AN INTERESTING LEGAL POINT.

Press, Volume LX, Issue 11508, 14 February 1903, Page 8

AN INTERESTING LEGAL POINT.

(PHBS3 ASSOaATIOK TELEGRAM) V tfj WELLINGTON, February JL3. \f 1 •_ The Chief Justice gave judgment v Ln_a case of some interest, cm a quettioa arising out of section B. of the Indictable" Zμ Offences Summary Jurisdiction Act, 190Q£ Sj which provides that "a person chargeed b** ' s fore toe magietrate with an offence mh- S spect .to the commission of wEkh ait offender is liable on summary conviction t»* be imprisoned for a term exceeding time months" can claim to be tried bj a jar/, i|j A few. days ago one Thomas Frake wm charged before' Dr. McArthur, SM., with , t&§ baring unlawfully imported: opium, and the J| magietrate ruled that tlhe defendant's mm Iβ, came within the foregoing section, and bhatr >*Jj lie could chum a jury. ■& The prosecutor, the Collector of Cuatomv t dm cotAemed that the case did cot oom«r r M within the section, and *ppEed to tb«« gg higher court for a mandamus to the irate, to deal with the case summarily. BWyis Honour** judgment points out that &mv|!| ore three .counts, the firtb and second cf»>j|i which charge r the accused "with brought opium into tke colony contrary tie, restrictions on ite importAtion, with having acquired poaweeeion of hih*ed goods.. Both these ohargei lokt under the Cnatonw Law* tion Act. The penalty for both is tUie same—forfeiture of "either the value of the goods" or."one pounds, *t the election of the Commission**f*jssj bf Trade and-Cuetoms.". The earn* Aot X' q provides thai in tie case of failure to pay the penalty tt© offender, shall be oommittedh * M to gaol till it is paid, but if a penalty of" t less <than £100 5s fixed;he may be charged at the end of six toontihe. J Tna' defendant's contention was tbat -5 ibis power of committal in defaali of pay-> A ment—that imprisonment rexceeditur ttuie * months"—is in. respeci oi "commiaaion" of i an offence, ood that defendant ootdd there- " n fpre cteim trial by- jury. : :■ i! 3 'His Honour holde t&at this imprison- v |! roent, to which defendant is liable t for the ©ommiseiott of an offence. Hβ k f! liable to a. penalty, only, end, it ~-M to m- ■» J force *he pgnaHy to , punish for the ooe- »s mission of an offence that 'he" i» sent id, gaol. The first and second counts do not % therefore com* trithm section B of Indictable Offences Summary JumdlctlMii Act, 1900. As to the tirird count, it oome»' ~\M under tie- Opium ProWbilioii Act*, and *M the penalty prescribed is one that rant b«> M sued for in the Supreme Court, and oiw&gye which the Magistrate has so Aβ .to the defendant's contention that if the magistrate's decision Iβ; wrong MQKjhI mandamus can be issued, because the (remedy is an appeal on a matter of law, and the proper remedy is by » rule undei section 290 of the Justices of Peace ,1882, his Honour hold*, that section VSk*s&k is not so extensive a .remedy as that by a*i|| mandamus, end that a, < mandamun to' ataßf magietrate to hear UJie flwtsnd counts frhouLd be issued. The mere fact lam that there is a third count the magvtnts Wm cannot hear does not prevent the court ; WS exercising summary jurisdiction as to th* first and second counts. - -