THE GOVERNOR'S RIGHT OF PARDON

Otago Witness, Issue 1032, 9 September 1871, Page 2

THE GOVERNOR'S RIGHT OF PARDON

The following is the opinion of the Attor-ney-General on this subject, as published in the papers lately presented to Parliament, and referred to in our leading article today :— The Hon. the Colonial Secretary —

This question arises out of a case in which Mr Barton, lately the Editor of the Otago Daily Times, is charged with the indictable misdemeanour of writing and publishing in the Otago Daily Times newspaper, of the Government of New Zealand, that it had made use of and supplied to other newspapers information which the agent of the Times had sent to that paper by the telegraph conducted by the Government under an Act of the New Zealand Legislature. The charge was repeated in the newspaper on several occasions. The Government was charged with actual dishonesty in the matter, and threatened with proceedings in the iMiprume Court. It will be seen from this that Mr Barton was not charged with what is generally understood as a political offence. The charge made against the Government was of a very serious nature, and calculated to withdraw the confidence of the public in the working of the telegraphs, all which in New Zealand are owned and worked by the Government. The newspaper is owned, printed, and published by a Company incorporated under the Joint Stock Companies Act. The newspaper showing no disposition to carry out its threat of proving in the (Supreme Court the charge made, and refusing to withdraw the charge, the Government thought it necessary that cither the proprietors of the newspaper or the author of the libel should be indicted. The proprietors being a corporation, it was open to some doubt whether it would be held liable to indictment ; at any rate there was no precedent for indicting a corporation for a libel or for any offence except for the non-repair or obstruction of roads. Moreover, it was considered very expedient that a public investigation on oath should without delay be made, in order that it should be shown that there was no foundation for the charge, and the proprietors being a corporation could not be compelled to appear before Justices of the Peace on an information for the offence. This being so, I advised that the prosecution fehould be against the author. The Newspaper Company, on being applied to by the Commissioner of Telegraphs, had refused to give any information as to the authorship of . the articles in question. It was, however, generally understood that Mr Barton was the editor of the paper and author of the articles. Mr Haggitt, the Crown Solicitor, informed me that b it was probable the compositors and printers of the paper would refuse to give evidence as to the authorship of the articles, on the ground that by so doing they would criminate themselves. It was ascertained that without the evidence of the persons engaged hi printing the newspaper, the authorship of the articles could not be proved. I therefore advised that a pardon should be granted to Charles Muston, whose evidence was required. This course was followed, and the evidence obtained by it proved ilr Barton to have been the author j of the libellous articles. He has since been committed for trial in the Supreme Court. The only object in claiming the privilege of non-crimination was to conceal the fact of Mr Barton's being the guilty party. The only result of the pardon has been to compel the disclosure of that fact, and to secure the ends of justice. The advice which I gave was without consideration of the terms of the Governor's Commission. The terms of the Commission did not at the time occur to me ; there was present in my mind only the fact that pardons had been given on a previous occasion to my own knowledge, and without objection ; and I was, of course, aware that the Crown had power to grant a pardon either before or after conviction, and 1 knew that a similar course had been taken in England — fii'i/ma v. Muiiro (Old Bailey, 1847) ; liujbin v. Boye* (30, Law Journal, Queen's Bench) — and, so far as I am aware, without objection.

I regret that the terms of the Governor's Commission did not occur to my mind at the time, for I should then have done as I did on the previous occasion already referred to : I should have pointed out that the terms of the Governor's Commission seemed to limit his power of pardon to the pardoning after conviction ; though no doubt I should also have advised, as I did on that occasion, that the pardon could be issued for what it was worth, and the witness might be left to make his objection. Xhe case to wjucb, X have alluded wap as

follows :—ln: — In 1868 proceedings were taken in the Supreme Court at Auckland, before Sir George Arnoy, the Chief Justice, for the iccovcry of penalties for smuggling, and other breaches of the Customs laws. To prove the acts it was absolutely necessary to obtain the evidence of two men who had been employed by the poisons proceeded against. It was knOAsn that they ■would refuse to give evidence on the ground that they were not compellable to give any evidence tending to criminate themselves. Under these circumstances, the solicitoi at Auckland conducting theprosecutionapplicd to ( Jovernment forpardons for these witnesses, and I was requested by the Customs Department to prepare pardons. I then advised as follows :—": — " The Governor's Commission does not authorize him to pardon till after conviction, nor to remit penalties till due and payable. In these cases the persons proposed to be made witnesses are liable to pecuniary penalties and imprisonment, consequently they would not be bound to answer questions criminating themselves, unless the pardon went to the full extent of pardoning the oifence and protecting from imprisonment as well as pecuniary penalty. Though I think the Governor has not, strictly, authority to grant a pardon in such cases until after conviction, yet 1 think that for the protection of the revenue the pardon should be granted for what it is worth. The witness is not likely to refuse to answer on the ground of invalidity of pardon." Thereupon the pardons were executed, and on the witne&scs refusing to give evidence the pardons were handed to them in open Court by Mr Whitaker, who conducted the prosecution for the Crown, and they gave evidence in the Supreme ( 'ourt, before the Chief .luvfcicc. No objection was made to this either by the Court or by Mr Gillies, who conducted the case for the defence.

