LAW REPORTS.

New Zealand Police Gazette, Volume XXXVIII, Issue 2, 15 January 1913, Page 26

LAW REPORTS.

—«. (“ New Zealand Law Reports,” Vol. xxxi, page 1257.) [S.C. In Banco. Auckland—(Stout, C.J.) —22nd and 27th August, 1912.] Elliott v. Walpole. Keith v. Walpole. Animals Protection Act, 1908, Sections 8 and 43 —Licenses to kill Imported Game in Specified District —Pursuit of Game in another District—Production of License demanded by District Ranger—Prosecution under Section 43—Limitation of Licenses to District named therein. The appellants were in pursuit of game in the Hobson district, and a demand was lawfully made on them by an authorized person to produce their licenses. They produced licenses which authorized them to take or kill game therein specified in the Auckland Acclimatization District, and not in the Hobson district. Neither of the appellants nad any license to take or kill game in the latter district. They were proceeded against under section 43 of the Animals Protection Act, 1908. Held, That a license under the Animals Protection Act, 1908, is only a license for the district therein mentioned, and is not available for aDy other district; and that the appellants had been guilty of an offence against the provisions of section 43 of the statute. Appeals from two decisions of F. V. Frazer, S.M., Dargaville, separately convicting each of the appellants of failing to produce licenses to kill game when required to do so under section 43 of the Animals Protection Act, 1908. F. Ear), for the appellants : Section 8 of the Act requires a license to be taken out to kill imported game, and provides a penalty for those who pursue or kill game without a license. Tne appellants are not charged under that section, but under section 43. The latter section is designed to punish contumacy—that is to say, if a person holding a license declines to produce it when called upon to do so he comes within its provisions, and is liable to punishment, while section 8 is enacted for the purpose of punishing those who have no licenses. The appellants cannot be punished under section 43, for, not having the license demanded, they cannot be punished for failing to produce something which they did not possess. Further, the appellants in these cases did produce licenses, though the licenses produced had not been issued in the district in which they were found shooting ; but under section 8 there is nothing to prohibit a man who holds a license for the Auckland district from shooting game in the Hobson district. The words “ within the district,” in the schedule are not arbitary, and, beyond those words, there is nothing in the Act to limit the operation of a license to the district in which it is issued.

