REGINA v. GLEICH.

Globe, Volume XXI, Issue 1653, 7 June 1879, Page 3

REGINA v. GLEICH.

The judgments of the several Judges in tho above important case, delivered in thb Supreme Court, Wellington, are published below. The following synopsis of the case is supplied by the " New Zealand Times'.' : It will be remembered that Gleich some time ogo was arrested in Wellington upon a warrant signed by Mr Mansford, under the Foreign Offenders Act, 1863, for an offence committed in South Australia, the offence being one which by the bankruptcy law of South Australia is a felony, but which by the New Zealand Fraudulent Dobtors Act, 1878, is only a misdemeanor in this colony. The Imperial Parliament passed an Act (6 and 7 Vic, cap 34) providing for extradition between colonies in the cases of treasons and felonies, but that Act, subsequently amended in other respects, did not and does not now extend to misdemeanors. The Parliament of New Zealand in the year 1863 paseed an Act intituled the Foreign Offenders Act, which extended the provisions of the Imperial Acts to all cases of treason, :elony, or misdemeanor, at the same time dispensing with certain formalities required by the Imperial Acts. Evidence was taken before Mr Mansford, and deposition of witnesses in South Australia were put in, and the prisoner was then formally committed under our Foreign Offenders Act to gaol, there to be kept until he coald be removed to South Australia. The Foroign Offenders Act requires that before a prisoner, who has been committed, can be removed from Now Zealand, the Governor Bhall sign a warrant authorising such removal. After the committal in this case it was arranged that before the Governor was advised to sign such a warrant Mr Allen should have ample time to move the Supreme Court for a writ of habeas corpvs. Mr Allan obtained a rule nisi, and on the 27th iDStant the AttorneyGeneral and Mr Tzard showed cause, and Mr Allan was heard in support of the rule.

It will be seen that tho Chief Justice and Justices Johnston, Richmond, and Williams consider the Foreign Offenders Act to be ultra vires, and therefore that the warrant under which the prisoner was in custody was bad. Mr Justice Gillies dissented from the opinion of the rest of the Court. The Attorney-General asked for and obtained leave to appeal to tho Privy Council, but Gleich will bo at once discharged from custody. Chief Justice Prendergast said—ln this case the members of the Court differ in opinion, and the judgment which I am about to deliver is that of myself alone. I think the Act of the New Zealand Parliament (the Foreign Offenders Aet, 1863) was, and is, beyond the power of the Legislature of the colony bo far as it professes to empower the Govornor to give authority to others to take a prisoner out of the colony. The learned counsel for the prisoner argued that the Act was generally repugnant to the Imperial statutes recited in its preamble. Upon this point, if it were necessary to give an opinion, I should probably decide that the Act is not repugnant so far as its provisions apply to misdemeanors. But the sole object which the Legislature had in view was to give the Govornor authority to remove from this colony prisoners who had commit tod offences in another colony to that in which the offence was committed. I find no authority or power for the Legislature of this colony so to legislate. The power given by the Constitution Act is to provide for tho peace and good government of the colony—that is, within the boundaries of the colony. The true test is whether tho production of the Governor's warrant would be an answer in England to an action brought in England for false imprisonment, or assault, by the prisoner against the constable who had him in charge while on the high soaß or within any other territory than this while in the course of conveyance. And I think it clear that it would not be an answer. I repeat that the sole object of the Legislature when it passed the Foreign Offenders Act was to provide for the deportation of offenders ; all other provisions of the Act are ancillary to that object. In treaties or statutes relating to extradition, it is provided that criminals shall not be deported till a preliminary enquiry has been held, and our Act in that respect follows the precedent of Imperial statutes and treaties. I may say that while considering my judgment, I havo looked over the correspondence which took place when the Foreign Offende a Act was sent to England, and I find that the Attorney-General then directed the attention of tho Home Government to the possibility that the Act might be held to be ultra vires. In forming my opinion I am much influenced by the fact that the Imperial Parliament in passing the Act of the 6 and 7 Victoria, and the amending Act mentioned in the preamble to our Colonial Aot, has actually legislated on the jubject for all the colonies, and by the further fact that ever since the passing of the Foreign Offenders Act doubts hav. been expressed as to its validity; doubts which were mentioned by my brother Johnston in his book " The New Zealand Justice of the Peace," first published mary years ago. I therefore think the warrant is bad, and the rule must be made absolute.

