The New Zealand Times (PUBLISHED DAILY). SATURDAY, JUNE 14, 1879.

New Zealand Times, Volume XXXIV, Issue 5681, 14 June 1879, Page 2

The New Zealand Times (PUBLISHED DAILY). SATURDAY, JUNE 14, 1879.

The state , of the law with regard to persons who, having committed offences in on© colony, abscond to another, has been brought prominently before the public in a base recently decided by the Supremo Court. A bankrupt who was alleged to have cheated his creditors in Adelaide made his way to; New Zealand. Here he was arrested on a warrant, and taken before the Resident Magistrate, who, ' considering there was sufficient evidence to justify the adoption of such a course, ordered him to be detained in custody until lie could be sent back to | the scene of his misdeeds. After the i committal of the accused to prison his counsel moved the Supreme Court for a writ of habeas corpus, which was granted. The five Judges- were on the Bench when the application for the prisoner’s discharge, came on: for hearing. The questions involved were fully argued, and the Court ordered the prisoner’s discharge from custody. Only one Judge out of the five who heard the application dissented from the ruling, which may therefore not unfairly be taken to embody the hi gheat legal opinion on the points at issi 10. Something was said by the At-torney-General about an appeal, but nothing will probably come of it, and shoul d the matter bo carried further the recent decision is not likely to be upset. The sti '.tuto law may need amending, but the Jin %os have rightly interpreted it, .and .the prosecution of an appeal will merely servo to put money in the pockets •f the h« vyer». The question raised in this case is one of considerable importance to the com munit V at large, but especially so to those- engaged in mercantile pur- , suits. This- fact m'ust be our excuse for enlarging somewhi't on a subject , which somio may .think had better, ; for file present at least, bo left in/,i the hands o! cur legal luminaries. 1

An Imperial Act (6 and 7 Viet., cap. 34) I provides that when a . person who is ! charged with felony in Great Britain or | in another British colony has escaped to New Zealand, a warrant for his apprehension tnay be issued by a magistrate of the place whence he escaped. Before being put in force the warrant must be endorsed by a Judge of the Supreme Court. On being arrested the prisoner must be taken before a Justice of the Peace, who, if sufficient evidence is forthcoming, is to commit him to prison ; and the Governor, on receiving notice of the facts, may order the prisoner to be sont back to the place whore the offence is alleged to have been committed. The Act, as amended by 1C and 17 Viet., cap. 118, applies to all felonies, but does not apply to misdemeanors. In 1863 the New Zealand Legislature passed an Act which, although it bears a strong resemblance to the Imperial Statute, differs from it in some important particulars. All indictable misdemeanors, as well as treason and felony, are included in the operation of the Foreign Offenders Apprehension Act, 1803. A person having committed one of the above offences in any of the Australasian colonies, and having come into this colony, may bo charged here just as though the crime had been committed within the Jurisdiction of the Courts of New Zealand. On an information being laid in the ordinary manner a Justice of the Peace may issue a warrant for the arrest, and the prisoner has in duo course to be brought before a magistrate. If the evidence then adduced would have been strong enough to have warranted the prisoner’s committal for trial, supposing the offence had been committed in New Zealand, he is to be detained in gaol until he can bo sent back under a Governor’s warrant. Depositions taken before a magistrate in the colony where the offence was committed may be received in evidence against the prisoner. It is obvious that the New Zealand Act is bettor adapted to the circumstances of the colonies than is the .Imperial Act. In the first place the proceedings may be commenced in the colony to which the offender has fled, whilst under the Imperial Act they must bo initiated where the offence was committed, and a warrant must be sent over and endorsed by a judge of the Supremo Court) In this way much valuable time is liable to be lost, and the escape of the criminal greatly facilitated. But the principal advantage which the Colonial has over the Imperial Act lies in the fact that the former applies to all indictable misdemeanors, whilst the latter takes cognisance only of felonies. There are a host of offences against the law, included under the name of misdemeanors, which are. quite as heinous when looked at from a moral point of view, and quite as hurtful to the interests of society as many felonies ; and they are frequently and justly punished with equal severity. Perjury and larceny are each of them in New Zealand often followed by a sentence of twelve months’ imprisonment with hard labor, the former offence being a misdemeanor and the latter a felony. If it were necessary, multitudes of parallel instances could be adduced in which the law as administered makes n,o practical, difference between the felon and the misdemeanant after conviction has taken place. It is difficult to see why there should bo fewer facilities for commencing criminal proceedings against the one than the other in cases where the accused has succeeded in getting away to another colony. AVhen the New Zealand Legislature included indictable misdemeanors in the .op-ration of the Foreign Offenders Apprehension Act they were no doubt influenced by considerations such as these, but there is, reason to fear that their labor has been in vain., Mr. Justice Johnston some years since drew attention to the doubtful validity of the colonial statute. Amongst notes to the portion of his valuable handbook, “ The New Zealand “ Justice of the Peace,” referring to the Foreign Offenders’ Apprehension Act, are the two following:—“lt seems at least “ questionable whether the Act of the “ Colonial Legislature is not ultra vires , “ both as being repugnant to the Imperial “ Acts, which' apply to all colonies, arid “as dealing with offences committed “ out of the colony, and with respect to 1 “ which the tribunals of the colony can “have no jurisdiction except what is given to them by the Imperial Parlia- “ ment.” The second one is to the effect: —“ Whether the New Zealand. Act ’ “ be ultra vires or not, it would seem “ that any person sent prisoner to another colony under its provisions would have “an action for false imprisonment within “ that colony, unless such imprison- “ ment were legal under some Act of that colony or the Imperial Acts.’’ Unless we are mistaken the colonial Act, has been in times past put in force against persons charged-with felony, but we do not remember its ever having been used to effect •;the deportation of alleged mis-, demeanants! Nor do we believe that until the other day the validity of its provisions had ever been fairly questioned in a court of law. ' The alleged offence of the Adelaide .fraudulent bankrupt to which we alluded in the beginning of this article, only amounted to a misdemeanor, and therefore was not touched, by the provisions of the Imperial statute. The Judges ’appear ''to'"have ordered the prisoner’s, discharge on the ground that the law as it at present stands does not giv.e the necessary authority to send back to another' colony a person charged with misdemeanor. The man is consequently at large, and it is said, is about to take proceedings, against, the- police for the recovery of certain properly found on him at the time of his,arrest, and since placed in the bank on deposit. Of course it is not necessary to form; a definite opinion .as to his guilt or innocence. Our purpose is to show that, presuming the ; decision of the Supremo Court to-be right,,there appears to be a necessity for some: amendment in the Imperial law affecting the Australasian group with regard to. arrest arid deportation of alleged criminals. The offence with which this man was charged is a grave one, and the evidence in support of it would unquestionably have served to secure his committal for trial if the occurrence had taken place in the colony. It is obviously undesirable that cheats, perjurers, fraudulent bankrupts, and a host of other criminals, should be allowed the run of the colonies proyided they keep clear of the one in which they have actually committed their crimes. As• an apt commentary on the defective state of the law it is worth while remembering that,

although the alleged fraudulent bankrupt from Adelaide is allowed to go at large, the alleged- bigamist has just been sent back to take his-trial. But then bigamy is a felony, and the other crimes only a misdemeanor. It was very wrong of Mr. Cowan to marry again during the life time of his first wife, but morally his crime is but little if at all worse than cheating creditors, and the greater frequency of the latter offence, and its peculiar danger in a commercial community, render its detection and punishment in some respects even more important.