OHINEMURI CASE.

Dominion, Volume 2, Issue 475, 6 April 1909, Page 5

OHINEMURI CASE.

"NOVEL IN ENGLISH LAW." ACTION TO CANCEL COMMISSION. INTERESTING ARGTOIENT. An important constitutional question was raised in tho case of Frodorick Cook, Tlios. Gavin, Henry W. Moore, Hugh Poland, and Jas. E. Taylor (members of tho Ohincmuri Licensing Committee in 1900), versus tho Attorney-General and Mr. Justice Sim (tho commissioner in connection with tho Ohinomuri Licensing Inquiry), which was commenced in the Court of Appeal before hia Honour Mr. Justice Williams (president) ami their Honours Justices Denniston, Edwards, Cooper and Chapman yesterday. Mr. Skerrett, K.C., and Mr. Ikumo, K.C. (with them Mr. M. Luckio), appeared on behalf of plaintiffs, and Mr. Chapman, K.C, and Mr. D. M. Findlay for tho defendants. Outlina of Claim and Defence. According to tho statement of claim, Mr. Justice Sim was on February 27, 1909, appointed to inquire into an allegation "that, in connection with an application made to the Licensing Committee of tho district of Ohinemuri, in or about the month of June, 1900, by one Maurice Goggan Power, for tho grant of a licenso in respect of premises situate at Waihi, in lieu of his then existing license in respect of premises situate at l'aeroa, money was paid to several members of tho committee as bribes to support tho application." For the purposes of tho inquiry, tho commissioner was authorised to examine all hooks and documents which ho doomed necessary, also all persons whom ho thought capable of affording him any information on' tho promises. Plaintiffs prayed that tho commission might bo cancelled, and that the commissioner might be restrained or prohibited from inquiring into the allegation. By tho statement of defence, defendants denied that, at tho date of tho commission, legislation had not been proposed or contemplated by the Government relating to bribery or corruption of members of licensing committees. It was further denied that tho Governor had no power to issue under tho seal of tho Dominion, or authorise tho commission, or any commission or tribunal to inquire into the allegations. Also, it was denied that tho « mmissioncr had no jurisdiction to report upon the charges.'. Argument for, Plaintiffs.

On behalf of plaintiffs, Mr. Skerrott said that the case raised an important question, as to tile power of the Crown, either by exerciso of its Royal prerogative or by virtuo of the Commissions of Inquiry Act, 1908, to sot up a commission to inquiro into a chargo under tho Crimes Act against individuals'. It was common ground and a pleasing fact that no charge of misconduct was alleged against the Magistrate, who acted ex officio as chairman of the committee. It was to be noted that it was not suggested on the part of the Crown that any legislation was contemplated or proposed relating to specific charges or relating generally to the prevention or punishment of members of a licensing committee receiving bribes. Ho submitted that, both under the statute in New Zealand regulating the issue of commissions of inquiry 'and under the custom and usago ofParliament, no commission of inquiry should issue as to proposed legislation unless legislation on tho subject was proposed, cither by Parliament itself or at least by responsible Ministers of tho Crown. Annexed to tho commission by statute was the power to summon witnesses and examine tlicm .■ on oath, and to award costs against oithor' a party or witness. Tho main quostion was whether, under tho Commissions of Inquiry Act, or under tho prerogative of the King, there was power to issuo a commission to inquire and report on a charge of crimo even although the commissioner possessed 'j'no power to inflict punishment, _ fines, or disabilities, and, if tho commission was within tho prerogative of tho Crown, whether that prerogative had been, delegated to tho Governor by his commission. Importance of the Appeal. It was impossible, continued Mr. Skerrelt, to over-estimate tho importance of tic question which tho Court had to decide. Every member of tho community ,was interested in preserving tho exclusive jurisdiction of Courts of law within tho limits assigned to them, particularly in. dealing with charges, of crime, and sottling controversies as to personal rights and rights of property. And everybody was interested in seeing that those jurisdictions wcro exercised free from tho interference or usurpation of tho executive. Under tho New Zealand system of government it was easy to see that, with a Ministry liable at all times to tho demands and insistencies of political adherents and tho exigencies of party strife, commissions might bo greatly and grossly abused. Such commissions might bo constituted, not only to inquiro into' a charge of crime, but also to inquire into purely personal controversies relating to personal rights or to tho title of property. There might bo a commissionas it was alleged the present was—to find material for a prosecution; or to investigate a title to roal estate; or to inquire into a private controversy between the Executive and suitor, cither before or after recourse I had been had to law. He would remind tho Court that (as Blackstone put it) tho law protected tho Courts from interference of tho Executive, not only as to substantial decisions of tho Court, but also as to procedure —because if the outworks wore carried tho citadel would soon fall. Tho commission in question was novel in the history of tho English law, and, although some instances of inquiries might 1)0 cited wlu'cli bore a resemblance to it, that resemblance was only apparent and was not roal. To the plaintiffs the question was of great moment because they wero hound to attend and give evidence.