Mr Justice Johnaton said—l regret that when for the first time I am called upon to express an opinion which may seem to derogate from the powers of the Legislature of this colony I Bhould not have had more timo and better opportunities for a careful consideration of the questions involved, but this being a matter relating to the liberty of the subject, the prisoner has a right to ask for a speedy judgment. Although I am not able to express so clear and decided an opinion as I should wish, I still feel bound to concur in the judgment which has been delivered by the Chief Jußtice. On many former occasions, although not in open Court, this question has been mooted, and it was anticipated that long before this the Imperial Parliament, which undoubtedly, has the power, would have legislated upon the subject. I think it well to allude to the principles of the law of extradition for the purpose of arriving at the true status of a person in custodv on the high seas. By the comity of nations there has gradually grown up what may be colloquially called a give and take arrangement; such an arrangement as must be made to make the social intercourse of civilised nations to be carried on ; and it is now settled that (while no country pretends to exercise any jurisdiction with respoct to offences committed in another country) it is for the common benefit of mankind that treaties should be made en&bline a nation whose laws have been infringed to vindicate them in a manner which would be impossible if escape gave immunity—for this purpose extradition treaties have been made between different nations, and municipal laws passed by the Legislatures of the contracting countries to carry the treaties into force. Therefore, a person extradited by a law passed in pursuance of a treaty canrot say, when on the high seas, that he has reason to complain of the custody in which he finds himself. But such a reasoning does not wholly apply to the case of two or more colonies of the same power. There can be no doubt that the Imperial Parliament may, without treaty, enable all its colonies to have the same powers, inter se, as exists between Foreign Powers by virtue of extradition treaties. Moreover, the Imperial Parliament may empower the colonial Legislatures to do that which otherwise they could not do—that is, to affect the liberty of British subjects beyond their local jurisdiction. But no such law has been passed. The only foundation upon which such a proceeding as we have now to consider can bo based is the Foreign Offenders Act, 1863. Had that Act enaoted only that persons found in this colony, who were charged with offences in another colony, should bo detained in custody here, such an enactment, however opposed to the constitutional principles as affecting personal liberty, would probably have been within the powers of the Legislature. But the object of the Act is to deport such persons from this colony, and in this is necessarily implied a transit over the high sea», over which only the special jurisdiction of the Admiralty Court, or the Courts of a colony as specially empowered by Imperial legislation, can extend. If, then, the colonial Legislature attempts to make legal detention upon the high seas, that seems to me to be going beyond its powers ; it is not a law for the peace, order, and good Government of the colony —it is a law which deprives a man of liia liberty in a place over which the local Legislature has no local jurisdiction, and Buoh a law our Colonial Parliament is not, I think, en-itled to pass within the powers granted to it by the Imperial Legislature. I express this opinion not without hesitation, though ever since the passing of this Act I have felt grave doubts respecting its validity. Mr Justice Richmond—l concur with the judgments of the Chief Justice and my brother Johnßton. The Act of 1863 was passed with a view to authorise the deportation of persons charged with indictable misdemeanors, cam-

mitted in other parts of tho Australasian group, and their surrender to the authorities of the colony in which the offence was committed. That such was the purpose of the Act fully appears on the face of the Act itself. It does not perhaps purport expressly to authorise the detention of the supposed offender during his passage from this colony to the colony to which he is to bo sent, hut it plainly contemplates such detention. Unless he can be lawfully so detained the purpose of the Act fails entirely. But this Court must take judicial notice of the fact that he cannot lawfully be so detained, because, during the transit, the supposed offender must pass the high sees. No Imperial law warrants such detention. No Colonial law can warrant such detention. It follows that this Court has judicial notice that the purpose of the Act must fail as being ultra vires. It is argued that the Act is valid, inasmuch as it only purports to authorise detention within the colony. Supposing that to be the case, which is far from clear, detention within the colony is not the purpose of the Act, but is only instrumental to the purpose. It is certain that tho colonial Legislature would never have authorised detention within the colony for a period of two months, except with a view to that ulterior aotion, which this Court sees and must declare to be illegal. The purpose is indivisible; failing in part, it fails altogether.

