QUESTION OF FORFEITURE OF BAIL.

Otago Daily Times, Issue 12989, 2 June 1904, Page 14

QUESTION OF FORFEITURE OF BAIL.

THE NAVAL DISCIPLINE ACT.

A caso affecting the'jurisdiction of magistrates ir. the event of bail l»ing allowed , where supposed nan! deserters were remanded by the court was argued at considerable length in the City Police- Court yesterday before Mr C. C. Graham. S.IT. Tte cause before the court was the question whether the bail-bonds in Hid case of Maurice Walters, alleged to have deserted from H.M.S. Mohawk, and' who did rot answer to his bail, should be estreated, or ret.

Sir J. F. J[. Fraser appeared! for the Justice Department, ami Mr 8. Solomon to show erase why the bail should not be estreated,

Mi Solomon, in addressing the court, said ho appeared wider section 'JUS of the Justices of Hie Peace Aot to show cause why estrea-t----ninit should not tr.ko place. In the first place tiie court was an inferior one, in that it was a statutory court created by statute, and had only tho powers wliich the statutes gave it. It -,vas different in that respect from the higher cowt, which contained inherent power to enable it to carry on ito duties and enforce its decrees.. There were three questions to be placed before, tho court. In the first place, did the magistrate have jurisdiction to hoar oi:<l determine (he matter be/ore it; secondly, if he had any, power at all in connection with the question, did ho have •tho statutory aulhorf-iy to admit the bail; thirdly, if the magistrate did''have power to atlinit to bail, had lie now got power to estreat tho bond. In the first place, counsel contended, the magistrate had no more jurisdiction in tho case than any ordinary civilian. Tlu case was a warrant i3suedi by the captain of the Mohawk under section 50 of "Tho Kaval Discipline Act, 1886," and that warrant authorised the- arrest of the deserter, and the carrying of his person on board the vessel, and that was all—in fact, that was nil that was allowable by the act uiukr which the war-: rant was issued. The mngistrats had no jurisdiction, for, in the first place, no offence against the civil law had been committed, and an offenco against the naval law was punishable only by tho naval authorities. Tlie, Naval Discipline Act preserved the jurisdiction of civil courts where it existed 1 prior 1o the passing of the act, but the court-martial was the proper tribunal, and the act provided for five members of the court-martial being present when sentence of death was pronounced, Another point iras Ifca-t no magistrate in this colony had any jurisdiction in any case in which no information was laid. That was an answer to thin whole proceeding, for there wna no information laid in this case. Counsel referral the court to Hnseldrn on Justices of tho Peace Act, in which it was laid down that an information was always necessary as a bssis of proceedings except in certain specifiedcases. Tho only powers given tho court of granting bail wero tmdor sections 82 and 132 of the Justices of the Peace Act, and section 315 of the Criminal Code, but in this case thete had been no power of punishment. Tho only thing that could bo done was to send the man on. bogrd the vessel, and a bail bond, if granted, conid only become inoperative and void. Then, another pomt was that the certificate of estroatment should not have been given. Tho only circumstances under which the magistrate could , certify that the recognisshom had not been complied with waa in the case of a man who had entered into a bond in New Zsnlondi in vespeet to proceedings on information dekrminabl'; in a Biimmaty way or by indictment. Counsel referted the magistrate to Rcginsi v, dimming (I/.lt. 10, Q.8.D., page 21).

Mγ Fraaer 'said the original warrant waa not in Dunodin. Ho had sent for it, but it haJ not arriv«i. Whatever the -warrant, the mini was brought boforo Ihe court .charged with being a. deserter. Hγ Solomon:. Bjit flicro was no information.

Mr Fraser said l!ie man was charged on a charge set fo:th in the ckirgo sheet. The man was charged with being a deserter, and then it became the duty of tho magistrate to inquire into the truth or otherwise of the statement. The miifristrato could examine the man, fl.mii take the confession, supposing the accused wished to confess. If the court were satisfied ft man was a desorlor it could ordor him to be placed on board the vessel or detained in prison until such time, as it was convenient to place him on Hie vessel, Tho act of 10 and 11, Victoria Chapter G2, eection 0, reported in Law Journal Deports, 181&-48, gave power of arrest by a coastable, ami the bringing of the dwrtsr before any justice of the peace in British territory. If r, deserter wcro brought bciore the magistrate by warrant or otherwise the court had power to deal with tho case, not by virtue of any statute in Ibis colony, but by vhtue of the Imperial Act, That aot, however, did not provifo for a remand. The man i« question waa brought before the court on a piactic&lly vorba.l complaint, and was charged on a wrba-1 information. By the rceemiisiuceo a debt was created and a. personal debt to the Crown acknowledged in the event- of a failure to answer to bail. It might bo argued that ths case camp under tho Crown Suits Act, but in any case it was open to bis learned friend to have taken steps before this to appeal to the Superior Court. The court having granted tJio bail, should proceed to enforce the e-s'.realnient unless stopped by the Supreme Court. The accused person had been in tho hands of tho court to deal with, and the magistrate had only been exercising his jurisdiction as a justice of tho peace, and was williin his rights in. granting bail. Mr Solomon replied at some length. Tho Magistrate said be was quite satisfied that he had 1 a pcrfeot right to iesuo the recognisances, and that Uio accused person had beea properly brought before the court. Theory, possible aoubi was as to whether lie liad power to grant bail or not, and ho -would take tho matter into consideration andl gave hi 3 decision at an early date,