THE GAUDIN CASE

Dominion, Volume 8, Issue 2387, 17 February 1915, Page 7

THE GAUDIN CASE

WRIT OF HABEAS CORPUS

REFUSED

THE- COURTS JDDGMENT

Tho application for a writ of habeas ' jorpus made in the Supreme Court last week on behalf of the prisoner Frederick Edward Norman Gaudin was yesterday dismissed. by their Honours the Chief ' Justice (Sir Robert Stout) and Mr. Justice Edwards.. At the hearing at the application Sir John Fkdlay, K.C., , with him '"air, D. M. Findlay and Mr. • D. It. Hoggard, appeared for tho prisoner. The Crown case was in tho bands of tho " Attorney-General (tho Hon. A. L. Herdiaan), with him being ; associated Mr. H. H. Ostler, of tho Crown Law Office. It will be remembered that Gaudin was found guilty by _a Military Cgurt held in . Samoa, and is at present detained by the military unclei; the authority of Regulation No. 12, made by His Excellency, the Governor-in-Coun-cd];on.December 17, 1914, by virtue of the War Regulations Act, 1914. There iras ho conflict, concerning tho facts of she: case. Colonel Logan, the military . jommander of Samoa, issued ' regula- ( tions providing that no -letters: shovild ne sent out of Samoa-except through the official channels of the Government, and that no gold should be exported from Samoa. The prisoner, who ordinarily lives in Auckland, visited Samoa in. October, whilst the regulations were', in force, anil he violated' tho regulations. He left Samba for Auckland on the • b.s. Navua, carrying with him a large v amount of correspondence from 1 subjects of the .enemy to several prisoners . of war- interned in New Zealand. • Be: also brought photographs of. the wire-, less station in Samoa addressed to Messrs. Wilson and Horton, photographic editors of the "Auckland Wiiekty News." Ho also carried a number at' pages of manuscript -intended 'for publication -in the "Auckland Weekly News." Further, he also carried coin, , contrary to a proclamation issued'by , the.: Military Government,' dated . Sep-t-ember 12, 1914. After his arrival in Auckland he was arrested ..and taken • after, a delay of some weeks to Samoa, \ and tried before a military court. He was found guilty and sentenced to' five years' imprisonment. After his .'sentence he was sent back to Now Zealand; and by virtue of Section 12 of the' Regulations issued by the Governor-in-Council he was detained by order of a

military authority. :.■ ■. _ His Honour the Chief Justice,: m ' delivering the judgment of the Court yesterday," said: ' 'There -is no doubt about the issue of the warrant under i Regulation 12, but the main ' {(pints I raised on the prisoner's behalf were the following:—(1) : It is said that:ho was illegally arrested and taken to Samoa. I (2) It is also said that' he was an officer ' and. should have been tried as an" officer under the Army Act, 1881. (3) That the Court did not give him progei: time in which the prepare for his trial. (4) That there was no actual fighting going •' on in Saoma at the time the. trial took : place, and consequently the military court had no jurisdiction: (5) That the military court had no power to impose a sentence of five years' imprisonment.. (6)' That on his arrival back in New Zealand he was entitled to his freedom. ' (7) That Regulation 12 made by the Governor-in-Couucil was, made' without jurisdiction. (8) That, the Actwhich gave power to make the regulation ex-, pires in August, 1915, and consequently a regulation could not be made to keep him in imprisonment for five years. "Tho repeal of a' legislative author- . ity does not put an end to the legislation previously made' under that author-

»ty. •' ■- • ' • ' "It will be seen from the' ob;jections : ihus stated that the main objections ■jro:— ' "(1) That the prisoner's surest was illegal. (2) That the Court had no power to try Jhim. (3) That the regulation was invalid. .<■: [ "It is clear that if the military courthad jurisdiction, no error of procedure can be dealt with by this Court. It has to be kept in mind that'the Empire was at war with Germany, and that part of German territory had been. seized by . British forces and possession taken,_and where that happens it is clear that there is no ■ analogy : between that state of things and war in the Mother Country. . . . German- Samoa, is , tinder military jurisdiction. There are . no civil courts. Any courts are military courts, and Samoan territory is not part of New, Zealand.- The- first question raised is; as to the alleged illegal arrest of the prisoner, but wo. do not ' think reliance can be placed on that objection in this proceeding The prisoner is under sentence by-a, military tribunal in Samoa, and he is detained in New Zealand by virtue of Regulation 12.- It appears, to us, therefore, that \ even if the prisoner's arrest was unlawful that is not now in question. He s now a prison-jr sentenced ;by a miiiiary court, and his detention- is-not be- • ;:ause of his arrest, but because of the , sentence of the court. Th;> question arises: Had the military court in Sajnoa power to fentence him?'

After dealing exhaustively/with the Bgal aspect of- this phase of: the case, ,fce judgment concluded:— ~ "Li our opinion, the words of the : Itatute are amply suffitieno. to-give jurisdiction ;-to the Governor to make Regulation 12. It cannot b's said that the power given by the regulation is , an unusual one. ; I" , the sentence had been imposed" by. a military: court, act- 1 ing under the Army Act, ■ ihere. would have been power under. Section 61 of the Army Act, 1881, 'to do all that the regulation empowers, the military authority to do. We,fail to see how it y:an be argued that the regulation is ultra vires. It simply provides for the detention of a prisoner properly sentenced by a competent court, and we apprehend , that it is necessary for the effective conduct of military operations in places other than enemy's territory. Another , point raised was that the: prisoner ought to have, been tried under a military conrt provided for by the Army Aot. In our opinion, the reply that was made, namely, that the pri'sohor was not acting as one of His • Majesty's forces in Samoa, is a sufficient answer to' the contention. He Vas simply ah officer of tie reserve, and the act for which he was tried was not lone qua officer, nor wa- it a . breach if any military regulation by him as an • officer. He had no right; therefore, to demand that he should be treated as an officer in Samoa. H? is a New Zealand tfficer, and a New Zealand officer, as a jew Zealand officer, has no right to be jreated as an officer outside New Zeaand. , We, are, therefore, of opinion jhat none of the grounds raised on . be- : ialf of the prisoner are valid, and the Jourt must'refuse the application." , I Mr. D- M. Findlay asked leave to feko exception to the terms of the jidgment that a large quantity of cornspondence was carried by the pri- ' siner. As a matter of fact, only tnree letters liad been carried. The Chief Justice said the Court had netting to do with that. All the Court ktew was that Gaudin liad boon found grilty of carrying "a large quantity" of correspondence. 'At. Ostler inquired if costs, were to . be'allowed, and remarked that in all prcbability the matter would not be ; prtesed even if tho Court did make an albwance. , , „ , . flie Court declined to allow costs, ui viriv of the unusial nature of the proceelings. ■ ' ..