OHINEMURI INQUIRY.

Dominion, Volume 2, Issue 500, 6 May 1909, Page 2

OHINEMURI INQUIRY.

WHY THE COMMISSION IS ILLEGAL. , OUTLINE OF THE JUDGMENT. •! ' N Yesterday the Acting-Chief Justice (Mr. : Justice Williams), on belialf.of tho CourFof Appeal, delivered reserved judgment with regard to tho action brought to test the validity of the commission set up'to inquire into , an , allegation levelled against, certain members , of tho Oliiiiemuri Licensing Committee of 1900, viz.:— ''" ■■' ;..';'■; That in counection with an application. by one Maurice Coogan Power for a jio- . • sunso in rnsnect of certain premises situ- , ■ ated at Waihi (in lieu of his then exist- ■ . ing license, in :respect of. premises situ- ;; ated at Paeroa) money was paid to certain members of; the committee as bribes . to support the, application. ; . v " s . Status of'a Lloensing Commlttae --: Tile Court said that it was unnecessary/to consider whether the acceptanco of a bribe... ,by a. member of a- Licensing Committee would be an offence at common law, because every person who was a party to any offence must bo proceeded against under some statutory, provision. Tho only provision which ' would apply was Section 126 of the Crimes Act, 19UJJ, which related to'tho crimo of udicial corruption. It had frequently boon leld by the Court that the proceedings of a Licensing: Committee'were judicial.. Thoprovisions of the Licensing Act-showed'not. that a committee was a body which was only judicial in.tho sense.that it was bound t<) ' exercise its proceedings with fairness and im-' . partiality,'but that its.members wore mem- ~ bers : of a Court. ..Tho,Act also recognised each member of the committee as the holder of an. office. If a man was the holder of an office.and the duties- of that offico wore ' strictly judicial, he was the % holder, of a ■ judicial 'office. It must be held, therefore, that. a member who accepted a bribe was , guilty of a.crime under Section. 126 of the Crimes Act. . , *' : .-. . The coinmission had been, appointed, observed the ,Court, to inquire whether anyof i'v tho'members had been guilty of an offence punishable by law j also to report as to the necessity or expediency of any legislation in respect of thopremiscs. Did the commission .. come within , the authority of tho Comniis- '■ sions of Inquiry Act?. The inquiry directed. was_ not a question arising out of .the administration of tho Government, nor '.was it '..■- nni inquiry as to the working of an existing law, nor one concerning tho conduct of any . officer in the public service. The only other ground mentioned • in. the section in question ■ was an inquiry ns to the necessity or. oxpediency.of. legislation. It was. difficult to., conceive-what possible legislation could be propdscdj even if the commission reported'that, the members' had received bribes! If; they had accepted bribes, tlioy would bo al-. ready within, the not of the law. Whether or no,.the law should bo amended 60 as to furtlier prevent.members of. licensing'com- • mittecs from being .bribed-could in , ho tpy depend upon whotiher .■■the members of a' particular committee, nino -years before. Tdid,-' or did not receive bribes.' The Court thoroforo held, that the Governor-in-Council was not authorised by the Act to appoint a com-' . mission to malco the inquiries in question., - ■■■

