Re Bolton; Ex parte Beane [1987] HCA 12

High Court of Australia Mason C.J. Wilson, Brennan, Deane, Dawson, Toohey and Gaudron JJ. Re Bolton; Ex parte Beane [1987] HCA 12

ORDER

1. Direct that the prosecutor be discharged from the custody of the first respondent.

2. Order nisi for prohibition to the second respondent be made absolute.

3. Order that the costs of the prosecutor be paid by the respondents.

Cur. adv. vult.

The following written judgments were delivered:—

April 9 Mason C.J., Wilson and Dawson JJ.

We have had the advantage of reading the reasons for judgment prepared by Gaudron J. We agree with the conclusion to which her Honour has come and in substance with her reasons for reaching that conclusion. However, we wish to add some observations of our own.

The first and primary question to be resolved in this case is whether the warrant under which Mr. Beane was arrested and detained was authorized by s. 19 of the Defence (Visiting Forces) Act 1963 Cth, as amended ("the Act"). Ultimately, the answer is to be found in the proper construction of the provisions of the Act rather than by reference to the undisputed values securing the liberty of the individual that for centuries have illumined the common law. The respondents say no more and no less than that Mr. Beane's apprehension and detention are strictly in accordance with the Act. They readily accept the abiding principles of the common law. The process of construction is in this case a difficult one and it is not surprising that reasonable minds may differ in the conclusions to which they come, as indeed has happened here.

It is said that Mr. Beane is a deserter or absentee without leave from the armed forces of the United States of America. It is alleged that the desertion or absenting without leave occurred in Vietnam in 1970. The allegation remains an issue between the parties and its resolution has been reserved pending the decision of the Court on the questions of law that have been canvassed.