THE GAUDIN CASE

Dominion, Volume 8, Issue 2384, 13 February 1915, Page 4

THE GAUDIN CASE

HIS RELEASE SOUGHT ARGUMENT IN THE SUPREME COURT POWERS OF MILITARY CODRIS Bather unusual interest attached to the proceedings in the Supreme Court yesterday, when Their Honours the Chief Justice (Sir Robert Stout) and Mr. Justice Edwards sat to hear a motion "for an order calling upon all parties concerned to show cause why a writ of habeas corpus should not issue, directed to Colonel G. W. S. Patterson, of Dovonport, to have the body of Frederick Edward Norman Gauain before the Supreme Court,' Wellington, to undergo and receive all and singular such matters and things as the Court shall consider, upon the grounds that he is illegally detained in custody by Colonel Patterson and upon the further grounds set out in Gaudin's affidavit."

Sir John Findlay, K.C., with him Mr. D. M. Findlay, and Mr. D. R. Hoggard, appeared in support of the application, while the Attorney-General (the Hon. A. L. Herdman), with him Mr. H. H. Ostler, appeared for the Crown. It will be remembered that Gaudin was tried and sentenced by a Military ■Court in Samoa in Deoember last, and that ho was subsequently brought back to New Zealand to undergo the sentence of five years' imprisonment which had been imposed. The . charges brought against him at the time were:—

i "That he committed an act of war treason in that he, at Apia, on or about October 30, 1914, carried on board s.s. Navua (1) a largo amount of correspondence from sudjects of the enemy to .several prisoners of war, and. thereby assisting the said subjects to evade censorship of letters, (2) a photograph of the wireless station addressed to Messrs. Wilson and Horton, photographic editors of tho Auckland 'Weekly News,' presumably intended for publication, and thereby evading censorship, (3) a numi ber of pages of manuscript intended for publication in the Auckland 'Weekly News' or other. paper, thereby evading censorship. "Disobedienoe of Government Regulations in that he, at Apia, ou or about October 30, 1914, removed, from the occupied territories of Samoa, a considerable amount of coin, contrary to proclamation dated Soptember 12, 1914." In support of the motion affidavits had been filed by F. E. N. Gaudin himself; by M. M. M'Callum, . hardware merchant, of Auckland; by D. M. Findlay, solicitor, of Wellington: and by A. ,C. Nathan, solicitor, of Wellington. Gaudin's Affidavit. . In his affidavit, Gaudin stated that he was a natural born British subject domiciled in New Zealand. On November 9 last he was arrested in Auckland by Detective-Sergeant ' J. W. Hollis without lawful warrant,' and was. detained, at Fort Cautley and Fort Victoria until December 14, when he was removed in custody : to Samoa. On arrival at Samoa on December 23 he was for the first time notified of the charges against him, and'was notified that his trial would' take place at 1.30 p.m. the same day. At the hour named he was 'brought be- • fore a military court consisting of Major Head, Captain Gibbs, and Lieutenant Gascoigno, without having an opportunity, after being notified of the charges against him, of consulting or retaining counsel, arid without Deing asked for the purposes - of' challenge whether lie objected to any of the officers _ constituting' such Court. After hearing evidence, the Court purported to sentence him to be imprisoned with hard labour for five years, this sentence, being confirmed by Colonel R. C. Logan, Officer Commanding the New Zealand Expeditionary Force, then in .occupation of Samoa. On December 24, Gaudin was removed in custody to Auckland, 1 and on arrival, there was imprisoned in the Auckland Gaol, where he was detained until placed in the custody of Colonel Patterson, at Devonport,.; on January 9 last. .