. ■ Eflect of tha prdeHn-Counbll. It was necessary, ! continued this. Court, to \j-' show.clearly,what-the effect of tho Order-in-: ,'•'■ ,Council would 'bo if . it , : were, acted. • upon. Tho only, charge, under tho order . that the commission; could inquire into wouW ; : ' . be. a '.-charge of bribery. Members'of tlm ;': : committee were therefore'to. be formally charged with, an indictable offence. They : could decline to answer a question only on the ground that tho answer might tend to ■ criminate themselves.,. In. effect, '. by declin- .: 'in%.to answer, ■ they, criminated themselves. After all, if the "commission found tho charge proved-and made the persons charged pay the costs, they had not yet been found guilty „ of. the offence, Because they had not \ been ' ooiivicted' by a jury. If: they wore after- ■ '. wards put on their trial and acquitted,' they, .' would nave -been subjected to a;'grievous _■]; injustice by tho judgment of tho. comniis-'" s ' sion. Apparently' the members of the com-. mittce (to borrow a phrase from the timo of tho French i Revolution) was only, suspected of being suspected, and the object of tho. inquiry, was-to ascertain whether they ought, to bo suspected. The order directed a charge , to bo mado and investigated: in a manner unauthorised by'law. If it ,was not an offence under Section • 126 of. the. ■'Crimes. Act, as : had been ..contended, it was riot, an offenco at all.. lii thatcaso tho effect, of tho order was to- create an offenco unknown to the law,- to set up a new Court) and to allow a person to bo charged with, and tried and punished for the offence iu that Court.' -. ' . " .A nefercnoe to the Star, CliamboN .The Court proceededito say that tliepower,. . of the Governoi , to appoint what was known . as. a lloyal Commission had long been recog». lifted. A-commission to inquire into the al- ; leged maladministration of tho affaire of a : municipality, a haticilr board, a college, ; ! cr other public body (though possibly ntit ' ; authorised by Section 2 of the of Inquiry' Act) could be appointed by'tho,; authority-of the Letter's. There must, how- ■' overj be somo limit to. the power' of the Crown, or of the Governor; actuig on behalf of tha,Crown, to set lip a commission of inquiry. It'was the intermeddling by,tho .V Crown or tho" Executive in'civil causes and . ' 'matters between party and'party' that : tho • ! r A'ct abolishing tho Star ■Chamber..was in- , tended to prevent. So far- as .'.criminal mat- .. tors wcro concerned, that Act recognised the ' .authority of Statute 42, Ed. 3 o-3, under which no man was to. be put to ; answer, '• unless in ■ tho ■•■in'aiinor > prescribed by law. I ■At' the time-of tho' passing of tho Act ■abolishing-the. Star Chamber, commissions •of inquiry only were recognised as legal. Down to-the middle of the nineteenth centuTy such- commissions usually purported to , authorise tho commissioners to examine '.all persons on oath. It was not until com- ; parativcly recent times that it was acknowledged . that,, no such .power existed.' ,' Then . in New South Wales and New. Zealand tho Legislature stepped in and gavo this power ' to commissions appointed,by tho Crown.' It,' ' was--impossible -that the -■ Legislature, in giving that general power,•■ intended it to 'y. apply to inquiries which, if such,a general power had previously existed could not .lawfully hnvebeen instituted. - ■: - ■ '■ ■

Commissions and ,tho Question of Cullt. : If, added the Court, the question of ■ guilt or innocenco of an individual arises in the course of alegitimate-inquiry, and is necessary in order. to answer that inquiry, a commissioner might well bo justified sidering the. question, of guilt or innocenco in order to enable, him to report. Tims an inquiry •into the alleged misconduct, of a public officer is authorised by'tbo Act. Such an inquiry is in order to ascertain whether he should bo retained in the service, or dismissed, or bo otherwise niado subject to official' discipline. Although the alleged ! misconduct amounted in law to a crime, the commissioner might noverthelejs investigate it, because- it would bo merely , incidental to a legitimate inquiry. In the. present caso the real, and, in effect,, tlw solo object of the inquiry is to ascertain whether certain named individuals, who. bcoupy no '. official position, have committed'a , specified offence. The-inquiry", would bo virtually a'trial for the offence without tho protection that the law gives-to accused persons, andHlie result''of .which might subject tho accused in respect of sucli offence" to pecuniary penalties unknown to tho law. Whether, or no the members of tho committee did or did not i'Cccivo bribes is quite immaterial. Tho plaintiffs aro entitled to a prohibition. , , On behalf of plaintiffs Mr. Luckio asked if the Court would mako any order as t< costs. ; - . .'■■■.". ' .". ■■■ . ■ '• ■ : '■.'■■'

Mr. Justice .'Williams:. Have wo anj power?. : ■ ■'■■ . ■'■'. '■'■'• r : Counsel:-! Yes, under tho Crown Suits Act. Mr. Chapman said ho did not think tho Ac<>. applied.-". - ; : .'. ! ~ - '•. ;-■ Eventually the Court decided not to makn any order on the subject. Tt' would, it! said,/' hnvo allowed costs if it had jurisdiction, Air. Slcerrett, K.C., and Mr. Baumc,' K. 0., with them Mr. Luckic, apjieared for' plaintiffs, and Mr. Cliapmah, ■ K.C., and Mr. D. M. Findlay for tho defendants.