NELSON APPEAL.

Auckland Star, Volume LXV, Issue 153, 30 June 1934, Page 12

NELSON APPEAL.

DIVIDED COURT. ALL CONVICTIONS TO STAND. IMPRISONMENT ENDED. (By Telegraph.—Owd Correspondent.) WELLINGTON", Friday. The effect of the Full Court's judgment in the appeal of Olaf Frederick Nelson is that his sentence of ten years' exile from Snmoa stands, but he will not be required to return to prison. Three members of the Court, Mr. Justice Blair dissenting, wore of opinion that two of the convictions should he. affirmed. Regarding the third conviction the Court was equally divided. Mr. Juslice Herdraivn and Mr. .Justice Reed beiii" of opinion it should bo affirmed Chief Justice and Mr. Justice Blair holding the contrary view. The present English practice in such circumstances was followed, and the result was that the three convictions were affirmed.

"As to the question of sentence," said the Chief Justice, Sir Michael Myers, "I think that what may perhaps be regarded as the major conviction cannot, in" my view, be supported, and as the other" offences may be regarded as offences of a political nature, for which the more appropriate sentence is exile, the sentence of imprisonment should be reduced to three weeks, to the intent that the term should cease as from March 28, 1034, being the dale when appellant was liberated on bail.

"Having regard to the history of the Man and appellant's connection with it, I do not think the sentence, so far .as the- period of exile is concerned, should bo disturbed. The GoveiiKff-Geueral lias power at any time to deal with this part of tho sentence under section 244 if he thinks the conditions warrant his so acting."

New Zealand's Powers. It "was contended by counsel foi appellant that section 45 of the Samoa Act was ultra vires tlie New Zealanc' Legislature because: (1) The Legisla ture had no authority to delegate i general power to make regulations; (2] the judgment of the Full Court ii Tagaloa v. the inspector of police regarding the plenitude of powei enjoyed by the Legislative Council o: Western Samoa under section 4G musi be read subject to tlie terms of the man date; and (3) that in this resped section 45 was in precisely the sami position. as section 40, and tli-erefon both sections were ultra vires. Discussing these submissions th< Chief Justice, in his judgment, expresset the view that New Zealand had ful power of administration and legislatioi over Samoa, subject only to the terms o the mandate from the League o: Nations. His Honor referred to certaii stipulations and undertakings in £lie mandate, and said that subject only t< these, it seemed to him that the Parlia ment of New Zealand bad the fulles' possible power of legislation over Samoa If it thought fit to delegate any or al its powers to the Governor-General-in Council, he could seen 110 reason in lav for saying that an Act passed for tlia purpose would not be perfectly valid. In the Chief Justice's opinion botl (section 45 and section 46 of the Sarno; Act were intra vires. The extent of thi powers conferred by section 45 (cal them delegated powers if one would was, in bis opinion, a matter purely o interpretation. Question of "Sedition." Counsel for appellant then contendei iipon a number of different grounds that the seditious organisation regula tions were invalid. With these variou grounds bis Honor dealt separately - and at considerable length. He though counsel for appellant was right to thi extent that a person who was chargei with aiding and abetting the activitie or objects of a proclaimed sedition, organisation was deprived of his righ to require that the fact of seditioi should be proved. To that extent, therefore, his Ilono was of opinion that paragraph (4) o Regulation No." 3 was inconsistent wit section 102 of the Act, and. therefor invalid. In his opinion the convictio for aiding and abetting should b quashed,, and the other two conviction under paragraph (1) of clause (3) of th regulations affirmed. Other Judges' Views. Holding that no" good reason existei for questioning the legality of the pro ceedings against the appellant,.Mr. Jus tice Herdman stated that, subject toth limits, if any, imposed by the mandate the power of the New Zealand Parlia ment to legislate for Samoa was- suprem and unassailable, and could not be ques tioned. The regulations were not repug nant to the statute and. were therefor intra vires. The ends of justice woul be well served if the sentence of banisli ment stood and- the imprisonment wer cancelled. Mr. Justice Reed's judgment state that New Zealand has the fullest legis lative powders as regards Samoa, unham pered by the Constitution Act or an; other restraining authority. Therefore section 45 of the Samoa Act is intr; vires. As to regulations, the statut places no limit on the penalties whicl may be imposed, and therefore thi penalty of imprisonment is not ultr: vires. New Zealand's Good Intentions. On the question of mitigation of sen tence Mr. Justice Reed said: "It is no in dispute that appellant is an honest straight-forward, generous man. It i; clear he is obsessed with the- idea thai the Samoans are not being properh governed. There, is no suggestion, anc never has been, that New Zealand if exploiting Samoa. Even the worst enemies of its administration must admit that everything that has been done has beei: done with a view to benefiting Samoa and the Samoans. The worst that can be said is that the administration has moved too fast, and lias mistakenly attempted to force a state of civilisation iipon a backward race, for which it is not prepared. Appellant's "Change of Attitude."

"It is urged that appellant always advised the natives against violence. This may be true, lrat whether it be so or not it is abundantly clear that he has. at least encouraged them in an attitude of passive resistance to the administration' of law in the island, a position more difficult to counter than would be isolated acts of violence. The facts indicate a change of. attitude on the part of appellant, which might be fairly recognised by mitigating the punishment inflicted. 1 agree that further imprisonment should be remitted, not because the sentence is excessive, but with the hope that appellant's apparent change of attitude will prove permanent, and that in future be will, if not actively assist the administration, at all events abstain from encouraging- obstruction." -