McKelvey v Meagher
[1906] HCA 56
•24 September 1906
f^aeHa,Stote
LR524
4 C.L.K.] OF AUSTRALIA.
265
[HIGH COURT OF AUSTRALIA.]
M c K E L V E Y ..........................................................Appellant ;
MEAUHER .
Respondent.
ON APPEAL FROM THE SUPREME COURT OF
VICTORIA.
Ftigtlive OffendevH Act 1881 (44 tfe 45 Viet. c. 69), secs. 3, 5, 6—A}rplication of H. C. of A.
Act to Statei of Commonwealth—Power of Commonwealth Parliament to deal
1906.
with fugitive offemler-t— The. Constitution, secs. 51 (xx ix .), 108—Offence com-
milled partly outside Colony—Jurisdiction oj’ Parliament of Colony—SHatement
Melbo u r ne ,
of offence in indorsed warrant—Evidence.
Sept. 19, 20,
21, 24.
Unless the Commonwealth Parliament has under the Constitution power to
make laws such as are referred to in sec. ,32 of the Fugiiwe Offenders Act 1881,
Griffith C.J., Barton and
or to legislate generally as to the surrender of fugitive offenders between the
O’Connor JJ.
Commonwealth and other parts of the British Dominions, the establishment of the Commonwealth has had no effect whatever upon the position and authority of the States with regard to that Act.
Semble, the Commonwealth Parliament has under sec. 51 (xxix.) of the Constitution power to legislate generally as to the surrender of fugitive offenders from other parts of the British Dominions.
Whether the Commonwealth Parliament has such power or not, the Fugitive Offenders Act 1881 was at the date of federation a law in force in each of the Colonies of Australia, and, by virtue of sec. 108 of the Constitution, remains in force until the Commonwealth Parliament makes provision in that behalf, and should therefore be interpreted as though there had been no federation.
Held, therefore, that the Governor, the Judges, and the magistrates of Victoria can exercise in Victoria jurisdiction under the Fugitive Offenders Act 1881 notwithstanding federation.
Sec. 76 of Law No. 47 of 1887 of the Colony of Natal provides that :—“ If any person who is adjudged insolvent or has his affairs liquidated by arrange ment after the presentation of an insolvency petition by or against him or the commencement of the liquidation or within four months before such presenta tion or commencement quits Natal and takes with him or attempts or makes
26(5 HIGH COURT
[1906.
H. C. OF A. preparations for quitting Natal and for taking with liiin any part of Ids
property to the amount of £20 or upwards which ouglit by law to be divided amongst his creditors he shall (unless the jury is satisfied that he had no intent iIcKELVEYto defraud) be guilty of an offence punishable with imprisonment for a time
1906.
V.
M eagher .
not exceeding two 3'ears with or witliout hard labour.”
that such law was not
vires the Colony of Natal.
An indorsed warrant sufficiently mentions, wihin the meaning of sec. 5 of the Fupitive Ojffeuilers Act 1881, the offence witli which an alleged fugitive offender is charged, if the charge is substantiallj’ sufficient according to the law of the State where the warrant was issued.
The Attorney-General of Natal having certified that ‘
the crime of contia-
vention of sec. 76 of the Insolvency Laic No. 47 of 1887 . . is punishable
in the Colonj' of Natal,” &c. :
Held, that an indorsed warrant which alleged that the defendant had committed “ the crime of contravening sec. 76 of Law 47, 1887, (Natal),” was sufficient to give a magistrate in Victoria Jurisdiction to commit the defendiuit to prison to await his return to Natal.
The persons whose duty it is to administer the Fugitive Offenders Act 1881 in the part of the British Dominions where, an alleged fugitive offender is arrested, must ascertain as best they can the law of the State from which such fugitive has come.
Depositions made in Natal in proceedings instituted in that Colony, which are the basis of a criminal charge there against a person who has come to Victoria, may be received in evidence before a magistrate on proceedings under the Fugitive Offenders Act 1881 to have that person sent back to Natal, there to be tried on that charge.
Decision of Supreme Court {h ire McKdvey, (1906) V.L.R., .804 ; 27 A.L.T.,
198), affirmed.
A p p e a l from the Supreme Court of Victoria.
William iVlexander McKelvey was apprehended on a pro visional warrant on .5th November 1905, in Melbourne, brought before a justice of the peace, and remanded from time to time to appear at the City Court up to the 2nd Februaiy 1906, when he was charged, befoi-e J. A. Panton, Esq., a police magi.strate of the State of Victoria, on a warrant purporting to bear at foot the signature of Percy Binns, who de.scribed hirn.self as “ Chief Magistrate, Durban, Natal.” This warrant was in the following terms:—“ lo all constables and officers of the law proper for the execution of criminal warrants. Whereas, from information
4 C.LR.] OF AUSTRALIA.
•267
taken on oath on tlie lOtli day of October 1905 and succeedino- H. c . of A.
dates, tliere is reason to believe that William A. McKelvey did
commit the crime of contravening sec. 76 of Law 47, 1887 McK ei.vev
r.
