jurisdiction which the Parliament could confer on this Court; and that jurisdiction is conferred in addition to, or, as the case may be, in substitution for, the jurisdiction which the Court possessed under State law. It was for it to decide the scope and operation of sec. 68 of the Judiciary Act and the other relevant enactments, and that decision, in my opinion, resulted in a binding judicial order, and not in a nullity, an order the validity of which cannot be challenged in this way. It is not to be expected that cases exactly like the present would arise under the system in England, but the conclusion I have expressed appears to me to be supported by R. v. Lees[2]. There the prisoner had been convicted by the Supreme Court of St. Helena upon an indictment charging an assault with intent to murder, committed upon the high seas on a ship not alleged to be a British ship by a prisoner not alleged to be a British subject. It was sought to obtain an order nisi, upon the ground that the Supreme Court of St. Helena had no jurisdiction unless it was a British ship or the offence was committed in respect of British subjects. But the Court refused to allow a writ of habeas corpus, or any other prerogative writ, saying:—"A writ of habeas corpus, to the expediency of granting which we have also directed our attention, is not grantable in general where the party is in execution on a criminal charge, after judgment, on an indictment according to the course of the common law. And, even supposing it could run to St. Helena, it could only be useful as ancillary to or accompanying a writ of error, as it is only by writ of error that such judgment, according to the course of the common law, can properly be reversed: until the judgment be reversed, the prisoner ought not to be discharged"[3]. In re Dunn[4], also supports the same position; and in the United States there is a clear statement of the position in Terlinden v. Ames[5], where Fuller C.J. said: "The settled rule is that the writ of habeas corpus cannot perform the office of a writ of error."

The second reason why I think the order nisi would fail, and that in any event it would be impossible for the prisoner to obtain the benefit of par. (b) of sec. 23 (2) of the Judiciary Act, is that the proceedings would, in my opinion, "call into question" the order of the Supreme Court within the meaning of par. (a). I agree with the submission of Mr. Gowans that the words "or otherwise" in par. (a) of sec. 23 (2) are to be read as ejusdem generis with the word "appeal," but I think this application comes within the words so read. The word "appeal" covers everything in the nature of a direct review of the decision by a procedure which falls within the Court's appellate power, and the words "or otherwise" apply to any collateral examination of the correctness of a judicial decision, attacked whether by certiorari, prohibition, or habeas corpus. The word "decision" in sec. 23 (2) appears to me to refer to the judgment or order, and not the ratio decidendi. The result is that in the event of a further equal division of opinion in this Court, the decision of the Supreme Court would still stand.

As a general rule it is preferable that applications such as the present, which raise important questions of law, should be granted, so that the questions may be fully debated on the return of the order nisi. But it has been made sufficiently obvious during argument that, if granted, the order would ultimately be discharged; and, on that account, I concur in the order proposed.

As at present advised, I am of opinion that this Court, in the exercise of its original jurisdiction, is not empowered to grant a writ of habeas corpus in this case. None of the grounds relied upon by the applicant involve any question arising under, or involving the interpretation of, the Constitution. The applicant merely raises a question as to the meaning and application of a Federal statute. The present case is quite distinct from Ex parte Walsh and Johnson; In re Yates[6], where, although the habeas was granted upon grounds not directly involving the interpretation of the Constitution, such interpretation was involved and the Court assumed seisin of the case because it was involved.

I agree that the application should be refu sed. It is, I think, doubtful whether it comes within the Constitution or the Judiciary Act. But I rest my decision on considerations arising under sec. 23 (2) (b) of the Judiciary Act. This application, in my opinion, does call in question the decision of the Court of Criminal Appeal of New South Wales, which is the Supreme Court of the State. The applicant would not ultimately succeed if an order nisi were granted, as there was an equal division in this Court on the question of whether the Court of Criminal Appeal had power to make the order by which the applicant is aggrieved.

[1] [1934] HCA 19; (1934) 50 C.L.R. 551.

[2] [1860] EngR 858; (1858) E.B. & E. 828; 120 E.R. 718; 27 L.J. Q.B. 403.

[3] (1858) E.B. & E. 827, at p. 836; [1871] EngR 23; 20 E.R. 718, at p. 721.

[4] [1847] EngR 933; (1847) 5 C.B. 215; 136 E.R. 859.

[5] [1902] USSC 53; (1901) 184 U.S. 270, at p. 278.

[6] [1925] HCA 53; (1925) 37 C.L.R. 36.

High Court of Australia

Ex parte Williams [1934] HCA 48; (1934) 51 CLR 545 (2 November 1934)

HIGH COURT OF AUSTRALIA