TRADING WITH ENEMY

Dominion, Volume 8, Issue 2437, 16 April 1915, Page 6

TRADING WITH ENEMY

' ♦ DUERKOP GUILTY COURT OF APPEAL DECISION THE ROTTERDAM LOOPHOLE The Duerkop case, which obtained considerable publicity during its course through the Law Courts m' January and February, was considered by the Court of Appeal yesterday. Tlio accused is AVilhelm Heinrich Magnus Duerkop, who was arrested by the military wnile carrying on business in Auckland ,as a partner in a firm of merchants styled Duerkop and Mackay. The allegations against Duerkop wore that he had traded with the enemy by supplying and attempting to supply Gustav J. J. Witt, a Hamburg merchant, with sausage casings and other goods. The goods were addressed to Witt's company at Rotterdam, but tlie Crown contended that they ' were intended for transmission to Germany. In January last Duerkop was proceeded against in the Magistrate's Court in Wellington on five charges the kind described, and he was committed to-fhe Supreme Court for trial. He was tried at the criminal sittings in February, and the jury found Duerkop guilty inasmuch' as he did not break off negotiations with Witt. Four of the indiotments were laid under Section 35 of the Regulation of Trade and Commerce Act, which became law on August 10, 1914. That section was repealed by Section 2 of the Trading With the Enemy Act, 1914, which was passed on November 2. : Validity of the Indiotments Questioned. Before the prisoner was called on to plead in tie Supreme Court, his counsel, Mr. T. Neave, objected to the validity of the four indictments oil the ground that as the proceedings had been commenced after the repeal of Section 35 of the Regulation of Trade and Commerce Act, 1914, they were inconsistent with tlie provisions of Section 5 of the Crimes Act, 1908. That section provides that '"everyone who is a party to any offence ■ shall be proceeded against under some provision of this Act, or under some provision of some statute not inconsistent herewith, and not repealed, and shall not be proceeded against at oommon law." In view of the provisions of Section 20_of the Acts Interpretation Act, 1908, His Honour the Chief Justice (Sir Rob-

ert Stout), who presided at the sittings of _ the Supreme Court, over-ruled the objection raised by Duerkop's counsel, but agreed to reserve for the opinion of the Court of Appeal the. question as to whether the Chief Justice was right in doing so. So the Court of Appeal was asked-to say whether. or not the Chief Justice did right in over-ruling the validity of the objection, and in declining to direct the jury as requested. In effect the question . was whether a person can be prosecuted under a repealed enactment for - an alleged offence committed, while the enactment *vas current even though the. prosecution was not instituted until'after-the repeal of the' enactment. The sequence of events was:— The Regulation of Trade and Commerce Act was passed on August 10. 1014. Subsequently Duerkop committed the alleged offences. On November 2, 1914, the ißegular tion of Trade and Commerce Act was repealed. In the following January '.proceedings were instituted. • Objections Qulokly Thhown out. Their Houours on the Appeal Court Bench were: The Chief Justice (Sir Robert Stout), Mr. Justice Denniston, Mr. Justice Edwards, Mr. Justice Cooper, and Mr. Justice Chapman. • Mr. T.' Neave appeared for Duerkop, and the Crown was represented by the Hon. A. L. Herdman (Attorney-Gen-eral), and, Mr. H.' H. Ostler (of the Crown Law Office). In addressing the: Court Mr. Neave remarked the facts' that the Regular tion of Trade and Commerce Act was passed on August 10, 1914, and remained in force till November 2, when the Trading With the_ Enemy Act was passed. He then said that between these dates the prisoner committed the Acts m respect of which the four indjctments mentioned were laid. But, Mr Neave added, these indictments, and • the proceedings preliminary to them, were not laid until after the repeal of Section 35 of the Regulation of Trade and Commerce Act by the passage of the Trading With the Enemy Act. . The first question which arose was whether, in view of Section 5 of the Crimes Act, the four indictments were valid.

Several, of Their Honours observed that Section 5 of the Crimes Act dealt only with procedure. - Mr. Justice Denniston: The crime had been' committed, anyhow. The ohief Justice: And Mr. Neave sayß that no penalty can be enforced because the. statute in ' the meantime has been repealed. Mr. Neave: It was not as if the onme would go unpunished. Mr. Justice Denniston: What we want to know is whether he comes within, this section. We can't be afby a n abstract proposition. The Chief Justice: The procedure must be under the Crimes Act. Mr. Neavo: Yes. , The Chief Justice: Well; is not this under the Crimes Act?

'Hie Court did not call on counsel for the Crown, and unanimously decided- that the. Chief Justice had' done right m over-ruling tiie objection raised at the trial by Duerkop's counsel. ' Against Duerkop there was, also, another charge- respecting which the jury found that Duerkop had traded with W itt s. company, which was registered in Rotterdam, which company had German directors and German shareholders, whose managing director was Witt, a German who resided in Germany, and that if in law this was trading with the enemy Duerkop was guilty. The Court- decided that this did not amount to a verdict of guilty on the last-mentioned count.

Duorkop is at present on tail, and it is und»rs*ood that he will be brought up for sentence within a few days.