(Xatal). These are therefore to command you in His Majesty’s
M kagher.
name to apprehend the person of the said William A. McKelve}’, and bring him before me to be dealt with according to law. Given under my hand, at Durban, this 7th day of December 1905.” The warrant was also sealed with a seal bearing the inscription “ Resident Magistrate’s Department, Durban.” There were three indorsements on the warrant. The first described the alleged criminal. The second purported to bear the signature and to have affixed thereto the seal of the Colonial Secretary of Natal, Charles J. Smythe, and was as follows :—“ I, Charles John Smytlie, Colonial Secretary of Natal, do hereby certify that the signature, ‘ Percy Binns,’ appended to this warrant is in the proper handwriting of Percy Binns, who is Chief Magistrate for the Division of Durban, in the Colony of Natal, and as such is authorized to issue warrants of arrest in terms of the proA’isions of the Fiu/itive Offender. ̂Act 1881. Given under my hand and seal of office at Pietermaritzburg, Natal, this 8th day of Decem ber 1905.” The third indorsement was dated 18th Januarj' 1906, and signed by Sir John Madden, the Chief Justice of the State of Victoria. It was addressed to all members of the police force of Victoria, and to all persons to whom the warrant for the appre hension of McKelvey was originally'- directed, and proceeded
“ Being satisfied tliat the said wnirrant was issued by some person having lawful airthority to issue the same, I, John Madden, Chief Justice of the Supreme Court of the State of Victoria, do hereby indorse such warrant, and do hereby authorize and command all or any of the persons named herein in His Majesty’s name forthwith to appreliend the above-named William Alexander McKelvey, and bring him before one of His Majesty’s justices of the peace in and for the Central Bailiwdck of the said State, there to be dealt with according to law.”
On tlie 2nd February 1906 evidence was adduced before Mr. Panton that he had a juri.sdiction in the State of Victoria similar to that exercised by a magistrate of the Bow Street Police Court in London, and the further hearing was adjoui'ned until
268 HIGH COURT
[1906.
H. C. OF A. 9 ^ 1 February, wlien Mr. Panton, after overruling a number of
objections raised by McKelvey’s counsel to the legality of the
McK ecvey proceeding-.s, and to the admissibility of certain evidence tendered
Meachei' prosecution, which objections are hereafter sufRcientlj" ----- referred to, i.ssued a warrant of commitment, under which l\IcKelvey was delivered and received into the custody of the keeper of the Melbourne Gaol, there to await his return to Durban. This warrant was given under Mr. Panton’s hand and seal, and therein he described liirnself as a police magistrate in and for the State of Victoria and a justice of the peace of and for every bailiwick in the said State, and as having the like jurisdiction as one of the magistrates of the Metropolitan Police Court in Bow Street. It recited that William A. McKelvey (hereinafter called the accused) was brought before him on a warrant duly i.ssued by Percy Binns, Escpiire, Chief Magistrate for the Division of Durban in the Colony of Natal, and indorsed by Sir John Madden, one of the Judges of the Supreme Court of the said State of Victoria, pursuant to the Fugitive Offenders Act 1881, charged with having committed an offence to which Part I. of the .said Act was applicable, viz., that the said William A. IMcKelvey did commit the crime of contravening sec. 7(i of Law -17, 1887 (Natal). It further recited that the warrant so indorsed was duly authenticated, and such evidence of the criminality of the accused was produced before him, as, subject to the provisions of the said Act, according to the law ordinarily adniini.stered by him, raised a strong and probable pre.sumption that the accu.sed did commit the offence mentioned in the warrant, and the .said offence was one to which Part I. of the Fugitive Offenders Act 1881, applied.
]\IcKelvey having been committed to prison under this warrant, a habeas corpus was obtained directed to the keeper of the Mel bourne Gaol, requiring him to bring up the body of McKelvey. On the return of the habeas before the Full Court of the Supreme Court of Victoria, McKelvey was remanded to prison to await his return to Natal {In re McKelvey) (1).
The other material facts are fully set out in the judgments
hereunder.
(l) (1906) V .L.R., 304 ; 27 A.L.T., 198.
4 C.L.U.] OF AUSTKALTA.
269
i^IcKelvey now appealed to the Higli Court on the grounds
C- of a .
1. That the Full Court was wrong in holding and adjudging that J. A. Panton, Es(i., a police magistrate of the State of m c K elvev
19^
Victoria, had jurisdiction under the Ftujitive Ojfendprs A d 1881,
or at all, to commit the said appellant to prison, the said J. A.
-----
Panton not being a magistrate of a British possession within the meaning of the said Act.
2. That the said Court was wrong in holding and adjudging that the warrant, i.ssued in Natal, to apprehend the appellant in
Victoria, was duly indorsed as required by sec. 3 of the Fugitive
0 fenders Act 1881, and that the said warrant, being indorsed by
Sir John Madden, Chief Justice of the Supreme Court of Vic
toria, was indorsed by a Judge of a superior Court of a British ,
possession within the meaning of the said Act.
3. Tliat the Acting Chief Justice and Mr. Justice dBcckett were wrong in holding and adjudging that the warrant, which stated that the said appellant did commit the crime of contra vening sec. 76 of Law 47, 1887 (Natal), did mention an offence within the meaning of the said Act.
4. That the said Full Court was wrong in holding and ad judging that the offence with which the said appellant was charged in the said warrant fell within sec. 9 of the said Act, and that the creation of such offence was not ?dt?'‘d vires the legislature of Natal.
5. That the said Court was wrong in holding and adjudging that the said warrant was duly authenticated as required by the said Act.
(i. d’hat the said Court was wrong in holding and adjudging that the depositions read herein were duly authenticated as ve(piired by the said Act.
7. That the said Court was wrong in holding and adjudging that what purported to be a certificate of the Attorney-General of Natal, certifying to the law of Natal, was evidence in Victoria of such law, and was duly authenicated as required bj' the said Act.
8. That the said Court was wrong in holding and adjudging that what purported to be a statement of one David Calder appearing- in the depositions was evidence in Victoria of the law of Natal:
270 HIGH COURT
[1906.
H. C. OF .A. 9 That tlie said Court was wrong in liolding and adjudging
that the case for the prosecution raised a strong and probable
McK klvev presumption that the appellant committed the ottence mentioned
MeaL ieb. ™ tlie warrrant.
