FUGITIVE OFFENDERS ACT.

New Zealand Police Gazette, Volume XXXII, Issue 20, 22 May 1907, Page 201

FUGITIVE OFFENDERS ACT.

Memo. 07/1103. The following circular from the Home Office is published for general information. W. Dinnie, Commissioner of Police. Wellington, 16th Mav, 1907.

Sir, — Downing Street, 25th March, 1907. With reference to Mr. Lyttelton’s circular despatch of the 20th of January, 1904, I have the honour to transmit to you a copy of a letter from the Home Office (Bth March, 1907) with regard to a recent decision of the Court of King’s

Bench in the case of a fugitive from justice for whose removal an application was made by a colonial Government. 2. I have to request that your Government will cause this decision to be brought to the notice of the persons who deal with proceedings under the Fugitive Offenders Act in the colony. I have, &c., Elgin.

The Officer administering the Government of Enclosure in Circular dated 25th March, 1907. Sir, — Whitehall, Bth March, 1907. I am directed by Mr. Secretary Gladstone to acquaint you, for the information of the Earl of Elgin, that his attention has been called to the recent decision of the Court of King’s Bench in the case of A. H. Percival, for whose removal an application was made by the Government of Victoria, under the provisions of the Fugitive Offenders Act. A copy of the judgment of the Court in this case is enclosed, and it will be observed that the effect of that judgment is that whenever application is made for the removal of an offender from this country under the Fugitive Offenders Act, it must be proved hy evidence that the acts with which the accused is charged amount under the law in force in the British possession in question to an offence punishable by twelve months’ imprisonment or some greater punishment. The Chief Magistrate of the Police Courts of the Metropolis reports to the Secretary of State as follows : “In the form in which the papers in most fugitive-offender cases are received at present, this point of proving by evidence the law of the colony under which the facts charged amount to an offence punishable with twelve months’ imprisonment is not attended to, and in practice it has generally been held sufficient here if the warrant contains a recital that the offence is so punishable, or if a Minister of State in authenticating the evidence and warrant certifies to this effect, or in some cases if an apparently authentic copy of the colonial law is produced from the office of the Agent-General of the colony.” And he adds, that in view of the decision of the Court it will be necessary in all future cases to have evidence with regard to the law of the British possession in so far as it relates to the offence charged against the accused. The evidence which will be required will be either—(a.) The evidence of an expert as to the colonial law given orally—see Taylor’s Law of Evidence, paragraph 1423-5 (9th edition); or ( b .) The like evidence in the form of a deposition authenticated as required by section 29 of “ The Fugitive Offenders Act, 1881 ” ; or (c.) In the case of law contained in colonial statutes or ordinances, a copy of the document certified in accordance with section 6 of “ The Colonial Laws Validity Act, 1865 ” (28 and 29 Viet., 63). Any Judge, advocate, barrister, or solicitor, and any official in a position from which a knowledge of the law may be presumed, is admissible as an expert to prove the laws of his country.

Mr. Gladstone would be glad if Lord Elgin would take steps to bring the effect of this important decision to the notice of the Governments of Canada, the Australian Colonies, the Cape of Good Hope, Natal, and any other British possession to which His Lordship thinks that it might with advantage be communicated, with a view to their guidance in future applications under the Fugitive Offenders Act. I am, &c., C. E. Troup. The Under-Secretary of State, &c., Colonial Office. Subenclosure in Circular dated 2 5th March, 1907. Judgment. The Lord Chief Justice : This case has been most ably argued by the two learned counsel on either side, and I wish to say at once it presents very great difficulties to my mind. I think it is quite clear that we could not possibly accede to Sir Edward Carson’s argument based upon section 10 of “ The Fugitive Offenders Act, 1881,” and it appears to us it is quite impossible to say that the application for the return of the accused is not made in good faith. Ido not think that the conditions to which Sir Edward Carson referred, can be considered—namely, the distance which would have to be travelled to meet the charge, or the other circumstances of the case which he has mentioned as matters affecting our general discretion. The difficulties that have pressed on my mind, and which may be briefly stated, are these: It undoubtedly was a very serious offence if it was proved, because it was an offence committed by a gentleman in a superior position, who had defrauded his college of a very considerable sum of money, and who left the country. We presiding at the assizes have