[Stout, C.J.—The license has to be issued in the form provided by the statute, and the prescribed schedule distinctly specifies the district.] The words “ within the district ” being merely in the schedule, and not in the Act itself, may be disregarded. The statute is one that should be strictly construed : Craie’s Statute Law (2nd ed. 458, 460). Fishing licenses are in a similar form to these game licenses, and they are available all over the country. The districts are created merely for revenue purposes. H. D. Bamford, for the respondent:— The words employed in section, 8 mean that no person shall take or kill any imported game until he has taken out a license to kill the game which he actually takes or kills — that is to say, the game in the district specified in the license which he holds. He must have a license to kill “ such game,” which words mean the kind of game with taking or killing which he is charged. Section 54 shows the spirit of the Act, for the game in each district is made the property of the acclimatization society of each particular district. There is, therefore, no reason to disregard the form of license in the schedule. As to section 43, if the contention of the appellants be sound, then, if the conviction is quashed and the appellants subsequently prosecuted under section 8, they must be acquitted, and the statute would thus prove abortive. The words “ his license ” mean a license authorizing him to do what he is doing. Failure to produoe such a license is an offence. Cur. adv. vult. Stout, C.J.:— These two appeals were heard together, and they raise the same point. The appellants were in pursuit of imported game in the Hobson Acclimatization District, and a demand was lawfully made on them by an authorized person—the informant to produce their licenses. They produced licenses which authorized them to take or kill game therein specified in the Auckland Acclimatization District, and not in the Hobson Acclimatization District. Neither of the appellants had any license to take or kill game in the latter district. They were charged with an offence under section 43 of the Animals Protection Act, 1908. Subsection 1 of that section is as follows: “ Every person in pursuit of imported game shall produce hi 9 license to any authorized person demanding such production; and any person in pursuit of such game who, on or after such demand, fails so to produce such license, or to give his name or place of residence or address, or who gives a false name or place of residence or address, is liable to a fine not exceeding twenty pounds.” The contention is—1, that if they had no license to produce they could not be said to have failed to produce it, and hence they were not guilty under the section ; 2, that the license to kill or take game which they had was in the form given in the fourth schedule of the Act, to kill game in the Auckland Acclimatization District, and was a good lioense, and authorized them to kill or take game in the Hobson Acclimatization District. Section 8 of the Act is as follows: “No person shall take or kill, or use any dog or gun for the purpose of taking or killing, any imported game until such person has taken out a license to kill such game under this Act, and paid the. fee hereby made payable therefor.” The 9th section deals with the issue of licenses, and it provides that the Governor shall appoint a fit person or persons in each district to issue licenses to take or kill imported game. The license must be in the form of the fourth schedule. That is stated in section 9, and it is also enforced in section 12, which states that the forms of licenses set forth in the fourth and fifth schedules hereto shall be used until the same are altered or revoked by regulations under the Act. The fourth schedule, which is a copy of a license to take or kill imported game, is as follows : “ (Name in full), of (Residence and calling), having this day paid the sum of one pound (£1), is hereby authorized to take or kill (Here state the kinds of imported game authorized to be taken or killed) within the District of , from the day of , 19 , to the day of , 19 , both days inclusive, subject to the provisions of the Animals Protection Act, 1908. The lands specified m the schedule hereto are exempted from the operation of this license.” There does not seem to be any section in the Act, unless section 43 applies, to prohibit the pursuit of game by an unlicensed person. Section 8 only makes it an offence to kill or take game by an unlicensed person; and the question is whether section 43 prohibits an unlicensed person to pursue game. There are two ways in which it is suggested that section 43 may be interpreted. The one way is that if a person in pursuit of imported game is asked to produce his license and fails to produce one—that is, has not one to produce—he is liable to a penalty. The other way in which it i 3 said that the section may be considered is that adopted by the appellants’ counsel. He says that this seetion can apply only where a person has a lioense and refuses to produce it. If he has no license he is not, it is contended,

within the section. I am of opinion that if the seotion is read in its ordinary meaning it inflicts a penalty on any one in pursuit of game who, when asked to produce his license (to use the words of the section), “ fails so to pr. duce such license,” and I have not heard any argument which convinces me that the ordinary meaning of tHe words is not the meaning that must be given to this section. In fact, if the other sections of the Act are referred to, there is a strong reason why the Act should be construed in its ordinary meaning : 1. It is clear that the Dominion is to be divided into acclimatization districts; pending a division by the Governor, the provincial districts are to be the districts (see section 2, under the word “District”). 2. The property in the imported game in each district is given to the registered acclimatization society of the district. 3. The fees for the licenses are also to be given to the society after paying the expenses of rangers (see section 47). I fail to see, therefore, why the Court should assume that persons in pursuit of game are not meant to be punished if they have not got licenses. It would be setting aside the plain words of the section to accept the interpretation put upon it by the appellants’ counsel. The other point that was raised was that the license for one district gives power to the licensee to take or kill game in all districts in the Dominion. In my opinion that would besetting aside the very words of the license, and the license itself is incorporated in the statute by the express words of sections 9 and 12. The license is only a license for a specific district, and it is no authority outside of that district to take or kill game. lam of opinion that on both points the appeals have failed, and that the appeals must be dismissed and the conviction affirmed, with £3 3s. costs in each case, and any disbursements there may be. Solicitors for the appellants: Earl & Kent (Auckland). Solicitors for the respondent: Bamford & Brown (Auckland).