ArtJtur, for the appellant. The police magistrate had no juris diction to deal with this matter, nor had the Chief Justice of Victoria juri.sdiction to indorse the warrant, because, on the pa.ssing of the Commonwealth of Aimtralia Constitution Act, Victoria ceased to be a “ British possession ” or “ a part of His ^Majesty’s dominions ” within the meaning of the Fugitive ([fenders Act 1881. The etiect of the definitions in sec. 89 of the latter Act is that the Commonwealth is now a “ British possession,” being under one “ central legislature.” The meaning of the words “ central legislature ” is to be determined at the time the Fugitive Offenders Act was passed. At that time the Dominion of Canada had been established, and if the Dominion then .satisfied the detinition of a “ British possession,” and its legislatui-e .satisfied the definition of a “ central legislature,” so do the Commonwealth and its legislature satisfy these definitions.
[Griffith C.J.—Suppose tlie central legislature has nothing to
do with police, as is the case with the Commonwealth ?]
The Fugitive 0 fenders Act is not merely a police Act, it deals with external relations, and power as to external relations is expressly given to the Commonwealth by the Constitution.
[Griffith C.J.—In Canada the Dominion Parliament has
jurisdiction as to criminal matters, and the power not specifically granted to the Provinces is vested in the Dominion. In those re.spects Canada differs from Australia.]
But the constitution of criminal Courts and procedure in criminal matters was vested in the Pi’ovinces : See British Nortti America Act 1867, secs. 91, 92 (14). Further, in New Zealand there was a case of the residuum of powers not being vested in the central legislature: See Neiv Zealand Constitution Act 18.52 (15 & 16 Viet. c. 72), sec. 19. Power to deal with matters relating to fugitive offenders is conferred on the Commonwealth by the Fugitive Offenders Act 1881. The intention of the Fugitive Offeiulers Act was that the persons who were to exer cise authority in a British possession should be under the control
4 C.L.R.J
OF AUSTRALTi\.
of the Government of that possesKion. If there is not an officer of
H. C. OF A.
the Commonwealtli who conies witliin tlie category of those
1906.
officers who have jurisdiction under tlie Act, there is power under
McK elvev
V.
secs. 30 and 32 to appoint an officer to exercise the jurisdiction.
M eaohek.
'I'lie Commonwealtli Parliament has by the Extradition Act 1003 in so many words exercised the power given by sec. 18 of the Extradition Act 1870, assuming that it is a British pos- se.ssion within the meaning of that Act, and the meaning of “ British po.s.se.ssion” is the same in the Extradition Act 1870 and in the Fugitive Offenders Act 1881. See also the Procla mation of 7th March 1904, proclaiming the Extradition Act 1903; Medical Act (1880) Amendment Act 190.5 (5 Edw. VII. c. 14), .sec. 27 ; Interpretation Act 1889 (52 & 53 Viet. c. 03), sec. 18. [G k if f it h C.J.—There appears to be a dilemma. If the Commonwealth Parliament has no power to deal with fugitive oflender.s, then it is not a “central legislature” within the mean ing of the Fugitive Offenderi ̂Act 1881. If the Commonwealth Parliament has power to deal with the matter, the law previously existing in each of the States is preserved by sec. 108 of the Constitution until the Commonwealth Parliament deals with tlie matter and it lias not yet done so. In either ca.se eacli State remains a “ British po.ssession.”]
Sec. 108 does not have that result. The Commonwealth of Australia Constitution Act does not expre.ssly repeal the Fugi tive Offenders Act 1881, and the two Acts, both of which are Imperial Acts, are not inconsistent with one another, and there fore tlie latter Act would continue in force notwithstanding the passing of the former. But the circumstances arising out of the passing of the former Act render the term “ British po.ssession,” which had theretofore been applicable to each of the States, applicable only to the Commonwealth.
[On this point counsel also referred t^ Commonwe'dth of Australia Constitution Act, sec. viii. ; In re Willis (decided in Western Australia) and In re Small (decided in Queensland), I'eferred to in Commonwealth Law Review, vol. III., Part I., pp. 14, 17; In re Gerhard (1); Ilhevfs Legislative Methods and Forms, pp. 27li, 349n; British Worth America Act 1867, sec. 132;
(1) -2: V.L.R., •244, 055; -23 A.L.T., 127, 181.
272 HIGH COURT
[1906.
H. C. OF A. Quick and Garran’s Constitution of the Australian Common
wealth, p. 378; Colonial Solicitors Act 1900 (63 & 64 Viet. c. 14); McK elvev Colonial Probates Act 1892 (55 & 56 Viet. e. 6), see. 4 (3); Mkaohek parte Worms (1), referred to i n Lefroys Legislative Power
----- in Canada, p. 218; Moore on Extradition, p. 627 ; Common- weedth Law Review, vol. ii., p. 278 ; Biron and Chalmers on Extradition, p. 130; Clark’s A ustralian Constitutional Law, 1st ed., 2̂ P- 19> 20; Dartmouth College v. Woodtvard (2); Harrison Moore’s Commonwealth of Australia, p. 67 ; Docu mentary Evidence Act 1868 (31 & 32 Viet. e. 37), see. 5; Colonial Prisoners Removal Act 1884 (47 & 48 Viet. e. 31), see. 18.]
If Vietoria has eeased to be a “ British possession” and tlie Commonwealth has beeome a “ British po.ssession,” then a Vietorian poliee magistrate does not satisfy the words of secs. 4 and 5 of the Fugitive Offenders Act 1881. The magi.strate, under those sections, must exercise his powers by virtue of
Commonwealth laws.
See also secs. 26 and 32.
