THE APPEAL COURT OF NEW ZEALAND.

New Zealand Times, Volume XXIX, Issue 4282, 10 December 1874, Page 3

THE APPEAL COURT OF NEW ZEALAND.

Tuesday, December 8. (Before their Honors Mr. Justice Johnston, Mr. Justice llichmond, and Mr. Justice Chapman). REGINA V. DODD. Mr. Stout for the prisoner Dodd ; the At-torney-General and Mr. Gordon Allan for the Queen. This was a case reserved for the Court of Appeal by his Honor Mr. Justice Chapman. The prisoner was indicted for the murder on board the American ship Oneco of one John Green. Before the trial a postponement of the trial was applied for, in order that evidence might be obtained by the prisoner of his naturalisation in the United States, he being a British-born subject. His Honor refused to postpone the trial, but reserved the point whether he ought not to have done so. The other question reserved was whether the Supreme Court had power to try the prisoner, even were lie a British subject, for an offence committed on board an American ship. The indictment was in the usual form. The jury found the prisoner guilty of manslaughter. The learned Judge, in the case stated by him as to‘the first question mentioned, referred the Court to the Imperial statute 33 and 31 Vic., c. -14. It was decided by the Court that counsel for the prisoner would first be heard. Mr. Stout : There are two questions raised by the case. First, assuming the prisoner to he a British subject, whether the Supreme Court had power to try him. Second, whether a postponement of the trial should not have been granted, hi order that he might prove his naturalisation. The first question naturally divides itself into three branches. First, the opinion of the jurists, as to the power to try the offence. Second, the statute law. And third, the English cases. It is assumed that it will be granted that an American ship is like American territory. Many English cases decide this. Beg. v. Anderson, 38 L.J. (M.C.) 12, Can a State, then, according to international law assume a jurisdiction to try even its own subjects for offences committed in foreign States ? The better opinion is that, except there is an express municipal law to that effect a State has no such power. See Phillimore’s International Law, Yol. I, p. 359 ct scq. ; also Nasmith’s Institutes, 290 ; Vatkol, p. ixiii. and p. 172 ; Wheaton, p. 134 ; Kent’s Commentaries, VoL 1., p. 42 ; Dana’s Wheaton, pp. CSS, 659 ; Pliilliniore, Vol. IV., sec. 795; Wavrenden v. Warrendeu 9, Bligh 125 ; Story’s Conflict of Laws, 984 ct scq., sec. 540 ct scq. There is reason why the law should be so. The maxim lynorantia juris not cxcasat applies to foreigners,—see Broom’s Maxims, —and a British subject might he held guilty of manslaughter, though he might have been doing an act lawful in the country in which the alleged offence had been committed. Then as to the statutes. The 9 Geo. IV., c. 31, has been repealed in New Zealand by the Indictable Offences Bepeal Act, 1807 ; and there are the statutes giving the Supremo Court jurisdiction, 12 and 13 Viet., c. 96, and 30 and 31 Viet., c. 124. In the former statute the Court has power to try offences committed within the jurisdiction of the Admiralty, but can it be said a foreign vessel in the Admiralty jurisdiction ? The 30 and 31 Viet., c. 124, extends the jurisdiction by giving colonial courts power to try offenders if the o(fence were committed on board a foreign ship, provided the person committing the offence did not belong to the ship. Here the prisoner belonged to the ship. If the 12 and 13 Viet., c. 90, gave the jurisdiction to try for offences committed on board foreign ships, there was no need of the 30 and 31 A ; ict., c. 124, being passed. Third—there are various English cases hearing on the question. At common law the prisoner could not be tried.