Mr Justice Williams said—l concur in the opinion of the majority of the Court. I agree in thinking that this branch of our jurisdiction should be exercised with great care and caution, but I eee no reason why we should consider the question of whether or no an Act of the Legislature is ultra vires from any other point of view than we should consider whether the by-law of ft Corporation were ultra vires. What we have to consider is the view that may ultimately he taken of our decision by the Privy Council, and that tribunal would not have any special leaning in favor of tho validity of tho Acts of the colonial Legislature. The sth section of the Foreign Offenders Apprehension Act, 1863, enables the Justice, before whom an offender, charged with having committed a treason, felony, or indictable mudemeanor in any of the Australasian colonies shall have been brought, to commit such offender to prison, " there to remain until he can be sent back to the colony in which the offence is alleged to have boen committed, and delivered to the proper authorities there," in the manner mentioned in tho Act of the Imperial Legislature 6 and 7 Victoria, 0. 34, and 16 and 17 Victoria, 0. 118. The fifth section of the former Act provides that it Bhall bn lawful for tho Governor, by warrant under his hand and seal, to order any person who shall have been apprehended and committed to gaol under that Act" to be delivered into the custody of some person or persons, to be named in the said warrant, for the purpose of being conveyed into that part of Her Majesty's dominions in which he is charged with having committed the offence, and, being delivered into tho custody of the proper authorities, there to be dealt with in due course of law, as if he had been there apprehended, and to order that the person bo committed to gaol be so conveyed accordingly." Then follows a proviso that if any person so apprehended Bhall escape out of any custody to which he Bhall have been committed, he may be retaken. If our Act of 1863 is to carry out the object for which it is plainly enacted, it must bo assumed that it confers upon the Governor, in the case of a misdemeanor committed in any of the Australasian colonies, the same power to issue a warrant for the removal of tho alleged offender as by the sth section of the 6 and 7 Victoria, c. 34, is conferred upon him when the alleged offence is a felony. So far as the Justice is concerned our Act only authorises a committal to prison, but the removal from the prison and all subsequent proceedings must be done under the Governor's warrant, and what that warrant is to authorise is found in the sth section of the Imperial Act, and there only. Now the warrant is to order that the accused shall be delivered into the custody of some person named in it, Bhall be conveyed to the colony where the alleged offence was committed, and be delivered into the custody of the proper authorities there. Has then the Legislature of this colony any power to authorise the conveyance on the high seas to another part of the world, and the detention outside its jurisdiction of any person whatever. I know of no authority by which the Legislature can do so. Had provision been made simply for putting the accused beyond the jurisdiction, that would probably have been within the powers of the Legislature ; but the Legislature purports to authorise his conveyance to another colony, and to constitute a lawful custody during his passage on the high seas from one colony to another. Had this colony and South Australia been contiguous, the difficulty might not have arisen ; he could have been put across the border in charge of a South Australian constable, and, being then in South Australia, could be properly detained under the law of that colony. Even then, however, there might have been a question as to the authority of the Legislature to direct the issue of a warrant purporting to authorise detention of a perßon in South Australia till he could be delivered to the proper authorities there. If, then, the act of tho Legislature in directing the removal of offenders is ultra vires, and the intention of the Legislature as evidenced by the provisions of the Act of 1863 cannot be carried into effect, it seems to follow that the Court should not give effect to those minor provisions, which it was within the power of the Legislature to enact, but which are merely subsidiary to the main object of the statute, and which apart from such an object are insensible. For these reasons I think the rule must be made absolute.

Judge Gillies said —I regret that the time and opportunities which I have had for consideration of this question have not enabled me to come ta the same conclusion as the other members of the Court. I wish it to be understood that I express no very strong opinion, and it is with some diffidence that I venture to differ from my brother Judges. The Court is here called upon to exercise one of its highest powers, that of declaring that the Legislature of this colony has exceeded its powers in passing an Aot which has been assented to by the Governor on behalf of her Majesty, and has been left to its operation by her Majesty on the advice of the English law officers. After attention had been called to doubts which existed as to its validity, such a power ought, I think, to be exercised with the utmost caution, and we should only declare an Act of the Legislature -ultra vires upon the strongest and most conclusive evidence, and these considerations should have the greatest weight given them in a case like this; where the statute impugned, on the one hand the liberty of the subject, and on the other the suppression of crime in this and the neighboring colonies. It seems to me that the question now before us is only whether the prisoner is now, at the present time, held in custody under a legal warrant, not whether something illegal may hereafter be done. The contention on behalf of the prisoner is, that the Foreign Offenders Act, 1863, under which the warrant has been issued, is invalid, as being one which the Legislature of this colony had no authority to pass. Now, on the face of the Act, I am unable to discover any reason why it should be considered as not within the authority of our Legislature to pass it; it applies only to apprehension, custody, and detention of offenders found within the colony whose offences have been committed outside its boundaries. But it is contended that the words of section 5 of our Act contemplate that under section 5 of the Imperial Act the Governor shall issue a warrant for conveyance of the prisoner beyond the colony. It may be replied that wo ought not in considering the validity of the warrant under which the prisoner is now held to determine what the Governor's authority hereafter to do may be. It may be that he has no authority to sign a warrant ordering the conveyance of the prisoner outside the colony, but that is a future question for him and his advisers to determine, not for us now hypothetically to determine. We have before us now neither the Governor nor his warrant but only the warrant of the magistrate, and we must here presume that the Governor will not exercise powers which he has not. It seems to me that section 5 of the Imperial Act contemplates the possibility of two orders; the first for delivering the prisoner into the custody of a person who wishes to remove him ta the other colony, the second ordering his removal; and the Governor may make the first order, which would be perfectly legal, and leave it to the person who has the prisoner in custody to take the risk of an action for false imprisonment on the high seas. Nor am I prepared at present te assent to the general proposition that the Colonial Legislature can give the Governor no power to deport prisoners beyond the seas. I think that question very doubtful, but I have not had time to carefully consider it, and I express no opinion upon it. For these reasons I regret that I cannot concur in the judgment of ' the Court.