The offence indicated by the law of Natal is one which the language of the Fugitive Offenders Act 1881 excludes from its operation. Under secs. 2 and 9 of the latter Act the offence mast be completed before the fugitive left the place where it is said to have been committed, and whether the offence is the quitting Natal or the subsequently becoming in.solvent it was not com pleted until after the appellant had left Natal. When the appellant left Natal no warrant could have been issued against him on this charge because he had not then been made insolvent. See Ex parte Reggel (3); In re Alohr (4); State v. H idl (5); In re Sultan (6); Moore on Extradition, p. 937; Quick and Garran’s Constitution of the Australian Commonwealtli, p. 619. It is altrd vires the legislature of Natal to render criminal this particular act. A Colonial legislature cannot render criminal an act which is not completed Avithin its territorial lim its: Macleod X. Attorney-General for New South Wales (7). When the appel lant AÂas made insolvent, which is the e.ssence of the offence, he
( 1 ) 2 Cartwright, 315.
(5) 44 Amer. State Rep., 501.
(2) 4 Wheat., 528.(6) 44 Amer. State Rep., 433.
(3) 114 U .S., 642, at p. 651.(7) (1891) A.C., 4,55, at p. 457.
(4) 49 Amer. Rep., 6^
273
4 C.L ll.]
OF AUSTRALIA.
was not amenable to the criminal law of Natal. The warrant
^
does not mention the offence which it is alleged that the appel
lant committed as is required by sec. 5 of the Fugitive Offenders
M cK elvky
Scf 1881. A warrant in this form would be bad according to
M eaghek .
Victorian law and, in the absence of evidence, the presumption is that, according to the procedure in Natal, it "would also be bad. The best that can be said of this warrant is that it mentions several offences, one or more of which the appellant is said to have committed. There should be, at any rate, substantial indications of the nature of the crime: Ex parte Terraz (1); Ex parte Krans (2); R. v. Despard (8); Ex parte Reggel (4); In re Fishenden (5); In re Ryan (6); Castro v. Re Uriarte (7); Moore on Extraditum, p. 877.
There was no proper proof of the law of Natal. That law is in Victoria a matter of fact to be proved by experts. To,ylor on Evidence, 9th ed., vol. ir., pp. 936, 1064. The deposi tions are not evidence of that law, for they were taken in Natal in a proceeding instituted in Natal, where that law was not a question of fact, and therefore not a subject of evidence.
Irvine (with him Wanliss), for the respondent. In order to determine whether Victoria still is a “ British possession” Avithin the meaning of the Fugitives Offenders Act 1881, it is necessary to consider the general character of the jurisdiction conferred by that Act. It is an ex-territorial jurisdiction given in aid of the ordinary criminal juri.sdiction of the Courts. It is ex-territorial so far as the different parts of the British dominions are mutually con cerned. The magistrates in one part of the dominion are given a jurisdiction which is part of their judicial jurisdiction to deter mine whether there is a 2)'>dnid facie case of an offence having been committed in another part of the dominion. In that respect the exercise of jurisdiction under that Act is necessarily con nected with the administratioii of the ordinary criminal jurisdic tion. Therefore, where there is a union of several parts of the dominion under one legislature, in order to determine whether that
(1) 4 Ex. 1)., 6;i
(5) 4 V.L.R. (L.), 143.
(2) 1 E. & 258.(6) 8 V.L.R. (L.), 327.
(3) 7 T.R., 736.
(7) 16 Fed. Rep., 9:1.
(4) 114 U.S., 642.
Vi)l„ IV.
274 HIGH COURT
[1906.
H.C. OF A. merges the several parts into one for the purpose of tliat Act, tlie
| 1906. Conrt has to consider whether under the Constitution which |
McK elvey brought about that union the criminal jurisdiction has passed to
V.
the central legislature.
Sec. 9 of the Fugitive Ofenders Act
M eaghkb .
1881 assumes that in any particular “ British possession” in question there is uniform criminal law. In construing the Con- stitntion in connection with that, we have the fact that there i.s no general criminal law for the Commonwealth, although the Commonwealth may create offences and legislate as to their punishment. The “ central legislature ” referred to in the Fugitives O fenders Act 1881 is a central legislature which has power to deal with ordinary criminal matters.
[Griffith C.J.—Sec. 32 assumes that a central legislature has
power to legislate as to certain matters. Does tliat section
confer upon that legislature a new power to legislate ?]
No. It assumes that the central legislature to which it I’efers is one which already has those powers, that is to say that it is a legislature which has a general power to regulate criminal law and procedure. It is doubtful whether the power conferred on the Commonwealth to deal with external affairs authorizes legis lation dealing with extradition or fugitive offenders. Such a power could not authorize laws compelling magistrates in the Commonwealth to deliver up persons accused of crimes against the laws of other countrie.s.
[Griffith C.J.—The conveyance of such persons to those
countries would need Imperial legislation.]
Sec. 108 of the Constitution does not affect the matter.
[Griffith C.J.—The law of each State was that the Governor
of the State and the magistrates of the State had a certain power. By virtue of sec. 108 that law remains in force until the Commonwealth Parliament exercises its power of legislation.
O’Connor J.—The practical result would be that the Constitu
tion has to a certain extent altered the interpretation of the
Fugitive Ofenders Act.]
If the Commonwealth is a unit with respect to the Fugitive Offenders Act, Mr. Panton is a magistrate in the Commonwealth. Just as a by-law of a municipality is part of the law of Victoria so is a magistrate of Victoria a magistrate of the Commonwealth.
4 C.L.R.] OF AUSTRALIA.
275
As to whetlier the offence was committed in Natal, that
depends on the language of the Statute. The substantial crime
created by sec. 7f), Law 47, 1887 (Natal), is the doing an act with
M cK elvey
V.
intent to defraud creditors. Everything else in the section relates
M kagher.
to conditions or evidence. The substance of the offence is a thing done hy the accused himself at the time or before he leaves Natal.