(“ New Zealand Law Reports,” Vol. xxxi, page 1261.) [C.A. (Stout, C.J., Williams, J., Denniston, J., Edwards, J., Chapman, J.)— l2th July, 1912.] Rex v. Mikkelsex. Criminal Law — Abduction-Unlawful Taking—The Crimes Act, 1908, Section 230. The prisoner was indicted with having, on or about the 22nd of February, 1912, at or near Auckland, unlawfully taken away one Gladys Marie Catherine Mikkelsen, a female child then under the age of fourteen years—to wit, of the age of about eight years and a half—with intent to deprive one Anna Petrea Caroline Margrete Mikkelsen, the parent of and then having the lawful charge of the said child, of the possession of suoh child. He pleaded “Not guilty.” It was admitted by counsel for the prisoner that the child was taken away with intent to deprive the mother of the possession of the child, but it was contended that as the prisoner was the father of the child he was entitled to her custody, and that the taking, therefore, was not unlawful within the meaning of section 230 of the Crimes Act, 1908, under which the indictment was laid. It was proved that the Supreme Court had refused an application by the prisoner for a writ of habeas corpus directed to the mother to produce the child. The learned Judge who presided at the trial held that, in view of the order made by the Supreme Court on the prisoner’s application for a writ of habeas corpus, the prisoner was not entitled to the custody of the child, and that the taking was therefore unlawful. He directed the jury accordingly, and told them that they ought to convict the prisoner, unless they thought that when he got possession of the child he was claiming in good faith a right to the possession of the child. The jury found the prisoner guilty. Held, That the direction to the jury was right in law, and that the conviction should be affirmed. Case stated by Mr. Justice Sim for the opinion of the Court of Appeal under section 442 of the Grimes Act, 1908 : 1. The prisoner Mikkelsen was arraigned in the Supreme Court at Auckland, on the 6th of June, 1912, on an indictment charging him and one Richard James with having, on or about the 22nd of February, 1912, at or near Auckland, unlawfully taken away one Gladys Marie Catherine Mikkelsen, a female child then under the age of fourteen years—to wit, of the age of about eight years and a half—with intent to deprive one Anna Petrea Caroline Margrete Mikkelsen, the parent of and then having the lawful charge of the said child, of the possession of such child against the form of the statute in such case made and provided. The prisoner pleaded “ Not guilty.”

2. It was proved that the child referred to in the indictment was born in Brisbane on the 13th of September, 1903. Her parents were the prisoner and his wife, Anna Petrea Caroline Margrete Mikkelsen, referred to in the indictment. 3. Before the child was born the prisoner left his wife in Australia and went to South Africa, where afterwards he obtained a divorce from her on the ground of disobedience to an order for restitution of conjugal rights. 4. The mother of the child came to New Zealand in July, 1906, bringing the child with her. 5. In January, 1910, the prisoner came to New Zealand. On the 14th of January, 1910, upon his application, a summons was issued out of the Supreme Court at Wellington calling upon the mother of the child to show cause why a writ of habeas corpus should not be issued to have the body of the said child before a Judge in Chambers. This summons was heard before Mr. Justice Edwards on the 18th of January, 1910; and on the 22nd of March, 1910, an order was made dismissing the summons, with costs to the mother. A copy of Mr. Justice Edwards’s judgment is set forth hereunder. 6. The mother in February last was living in Auckland. The child, who has always been in her custody, was living with her there. On the 22nd of February the prisoner forcibly seized the child and took her away, and kept possession of her for several days until she was recovered by the police and restored to her mother. 7. It was admitted by counsel for the prisoner that this was done with intent to deprive the mother of the possession of the child. Counsel contended, however, that as the prisoner was the father of the child he was entitled to its custody, and that the taking of the child, therefore, was not unlawful within the meaning of section 230 of the Crimes Act, 1908. 8. I held that, in view of the order made by the Supreme Court on the prisoner’s application for a writ of habeas corpus, the prisoner was not entitled to the custody of the child, and that the taking was therefore unlawful. I directed the jury in accordance with this view, and told them that they ought to convict the prisoner, unless they thought that when he got possession of the child he was claiming in good faith a right to the possession of the child. 9. The jury found the prisoner guilty. I postponed sentence pending a decision on the question that I agreed to reserve for the opinion of the Court of Appeal as to my direction to the jury. 10. The question for the opinion of the Court of Appeal is this: Was my said direction to the jury right in law ? Singer, for the prisoner : The prisoner was convicted under section 230 of the Grimes Act, 1908, but the child was not “ unlawfully ” taken away. The father has the natural right to the custody of his child Halsbury’s Laws of England (1 Vol. xvii, p. 105) —and unless that right of custody has actually been taken away from him by an order of the Court giving the custody to some one else, or he has been restrained by injunction from interfering with the child, this natural right remains in him. The refusal of the writ of habeas corpus does not give the custody to the mother. All the Judge could do on the summons for habeas for pus was to grant or refuse the writ. [Williams, J. —Is not the effect of the dismissal to show that the mother has the lawful custody as well as the de facto custody ?] All the Court did was to say tuat it would not actively assist the prisoner; it did not determine the lawful custody. [Edwards, J.—ls the mother’s custody unlawful ?] It is not necessary to say the mother’s custody is unlawful : she may be lawfully entitled to the child until the father asserts his rights. Compare the case of Reg. v. Prior (19 N.S.W. L.R. 329). That case decides the order of refusal on an application for habeas corpus does not effect the legal right to custody. See also Reg. v. Dr. Barnardo (7 T. L.R. 109); Simpson’s Law of Infants (3rd ed. 123). Halsbury’s Laws of England (Vol. xvii, p. 107, sec. 254) deals with mothers’ rights ; no order for custody has been made in favour of the mother under any of the statutory provisions which she could have invoked. [Chapman, J.—Section 230 refers to "lawful charge,” not "lawful custody.”] A child might be in the “ lawful charge ” of a person, and yet the father’s taking may not be unlawful. The Solicitor-General, for the Crown, was not called upon. Stout, C.J.:— I am of opinion that the question put in the case, as to whether the presiding Judge’s direction to the jury was right in law, must be answered in the affirmative. In tbis case the child was in the care of her mother. The father applied for a writ of habeas corpus, which was refused by the Supreme Court. That decision shows that the child was in the lawful charge and custody of its mother. The

