SUPREME COURT.—Monday.

Daily Southern Cross, Volume XXII, Issue 2867, 3 October 1866, Page 5

SUPREME COURT.— Monday.

SITTING IN BANCO. THE CASE OF JOHN PBIXSTLY. — RBFOSAL OP SISCHABOA His Honor Mr. Justice Moore entered Court *t ten o'clook this morning, and gave his judgment in this important case as follows :—: — In this OMe application was made to the Court for a i^rit of habeas corpus, directed to the keeper of the gaol, Mount Eden, commanding him to have in m the Supreme Court at Auckland, immediately after the receipt of the vrrit, the body of John Priestly, being detained under the keeper's custody, as was said, together with the day and cause of his being taken and detained. The application was granted and the writ issued. By the return made thereto by the keeper of the gaol, it appears that the said John Priestly is detained in the keeper's custody by virtue of the warrant of commitment therewith produced, and of an amended warrant received from the committing magistrate since the service upon the keeper of the said writ, and prior to its return. And by the amended warrant of commitment under haud and seal of James Maokay, jun., Resident Magistrate, Native Circuit Court, Hauraki, it appears as follows : "Whereas one John Priestly, of Piako, storekeeper, was this day duly convicted before me, James Mackay, the younger, eiquire, a Resident Magistrate, and Te Tanewha Kitahi, Haora Tipa, and Wirope Hoterene Taipari, native assessors of the Native Circuit Court for the native district of Hauraki, on a verdict of guilty returned by a jury of twelve good and lawful men of the said district, for that on the Ist day of September inst., at the river PiakO, he the said John Priestly did unlawfully, and without license, remove, transport, and convey coastwise from one place in the colony of New Zealand to another place in the said oolony, on board a certain ship named the 'Aloe,' certain arms and warlike stores, to wit, 9 guns, 1 revolver pistol, 13 gun nipples, 41b. gunpowder, 2,000 percussion gun caps, 500 percussion rifle caps, and 10 rifle cartridges, contrary to the form of the statute in such case made and provided, and against the peace of our Sovereign Lady the Queen, her Crown, and dignity and I, the said .Resident Magistrate, together with the native assessors, did adjudge that the said John Priestly, for his said offence, should be imprisoned! and kept to hard labour for the space of three years from the date hereof, at the common gaol at Mount Kden, in the proviuce of Auckland aforesaid : These are therefore in hrr Majesty's name to command you the eaid constable to take the said John Priestly, and him safely convey to the common gaol at Mount Eden aforesaid, and there deliver him to ths keeper of the said oommon gaol, together with this precept. And I further, in her Majesty's name, command you the said keeper to receive the said John Priestly into your custody in the said common gaol at Mount ttden, in the province aforesaid, and there to keep him imprisoned with hard labour for the term of three years from the date hereof ; and for so doing this shall be your sufficient warrant and authority. Given under my hand and seal at Kauaeranga, in the native district of Hauraki, in the province and colony aforesaid, this 3rd September, in the year of our Lord 1866. (Signed) Jambs Mackat, jun., Resident Magistrate, Native Circuit Court." Upon this return being made, divers objections were taken to it on behalf of the prisoner. It was objected — Ist. That the Native Circuit Court has no jurisdiction over Europeans, but over natives. 2nd. That the offence for which the prisoner was committed was not an offence within the jurisdiction of the Circuit Court. And 3rd. That the warrant of commitment was bad on the face of it : — (1.) For that the conviction, as set forth in the warrant, does not follow the words of the Act ; (2.) For that it does not appear by the warrant that James Maokay is a Resident Magistrate of the Native Circuit Court; (3) For uncertainty as to the nature of the offence with which the prisoner is charged j and lastly, for that the conviction, as set forth in the warrant, contains a judgment whioh is illegal. The questions thus raised for the opinion of the Court are hardly seoond in importance to any that could be raised for its opinion, involving, as they do, considerations touching the liberty of the subject, the powers and authority of magistrates, and the position before the law of Britishborn subjects and subjects of the native race respectively. And if it had been necessary or proper on this occasion for the Court to come to an opinion on these questions, or any of them, it must have oome to an opinion, upon them accordingly — however much it might have desired, upon questions of suoh importance, to have the opportunity, before doing so, of conferring with one or more of the «*)Uci'iu6iuuors uf-wjooouiu, iv ou« view whujut take of the matter, however, it will not be necessary or proper to give my opinion upon these questions, or any of them, and that, for reasons whioh I shall now proceed to state. By the 12th section of the Native Circuit Courts Act, 1858, it is enacted that — " No appeal shall lie against any conviction by the Native Circuit Court, nor shall any proceeding of such Court in its criminal jurisdiction be removed into any superior Court by oertiorari or otherwise, nor shall any such proceedings be quashed or set aside, or be adjuged void or insufficient for want of form." This section is, in substance, the same as the 17th section of the Summary Proceedings Ordinance, 1842, the language of the two sections being, as far as the earlier one goes, only not identical, though the arrangement of the sentences in the one is different from the arrangement of them in the other, and the section of the Act goes further than the section of the Ordinance, For, while the ordinauce only prohibits informations, convictions, and other prooeediugs being squashed, 4c, for want of form, or removed by certiorari or otherwise, the Act goes on, in addition to this, to prohibit appeal against convictions by the Circuit Court. Under this section of the Act this other question at once arises, whether, the section notwithstanding, there is still a right of appeal in respect of the matters to whioh the Act relates. Now, with regard to the Summary Proceedings Ordinance, it may be said — it is said — that the section in question is repealed, virtually at least, or by implication, by the Justices of the Peace Act, 1858, by section 4 of which Aot it is enacted that the Summary Proceedings Ordinance is repealed, so far as the same is repugnant to, or would prevent or interfere with the operation of, the Acts thereby adopted. One of the Acts thereby adopted is the 11 and 12 Victoria, cap. 43, the Summary Proceedings Act, 1848. By section 14 of that Act, as interpreted by the adopting Aot, it is required of Justices of the Peace that they oanse convictions to be lodged with the Registrar of the Supreme Court, to be by him filed among the records of the Court. This, it is said, amounts to a virtual repeal of the provisions in the Summary Proceedings Ordinance as to the non-removal of proceedings by certiorari. Be this, however, as it may, and admitting it to be as said, it could, of course, only - apply to convictions under the Ordinance. As to oonvictions not under the Ordinance, the repeal, by the Justices of the Peace Act, of the Ordinance, would have no effect, and would leave them untouched. So that, if, as to any convictions not under the Ordinance, the right of appeal is taken away by any other Ordinance or Act, that right of appeal remains taken away, unless given back by some subsequent Ordinance, or Act, other than the Justices of the Peace Act. For example, if the right of appeal against convictions under the Native Circuit Courts Act is thereby taken away, it remains taken away unless given back by some subsequent Act. Is it, then, given back by any subsequent Act ? I say, by any subsequent Act. For, it could not, of course, be given back by the Justices of the Peaoe Act, as the Act was passed before the Native Circuit Courts Act, the latter Act bearing date the 14th August, ISSB, while the former bears date the Bth July, 1858, though' not coming into operation until the Ist January, 1859. But- it is not suggested, as far as I am aware, that this right of appeal, if taken away by the Native Circuit Courts Act, is given back by any subsequent Act. If, therefore, it is so taken away, it remains taken away still. The question then is, is the right of appeal as to matters within the Act taken away by the Act? Now, it may help towards a decision of this question to observe the difference there is, in the respect in question, between the Ordinance and the Act. For, whereas the Ordinance, after, by the section in question, enacting, as stated, against quashing, Ac, and removal of proceedings, goes on, in the following sections, to enable appeal to be brought in the manner pointed out therein ; the Native Circuit Courts Aot contains no such enabling clauses. This, though, of course, it is not conclusive of the question, may, nevertheless, be not improperly considered as furnishing no slight indication that the intention of the Legislature was esientially different, as to the appeals iv the one case, from its intention as to appeals in the other case. For, of course, the Legislature must be taken, in passing the Act, to have had the Ordinance present to its recollection. And if, from this comparison of the Act with the Ordinance, we pass on to consider the Act in itself, the inference derived from that comparison is certainly not weakened by that consideration. Rather, the nature and scope of the Act, and its various provisions, or tome of them, teem to strengthen that inferenoe. And if, as it alleged, thote provisions* or some of them, are alto*