Position of Witnesses. Mr. Justice Williams: Hut a witness might, rofuso to answer questions on tho ground that his replies might tend to incriminate him. Mr. Skorrett: It is trno that unless the. claim for immunity is merely fanciful, it is tho bounden duty of a Court to allow it. Mr. Justice Williams: Supposing £lio question was asked: "Didn't you receive £10 as a bribe." a witness would most certainly have a right to say, "I claim privilege," although ho might ho norfoctly innocent. Mr. Skerrett: Whilst wo concede what his Honour has said, we submit that it is quite clear that a claim for immunity is a tacit admission of peril. Resuming. Mr. Skerrett submitted that no person should ho put in such a nosition except in accordance) with the positive law of tho country. Ho might point out that tho law sedulously guarded an accused nerson both on tho preliminary inquiry before jv magistrate and on trial of the charge from boiiig placed in such n crnyo and serious position. Tho present commission was for tho purpose of interrogating persons who were accused of tho commission of a crimo; it was in reality n nreliminary inquiry as to wbnt evidence could bo procured, nnd us to whether they should bo plnced on their trial. His submission was that the inqu'rv would tako the plnee of an investigation before a magistrate, lnit tliero was tho ndded power to interrogate the accused persons, and collect ovidenco—in fact, it was innuisrtorinl in tho highest possible deirroo. Plaintiffs were in peril also becnuso the commissioner was required to express an opinion oil tho chnrgci. nnd on the. ovidcuce. adduced in support of them. Tho report, ho contended. michl. an anticipation of tho verdict of the Jipy when the m<m were placed on trial. On ili,< whole tho innuiry from its legnl ns])ecl. wm aliont as un-English a proceeding as con!! well bo advised. Mr. Justice Chapman: It is vorv Uti-'l'sV, Mr. Skcrrottl For instance, tho Si«r Ch.wbcrl Mr. Skorrott: I don't object to Uu> ronvparison. ' i What Plalntlfls Contend. Continuing, Mr. Skorrott stated his point* as follow. — (1) That th<. King conld not by his pr*. roentivo sot up any now Court or tako away ,or add to the existing junsdiotiou of smsi

Court except by the authority of Act of Parliament, nor can tie King himself personally administer justice. (2) That the Governor is not a viceroy, and does not possess any general sovereign powor. his authority being derived from and limited to the powers expressly or impliedly ontrusted to him by his commission. (3) That tho commissions of the King, like all the King's writs, must bo stich as have the warrant of law and continual allowance in Courts of Justice, all others being unlawful and void. (4) That the King cannot set up a oomrtiission to inquire into and determine, or to inquire only intoj charges of crimo cognisable by oxisting jurisdictions. (5) The King may sot up a commission to inquire and gather information as to general matters relating to (a) the practico -and proI cedure of legal tribunals; (b) tho conduct and management of the different departments of administrative government; (c) the conduct ©fa public officer in the public service-; (d> tho Acts and revenues of local bodies and of institutions publicly endowed or acquiring special richts and privileges undor the law; (o) the conditions of particular classes of the community and the operation of the laws affecting them; (f) the state and.advancement of various branches of art and scionco for public purposes; and (g) the necessity or expediency of any legislation proposed either ; by Parliament or possibly by tho Ministry of the day. (6) That the King cannot set up a commission of inquiry into, and gather information as to, purely personal rights, whether such rights be the rights of property or other legal private rights. ■ (7) That the prerogative of the Crown m that respect has not been delegated to the Governor. Mr. Skerrett had not concluded when the Court adjourned until 10.30 this morning.