father then took the child away from the mother, notwithstanding the decision of the Supreme Court. This was an unlawful proceeding, and, if allowed, the result would be that there would be no order in any community. If he was dissatisfied with the decision he might have applied, under the Infants Act, 1908, first to the Supreme Court, and, if necessary, to the Court of Appeal. He chose, however, to proceed without acting according to law. I do not know of any other direction that could have been given in the present case. The question whether the prisoner was acting in good faith in claiming a right to possession was left to the jury. Everything that could have been said on his behalf was left to the jury, who decided against him. I am of opinion, therefore, that the conviction should be affirmed. Williams, J. : I am of the same opinion. The child was in the de facto custody of its mother. The prisoner applied to the Supreme Court for a writ of habeas corpus to obtain the custody of the child. The prisoner, being the father of the child, had, in the absence of good cause being shown to the contrary, an absolute right to the custody of the child. It was not for the father to prove his lease beyond showing that he was the father. It was for the mother to show that under all the circumstances the father had not the lawful right to the custody of the child. The issue, therefore, was, Had the father the lawful right, or was the child in the lawful charge of the mother? The Court had decided, against the father, that he had no right to the custody. It follows, in my opinion, that the Court had held that the child was properly where she was—viz., in the custody of the mother. If after that decision the father obtains possession of the child by trickery or by force, not having the right to the child, he commits a breach of section 230 of the Crimes Act, 1908. If that were not so. the order of the Court upon an application for habeas corpus would be fruitless. As I said during the argument, if the contention of counsel for the prisoner is correct, then, in spite of the order of the Court, the right of the father is preserved to get the child in any way he thinks fit. Denniston, J.:— The case states that the summons for a writ of habeas corpus was dismissed. Mr. Justice Sim says that at the trial of the prisoner he held that, in view of the order made by the Supreme Court on the prisoner’s application for a writ of habeas corpus, the prisoner was not entitled to the custody of the child, and that the taking was therefore unlawful. The question for this Court is, Was such direction right in law ? Mr. Singer argued that the dismissal of the summons for habeas corpus was only a dismissal of the suit—equivalent to a nonsuit, and leaving the position of the parties as before. The wife was at the time of the hearing of the summons entitled to the custody of the child against all the world but the prisoner. She had been divorced from him. By his summons for a habeas corpus he asserted his right to such custody as against the mother. As has been pointed out by Mr. Justice Williams, the only issue raised by the summons was that of his right to such custody, and the only answer to the claim was proof to the satisfaction of the Court that it was not in the interest of the child that she should be taken from the custody of the mother and given into that of the prisoner. It was therefore a decision of the Court that she was the proper custodian of the child against all persons, including the father. The question of the effect of tbe dismissal of the writ was one purely of law. I agree that the view taken by the learned Judge was correct, and that the direction was right, and therefore that the conviction should be affirmed. J. : I agree. If Mr. Singer’s argument were to prevail, and it were held that after the judgment of the Supreme Court in the proceedings for a writ of habeas corpus the father still had a lawful right to the custody of the child, then the mother, in detaining the child against his will, would herself have been guilty of an offence under section 230 of the Crimes Act, 1908. This, of course, is impossible. This is only one illustration of the illogical character of the argument advanced by counsel for the prisoner. There can be no doubt, in my opinion,*that after the dismissal of the summons for a writ of habeas corpus the child remained in the lawful custody of the mother. This was the intention of the Court, actually expressed in the reasons for the judgment, which have been printed in the case stated It is also, in my opinion, clear that quite apart from that expression of intention the legal result of the dismissal of the application for a writ of habeas corpus was as I have stated. Chapman, J.: — I agree. I think that the law is correctly stated by Mr. Justice Sim in paragraph B‘of the case. I do not think it necessary to consider whether an actual order was

