THE LICENSE VICTUALLER GKZETTE

New Zealand Illustrated Sporting & Dramatic Review, Volume XVII, Issue 1001, 13 May 1909, Page 20

THE LICENSE VICTUALLER GKZETTE

THE OHINEMURI INQUIRY.

WHY THE COMMISSION IS ILLEGAL. JUDGMENT OF THE FULL COURT. The Acting Chief Justice (Mr. Justice Williams) on Wednesday week delivered reserved judgment on behalf of the Court of Appeal with regard to the validity of the Commission set up to inquire into the allegation levelled against certain members of the Ohinemuri Licensing Committee of 1900, that in connection with an application by one Maurice Coogan Power for a license in respect of certain premises suituated at Waihi (in lieu of his then existing license in respect of premises situated at Paeroa) money was paid to certain members of the committee as bribes to support the application. STATUS OF A LICENSING COMMITTEE. The Court said that it was necessary to consider whether the acceptance of a bribe by a member of a Licensing Committee would be an offence at common law, because every person who was a party to any offence must be proceeded against under some statutory provision. The only provision which would apply was Section 126 of the Crimes Act, 1908, which related to the crime of judicial corruption. It had frequently been held by the Court that the proceedings of a Licensing Committee were judicial. The provisions of the Licensing Act showed not that a committee was a body which was only judicial in the same sense that it was bound to exercise its proceedings with fairness and impartiality, but that its members were members of a Court. The Act also recognised each member of the committe as the holder of an office. If the man was the holder of an office, and the duties of that office were strictly judicial, he was the holder of a judicial office. It must be held, therefore, that a member who accepted a bribe was guilty of a crime under Section 126 of the Crimes Act. The Commission had been appointed (observed the Court) to inquire whether any of the members had been guilty of an offence punishable by law; also to report as to the necessity or expediency of any legislation in respect to the premises. Did the Commission come within the authority of the Commissions of Inquiry Act? The inquiry directed was not a question arising out of the administration of the Government, nor was it an inquiry as to the working of an existing law, nor one concerning the conduct of any officer in the public service. The only other ground mentioned in the section in question was an inquiry as to the necessity or expediency of legislation. It was difficult to conceive what possible legislation could be proposed, even if the Commission reported that the members had received bribes. If they had accepted bribes, they would be already within the net of the law. The Court therefore held that the Governor-in-Council was not authorised by the Act to appoint a commission to make the inquiries in question. • • • EFFECT OF THE ORDER-IN-COUNCIL. It was necessary, continued the Court, to show clearly what the effect of the Order-in-Council would be if it were acted upon. The only charge under the order that the Commission could inquire into would be a charge of bribery. Members of the committee could decline to answer a question only on the ground that the answer might tend to criminate themselves. In effect, by declining to answer, they cvnninated themselves. After all, if

the Commission found the charge proved, and made the persons charged pay the costs, tney had not yet been found guilty of the offence, because they had not been convicted by a jury. If they were afterwards put on their trial and acquitted, they would have been subjected to a grievous injustice by the judgment of the Commission. Appa.ren.rly the members of the committee (to boriow a phrase from the time of the French Revolution) were only suspected of being suspected, and the object of the inquiry was to ascertain whether they ought to be suspected. The order directed a charge to be made and investigated in a manner unauthorised by law. If it was not an offence under Section 126 of the Crimes as had been contended, it was not an offence at all. In that case the effect of the order was to create an offence unknown to the law, to set up a new Court, and to allow a person to be charged with and tried and punished for the offence in that Court. * * * A REFERENCE TO THE STAR CHAMBER. The Court proceeded to say that the power of the Governor to appoint what was known as a Royal Commission had long been recognised. There must, however, be some limit to the power of the Crown, or of the Governor acting on behalf of the Crown, to set up a commission of inquiry. It was the intermeddling by the Crown or the Executive in civil causes and matters between party and party that the Act abolishing the Stair Chamber was intended to prevent. So far as criminal matters were concerned, that Act recognised the authority of Statute 42, Ed. 3 c-3, under which no man was to be put to answer, unless in the manner prescribed by law. At the time of the passing of the Act abolishing the Star Chamber, commissions of inquiry only were recognised as legal. Down to the middle of the nineteenth century such commissioners to examine all persons on oath. It was not until comparatively recent times that it was acknowledged that no such power existed. Then in New South Wales and New Zealand the Legislature stepped in and gave, this power to commissions appointed by the Crown. It was impossible that the Legislature, in giving that general power, intended it to apply to inquiries which, if such a general power had previously existed could not lawfully have been instituted. * * * COMMISSIONS AND THE QUESTION OF GUILT. If, added the Court, the question of guilt or innocence of an individual arises in the course of a legitimate inquiry, and is necessary in order to answer that inquiry, a commissioner might well be justified in considering the question of guilt or innocence in order to enable him to report. Thus an inquiry into the alleged misconduct of a public officer is authorised by the Act. Such an inquiry is in order to ascertain whether he should be retained in the service, or dismissed, or be otherwise made subject to official discipline. Although the alleged misconduct amounted in law to a crime, the commissioner might nevertheless investigate it, because it would be merely incidental to a legitimate inquiry. In the present case the real, and, in effect, the sole object of the inquiry is to ascertain whether certain named individuals, who occupy no official position, have committed h specified offence. The inquiry would be virtually a trial for the offence without the protection that the law gives to accused persons, and the result of which might subject the accused in respect of such offence to pecuniary penalties unknown to the law. Whether or no the members of the committee did or did not receive bribes is quite immaterial. The plaintiffs are entitled to a prohibition. The Court made no order as to costs.