NO CRIME

New Zealand Times, Volume XLIV, Issue 10284, 20 May 1919, Page 6

NO CRIME

BIGAMY IN NEW ZEALAND INDICTMENT QUASHED BY SUPREME COURT. Further striking evidenco of the peculiar poisition that has arisen with regard to tho crimo of bigamy since the recent decision of tho Appeal Court was , furnished in the Supreme Couro yesterday, when James Jackson, a middleaged man, appeared to answer a chargo ot bigamyThe Chief Justice (Sir Robert Stout) was on tho bench. Mr P. S. K. Macassey appeared for the Crown, and Sir John Jnndlay, K.C., with him Mr P. W. Jackson, represented the prisoner. At the outset, bir John I'inalay intimaced his intention to raise a pomt of law with the object ot having the indictment quashed. lie contended that under tho New Zealand law the accused had committed no ottenco. Tile chargo was one of bigamy under section 2'li of the primes Act. Recently in the Lander case the Court of Appeal decided that tho section was ultra vires, which meant that bigamy was no longer a crime in New Zealand, it was held by the court that if a man wont abroad, committed bigamy, and returned to New Zealand, ho could not bo charged under tho law. Sir John submitted emphatically that the Legislature intended that the section should have universal application. The section read, "that a person being already married goes through a form of marriage with another person in any part of tho world." The intention ot tho section was to punish bigamy, not to punish a man for coining to New Zealand. If the Crown wisned to prove that tho indictment was valid, it would havo to show that the section was capable of separation into parts. He held that that was impossible, as the language of the section was clean- and distinct. If such an interpretation could bo placed on the section of the Act they would have thousands of people living in a bigamous state in New Zealand. It was not fair to impute such an absurd result to the Legislature. A man who wanted to commit bigamy would not do so in New Zealand, but would go oversea m order to escape the penalty. He submitted that it was never intended that the interpretation- should be merely local. However, the Appeal Court had held that the section was invalid, and counsel contended that the court had no power to strike out certain words in order to make the section valid. It would be a most dangerous thing if judges could impose their will in opposition to the expressed opinion of the Legislature.

Jlr Macassey submitted that the section of the Act was only ultra vires insofar as the words "in any part of the world" were concerned. The section was divisible, and could be made valid, he submitted, by the exclusion of these words.

In reply to His Honour, Mr Macassey said he knew of no authorities for bJ3 contention. His Honour said that the section could not be held to be divisible. It was an interpretation of bigamy, and could not be split. As the. Court of Appeal had held that the section was ultra vires, meaning that the Government had no power to pass the section, he could not see how it could be said that the indictment was good. He could not see that it was within the power of the court to strike out certain words of a by-law and thereby make it good. The same applied to a Parliamentary statute, and in view of the decision of the Appeal Court, the indictment must be quashed. However, he would reserve the question for the Appeal Court.

The prisoner was thereupon discharged.