made giving the custody to the mother, or whether there was jurisdiction to make such an order. The necessary effect of what was done was to place the mother in the position of having the lawful charge of the child, as siie was before the prisoner attempted to put an end to that charge. It is not disputed that the child was in the lawful charge of the mother as against the world, but it was argued that the father retained the right to put an end to that charge and take the lawful custody of the child himself. If this were so, ohe dismissal of the summons for habeas corpus must be regarded as of no effect. That dismissal was, in effect, a judicial denial that the father was the proper person to have the custody of the child. If that were not to be its effect, then the order should not have been made. The result is that there came into existence on his own seeking a judicial pronouncement against him. That places him in the same position as the rest of the world, and leaves the mother’s right and duty, whether arising from her being the mother or from the order, unimpaired. The prisoner has chosen to take the child by force. That seems to be a case that section 230 of the Crimes Act, 1908, was enacted to meet. Conviction affirmed. Solicitors for the Crown : The Crown Law Office (Wellington). Solicitor for the prisoner : R. A. Singer (Auckland).

(“ Times Law Reports,” Vol. xxix, page 10.) [K.B. Div.—(Lord Alverstone, C.J., Ghannedl, and Avory, JJ.) —lßth October, 1912.] Rex v. Governor oe Brixton Prison— Ex parte Sjoland and Another. Extradition—False Pretences—Charge of Fraud in Playing Cards — Three-card Trick—Gaming Act , 1845 (8 and 9 Viet. c. 109), s. 17. A person who wins money from another by means of the three-card trick does not obtain money by a fraud in playing at cards within section 17 of the Gaming Act, 1845. To come within that section there must be cheating during the playing of the game ; and, therefore, the fact that the person alleged to have been induced by an improper method to take part in the game does not bring the case within the section. This was a rule nisi for a habeas corpus. The Attorney-General (Sir Rufus Isaacs, K.C.), Mr. G. A. H. Branson, and Mr. Muir appeared for the Crown ; and Mr. Herbert Smith for the applicants. The applicants, Anders Anson Sjoland and August Wilhelm Metzler, said to be Swedes, were charged with obtaining money by false pretences in Norway, and their extradition was demanded by the Norwegian Government and granted by the Magistrate at Bow Street. Id was alleged by the prosecutor, Oskar Julis Karlsen, a farmer, that on the 7th of June last he went to Christiana in order to draw 3,200 kroner from his bank. Before he entered Metzler, one of the accused, spoke to him and ascertained what he was going to do. On coming out of the bank Metzler again spoke to him, saying he did not know the town and proposed that they should join company, to which the prosecutor assented. Shortly afterwards Sjoland, the other accused person, met them as if he were a stranger to both, and asked where the Castle was. Metzler proposed a drink, and all three went into a confectioner’s shop, hut they drank nothing. Sjoland said that he had lost money to some Americans at cards on the previous day ; Metzler asked him if be still had some cards with him, whereupon he produced four, all black at the back, three of them wnite on the other side while on the fourth there were some figures. The borders of all four were turned in. Metzler and Sjoland began to play. Sjoland laid the four cards on the table, first showing their faces so that it could be seen where the figured card was. He then, when they were lying face downwards, changed their position four or five times. Metzler staked a certain sum beforehand, it being agreed that if he rightly indicated the position of the figured card he should win. They played for 10 kroner stakes, and once for 100 kroners, Metzler frequently winning. Finally, they all adjourned to a wood and played on the stump of a tree. The prosecutor joined in, and as a result lost the 3,200 kroner he had drawn out. The prosecutor said that Metzler seemed to side with him against Sjoland and appeared to be much provoked when he (Metzler) lost to Sjoland. At the end of the game Sjoland was standing with his back to the others; whereupon Metzler drew the prosecutor’s attention to the fact that some bank-notes were sticking out of his pocket and nodded to him. He took this to be an invitation to take them, and finally did so, and he and Metzler ran away. The notes turned out to be worth 95 kroner only. Metzler seemed to be very much afraid that he and the prosecutor would be arrested, and shortly afterwards went away.

