APPEAL COURT

Dominion, Volume 12, Issue 166, 8 April 1919, Page 9

APPEAL COURT

BIGAMY CASJ!

INTERESTING LAW POINT

The Appeal Court tat yeslurday. On Ilic biincli were His Honour tlit; Chief .luslice (Sir liobcrl. Sloul), 'Mr. Justicu Kdwfli'ds, Mr. ilusticn (Jlmpnian, Air. ,1 list ice Sim, mill Mr. Juslirc Iliisldni;. In (ho Crown ciitn , icHoi-ved, King v. Waller -Lnmlcr, Sir .lolin Kiilinond, K.C., nppciii'i'd for Ihe Crown, mid Mr. 11. I. l '. O'Leiii'y for Lnuilel , The case wits ono til , jurimlii-lion in « liignmy cliargc. Uiuili , .' , wns niiirriwl 10. May Ricliardtion at Ahoiira, on the West Coast, on Ooliibi'r !), 111112. 1I« liilci , onlistcd with Ilio New /.oiilnnd Expndilioiinrv I''or(:e, anil went ahniiid. 11l Oclolier. 1917, luv went Ilirougli a form i)f marriage- at St. MoryV Chinch, Cndlord, rind siibi-oqiipiitly rc'luvimd (u Now /"lealand wilh llild.i Mnv House. At Hie trial of Lander in the Supremo (,'ourl, I'eforo His Honoiir , Mr. .lustii'o Edwards, tho facts wero ndniillvd,' and on Urn I'acl.i lie was found guilty but Ilio (|iicstion of the Court's jiiriKilicti>'m won roscrved fnr tiio Appeal Coui'l. " Mr. O'liPar.y, in op'.'iiiiisf, said that Hip Moused was convicted' on tho undisputed fads under section 221 of the New.-Zea-lr-nd Crimes Act. Th« question reserved was as lo whether tho Supreme Court had jurisdiction under the circumstances lo try and sentence the prisoner in re■'fpect of his ofTence, and (hat question depended upon the wider question <is Vo whether tho Legislature had power to enact section 22-1 in its present form to nmke an ucf; triable and punishable in \'ow Zealand. Assnming that. Lander fould not bo dealt with- in New Zealand, it did not follow that bo could not be punished for his , offence, beenuss ho could m> tried and punished in England, oven if the second: marriage had taken- place out of the United Kingdom* Tho prisoner, could bo 'oxtraditutt out , of New Zealand'to England undrr the Fugitive Offenders Act. 1881. Ho submitted that both on practice .and authority section 221 of the New Zealand Crimes Act in its present form was beyond the jurisdiction of the New Zealand. Legislature. Chief Justice: That (he Legislature had no power to pa c s such legislation under (iir constitution? Mr. O'Leary: That is so; Continuing, -Air. O'Loary qunled anthoritv for his contention, -.aid pointed put that the jurisdiction of a colnniol or subordinate Legislature as regards crime was restricted to oflences committed within their territories. A sovereign State like England could legislate for its subjects wherever they might be, but a subordinate Legislature 'had no nuthoritv over the person of iti inhabit<ints:in Tt-suect to-crimes committed in other countries. : • '

The Chief .Tnsticc: Could the British Parliament pass a Crimes Act , to.punish a man for ii crime, committed in Now /(■alum!?

• Sir John Snlinond... That hits been done, repeatedly. The Official Secrets Act'was o ease in point.- ■ . Mr. ■O'Lsaryy-epntiiiuine:, said there was direct authority for the contention that this case could not bo tried.in New Zealand. He quoted the ease of Al'Lcod v. the Attorney-General of-New South Wales in 1881 in. support. He further quoted decisions by Mr.. Justice Chapman and Mr. Justice Cooper. He submitted that (ho limitation of colonial - Legislatures had been, repeatedly recognised in various Acts passed by the- Imperial Parliament, which Acts had been passed to remove difficulties that wore, created by this state of the law to enable the Courts of subordinate States to deal-with crimes committed out of New Zealand. Ho instanced the Fugitive Offenders' Act, 1881, Admiralty Offences Colonial Act, 1819, .Colonial Prisoners liomovnl Act, 18G9, and other, Acts. He submitted that the Parliament of New Zealand had recognised its limitation on the subject of piracy in section 125 of the Crimes Act. it was incompoteit. for a subordinate State to deal with persons passing through its territory. He indicated that the question of extradition* might arise.

Sir John Salmond, in reply, contended iliat ic colonial Parliament had plenary, powers within its Constitution Act, so long as .-anything done was not repugnant to any Imperial statute or to peace, order and good government.'..The matter was'governed by section*)!! of the. Constitution Act. There was no doubt section 221 of (he Crimes' Act was in-' tended to cover the ease of a British subject coiiimitting ■bigamy abroad. This law was made to be enforced against, yereons who were here. Power for the. New Zealand Legislature to' muke laws that could be enforced' in another country existed in the Army Act, under whicii the power exists of court-inartialling, etc., the men , of our Expeditionary Jt'o'iTfl at Sling Camp and elsewhere. The question was not one of interpreting the Crimes Act, as of private international law, and it was .not a, question of tlie jurisdiction of the Court, but the power of our Legislature. In ihe M'Leod cane to which Mr. O'Leary had referred, there was no relerence to any independent limitation. It was a mere dictum and not a decision—a dictum which had not'received any confirmation, There was.no recognition of the rule of - constitutional limitation. It. was based on no precedent authority; it was also an illogical application to, the matter cited in. the case, and the (Incision was inconsistent with subsequent decisions of tho Privy Council, lie questioned .whether ■ic could possibly be maintained that.an offence committed abroad could not be legislated on for/the peace, order, and good government of a State. He pointed, out that bigamy,' homicide, murder,' manslaughter, etc. ,were legislated upon in England and covered extraterritorial.commission of -such offence. Foreign nations did the same. A'ew Zealand had legislated in opposition to the M'Lcod case and quoted at length from the New Zealand Customs Act to support'his .contention. The Fisheries Act, 190S, was.another case in point..

ilr. .U'Leury replied briefly and said the principle of louatiiy- us applied' lu liuid whs different from that of tfie hijjh •ii'iis: the high seas were not within the limits of any State. Willi reference to tin , cuikeiiiioir tluif M'Lwid's case had not boon followed, ho quoted a' case wneri' referenco was made to it. The dicta in Jl'Leod's case was too precise to be argued awuy.. The peace order and' Rood government would he iiiet by extraditing Lander, who could be punished for the oll'enee in England. \ The Court reserved its decision.