The other'affidavits were more or less technical, being connected with questions of legal prooedure. For tho purpose of simplifying the argument, certain admissions . had been made by the Crown as to the arrest and detention of Gaudin, and as to other matters mentioned in Gaudin's affidavit. The Crown further admitted "that he is detained in'military custody in New Zealand , at the present time by virtue of a warrant issued by Lieutenant-Colonel Pilkington, under Clause 12- of the Regulations made under the Act,.1914 ... . and that Lieutenant-Colonel Pilkington has.been duly appointed a military authority within the meaning of that term in Clause 12." Sir John Findlay's Address. Sir John Findlay, in briefly outlining the facts to the Court, explained that at the end of October, Gaudin was carry.ing on business in Auckland, and that his business necessitated dealings in Samoa when Samoa was a German possession He was on a visit to Samoa at the end of October, and while there met certain customers, with-the result thatthere happened what wis set - out in the affidavit of, the prisoner. It was submitted that the sentence, which had been imposed, was of such savage severity as to" shock the conscience of every right-thinking man and woman in the community. .

The Chief Justice remarked that the Court had nothing to do with that, but had simply , to inquire as to whether or not the Court, which imposed the sentence, had jurisdiction. Mr. Justice Edwards said they did not wish to allow the conduct of the Court to be criticised until there was something to go on. Perhaps Sir John would omit all criticism of the oondnct of the. Court until he could convince their Honours that it was warranted.

Sir John Findlay: I am going to submit that the fact of imprisonment having been .imposed belies the jurisdiction of the Coprt. The Chief Justice: You mean it had no power to impose imprisonment? Sir John Findlay;. That imprisonment in itself excludes the jurisdiction of martial law.

Continuing. Sir Jobn contended that | the prisoner nad been arrested in Auckland in tlie first instance without authority, that he had been hold in custody without authority pending his transfer to Samoa, and that he was entitled to his freedom immediately on returning io New Zealand, On January y, Gaudin had boon removed from gaol to be detained at Devonportf, and counsel'was going to submit'that the warrant on which he had been removed and was now held was entirely invalid. The first thing to be observed was that the warrant did not direct arrest, but only detention. Section '2 of the War Regulations Act, 1914, did not, it was submitted, justify the making of Regulation 12 under which the warrant was issued. The was nover intended to confer on the military or the police powers which were not already known to law, but which referred only to powers and duties which were already being exorcised by tho military end the police, and was intended to provide for tho better carrying out of those powers. If it conferred powers unknown to law, it would clearly mean that any person in New Zealand to-day was entirely in-tho hands of the Governor and his advisers. Counsel discussed the question of custody at some length, went on to point out that tho Act

under which the Court sentenced Gaudin expired on August 1 of the present year, and yet it was intended to hold him for five years. The Chief Justice announced his inability to appreciate the bearing of such a point on the case. If a criminal were sentenced under an Act which expired before the term of liia sentence, he would not bo entitled to release on the expiry of the Act. • ,/

Sir John Findlay explained that his point was that the Act was never intended to apply to the present case. It waa submitted that the sentence imposed on Gaudin was lot valid under any, laWj military or civil. As a British subject, he was entitled to protection against the military authorities. The Chief Justice: But surely being in this hostile country, he was subject to martial law?

Sir John Findlay desired to distinguish between British subjects and enemy subjects. The' Chief Justice: Well, is there any distinction? The Word of a German. ■ Sfr John replied that the only law to protect a German for instance would be International Law, but if it could be shown -that martial law could not be invoked to punish this man then he was entitled to the same protection as a British subject in New Zealnad. There was no condition in Samoa at the time of the trial justifying the exercise of martial law against a. British subject. During the course of a discussion that tcok place at this juncture, Mr. Justice Edwards expressed the opinion that there was no means by which the Court oould find out anything about the conditions in Samoa, and the necessity or otherwise of martial law. If, however, there was no military oourt there, it was quite clear that there could be HO. court at all. The Chief Justice considered that Sir John Findlay's argument on this point was begging the question. "The point is," said His Honour, "that martial law exists and that a military oourt site." A little later His Honour remarked that the fact was that Gaudiu was communicating with the enemy. He may not have thought he was doing wrong, but the offence was certainly a very serious one—parrying letters to the. enemy. and taking away a photograph of the wireless' station. Mr. Justice Edwards pointed out that in rpgard' to the letters Gaudin had taken the word of a German that the letters were all right, and in the light of recent events this was scarcely wise. Perhaps the letters did not contain anything serious, but, because a man took the word of a German for it, that should not exculpate him. Sir John Findlay contended that haying been punished in Samoa, Gaudin was a free man as soon as he reached New Zealand, and that his sentence would not be recognised by the Courts here.