The warrant sufficiently states the nature of the offence. 'fhere is nothing inherently wu'ong in charging a man wdth more than one offence or witli one or more of several offences. Al though it may be a rule of procedure adopted here that a warrant must only charge one offence, there is no rea.son for applying that rule strictly to these proceedings. The real substantial question is—had the appellant an opportunity of knowing with what he was charged? R. v, JJespavd (\) is an authority for saying that this warrant is sufficient. See also Ex parte Riot (2); Clarke on Extradition, 4th ed., p. 90 ; Grin
law is to be proved as a question of fact is not univer.sally true. In the hearing of ordinary matters which come before the Courts where one of the facts in i.ssue involves foreign lawq that foreign law must be proved as an ordinary fact is proved. But there are exceptions to that rule. For instance, where it is necessary to determine wdiether a will is a will within the meaning of the law of a foreign country, it is not necessary to prove the foreign law: In re Kiingemann (4). The Court must inform itself in the best w'ay it can what the foreign law is : Powell on Evidence, 7th ed., p. 284. In this case there is the official certificate by an officer who in the ordinary performance of his duty -would be acijuainted wdth wdiat the law of Natal is.
V.
Skive (.3).
Arthur, in reply, referred to Sust^ex Peerage Case (5); I ji. ?'e Orton (0); 2.3 & 24 Viet. c. 122; 12 & 13 Viet. c. 96, sec. 3; Lefrog's Legislative Power in Canada, p. 334; R. v. Brierly (7); R. V. Plowman (8 ) .
Cur. adv. vult.
(1) 7 T .R ., 7;̂ l).
(5) 11 Cl. & F., So.
(■2) 48 L.T. .N.S., 1-20.
(6) (1896) 1 Q.B., 509. at p. 511 (li).
(3) 187 U .S., 181.
(7) 4 Cart., 665.
(4) 3 Sw. & T r., 18.
(S) 25 Out. Rep., 656.
276 HIGH COURT
[1906.
H. C. OF A. Griffith C.J. In tliis case the appellant was held under a
warrant issued under the Fugitive Ofenders Act 1881, orderinir
McK elvey to be returned to the British Colony of Natal to be tried for
V.
an otfence against the criminial law of that Colony, which falls within the terms of the Fugitive Offenders Act. Objection has
M F AT H E R .
Griffith C.J.
been taken to the warrant for his removal on various gounds, some of which go to the validity of the original arrest in A’̂ ictoria, and others to the particular facts of the case. Some of the objections
| taken were important, and others were not. I will deal witli the |
objections seriatim.
The first objection taken is, in substance, that, since the estab lishment of the Commonwealth, the State of Victoria is no longer a “ British possession” or a “ part of His Majesty’s dominions” within the meaning of the Fugitive Offenders Act. That Act, which was passed in 1881, when the Commonwealth was not established or even thought of, provides by sec. 2 that:— Where a person accused of having committed an otfence (to which this part of this Act applies) in one part of Her Majesty’s dominions has left tliat part, such person (in this Act referred to as a fugitive from that part) if found in another part of Her Majesty’s domin ions, shall be liable to be apprehended and returned in manner provided by this Act to the part from which he is a fugitive.” The Act then proceeds to prescribe the conditions under which a fugitive may be arrested, how the charge against him is to be investigated, and how he may be sent back to the jiart of the British dominions where he is accused of having committed the otfence. When the warrant is brought from that part it may by sec. 3 be indorsed by a Judge of a superior Court, by a Secretary of State or a Bow Street magistrate in the United Kingdom, or by the governor of a British possession in that possession. Sec. 5 provides that;—“ A fugitive when apprehended shall be brought before a magistrate, who (subject to the provisions of this Act) shall hear the case in the same manner and have the same juris diction and powers, as near as may be (including the power to remand and admit to bail) as if the fugitive were charged with an otfence committed within his jurisdiction.” By sec. 39 “ magis trate ” is defined as meaning in a British po.ssession “ any person having authority to i.ssue a warrant for the apprehension of
4 C.L.K.] OF AUSTRALIA.
277
persons accused of offences and to coininit such persons for trial.” H- U. of A.
'I'liat is (jualified, perhaps, by sec. 30 which provides that:—
“ Tlie jurisdiction ujider Part I. of this Act to hear a case and
McK elvey
V.
commit a fugitive to prison to await his return shall be exerMeagher
cised,— . . . . (4) In a British possession, by any Judge,
Griffith C.J.
justice of the peace, or other officer having the like jurisdiction as one of tlie magistrates of the Metropolitan Police Court in Bow Street, or by such other Court, Judge, or magistrate as may be from time to time provided by an Act or ordinance passed by the Legislature of that possession.” Certainly, to some extent, the definition of “ magistrate ” is qualified by that sub-section.
By sec. 39 it is also provided th at:—“ In this Act unless the context otherwise requires,—The expression ‘ British possession ’ means any part of Her Majesty’s dominions, exclusive of the United Kingdom, the Channel Islands, and Isle of Man; all territories and places within Her Majesty’s dominions which are under one legislature shall be deemed to be one British pos.session and one part of Her Majesty’s dominions. The ex pression ‘ legislature,’ where there are local legislatures as well as a central legislature, means the central legislature only.” On that the argument is founded by Mr. Arthur that Vic toria has ceased to be a “ British possession ” or “ a part of His Majesty’s dominions ” within the meaning of that Act. Before dealing with that ai’gument I will refer to sec. 32 which provides that:—“ If the legislature of a British possession pass any Act or ordinance—(1) For defining the offences committed in that possession to which this Act or any part thereof is to apply; or (2) For determining the Court, Judge, magistrate, officer, or person by whom and the manner in which any jurisdiction or power under this Act is to be exercised ; or (3) For payment of the costs incurred in returning a fugitive or a prisoner, or in .sending him back if not prosecuted or if acquitted, or otherwise in the execution of this Act; or (4) In any manner for the carrying of this Act or any part thereof into effect in that possession—it shall be lawful for Her Majesty by Order in Coun cil to direct, if it seems to Her Majesty in Council necessary or proper for carrying into effect the objects of this Act, that such Act or ordinance, or any part thereof shall, with or without
278 HIGH COURT
[1906.