Mr. Justice Johnston : That was because jury had only cognizance of offences committed in tho country. Mr. Stout ; That is so. Hence there was need of statute law giving the power to try offences committed outside of Kr.gland. See tho Attorney-General of Hongkong, Ap. Kwok-Ah-Sing, L.R. 5 P.O. 197. Lord Justice MelliaU says, “ Up to a comparatively late period England had no laws by which an English subject could be punished for murder committed beyond the boundaries of English territory. Therefore the whole jurisdiction must rest on the 12 and 13 Viet. c. 9G.” The following cases were cited and commented on, viz. ;—Rex v. Sawyer, R. and R, 201 ; Rex v. Holsham, 4 0. and P. 394 ; Reg. v. Lewis, 7 Cox. 0.0. 277 ; Rex and Depardo, 1 Taunt. 20 ; R. v. Serva, 1 Hen. O.C. 104 ; Rex v. Do Maltos, 7 C. and P. 458 ; Regina v. Lopez and Snider, 7 Cox C. 0. 431 ; Regina v. Bijomsen, 10 Cox C.C. 74. Also, Russell on Crime, p. 702 Vol. I. He Ternan or Tivuan, 9 Cox C.C. 022. In many of these cases tho Judges put it that both parties were British subjects. In this case there was no evidence of tho nationality of the deceased man. The presumption will be, if any, that ho was an American. Reg. v. Bijornsen. Then as to second point, the question of naturalisation was important. See 33 and 34 Viet., c. 14, sec. 0 ; Rosooe’s Criminal Evidence as to when postponements are granted. The question of Dodd's naturalisation was not put to tho jury, hence judgment must be arrested. The Attorney-General: There is no authority that tho Admiralty’s jurisdiction is confined to British ships.

