THE FRENCH CONVICTS.

New Zealand Mail, Issue 859, 17 August 1888, Page 23

THE FRENCH CONVICTS.

m RELEASE OF CURY.

In the Supreme Court last Friday morning Mr Justice Richmond gave his deci* sion on Mr C. B. Morison’s application that the rule nisi for a writ of habeas corpus, which was granted by the Court last week, should he made absolute. His Honour said it appeared to him sufficiently proved against the prisoner in the case, without recurring to the documentary evidence, that he is a convict under sentence for some offence described in French law as “ banqueroute frauduleuse.” That “ banqueroute frauduleuse ” is a generic term, embracing a variety of different acts, sufficiently appeared both from the text of the French treaty, where it was used as the equivalent in the English text of crimes against bankruptcy law, and from Article 591 of the Code de Commerce. It was asserted on behalf of the prisoner that of the acts which might constitute the offence of “banqueroute frauduleuse” some would not have constituted offences against the bankruptcy law of this Colony as it existed at the date of the prisoner’s offence, and therefore did not at the present time constitute extradition crimes within the meaning of the Extradition Act, 1870. There being confessedly no evidence whatever of tlie particular act which formed the ground of the prisoner’s conviction, the prosecutors had not, it was urged, discharged themselves of the burden of the proof laid upon them. The prisoner’s offence, though an offence against French law, may not have been such as wou.d have been an offence against the law of this Colony at the time of its commission. Therefore, non constat, that the crime of the prisoner is an extradition crime. In order to reply effectually to this argument, the prosecutors were driven to contend, and did contend, that every act which could fall within article 591 of the Code de Commerce was treated as a crime by the colonial law in force at the date of the commission of the prisoner’s offence. This date, they said, might be inferied from the date of conviction, as recorded in the register of transported convicts kept at Noumea, a certified extract; from which was produced in evidence. Taking this date—namely, the 10th June, 1879, it appeared that the law on the subject in force in New Zealand at the date of the alleged crime was contained in the Fraudulent Debtors Act, 1878. Everything, therefore, depended on the collation of the Fraudulent Debtors Act, 1878, with Article 591 of the Code de Commerce ; and bis Honour thought it sufficiently appeared from the comparison that the prisoner’s counsel was, or, at least, might be, right in his contention, and that various acts might fall within the scope of Article 591 which were not punishable under the more restricted difinitions of offences contained in the colonial Acte

much, his Honour said, sufficiently appeared, although it would require the assistance of an expert in the French law to examine accurately the differences between the legislation of the two countries. The "Vice-Consul of France, who is a qualified French lawyer, had not given evidence upon the present question. But whatever might be the opinion of a French legal expert, it was obviously not purely a question of French law but simultaneously of French and English law, and must be determinable as a matter of law by the Court. He had been referred by Mr Bell, in his able argument, to sub-sections 1,2, and 10 of section 4 and to subsection 2 of section 6 of the Act of 1878, as covering everything punishable by article 591, but he could not accept that statement as accurate. In particular it seemed to him plain enough that the fraudulent recognition of pretended debts, provided against by Article 591, is not in all possible cases covered by these sub-sections or by any o*her provision of the Act, although under sub-section 7 of section 4 it is an offence in the debtor knowingly to allow the proof of false debts. Another class of offeuces under the French law is “ detournement” of assets. What acts this phrase might comprise had not been ascertained in the present case. It was probably a wider class than was included in the provision of sub-section 2 of section 6. Whatever uncertainty was left as to the scope of the French law must make against the prosecution, who, it was admitted, were under the necessity of showing that nothing was made an offence by the French law as it existed in 1879, which was not also an offence under the contemporaneous law of Hew Zealand. This seemed to his Honour an impossible task. It was at all events a task which had not been accomplished by the prosecution. The terms of every extradition treat} 7 implied that the contracting parties were agreed in treating as criminal a vast number of acts capable with more or less accuracy of being designated by equivalent terni3 in the respective languages of the two countries. Where the designation was specific the presumption, prima facie,-should probably be that the definitions of the crime in the 4wo countries were identical ; but where there was nothing but generic description of a whole class of offences it was not allowable under the Extradition Act to assume that the claim was coextensive in the two countries. The chances, indeed, were great that all the ordinary frauds of bankrupts were punished by the laws of both countries, and had it been possible to show for what specific act the prisoner received his sentence it would probably have appeared that the same act, if committed in this country, would have been a crime against our bankruptcy law. This, however, has not been done, and the prisoner’s offence against French law is, therefore, not shown to be an extradition crime within the meaning of section 2C cf the Extradition Act, 1870. The view his Honour cook on this one point made it unnecessary that he should give an opinion on the other questions raised in argument. The rule was made absolute. gaspauxni’s case.

With regard to Mr Jellicoe’s notice of appeal in this case, his Honour said he understood it to be twofold —First, it asked for leave to appeal to the Privy Council, or in the alternative that the case should be reserved for the Couro of Appeal. He had carefully considered authorities and the Order-in-Council, and he was clearly of opinion that the latter only reserved appeals in civil cases, and could not he extended to include a criminal matter such as the present. With regard to the second point, he held that he had no jurisdiction to state a case for the Court of Appeal. He saw no reason to doubt his judgment with regard to the prisoner, and the decision of the Supreme Court must be final in the matter.