THE HARPER CASES.

Otago Daily Times, Issue 9907, 28 November 1893, Page 6

THE HARPER CASES.

THE GRAND JURY DISREGARD THE JUDGE'S RULING. (Fbom Oub Own Cobbespondent.) .... _, Chbistchtjbch, November 20. At the Supreme Court to-day his Honor Mi Justice Denniston in his address to the grant jury referred as follows to the charges under U Parker, G. Harper, and T. W. Maude. To two of these indictments there is a fatal objection. It »r,PP? ri 1 1 nolple rfjpntufclaw that (unlessof course specially enacted, cf which there is here no suggestion) no person can be held criminally responsible for any act which was not criminal at the time of its commission. No offence can be created by ex post facto legislation-that is to say, no statute creating an offence will apply to an offence committed before the date of the statute which has made ihe offence. That is of course only just and reasonable. A criminal act is a breach of the law, and, whatever its moral aspect, must be judged nyn?heJaw then existiD S- A man cannot break a non-existing law. Now the offence charged in these indictments is created by the act of 1892. which came into force on-jthe Ist January of this year. It is in these words :— If any bankrupt has committed any of the ottences hereinafter enumerated, the court may at the final examination of the bankrupt, or on the hearing of the application for his discharge, by order under the seal of the court, adjudge such bankrupt to be imprisoned in such prison as the court may appoint for any term not exceeding 12 months, with or>ithout hard labour—that is to say, if the bankrupt could not have had at the time when any of his debts were contrasted any reasonable or probable ground of expectation of oeing able to pay the same." Under section 171. subsection 2, of the act of 1882 a bankrupt was liable at his public examination, under the summary jurisdiction of the court, to imprisonment for any term not exceeding 12 months if he " could not have had at the time when any of his debts were contracted any reasonable or probable ground of expectation ?SQ9 cS g a ible t0 pa? ! he, same-" Had the a<=* ot .892 merely re-enacted this clause, there would have been no difficulty; or had it, while re-enacting or keeping alive the offence, merely altered the procedure—as, for example, made the offence subject to trial by a jury on an indictment instead of by a judge or summary procedure —probably no question would arise. But the ™¥ c, d°es ™™ than this. It adds material words to the offence " as well as his other debts " ihisisa very material difference. A man maybe ?w % °l contracting a debt able to pay that debt, and yet unable to pay also his other debts. I may borrow a sum, say, for a particular speculation, or incur a liability at a time when I may have funds available to an amount beyond that particular debt, and yet I may at that moment be in a state of insolvency. There would ihereforebein many cases a defence open under the act of 1883 which is closed by the act of 1892 1c close such defence is indeed, it may be presumed, the object of the change in the latter ?£ ♦ %£ c re « *18'both on Principle and authority, that the offence created by the act of 1892 is iom er j- °? e, nee from that created by the act of ISSd, and, as I have said, it is therefore an offence which could not have been committed before January 1893. Now the act in the indictment which will be submitted to you is the Incurring a debt before that date. It seems to me also that there is authority for saying that the increased punishment from one year to two years would >revent the act from being treated as retrospecive, but I should not on that alone have felt justified without argument in now disposing of the question. It would be the duty of the court, on its attention being drawn to this fact, either to quash the indictment on a motion to that effect, SniiHi^Wv' o.l^ at once t0 direot an acquittal. That being so, it is clearly my ™%* t0 dlre°t you that, no indictment willn. -ii th^ se ttrcumstances lie, and - that t will be your duty to return no bilL 1 may mention that an almost precisely similar point was decided by the English Court or crown cases reserved as recently as 1591, when it was unammpsly held that the enactment was not retrospective. It is, of course, unfortunate that the result is to leave acts which would (if wved) have been punishable under the act of mi unpunishable under the present act, while the repeal of the act of 1883 renders them now unpunishable under that act, because the saving clause in the repealing section of the act of 1892 is clearly applicable only to estates and persons which have been brought under the operation of the repealed act. It maybe said that this point should have been considered before these proceedings were undertaken. I thinklit right to say that! do not think blame can be attached to any person in the matter. The official assignee discharged his duty when lie laid the facts of the case before the Grown prosecutor. The point is by no means one which lie* on the surface, and it was by no means a matter of surprise that the ,rown prosecutor should not at once have noticed t, though I am informed that representing the brown, the prosecutor in the matter, he would not now contend that the prosecution could be successfully continued. A remarkable and unique complication has occurred in connection with the case. At 5.10 to-night the grand jury, despite the charge of the judge to bring in no bills, came into court with true bills against both Mr George Harper and Mr T. W. Maude. The grand jury were discharged by his Honor without remark. November 23. On the application of Mr Wilding, counsel for Mr George Harper, the court-quashed the indictments against Mr George Harper and Mr T. W. Maude on the points put in his Honor's charge—that the offence with which they were charged was not an offence in 1892. :