often to point out the very serious nature of these offences when they are committed by persons in a superior position, and the difficulty, if not impossibility, of duly administering justice when we have to mete it out to persons of less education and cf less position, if such circumstances were allowed for a moment to be any excuse or were to be allowed to interfere with what may be called the strict administration of justice. Therefore I have been much pressed with doubt as to whether or not we ought not to send this case back, in order that the evidence which is suggested as being wanting should be supplied. On the other hand, there is, of course, the fact that it is a case which occurred five or six years ago, and that there were some proceedings taken which were not carried further than the Magistrate’s warrant; and it was stated, and it appears on the depositions, that the person in question has been endeavouring to make some reparation, and is now carrying on an honest life. I mention these matters because they are very important matters, and they tell one on the one side and one on the other upon the question which we have to decide. It seems to me under those circumstances it is better that we should deal with the case as it stands before us and give our decision in accordance with our view of the statute, not allowing our judgment to be affected one way or the other by the consideration of the importance of the charge and the fact that the application is made on behalf of the Victorian Government, or by the other circumstances to which Sir Edward Carson has called our attention. I wish to say that I express no opinion upon the question of whether or not we should not receive evidence in other cases. My present opinion is that we might receive evidence here if we thought it a proper case for such a procedure, or that we might send the case back to the Magistrate. I only mention these points so that it may not be considered that my judgment and the judgment of the Court is in any way fettering the discretion or the power of the Court in a prosecution to deal with the case in the way they think right. It seems to me, however, to be quite clear that the reasons which have been put by Mr. Avory and Sir Edward Carson that under the Fugitive Offenders Act, section 9, the Magistrate has to be satisfied that the crime “ whether called felony, misdemeanour, crime, or by any other name ” is one “ which is for the time being punishable in the part of Her Majesty’s dominions in which it was committed, either on indictment, or information, by imprisonment with hard labour for a term of twelve calendar months or more, or by any greater punishment,” by which I understand the statute in dealing with the substance of the matter says there must be, in order to justify an order made under this Act, an offence punishable in the part of Her Majesty’s dominions by that term of imprisonment ; and I think every person who comes and asks for a fugitive offender to be delivered up under that oicler must be prepared with evidence that that condition of the statute has been fulfilled. I think it is a very important matter, having regard to the fact that we are dealing with the criminal law and that we must apply the general principles of the criminal law, and that the prosecutor must make out his case. We are also dealing with the liberty of the subject and with a branch of the criminal law which affects the liberty of the subject, and I think that that condition should under ordinary circumstances be clearly fulfilled. I say again, if the point raised in this Court is a point which could be, or ought to be, cured by some ready means of supplying particular things which are said not to have been proved I reserve entirely my position as to the right of the Court to allow that to be supplemented before it or to send it back. But in this case, as I understand the depositions, I see no evidence at all that the offence spoken of or proved and established upon the depositions was an offence punishable in the Colony of Victoria with a sentence of twelve calendar months’ imprisonment. The only thing that appears is that a senior police constable stated that larceny was punishable by “ The Crimes Act, 1890,” with hard labour with a term not exceeding five years. Now, upon these depositions it is fairly clear, and in fact it is not disputed, that the facts do not show that the thing which the person was charged with amounted to an offence punishable by a teim of twelve months’ imprisonment. It is necessary, in order to establish that, that the statutes of Victoria should be regarded, and I think Sir Edward Carson is right (and I thank him for dealing with my doubt at the time it arose, for I do not pretend to remember all these things off-hand, but it seems to be there might be a distinction) in saying that the rule applies equally to the proof as to the statutes as to the proof of the foreign law in the ordinary sense of the word, as to which I should have no doubt whatever. I think, for instance, the Colonial Laws Validity Act is an instance of the w r ay in which that difficulty might be got over. But I express no opinion in this case as to what would or would not be sufficient evidence. I can well imagine that there might be sufficient evidence

before the Magistrate without any particular mode or machinery for bringing the colonial law before the Court being followed or being applied. It is for that reason that I have endeavoured to satisfy my mind as to what at the outside could be set up before the Magistrate, and it seems to me that at the outside what was before the Magistrate was that, larceny was punishable by the Act of Victoria with certain punishment. I think, therefore, that there was no evidence before the Magistrate to bring the case within the condition of section 9—that the facts establish an offence punishable in the Colony of Victoria, in which it was alleged to have been committed, by imprisonment with hard labour for a term of twelve months or more. Therefoie this person has been ordered to be delivered over under an order made, in my opinion, as the case stands, on insufficient evidence, and without that condition being proved. I have already indicated that I have felt very grave doubt indeed whether, having regard to the gravity of the offence on the one side and to what has been mentioned by Sir Edward Carson on the other, we ought or ought not to send the case back to the Magistrate so that he might allow further evidence to be given as to the law of Victoria, or we might ourselves have required that evidence to be given to us; but, on the whole, looking at the importance of the matter, and, in my opinion, to the duty of the person desiring the surrender or the delivery-over of the fugitive offender to fulfil ths conditions of the statute, I think it is safer and wiser in this case to say that the order of the Magistrate was made without sufficient jurisdiction or evidence and must be discharged. Mr. J ustice Darling : I am of the same opinion, and I agree entirely with what the Lord Chief Justice has said. It is necessary that the Magistrate should have before him the evidence of what is the law of the other portion of the King’s dominions to which it is desired to send back the fugitive offender for trial, it being alleged that he did there commit an offence against that law. There is nothing derogatory about this with regard to the colony, and I desire to say so because it applies to other parts of the King’s dominions as well as to this colony, and no doubt in the colony where the converse holds good they would require proof of our domestic law in England before thinking it necessary to act upon it. What I have a doubt about in this case is whether we are justified in deciding this case without doing what I am quite clear we could do without sending it back to the Magistrate, pointing out to him the defect in the proceedings as they at present come before us, and allowing him to have the prosecution reopened and more evidence given, or whether we would be justified in doing what it seems to me we have equally a right to do—namely, to require for our own information an affidavit showing what the law of Victoria applicable to this case is. In some respects this may be regarded as a technical objection, and one might take that course for the purpose of removing it. But I think we are justified by all the circumstances of this case, to which the Lord Chief Justice has called attention, as to which I will not say another word, in not sending the case back to the Magistrate, and in not requiring proof before ourselves which might remove the objection which Sir Edward Carson has taken. I should hesitate very much to come to such a conclusion as this, provided the point were taken on behalf of an accused person. If it appeared that there was a perfectly good allegation of crime under an Act of 1890, but if you looked at an Act of 1896 which had not been referred to, and which had not been brought judicially to the notice of the Court, it appeared that that crime had gone, then I think this Court would hardly take the course it has taken to-day. In such a case as that it seems to me, acting on the general principle that accused persons in this country are favoured more than prosecutions in this country are favoured (I do not mean prosecutions by a foreign Government or by a colony, but prosecutions by the highest legal authority in this country), the Court could hardly take the course which it takes here, but seeing that this is in favour of an accused person on a point taken against him I think we are justified in doing as we do. Mr. Justice Phillimore : I have nothing to add.