H.C. OF A. modilication or altei'ation be recognized and given eftect to
| 1906. throughout Her Majesty’s dominions and on the liigh seas as if it |
M cK elvey were part of tliis Act.” Now, it will be observed that all tho.se
V.
M bagher .four matters are matters entirely within the jurisdiction of any
legislatui’e having anything in the nature of plenary powers of
Griffith C.J.
legislation. The first provision says, in effect, that the legi.sla- ture of that part may renounce for that part the benefits of the Act as to any offence which it chooses to specify. The other three are also matters of internal administration. Sec. 32 there fore assumes that the legislature spoken of has power to deal with such matters, and I am of opinion that the expressions “ British possession ” and “ legislature,” as defined in sec. 32, must be considered from that point of view. I think a “ central legis lature,” as di.stinguished from a “ local legislature,” means a central legislature which has power to deal with the subject matter of the Act—such matters as are involved in the adminis tration of the Act, including the administration of justice within the possession. So that, if a new form of con.stitution is granted under which a new legi.slature—central, in one .sense, it is true— is established, but with authority not extending to the criminal law or the extradition or rendition of fugitive offenders, then such legislature is not a central legislature within the meaning of the Act. Sec. 39 begins with the words “ . . . unless the context otherwise requires.” I think that the powers which such a legis lature is assumed to be able to exercise show that the intention i,s
as I have indicated.
I cannot accede to the argument that sec. 32
was intended to create any new power in any particular legislature, because all the matters there referred to are within the ordinary powers of a legislature. I am, therefore, of opinion that unless the Commonwealth Parliament has power under the Con.stitution to make laws under sec. 32 of the Fugitive Ofenders Act 1881, or to deal with the surrender of fugitive offenders between the Commonwealth and other parts of the British dominions, the establishment of the Commonwealth has had no effect whatever upon the position and authority of the State of Victoria with regard to this Act. I am disposed to think—although it is not necessary to express any definite opinion upon the subject —that the power conferred upon the Commonwealth Parliament
4 C.L.R.l OF AUSTRALIA.
‘279
to make laws with respect to external affairs probably includes H- U
the power to pass the necessary laws to give effect to this
Act. If it does not, then the e.stablishment of the Commonwealth
McK klvey
V.
in no way affected the operation or administration of this Act in
Meagher .
Victoria. If, on the other hand,—which I think is more probable
Griffith C.J.
—the Constitution does empower the Commonwealth Parliament to deal with the subject of the rendition of fugitive offenders, all difficulty is removed by the express words of sec. 108 of the Constitution, which declares th at:—“ Every law in force in a Colony which has become or becomes a State, and relating to any matter within the powers of the Parliament of the Common wealth, shall, subject to this Constitution, continue in force in the State; and, until provision is made in that behalf by the Parliament of the Commonwealth, the Parliament of the State shall have such powers of alteration and of repeal in respect of any such law as the Parliament of the Colony had until the Colony became a State.” Further, sec. 109 provides that:— “ When a law of a State is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid.” So that the appellant is in this dilemma: Either the Parliament of the Commonwealth has no power to deal with this matter, and therefore cannot be a “ central legislature ” within the meaning of the Act; or, if the Parliament of the Commonwealth can deal with this matter and may be a “ central legislature,” the existing law is preserved by sec. 108 of the Constitution, since the Common wealth Parliament has not dealt with the matter so far as the surrender of fugitive otienders to other parts of the British dominions outside the Commonwealth is concerned.
It was contended that the administration of the Fugitive Ofenders Act 1881 was not a law in force in Victoria at the time of the establishment of the Commonwealth within the meaning of sec. 108 of the Constitution. I can see no force in that con tention. Amongst the powers possessed by the Governor, the Judges, and the magistrates of Victoria were powers under the Fugitives Offenders Act 1881, and the law which enabled them to exercise those powers was a law in force in Victoria, and, in my opinion, still continues a law there. I think, therefore.
280 HIGH COURT
[1906.
H.C. OF A.the decisions of the Supreme Court in Western Australia in
| 1906. | Ex parte ICf/iis, and oi Real J., in Queensland in In re Small |
M cK elveywere erroneous, and that the decision of the Full Court now
V.
M ea g h er .under appeal is right. I notice that one of the members of
the last mentioned Court was of opinion that this decision only
Griffith C.J.
extends so far as the subordinate officers are concerned, and that the Governor-General, and not the Governor of Victoria, must sign the warrant for a fugitive’s return. If the view I have stated is correct, the law of Victoria remains exactly the .same as it was, and the power of the Governor of Victoria is exactly a.s it was before the establishment of the Commonwealth.
Another part of the contention for the appellant, depending on the same arguments, was that, assuming the Commonwealth to be one “ British possession,” the police magistrate in Melbourne was not a magistrate of that part of His Majesty’s dominions— that is, of the Commonwealth. In sec. 3 the expression “Judge of a superior Court in such part” is used, and in sec. 4 “ a magistrate of any part of Her Majesty’s dominions.” In my opinion, whenever either of these expressions is used it means a person who, in the place where the fugitive is found, has authority to exercise the function of a Judge or magistrate as the case may be. It is well known that the jurisdiction of a magistrate is generally limited as to locality, and I think a person who is de facto a Judge of any portion of the Commonwealth, or a magistrate having jurisdiction in any portion of the Commonwealth, is then a Judge or magistrate respectively of the Commonwealth within the meaning of the Act. Tliat objection therefore fails.
