Collis v Smith

The appellant, the Governor of the Gaol at Sydney, sought special leave to appeal from a decision of the Supreme Court of New South Wales. The respondent, Septimus W. Smith, had been apprehended in New South Wales under the Fugitive Offenders Act 1881, on charges of fraud, attempt to commit fraud, and forgery, pursuant to a warrant from South Africa. Following his committal by a magistrate to await return, the Supreme Court had ordered his discharge on habeas corpus, finding that the evidence did not raise a "strong or probable presumption" of his guilt.

The legal issues before the High Court were whether the Supreme Court had erred in its assessment of the evidence and whether special leave to appeal should be granted. Specifically, the Court considered the meaning of "strong or probable presumption" under section 5 of the Fugitive Offenders Act 1881, and whether the evidence presented before the magistrate, concerning the respondent's dealings with a municipality and alleged forgery, met this threshold. The Court also considered whether the case involved a question of law of general importance or was primarily a question of fact.

The High Court refused special leave to appeal. The Chief Justice, Griffith CJ, explained that the jurisdiction of the magistrate to commit depended on whether the evidence raised a "strong or probable presumption" of the offence. He noted that the Supreme Court was bound to examine the evidence for this purpose. In this instance, the facts were not in dispute, but the determination of whether an offence had been committed depended on an inference of fact that a jury might draw. The Court held that it would not grant special leave to appeal in criminal cases on questions of fact, citing established principles from previous High Court and Privy Council decisions. The Court also considered that any abstract question of law that might arise in South Africa would be better determined by the South African courts.