In the present case I ought, undoubtedly, to have pointed out that the Queen's prerogative as to pardon seemed not to have been, to its full extent, delegated to the Governor. I believe, however, that the terms of the Governor's Commission did not occur to my mind at all, but that, in the advice I gave, I was directed only by the knowledge that the Queen undoubtedly held this power and sometimes exercised it, and that it had been cxerci&cd by the Governor on the previous occasion without objection.

In this case, I believe that if the terms of the Commission had occurred to me I should have advised that though the Governor's Commission may not in express terms delegate this power, yet that to further the ends of justice, the widest interpretation should be given to the Commission, and that the pardon should be granted, leaving it to the witness to rai&e the question. For even if the pardon itself should be ineffectual to prevent prosecution of the witness for the offence of w hich. he criminated himself, yet as the Attorney-General could enter a nolle pro-Mqui to any indictment found, or the Governor could give a pardon if any indictment proceeded to trial and conviction, the witness would suffer no wrong. Indeed, it is by no means clear that a promise of a pardon* by the Queen would not be sufficient to deprive the witness of his privilege. The Crown, by the mere act of calling an accomplice as a witness, gives to the witness an equitable claim to a pardon ; and though by the law of England (differing in this respect from the law of Scotland) he may, until pardoned, be liable to indictment, yet the Courts would in such a case bail the accused in order that he might obtain the pardon. It is worthy of remark that by the law of Scotland, by the very act of calling the accomplice and putting him in the box, the Crown is absolutely debarred from all title to molest the witness in the future, and consequently the witness is bound to answer fully. Whether or not the law of England is not similar to that of Scotland in this respect, where the prosecution is conducted by the Attorney-General for the Crown itself, and the Crown itself calls the witness and puts ! him in the box, does not seem to be decided, but, on principle, it would seem that lie ought to he held compellable to speak. See " Forsyte's Cases and Opinions,"' page 405. It is, of course, argued thet the Governor's powers of pardoning being derived solely from, are limited by, the terms of his Com- j mission and instructions ; and as the Com- j mission mentions only " offenders convicted' 1 " unconvicted offenders" arc not included. So as to penalties, forfeitures, &c. , that the power to remit such is limited to those for the recovery of which suits have been brought, for the expression is ' ' fines, &c. , which may become due and payable."

But if the Governor cannot pardon before conviction, he cannot promise such a pardon. Yet, following the practice in England, it is not uncommon in New Zealand, Victoria, and other Colonies, for the Governors of the respective colonies to promise, on behalf of the Crown, free pardons to persons, though accomplices, who will give information leading to the conviction of principal offenders. No objection has ever been taken to this. It has never been suggested that the Governor has no authority to promise a free pardon, or to fulfil such a promise. In 1865 the Governor, Sir George Grey, issued a Proclamation purporting to pardon, on behalf of the Queen, all natives who had been in arms against the Crown, with certain exceptions. The Proclamation Avas made known to the Secretary of State for the Colonies, by a special despatch from Sir G. Grey, and was received without objection. This was in form a pardon, not a mere promise of a pardon. There can bo no doubt that it is necessary that the Governor of a Colony, such as any situated at so great a distance from England as is New Zealand, should have the power to

promise free pardons, and to fulfil lxis promise ; and that any limitation upon this power, such as it is contended is contained in the C.iminisMon, would be found to create grave diiliuiltioh in the administration of the ( I<a eminent and of justice. It is conceived, therefore, that it was not intended, by the language used in the Commission, to limit the power of the Governor to the pardoning of convicted olluiders, but that the general power was impliodly given. However, whether this be the correct view or not, as it is evident that there should be vested in the (Governor the power to promise and grant free pardons to persons implicated in crimes, whether before or after conviction, I submit that an alteration of the Governor's Commission in this respect should be obtained. I need scarcely observe that Mr Barton, as defendant in this prosecution, has no ground of complaint in this matter. The privilege of not answering is that of the witness only, and not of the defendant. If the pardon were, as contended by Mr Barton, invalid, as being beyond the Governor's delegated powers, the witness might have taken that ground at the enquiry, and refused to abandon his privilege ; but he did not do so.

A copy of the pardon granted by the Governor in this case is attached.

I also attach copies of some of the notices promising free pardons, issued on various occasions in New Zealand.

Numerous instances of similar notices will be found in the Gazettes of other colonies. It would appear from " Stokes Colonial Law" that terms apparently limiting the power of pardoning convicted offenders are of modern introduction. The language formerly used left the power without limit in this respect. James Prexdergast. 3rd April, IS7I.