CHALLENGED.

Auckland Star, Volume LXVIII, Issue 34, 10 February 1937, Page 8

CHALLENGED.

COURT'S POWERS. SERIOUS CHARGE. I AFFRAY ON FREIGHTER. UNUSUAL POINT RAISED. The contention that the Court had no jurisdiction to deal with the case because of non-compliance with the provisions of international law was raised at the Supreme Court this morning. The immediate result was that the jury that had been empanelled was released until the afternoon, the judaic, Mr. Justice Fair, intimating that he would then give a decision on the point raised. The caAe concerned is one of the most serious on the criminal 1 irst this, session, the accused, James Grmion, a seaman, aged ."11, being- charged with attempted mrtrder. There were alternative charges, one being that, with intent to do grievous bodily harm, accused did actual bodily harm. Other alternatives were, assault so as to cause actual bodily harm, and common assault. The charges arose out of an affray on the American ship Golden Gate at the King's wharf on the morning of October 27, when Frank J. Foster, an A.8., aged 21, wae badly injured. In outlining the case to the grand jury last week, Mr. Justice Callan said that a party from the ship had been ashore drinking. Next morning, probably after not going to bed and no doubt while still under the influence of drink, some of the men started an altercation on the ship. The accused was alleged to have struck Foster on a heap of timber and then to have thrown him from the stack to the top of a hatch eleven-feet below. After the jury had been empanelled this morning Mr. Hall Skelton, who appeared for the accused, said that there wns a matter which he wished to bring before the Court before the trial went on. "My client claims he is an American citizen on an American ship, and the offences charged occurred on this boat within territorial waters. He requires the Crown Prosecutor to produce a certificate of the GovernorGeneral's consent to leave to institute these proceedings respecting the present charges in conformity with the Territorial Waters Jurisdiction Act of 1873."

Mr. Skelton added that without this certificate being obtained prior to the preferment of the indictment it must be quashed for want of jurisdiction and the prisoner discharged. Act Quoted. Mr. Hall Skelton then quoted the sections of the Act which provide that in the case of a foreigner within territorial waters (three miles limit) committing a crime on board the ship then the certificate of the Sovereign's representative must be obtained granting leave for the trial to proceed. Thin certificate, said counsel, should have been obtained before the case went to the grand jury. Mr. H. N. Hubble, for the Crown, said that he had had no notice of the submission until this morning. He would like an opportunity to look into the Act. Mr. Justice Fair: Do you gain any advantage by raising the k point, Mr. Skelton? It is quite open for me to discharge the jury and adjourn the trial. Mr. Hall Skelton replied that in his view the jury must either return a verdict of guilty Qr not guilty. His Honor: There ie a third alternative. A case can be adjourned where a jury has been empanelled and has been unable to return a verdict through some irregularity. Mr. Hall Skelton submitted that his Honor was bound to discharge the accused. v His Honor then agreed to hear legal argument when counsel were ready to submit it. In the meantime he adjourned the Court until this afternoon. He advised the jury that the point which had been raised mnot not be discussed by them outside the court. Point Not Upheld. When the Court resumed, His Honor said that he had decided against Mr. Skelton. He held that the consent of the Governor-General was not necessary. The judge said that he had "reserved the question whether the case should be stated for the Court of Appeal, on the point of law raised. Mr. Hubble then proceeded to outline the circumstances of the affray. (Proceeding.)