SUPREME COURT.

New Zealand Times, Volume XXXIV, Issue 5669, 31 May 1879, Page 3

SUPREME COURT.

Friday, May 30. REGINA V. GLEICH,

We publish'below the judgments of all the Judges of the Supreme Court, except that of his Honor Mr. Justice Gillies, on this important case. It will be remembered that Gleich.some time since 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 Austra'ia is a felony, but which by the New Zealand Fraudulent Debtors 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 ether respects, did not and does not now extend to ’misdemeanors. The Parliament of New Zealand in the year 1863 passed an Act intituled the Foreign Offenders Act, which extended the provisions of the Imperial Acts to all cases of treason, felony, or misdemeanor, at the same time dispensing with certain formalities required by tbo Imperial Acts. Evidence was taken before Mr. Mansford, and depositions of witnesses in South Austrlia were put.in, and the prisoner was.then formally committed under our Foreign Offenders Act to gaol, there to be kept until ho could be removed to South Australia. The Foreign Offenders Act requires that before a prisoner, who has been committed, can be removed from New Zealand, the Governor shall 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 corpus. Mr. Allan obtained a rule nisi, and on the 27th inst. the AttorneyGeneral and Mr. Izard showed cause, and Mr. Allan was heard in support of the rule. It will: be seen that the Chief Justice and Justices Johnston, liichmond, 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 the Privy Council, but Glcioh will be at once discharged from custody. [We shall on Monday publish a report of Mr. Justice Gillies’ reasons for dissenting from the judgment of the Court.]

Chief Justice Prendergast said : In 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 Act, 1863) was, and is, beyond the power of the Legislature of the colony so far as it professes to empower the Governor 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 Governor authority to remove' from this colony prisoners who have committed 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 the peace and good government of the colony—that is, ,vyithin the boundaries of the colony. The true test is whether the 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 seas or within any other territory than this while in 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. 1 may say that while considering my judgment, I have looked over the correspondence which took place when the Foreign Offenders Act was sent to England, and I find that the Attorney-General then directed the attention of the 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 Act, has actually legislated on the subject for all the; colonies, and by the further fact that ever since the passing of the Foreign Offenders Act doubts have 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 many years ago. I therefore think the warrant is bad,'and the rule must bo made absolute. • ■ >

Mr. justice Johnston said: I regret that when for the first time I am called npon to express an opinion which may seem to derogate from the powers of the Legislature of this colony I should not have had more time 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 aright to ask for a speedy judgment.'. Although I am not able to express so clear and decided an opinion as I should wish, X still feel bound to concur in the judg-

merit which has been delivered by the Chief Justice 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 lias 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 reason in custody oa 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 respect to offences committed in another country) it is for the common benefit of mankind that treaties should be made enabling 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 cannot 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 sc, as exist 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 be based is the Foreign Offenders Act,’lß63. Had that Act enacted only that persons found in this colony, who were charged with offences in another colony, should be 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 report such persons from this colony, and iu ; this is necessarily implied a transit over the high seas, 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 a 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 hia liberty in a place over which the local Legislature has no local jurisdiction, and such a law our Colonial Parliament is not, I think, entitled 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 : I concur with the judgments of the Chief Justice aud my brother Johnston. The Act of 1863 was passed with a view to authorise the deportation of persons charged with indictable misdemeanors, committed iu other parts of the 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 ou 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 be sent, but 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 seas. No Imperial law warrants such detention, and uo colonial law can warrant such detention. It follows that this i Court has judicial notice that the purpose of the Act must fail as being ultra, mires.. ■ 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, whicli 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 the colonial Legislature would never have authorised detention within the colony for a period of two months, except with a view to that ulterior action, which this Court sees, and must declare, to be illegal, The purpose is indivisible ; failing in part, it fails altogether.

Mr. Justice Williams sa:d : I 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 see 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 a Corporation were ultra vires. What We have to consider is the view that may ultimately be taken of our decision by the Privy Council, and that tribunal would not, have any speclalleaning in favor of the validity of the Acts of the colonial Legislature. The fifth section of the Foreign Offenders Apprehension Act, 1863, enables the Justice, before whom an offender, charged with having committed a treason, felony, or indictable misdemeanor 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 been committed, anl delivered to the proper authorities there,” in the manner mentioned in the Acts of the Imperial Legislature 6 and 7 Victoria, C. 34, and 16 and 17 Victoria, C. 118. The fifth section of the former Act provides that it shall be lawful for . the Governor, by warrant 1 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 the 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 so committed to gaol be so conveyed accordingly.” Then follows a proviso that if any person so apprehended shall escape out’ of any custody to which he shall have been committed he may be retaken. If onr Act; of 1863 is to carry out the object for which it is plainly enacted, it must be 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 the 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 aocused shall be delivered into the custody of some named in ' it, shall be conveyed to the colony where the alleged offence was committed, and he 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 person in South Australia till he could be delivered to the proper authorities there. If then the act of; the Legislature in directing the removal of offenders is ultra ■vir.es, 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, 1 but which are merely subsidiary to the main object of the statute, and which-apart from:such an object are insensible.: Far these reasons I think the rule must be made absolute. -