The next objection turns upon the nature of the offence which is charged. The substance of the offence is that the appellant quitted Natal within four months before being adjudged imsolvent, and took with him property of the value of more than £20 which should have been divided amongst his creditors. It is objected that it is not within the power of a subordinate legislature, such as that of Natal, to con.stitute that offence, for this rea.son, that the offence is not and cannot be committed within the Colony of Natal. It is said that a man cannot quit a Colony while he is within it, and therefore any Act creating such an offence is ultra
281
4 C.L.U.J
OF AUSTRALIA.
viren. For tliat Macleod v. Aftorney-Gener<d for Nexv South
H. C. OF A.
1906.
WaUiH (1) is relied on.
But, to look at the matter from another
point of view, it would be ab.surd to say that a man can quit a
M cK elvey
V.
place while he is outside it. The.se are rather fine distinctions.
Meagher
The common sense view of the matter is that the act of quitting
Griffith C.J.
a place is done partly inside and partly outside the place. At any rate it is partly done within the place quitted, and so far as the acts done within the territory of a Colony are concerned, it i.s clearly within the jurisdiction of the legislature of that Colony to deal with the matter and to declare it to be an offence. In con struing an Act to create such an offence that, I think, is the meaning to be given to the words. If a man does within the borders of the Colony such an act as re.sults in his quitting that Colony, he is guilty of the offence against the Act. That objection therefore also fails.
The next objection is that when the appellant left Natal he had committed no offence because he had not then been adjudged insolvent, and was not adjudged insolvent until some time after wards. That at first sight seems plausible. But it is necessary to have regard to the substance of the law rather than its form. The real nilture of the offence is this, that a person wdio i.s in such a financial position, and has within the Colony done or suffered such an act that he is liable by law to be adjudged insolvent, leaves the Colony and takes with him property which should be divided ainong.st his creditors. The fact that he has not been actually adjudged in.solvent is not material. The acts which the Colony has made an offence are completed so far as they rest with him. An illustration, which I think is perfectly analagous, is afforded by the case put in argument of manslaughter. A man does some act which results in the death of another, but which is not likely to j)roduce that result. Shortly after the doing of the act the man leaves the State in which he did it. If the other dies within twelve months of the doing of the act, the man who did it is guilty of manslaughter, and if death does not result within twelve months he is not guilty. But it cannot be disputed that he who did the act would be liable to be taken back to the State ŵ here the act was committed though it might be uncertain for twelve
(I) (1S91) A.C., 455. ■
282 HIGH COURT
[1906.
H. C. or A.
months, long after he had left the State, whether lie had com
1906. mitted an offence at all. The illustration is entirely applicable.
M cK elvey
Therefore the alleged offence can be committed and is an offence
V.
M eagher .
within the section.
The next objection turns upon tlie form of the warrant.
It is
Griffith C.J.
a singular form, and one "which is not familiar to us in Australia. But I should think it is one which is possibly authorized in some part of His Majesty’s dominions. We, however, do not know whether it is or not. The charge in the warrant brought from Natal is that the appellant committed “ the crime of contravening sec. 76 of Law 47, 1887 (Natali.” That section is in the same familiar form as sec. 12 of the Debtors Act 1869 (32 & 33 Viet. c. 62) whifh appears in the Insolvency Acts of the different Aus tralian States. It provides th at:—“ If any person who is adjudged in.solvent or has his affairs liquidated by arrangement after the presentation of an insolvency petition by or against him or the commencement of the liquidation or within four months before such presentation or commencement quits Natal and takes with him or attempts or makes preparations for quitting Natal and for taking with him any part of his property to the amount of £20 or upwards which ought by law to be divided ainongst his creditors he shall (unless the jury is satisfied that he had no intent to defraud) be guilty of an offence punishable with imprisonment for a time not exceeding two years with or without hard labor.” It is said that the charge of committing a crime against that section is open to the objection of duplicity, because the .section covers more than one offence. In one sen.se, no doubt, the section does provide for more than one case ; it provides for insolvency and for liquidation by arrangement, it also provides for quitting after or within four months before insolvency, and it not only deals with quitting but also with attempting to quit and with making preparations to quit. In substance, however, it is one offence, and that offence is that a man, having by some act put himself in such circumstances that he is liable to be made in solvent, leaves the Colony and takes with him property which ought by law to be divided amongst his creditors. But the most that can be said of the charge is that it is open to the objection of duplicity. That objection is one which, according to
4 C.L.K.] OF AUSTRALIA.
283
our law, must be taken at an early stage of the proceedings, C. or A.
and it is doubtful whether it can ever he taken except by
_̂_ ^
special demurrer. It would be a very singular thing if, in a case
m c K elvicy
dealing with the surrender of fugitive offenders, the warrant
issued hy the State from which a fugitive came, and which
Griffith C.J.
is primd facie good hy the law of that State, could be verbally criticised hy the Court called upon to give effect to it, hy saying “ Here we do our work much better than that, we do not allow proceedings to he taken in this slovenly way, and therefore we refuse to act upon the warrant.” That would seem to he a singular want of comity in dealing with a request by another State. I think i\xG prim d facie presumption to be drawn—if it is necessary to draw any—is that that is the ordinary waĵ of stating that offence in Natal. That 1 think is supported hy the certificate of the Attorney-General of Natal, which is in these words:—“ I certify that the crime of contravention of Section 76 of the Insolvency Law No. 47 of 1887 with which William A. McKelvey is charged is punishable in the Colony of Natal by imprisonment with or without hard labour for a term of twelve months or more ”—assuming that to be in Natal the usual way of stating the crime. It is, at any rate, the form which the Attorney-General of that Colony uses to describe the offence. But even if it were not the usual way, and even if neither the Attorney-General nor the Chief Magistrate of Durban under stands how to describe the offence properly, nevertheless I think the objection fails, for this “ is not a commitment for safe custody, in order that the party may afterwards be brought to trial, nor is it a coinmitment in execution; but it is a commitment for safe custody in order to secure the party and prevent mischief to His Majesty’s subjects.” Those are the words of Lord Tenterden in Rex v. Gourlay (,1) cited by Huddleston B. m Ex parte Terraz (2). The distinction between the different classes of warrants is pointed out by the learned Baron, and by the other authorities cited in that case. I think it is surticient that the charge should be substantially sufficient according to the law of the State where the warrant is issued. I see no reason for supposing that this is not substantially
U) 7 B. * C., 669.
