Ammann v Wegener [1972] HCA 58

High Court of Australia Barwick C.J. McTiernan, Menzies, Walsh, Gibbs, Stephen and Mason JJ. Ammann v Wegener [1972] HCA 58

ORDER The question referred to the Court under s. 18 of the Judiciary Act 1903-1969 Cth answered in the negative. The applicants to pay the firstnamed respondent's costs of the hearing before the Full Court.

Cur. adv. vult.

The following written judgments were delivered:—

Nov. 15 Barwick C.J.

A Justice of this Court having before him a cause removed into this Court from the Supreme Court of New South Wales has directed the following question to be argued before a Full Court:

Whether the provisions of s. 16 (2) of the Service and Execution of Process Act, 1901-1968, insofar as those provisions confer or purport to confer authority upon a police, stipendiary, or special magistrate, having jurisdiction in the State of South Australia to issue in the circumstances provided by s. 16 (2) a warrant for the apprehension of a person in any other State or part of the Commonwealth for the purpose of requiring that person to appear and give evidence at the preliminary examination under Pt V of the Justices Act, 1921-1969, SA, of an information for an indictable offence are invalid on the ground that the said provisions are not a law with respect to the service and execution throughout the Commonwealth of the civil and criminal process and the judgments of the courts of the States within the meaning of s. 51 (xxiv.) of the Commonwealth of Australia Constitution Act.

The cause is an application made to the Supreme Court of New South Wales for a review of an order, made by a stipendiary magistrate in Sydney, that the applicant be admitted to bail on condition that she appear at the Adelaide Magistrate's Court on a certain day there to testify before a special magistrate conducting a preliminary examination in connexion with a complaint that a defendant therein named had at Prospect in the State of South Australia committed an indictable offence, namely, that he did unlawfully use an instrument with intent to procure the miscarriage of the applicant, contrary to s. 81 of the Criminal Law Consolidation Act, 1935-1971 SA.