BIGAMY NO CRIME

Dominion, Volume 12, Issue 201, 20 May 1919, Page 6

BIGAMY NO CRIME

—7 * A PECULIAR POSITION \

\ EFFECT OF APPEAL COURT

DECISION

There was an unusual development in the Supreme Court yesterday morning, when a bigamy case was to have been hoard. His Honour the Chief Justice (Sir Robert Stout) was on tho bench.

A middle-aged man named James Jackson was charged with bigamy. It was alleged against him that on January 1, 1916, ho went through'a form of marriage with Giadys May Morris, when he was already married to Martha White. Mr. P. S. K. Macassey, of the Crown Law Office, appeared for the Crown, and Sir John Find lay, Iv.C., with, him Mr. P. W. Jackson, appeared for the accused. "

Interest m the case arose through a recent decision of tiic Appeal Court, In that case a man named Lander, who was a married man, left with the Expeditionary. Force, and while in England he contracted a second marriage at Codford, and returned to New Zealand with his second wife. He was arrested and charged with bigamy in the Supreme Court. Mr. H. I'. O'Leary, who appeared for him, admitted all the facts, but quesHoned the jurisdiction of the Court,, The Judge i(l3is Honour Mr. Justice Edwards) directed the jury to ( find a verdict of guilty' 011 the facts and' reserved the question of law for the Court of Appeal. The Court of Appeal held that the Court had 110 jurisdiction, and that the section was invalid. The conviction was quashed.

Yesterday before the accused Jackson could cuter a plea, Sir-John Fiudlay rose ' and said it was then the proper time to raise the question of law and to move to quash the > indictment. Sir John Findlay contended that the indictment disclosed no offence under the New Zealand law. The accused had been charged with committing bigamy in New Zealand under section 221 of the Crimes Act. A few days ago, in deciding the Lander Case, the Court of Appeal held that the section was ultra vires j therefore, bigamy was no. longer an offenco in the Dominion.' Tho Court of Appeal decided that it was no longer an offence for a man to go to Sydney, commit a bigamous marriage, and return to New Zealand. He could not be touched by our law, but the Jfew South Wales authorities might if they thought fit proceed against him. It was clear that the intention of our Legislature was that the section should have universal application. The section read "that a person toeing already 'married goes through ii form of marriage with another person in any part of tho world." If he contracted a bigamous marriage anywhere out of New Zealand ho could not bo punished under this section until he returned to New Zealand, and what lie was to be punished for was not for being in' New Zealand but for 'committing bigamy. The paramount intention of the section was to punish bigamy. But.the Court of Appeal had held that the section was ultra vires, and lie contended that tho only chance tho Crown now had was to show that the section was capable of separation into parts. But that was impossible under this' section, for the language was clear and distinct. The M'ljflbd case was quoted during tho liearins of the Lander case in the 1 Appeal Court, but in that case tho New South Wales law, which .was involved, rend, "wherever committed," and the -Privy Council, in an attempt to validate this, read into it "wherever committed within its own borders." But there was no such possibility with the New Zealand Act, tho words used being "in any part of file world." He contended that the Court had no power to strike out certain words in order to make tho section valid. It would be a dangerous thing if the Judges could impose their will in opposition to the expressed language of tho Legislature. 'lOic section .'admitted of no possibility of separation inlo parts as provided'in the case of "Strickland v. Hayes," and lie moved that the indictment be quashed.

_-Sir. Hacassey contended that the/section was divisible, and a part made valid bv fclio exclusion of certain words. The section was only ultra vires in respect to tho words 'fin any part of tho world" In reply to His Honour Mr. Macassey said he knew of no authority for his contention.

His Honour said that section 224 could Dot |je held to bo divisible into parts; it was an interpretation uf wlmt constituted the crime of bigamy, and could not bo split into parts. As the Court of Appeal had held that the section w.is ultra vires, meaning that Parliament had' no power to pass tho section, lie said lie could not see hoiv it could be held that the indictment was good. He could not see that it within tho powor of the Court to strike out certain - words, and thereby validate it. In view of the decision of the Appeal Court, His Honour held that tho indictment, must be quashed. but he would reserve the question raised by the Crown for tho consideration of the Appeal Court. ' ' The indictment was vccordingly quashed and the prisoner discharged.'