Mr. Justice Chapman: Can you give us a positive authority that it is not ? The Attorney-General : The British law attaches to a British subj ect wherever he is. Cases have only arisen when foreigners were tried for crimes. In America the Act of 1790 is similar in its provisions to the 12 and 13 Viet., c. 90, “High seas” being used, and yet they have held that offence on board a foreign ship was an offence under that Act. Mr. Justice Johnston: It is not a question of an offence, but of the power to try an offence. The Attorney-General: The language of the statutes provides for the trying of offenders. Down to a recent period the Legislature seemed to consider only two things, offences on land and offences on sea, see 9 Geo. IY., c. 91, and 24 and 25 Viet. These statutes provide for murder and manslaughter, and why later statutes passed can be explained. Then as to jurists’ opinion—Story’s Conflict of Laws, pp. 21, 22, States consider that municipal law attaches to their subjects wherever they are—only mode of trial provided. A man may be subject to two classes of laws, those of his own State and those of the foreign State where he is. Russell ou Crimes, Vol. 1., 798. British subjects can be tried for offences committed on foreign ships, 28 Hen. VIII. c. 15, 33 Hon. VIII. c. 23, Rich. 11., 9 Geo. IV. c. 31, did not provide for offences at sea, as these were sufficiently provided for before. The mere fact of it being a foreign ship is of no importance. The Court cannot construe Act to give power over British ships merely. 24 and 25 Viet., c. 100 ; 7 and S Viet., c. 2 ; 39 Geo. 111., c. 37 ; Greaves’ Consolidation Acts, p. 35 ; Forsyth’s Opinions, 233, 373 et sen. ; Reg. v. Cunningham, L. and C.C.C. 74 ; Kent’s Commentaries, Vol. 1., 401, 383, ct seq.; United States v. Orlenes, 5 Wheat.; 17 and 18 Viet., c. 104. The latter Acts are only to provide for seamen, —18 and 19 Viet,, c. 91, —and are intended only for British seamen—3o and 31 Viet., c. 124. The latter statute does not repeal 12 and 13 Vic., o. 96, and lias no repealing power. The last point taken as to the postponement of the trial was one of practice, and cannot therefore be one for the decision of Court of Appeal. Mr. Justice Johnston : If we found that Judge ought to have postponed the trial, we ought not to allow the prisoner to suffer. Sir. Allan : It is immaterial where the offence was committed so far as the crime is concerned. The only question that arises is, can lie be tried ? Was there any power to try prisoners charged with offences in England ? It is admitted that statute law had to give that power—but the statute law has given the power. R. v. Sawyer, 2 Car. and Rev., shows that it is not a question of jurisdiction whenever British subjects are charged with offences, but a cpiestion as to the mode of trial. In England venue had to be alleged before Courts of Oyer and Terminer could try cases, and hence the statutes were passed. In Reg. v. Cunningham the power to try for offences on foreign ships was admitted. There may be concurrent jurisdiction and a man may be tried by the tribunals. Mr. Justice Johnston : Is there any case where a foreigner has been tried and convicted for an offence committed in a foreign ship ? Mr. G. Allan : We admit there is none, and that the Courts would have no jurisdiction in such a case. There are eases of foreigners having been convicted for crimes committed on board British ships. Mr. Justice Johnston : Is there any case of a British citizen convicted of a crime on board a foreign ship, he belonging to that ship ? Mr. G. Allan: We cannot cite a case precisely similar to the present, but the principle laid down in the other cases shows that they could be tried and convicted. The recent statutes have not made a new offence, they have only provided a mode of trial. Mr. Stout was not further called on. Mr. Justice Johnston : The Court is unanimously of opinion that the conviction cannot be supported. It is not necessary to decide whether a postponement should have been granted, as I am of opinion that even though he be, priina/nciqaßritish subject, the jurisdiction to try the prisoner has not been given to the Supreme Court of the colony. He may be amenable to the law of England, but this is a crime committed on foreign territory, and is not cognizable by us. It is true that the Admiral's jurisdiction applies to all parts of the high seas, but that applicability is limited to the nationality of the vessel. He has no jurisdiction over a foreign ship. The Legislature of England have recognised the principle that before British subjects can be tried for offences committed abroad special legislation was necessary. Our power is under the 12 and 13 Viet, c. 90, and reading it with 30 and 31 Viet. c. 124, it seems to me that tire latter Act is a further enabling or empowering statute. There is also in this Act a restriction, namely, that if the British seaman belongs to the foreign ship he cannot be tried. And tribunals should not assert their powers to try for offences committed in foreign States unless that jurisdiction is express. I am, therefore, of opinion that judgment must be arrested. Mr. Justice Richmond : I am of the same opinion. I do rrot deny the existence of a personal jurisdiction in some of Her Majesty’s Courts over the offender. It may exist in some of the Courts in some part of Her Majesty’s dominions. The question for us is, does the Supreme Court of ITew Zealand have it ? How did it acquire it ? The whole question turns on 12 and 13 Viet., c, 06. The Colonial Legislature could not have given the jurisdiction. We must, therefore, look for it in the Imperial Act. There are two Acts recited in the statute. One of William the Third, and one of 49 Geo. 111., and they only refer to Admiralty jurisdiction, and the Admiralty jurisdiction is locally defined in them. In the Act for the colonies the same language is kept, “Where the Admiral hath jurisdiction.” The Attorney-General wishes to read over and where the Admiralty hath jurisdiction—to sever the clause—but I do not think he can do this. Where, then, hath the Admiral jurisdiction ? It must depend on locality, and I am of opinion that the deck of a foreign ship is not such a place. I am therefore of opinion the judgment must he arrested. Mr. Justice Chapman : I concur entirely in the judgment that has just been pronoimced. I felt such great doubts when the case came before the Supreme Court, that I debated with myself whether I should not decline jurisdiction ; but, after consideration, I resolved to send the case to the jury and reserve the point for tliis Court. After the trial I endeavored, without success, to find a case analogous to the present. It is tine I found opinion, but judgment or dictum I found none. The question really turns ou what is the jurisdiction of the Admiral ? Loosely speaking, it is said it is on the high seas, but that can only be over the national ships. It cannot extend to foreign ships ; and I have so always construed the statute which confers jurisdiction on Colonial Courts. A ship is really for some purposes part of the territory of the State to which she belongs. I have, therefore, come to the conclusion that the Court had no jurisdiction over a foreign ship. And the 30 and 31 Viet., c. 124, sec. 11, seems conclusive. I therefore think the judgment should be arrested.