By section 17 of 8 and 9 Viet., c. 109, every person who shall, by any fraud, or unlawful device, or ill-practice in playing at or with cards, dice, tables, or other game, or in bearing a part in the stakes, wagers, or adventures, or in betting on the sides or hands of them that do play, or in wagering on the event of any game, sport, pastime, or exercise, win from any other person to himself, or any other or others, any sum of money or valuable thing, shall be deemed guilty of obtaining such money or valuable thing from such other person by a false pretence, with intent to cheat or defraud such person of the same, and, being convicted thereof, shall be punished accordingly. Mr. Muir, in showing cause, contended that there was evidence upon which a Magistrate in England could commit the accused for trial, and that consequently there was evidence upon which they could be extradited. The false pretences would be that the accused were strangers, and that the game with the prosecutor was played fairly. In the three-card trick the cards were not manipulated in the same way in the game with the confederate as in that with the dupe. Mr. Herbert Smith contended first that the evidence of identification was not such as an English Court would act upon ; and, secondly, that under the above statute the cheating must be in playing— i.e., in the play itself. Assuming there was any cheating at all it was preliminary to the play and to induce the prosecutor to play. There was no instance reported of any one having been indicted under this statute for practising the three-card trick; he was always dealt with as a rogue and vagabond. He referred to Reg. v. Bailey (4 Cox C.C., 390), Reg. v. Hudson (Bell’s C.C., 263), and Reg. v. O’Connor (15 Cox C.C. 3). The Lord Chief Justice said that in the opinion of the Court the evidence of identification was sufficient. With regard to the second point, all the prosecutor complained of was that he was induced to play at a game whereby he lost money. He said he believed the two men, the accused, with whom he played, were strangers to each other, and that he was induced to play by one who was a confederate, and by Metzler being successful when playing with Sjoland. It seemed to him on the authorities that that preliminary inducement was not sufficient. The statute in plain terms said that the cheat must be “in playing” at cards. Therefore, the fact that there was an improper method of inducing the prosecutor to become a victim was not sufficient to support the charge under the statute. Was there any evidence of cheating in the play itself? The three-card trick was a game in which one person backed his ability to spot the position of a particular card. By sleight of hand or quickness of movement the other person was able to induce the person backing his opinion to put his hand on the wrong card. That, in his opinion, did not amount to winning money by a fraud in playing cards; it was skill only. Under these circumstances he was of opinion that there was no evidence of an offence according to English law, and consequently that the Magistrate ought not to have made the order of extradition. The rule must be made absolute. Mr. Justice Channell and Mr. Justice Avory delivered judgments to the same effect. fSolicitors —The Director of Public Prosecutions; the Official Solicitor.]