Mr. D. M. Findlay: followed with a. brief address, contending that the tribunal which tried Gaudin was not properly constituted, and had no power to impose a sentence of five years' imprisonment. , Mr. Justice Ed-wards asked, during the course of this address: —"At v'the time of his artest—■wasn't that the time to apply for a -writ of habeas corpus? Have>n't you lost your' remedy?" Mr. Findlay replied that no .doubt that was the correct time, but the matter was not thought to be serious then. Attorney-General In Reply. : The Attorney-General, in his opening Remarks in reply, said that these proceedings should be regarded in the light of present conditions, -which were unusual, -unprecedented, and quite extraordinary. While in Samoa, Gaudin had certainly committed 1 offences against the law 'established by the there. That tribunal had dealt with him and 'sentenced him to imprisonment. No .authority had been quoted nor could any be quoted for setting aside those proceedings. On the other hand there was ample authority to' show that _ when British troops were'in occupation of enemy territory, the commanding officer could do as he pleased. In such a case as was now being considered, the British commander could disregard the laws of the land completely, and for the safety of the British troops could establish laws of his own. The rule was that martial law was enforced when necessary in a British country ; and military government in enemy territory. If, then, Colonel Logan had. practised military government, he had a right to make any law he pleased. There was authority for the proposition that the decision of these tribunals would not be reviewed or interfered with. The unprecedented and extraordinary position obtaining must be met by unprecedented and extraordinary measures. It had to be remembered too that not only -were there enemies without Samoa, but also within, and the Administration; had to take precautions against invasion and against, internal troubles too.' .The Crown submitted that because of Regulation 12, made under the War Regulations Act, 1914, they were entitled to hold this man in custody. The Act was properly and designedly passed in order that the State might meet the extraordinary situation;; When war broke out became the duty of the the purpose of protecting its inhabitants— to do many things, which possibly in times of peace could not ,be done. In this connection the Attorney-General instanced the special steps which the Defence authorities ,in New ■ Zealand had found necessary to take for the protection of the ports- There was no authority for this other .than . Common / Law. Similarly there was no authority other than Common Law to enable the Defence authorities to commandeer ships. There were many other caßes that could be quoted to: show that, when -war existed, extraordiha-p; powers must be vested in thV The War Regulations Act was not intended simply to facilitate the exercise of the powers the State already possessed. An Unprecedented War. As this was an unprecedented war, it was of the utmost importance that all parts of the British Empire should work in harmony. If New Zealand could help the Administration of Samoa, by keeping in prison persons sentenced there, then it would assist not only Samoa, but the whole of the British Empire. The only question for the Court was whether a man sentenced in Samoa and found in New Zealand could be held in custody here. It was contended that he could be so. held whether found in gaol, cr in hospital, or anywhere else. The motion before the Court raised the question .as to whether in time of war the military authorities had .to conform to the laws as in times of peace, or whether they were armed with additional powers to secure the safety of the State, The Crown, whjle contending that the sentence was, quite legal, went further and said that, on the outbreak of war, the military authorities were armed by Common Law with special powers. When an individual suffered injury, his time for obtaining redress came on the declaration of peace. He had no redross in time of war. In conclusion the Attorney-General submitted that, if it might be assumed for a moment the Court would come to the conclusion that Gaudin had been lmproperly arrested and that the Ilogtilations and the Common Law did not entitle tho authorities to hold him, then their Honours would not release him, but would remand, him and, hold mm until lie could bo doalt "with by the proper tribunal. The Crown contended, however, that the were entitled to arrest him,, to send nun to Samoa, and to detain him m custody on his return. n i Mr. Ostler briefly addressed tho tourt and after Sir John Findlay had replied the Court reserved decision.