OHINEMURI CASE.

Dominion, Volume 2, Issue 476, 7 April 1909, Page 5

OHINEMURI CASE.

GROWN PREROGATIVE EXAMINED. A GREAT CONSTITUTIONAL POINT. Further argument with respect to the case of Frederick Cock, Thos. Gavin, Henry W. Moore, Hugh Poland, and John E. Taylor (niombers of the Ohineniiiri Licensing Committee) versus tho Attornoy-General and Mr. Justice Sim (tho commissioner appointed to inquire into an allegation of bribery made against certain members of the committee) was hoard by tho Court of Appeal yesterday. . Mr. Skerrett, K.C., and Mr. Baume, KC, with them Mr. M. Luckie, appeared for the plaintiffs, and Mr. Chapman, JK.C, and Mr. D. M. Findlay for the defendants. Outline. The question raised in the action is whether there is jurisdiction to inquire into charges of. bribery either under a commission under the Commissions of Inquiry Act or under a commission issued under the Governor's Letters Patent. Upon February 27, 1909, Mr. Justice Sim was appointed to inquire into an allegation that, in connection with an application made to the committee in Juno, 1900 by ono Maurice Goggan Power for tho grant of a license in respect of premises situate at Waihi, in lieu of his then existing license in respect of premises situate at Paeroa, money was paid to several members of the committee as bribes .to support the application. Plaintiffs claim that the commission should be cancelled,' and set aside as illegal, null and void, and that Mr. ■Justice Sim should be restrained and prohibited from holding the inquiry. Extent of the King's Prerogative. On behalf of the plaintiffs, Mr. Skerrett continued his address to tho Court. Several cases were cited by him in support of his first contention that the King could-not, by his prerogative, set up any new Court or take away or add to the existing jurisdiction of any Court except by the authority of Act of Parliament, nor could the King himself personally administer justice. With respect to his second point, viz., that €he Governor was not a Viceroy, and did not possess any general power (his authority being derived from and limited to the powers expressly or implied]} , entrusted to him by his commission), there could, if was urged, be no dispute.. Counsel then quoted authorities in support of further contentions that the commissions of the King, like all the King's writs, must be. such as have the warrant of law, and continual allowance in Courts of Justice, and that the King could not set up a commission to inquire into and determine or to inquire only, into charges of crime cognisable by existing jurisdictions. It was quite true that the King might set up commissions to inquire and gather information , as to various general matters. ' "

An Excursion Into the Stuart Period. Mr. Skerrott then quoted from Statute 16, Charles, cap. 11,. whicli. dissolved the Star Chamber. It was provided therein—that neither his Majesty nor his. Privy Council had •jurisdiction, power, or authority, by English Bill, petition, articles, libel, or any arbitrary -way, to examine, or draw into question, determine, or..dispose of the lands, tenements, hereditaments, goods, or chattels of any of the subjects of his kingdom, but that the same ought to be tried and determined by the ordinary Courts of Justice and by the .ordinary .course, of • law,. ... ■ were to be,unlimited power,to lappoinii,commissions of inquiry, remarked counsel, the executive might issue commissions to inquire, though 'not to determine, charges of misconduct against Judges of the Supreme Court. Such a state of' things would, he urged, be ' intolerable. There was a great distinction between a commission similar to that in question, and : . a ' commission appointed, .to make an inquiry ' for general public purpose's. The proposed commission was set up for one, and only one, purpose, viz'.,: to investigate particular .charges if crime" against The law was that; "n , 6*DiWt^'f' I Mf^''a^^' k lawful commission to inquire into' matters of public interest and -importance, unless the parties. submitted themselves to it, the p.ourts of.law would t prevent it from inquiring into charges of crime, even incidentally. Why the Commission Should be Quashed. It was clear, continued Mr. Skerrett, that the ; commission did not come within the powers given by Section two of the'.. Commissions of Inquiry Act, 1908, beoa'ijse it was'not'a. commission to inquire intty and report upon any question arising out of the administration of the Governi -nt or 'the working of any existing law.tion suggested.by the commis i'. i v;4s ;!»gislation with reference to particular Allegations of bribery, whereas the 'legislation required by the Act must be legislation proposed anterior to the commissi, -.t>j ukner by Parliament or possibly by .{he 'iiinijtry of the day.: The statute,, was, he argued, restrictive of the prerogative of the Crown. His final/proposition was that the prerogative of the Crown in the respect in question had not been delegated to the Governor. It was quite sufficient, concluded Mr. Skerrett, to show that the commission was illegal if it were established that the alleged offence was one which was reasonably capable of being made the subject of a charge under the Crimes Act, and everyone who committed the crime of bribery or official corruption was to imprisonment with hard labour for fourteen years.

The Theory of Justice. Mr. Baume, who followed on the same side, submitted, inter alia, that a commission appointed to inquire with determining anything was illegal unless there was'statute to back it up. If witnesses were exposed to peril the commission was illegal. "Prerogative' meant something inherent in the person of the sovereign. His Excellency the Governor had no portion of the'prerogative of the King; he was purely and simply a statutory officer whoso jurisdiction was dependent upon his nght to exercise the powers in his commission and instructions. It was not necessary for the determination of the matter for 1 the Court to decide whether the alleged offence was a crime. The inquiry was not for the purpose of proposed legislation. Under any circumstances the commission was not a .Court. The wholo theory of justice in , English countries depended on the observance of certain settled forms of procedure. A tribunal like the commission in question could hear ovidence, or'not hear it as it pleased; tako evidence on oath or not as it pleased; and sit in secret or not as it pleased. It was more than ever an infringement of the liberty of the subject to practically compel anybody aimed at in the commission to attend, and make full answer to all questions or else bo condemned in the .eyes of tho world. The proposed commission was an interference with the liberty of tho subject; an interference with common rights; and an interference with common law. The Commission Defended Mr. Chapman prefaced his argument on behalf of the defendants by complimenting counsel for.. plaintiffs on tho diligence of their search which had embraced practically every passage in the authorities bearing on the subject. The main question was whether the Govornor could appoint a commission of inquiry: upon that question tho wholo matter turned. It was provided that tho Governor might appoint a commission to inquire into certain matters mentioned in tho Act. Assuming that tho matter now in question was. outsido the particular purposes so mentioned, but was a matter on which tho Governor required information, tho point was whether tho Govornor could issue a commission of inquiry. That brought him at once to the report of tho case on commissions in 12 Coko. All dicta which tho Court might find as to tho illegality of the commission of inquiry depondod on that roport. It could not bo' said that the commission was illegal because it was directed to an inquiry into crime. A porson was, ho might point out, not protected against questions put to him by a detective Mr. Justjco Deiuiiston: Ho need not answer questions if it would tond to -incriminate thorn. Mr. Justico Edwards: If a detective asked an insulting question about n crimo, all the person whom ho was interrogating need do would be to point to tho door and toll tho official to get out. Nobody would think any tho worse of him for doing that. At this stage tho Court adjourned until 10.30 o'clock this morning.