Supreme Court.

Evening Post, Volume XXXVI, Issue 23, 27 July 1888, Page 3

Supreme Court.

This Dat. (Before His Hononr Mr. Justice Riohmond.) THE QUEEN V.. QA6PAEINI. This was an application for a rule nisi, calling upon the Crown and the Gaoler of the Wellington Gaol to show cause why they should _ not bring up the body of Francois, alias Capifcajne Gasparini, who was detained on a warrant of commitment, signed by his Excellency the officer administering the Government of New Zealand, to surrender Gasparini to the French (JVdbul, as a prisoner of the Frenoh Kopnblio, una I<)r *ke extradition treaties of 1870 and 1873 Mr. j^Hicoe appeared, instructed by the Italian Co^ 11 ! (*« e Hon. G. Fisher), to move the motion .° n behalf of the prisoner Gasparini. The grounds u*P on whioh the application was moved have ail^^y een published in a recent issue of the Evening Post, and therefore it is unnecessary to recapitulate them. Mr. Jellicoe, at great lei.'?&. cited a large number of authorities in support of the motion. Counsel contended t'oat the warrant of commitment signed by tno officer administering the government on ww 2lßt July last was not valid. This wa. T rant of committal, however, was signed fyy. Sir James Frendergast as the officer administering the government, but there was nothing in the warrant to show that the Governor was absent from the colony when it was Bigned. Whore limited jurisdiction only was granted, it must be shown on the warrant that it was co granted, but the warrant was not signed by Sir James Frendergast as Deputy-Governor. His Hononr said/there was no doubt that the warrant was signed" by Sir James Prendergast as the officer administering the government of the colony, but the warrant did not set forth that Sir James Prendergast had signed it as the deputy of the Governor. Mr. Jelliooe submitted that there was nothing on the warrant to show that it was the act of the Governor by his deputy. The warrant was still further defective, as it did not appear on the face of it that the prisoner was a fugitive criminal at large without excuse. If a man escaped from legal custody in this colony he might be re-arrested and punished, but before he could be further punished the original warrant of commitment must be produced to the esoaped prisoner's Judge. His Honour said that a man might be oonvioted and not imprisoned, because he might have been guilty ot contumacy and have fled from justioe before he underwent imprisonment. He saw nothing in this objection of counsel. Mr. Jellicoe produced authorities in support of his contention. He submitted the Governor had no jurisdiction to surrender the prisoner, unless it was shown on the warrant that the prisoner who it was sought to extradite was undergoing imprisonment at the time he became a fugitive oriminal, whioh he contended had not been so shown. A criminal fugitive should not be treatod under the Extradition Aot in the same way as a person acouaod of a orime but not convioted would be treated. There was nothing in the warrant to show that Gasparini 181 8 original sentence was still in force, or whether it had or h»d not expired. Counsel waived this point. Mr. Jellicoe further contended bat as no requisition had come from the Governor or the chief authority of the colony of New Caledonia, the prisoner was entitled to his discharge. A requisition for the surrender of the prisoner was, it is true, put in to Sir James Prenderga&t, signed by i>y tho Frenoh Consul at Wellington, but this was not sufficient, as it must be signed by the Governor or chief authority of New Caledonia. Another point was that whon the prisoner was before the offioer administering the Government as to whether the extradition treaty between England and France was or was not in existence. Such treaty could be suspended by notice being given by one of these countries, and there was nothing to show that it had not been ac terminated. His Hononr thought that the onus oi proof rested with the prisoner. Mr. Jelliooe intimated that Mr. W. P, James, olerk of the Magistrate's Court, whc took the evidence before his Exoellenoy was in Court, and had the evidence in his possession. He intended to put in the cvi dence. Mr. James informed his Hononr that h< had not asked permission of his Excellency as to whether he might produce the evidenci referred to, and withont suoh permission hi did not know if he would be acting rightly in producing the evidence. Eventually Mr. James was called, and pn in the evidence taken on the 21st July be fore the Deputy-Governor, and also thre< exhibits put in at that time. There was m

conviction drawn np at that time— only a warrant of commitment. Mr. Jellicoe pointed out that one of the exhibits, purporting to bo a copy of the certificate sent from New Caledonia, relating to the conviction of Gasparini, did not set forth the dato on which tho prisoner was convicted and sentenced in France. His Honour said that waa so, and it no doubt was a very grave omission. At tho bottom of tho document, however, he observed that the prisoner waa to be liberated in the year 1936. Mr. Jollicoe submitted that hia Honour would not accept the date upon which a prisoner was entitled to his liberty as proof of the period of hia conviction. His Honour— No, I don't say I could. Mr. Jellicoe next took exception to the remaining two exhibits, they being signed by persons whose official position was not proved, and who only surmised that from the hoivy sentence the convict was undergoing that he hod been previously convioted. Nothing, however, in the exhibits showed when the prisoner had been convicted, and throughout theso certificate exhibits there was nothing but surmises. His Honour — In dealing with the procedure of foreign countries with prison discipline, wo cannot expect it should be identical with that of our own. His Honour said that he could not expect to see the original documents. Properly-attested copies would be sufficient for the Court. Concluding his arguments, Mr. Jollicoe caid that in addition to his application for a rule nisi for a writ of Juibeax corpus he also applied for a writ of ccrtiorari to bring the French Consul's requisition for the surrender of Gasparini into Court with a view to its being quashed. Hia Honour said that many of the points raised by counsel had come upon him by surprise, and therefore he thought it would be better to give the matter Borne consideration. Ah regarded some of tho points r.iisod, he had no difficulty in over rulingthemntonce,butthere wpreothors which would require consideration, more especially as if ho found oventnally he oould not make tho rule absolute a mere waste of timo would result in grauting the motion for the rule nisi. He was rather disposed to think at piesent that, from the evidence adduced before the Deputy Governor, His Exoellenoy was justified in the course ho had pursued in issuing his warrant of commitment. Ho was informed that an application for a writ of habeas corpu* in the case of the man Cury would be made to the Court ou Monday next, and therefore it would probably be as well if he deferred giving a decision in Gasparini'a case until the motion in re Cury had been made. The Court adjourned to Monday next at 10 a.m.