gether exceptional and unusual, it will be the less surprising to find amongst them one taking away the right of appeal mto matters within the Act, even if that provision should be considered as so far interfering with and •bridging the liberty of the subject. And, on the best consideration I have been able to give the whole matter, and particularly the question thus raised and stated, I am of opinion that the Legislature did intend, by the Native Circuit Courts Act, to take away that right of appeal as to matters within the Aot, and that they have expressed that intention in not inadequate terms. In coming to this conclusion, which Ido not without reluctance, I do not forget the rule which says that the jurisdiction of the superior Courts is not to be ousted but by express words. But I think those words sufficiently express that— that is, those words found in this Act ; and I may adopt, with slight necessary variation, the language of Lord Denman, C.J., in Timms v. Williams, 4, Q.8., 422, and say— Here, as it appears to me, the Legislature has thought it useful to withhold the power of instituting proceedings by way of appeal. Nor do I forget what is to be found in the books as to certiorari not being taken away, even by express words, where there is a want, or excess, of jurisdiction, although, the conviction may be good- on the face of it. But, besides that, no question as to certiorari ariies in this case, the proceedings being before the Court without it. Oertiorari is only a means of obtaining inspection of proceedings ; and when the Court obtains that inspection, it gives judgment as it thinks judgment ought to be given, And I know of nothing to prevent the Court thereupon giving judgment to the effect that, in its opinion, it has no jurisdiction in the matter, as well as to any other effect. Nor, lastly, does the conclusion I have come to in any way infringe upon or .interfere with the subject's right to a writ of habeas corpus. That right remains, that 'conclusion notwithstanding, as, indeed, every English Judge must wish it to remain ; as also the Act known by the same name— an Act, as has been said, of transcendant importance in our constitutional history, even though it may be true, as is also said, that it introduced no new principle, nor conferred any right upon the subject. That right, I say, remains, the conclusion to which I have felt constrained to come notwithstanding, as, indeed, is shown by this very case. The subject sues out the writ; return is made to it in due course ; and therefore, the Court before which he is brought up upon it may well enough declare its want of jurisdiction in the matter, if so it think. I have only to add the expression of my hope that it may be found practicable to make my decision the subject of appeal to the full Court, and that it may be subjected to such appeal accordingly. In the meantime, itj follows from the conclusion I have come to that the prisoner must be remanded to the custody of the keeper of the gaol. The prisoner was then removed, after which the Court rose.