(2) 4 Kx 1)., 63, at p. 70.
284 HIGH COURT
[1906.
H. C. OF A. sufficient according to the law of Natal, or according to the
aw of Victoria for tlie purpose for which it is issued. I am
McK elvey
of opinion, therefore, that that objection fails.
V.
M eagher . There were some other minor objections, the only material one Griffich C.J.being that there was no valid proof of the law of Natal. The evi
dence given as to that law was, first, a certificate of the Attorney- General which was said to be admissible under the provisions of sec. 92 of The Fugitives Offenders Act 1881 which provides that:— “ Depositions (whether taken in the absence of the fugitive or otherwise) and copies thereof, and official certificates of or judicial documents stating facts, may, if duly authenticated, be received in evidence in proceedings under this Act.” The Attorney- General certified under his hand and seal tliis law sufficiently for the purpose of this proceeding so far as authentication was concerned. It is said, however, that is not a fact to which the Attorney-General can certify. In my opinion, if the law of Natal is to be regarded as a fact, that is eminently a fact to which the principal law officer of that Colony can certify. The other evidence was the deposition of a practising lawyer of Durban in Natal, who produced a copy of the Statute and swore that it was the law of Natal. In my opinion, if the law of Natal is a fact, that was sufficient evidence of it. It is said, however, that as this deposition was not receivable in Natal as evidence of the law of Natal because that law is not in Natal a question of fact, it follows that before the committing magistrate in Victoria, where the law of Natal is a question of fact, although evidence as to what that law is may be given by deposition, it can only be so given by a deposition taken in a Victorian proceeding. I take leave to doubt whether the law of Natal is a question of fact with regard to the administration of this Act. To give an illustration, which is very analogous, under the Extradition Act. Apart from any local Act the Governor had to administer that Act. Now the Governor had in some way to make himself acquainted with the law he was administering. Is it to be supposed that he was to require foreign experts to be called before him to give evidence on oath as to what that law was ? Or is it not to be supposed rather that the Governor, in order to enable him to discharge his duty, was to ascertain in the best way he could what the law was which he
4 C.L.U.J OF AUSTRALIA.
285
liad to administer ? In the case of extradition I tliink that is quite
'L C. of A.
clear.
If that is .so, how can tliere be any difference if, instead
of that power being limited to the Governor, it is delegated to
m c K elvey
r.
some executive officer ? It is not neces.sary to express any Meaghkk.
definite opinion on the matter, but it seems to me that this law,
Griffith C.J.
which tli?authorities of each British possession aie called upon to administer, may rea.sonably be .said to imply that .such officers shall make themselves acquainted with the laws of the other British communities in order to di.scharge their duties.
The other objections re.sted upon the facts, but on the facts there was no foundation for them, so that it is not necessary for me to say anything further about them. I am therefore of opinion that the appeal should be dismissed.
B arto n J. I also am of opinion that the appeal fails. The objections taken re.solve themselves into four, taking into con sideration that those with reference to the authentication of the documents do not seem to have been persisted in. The first is that Victoria is not a “ British possession ” within the meaning of the Fugitive Offenders Act 1881 and has not been such a possession since federation took place. That is a ground which covers more than one objection, for in negativing the one the other falls with it. The second objection is that the indorsed warrant did not mention an offence within the meaning of sec. 5 of the Act. The third objection is that the offence, if any, mentioned in the warrant is not an offence within the meaning of sec. 9, because the creation of such offence is ultra vires of the legi.slature of Natal. The last objection is that the evidence taken in Natal before the local tribunal is not evidence in Victorian Courts, .so that there is no evidence in Victoria to prove the law of Natal.
Taking the points seriatim, the objection that Victoria is not a “ British possession” depends upon secs. 30 and 39 of the Fugitive Offenders Act 1881. [His Honor read the material parts of the sections and continued.] It is contended that by force of those words the only “ British possession ” cognizable with reference to the execution of this Act is the Commonwealfh in respect of alleged offenders who have e.scaped from other
286 HIGH COURT
[1906.
H. C. OF A. parts of the Empire. As the learned Cliief Justice has pointed
out, it is not necessary to decide now whetlier the External
M cK elvey Ati'airs power of the Commonwealth Parliament under sec. 51
V.
M eagher . of the Constitution would cover legislation appljdng to such
circumstances as these. It is probable that that power includes power to legislate as to the observance of treaties between Great Britain and foreign nations. If it does that, it is still more probable that it includes power to legislate as to offences which come within the Fugitive Offenders Act as distinguished from the Extradition Act. If the External Affairs power extends to such cases, still the appellant is brought face to face with sec. 108 of the Constitution. [His Honor read tlie section and continued.] If then the Commonwealth has the power con tended for, nevertheless sec. 108 of the Constitution applies, and I fail to see how clearer terms to include the matter could be applied than those placed in sec. 108. If that is so, then this law is a law which was in force in Victoria and remains in force there. It did not cease to exist Mutli reference to the position of Victoria as a British possession so soon as federation was brought about. Therefore tlie objection fails.
Barton .7.
But, if the External Affairs power does not apply, then it seems to me the objection fails because Victoria would remain a “ British possession.” It is to my mind inconceivable that, while the Imperial legislature was dealing with matters of this kind in 1881, it could ever have intended to make the general legislature of a federation the sole authority under the Fugitive Offenders Act, and at the same time not to confide to that authority a power competent for the purpose. In my view that considera tion alone is sufficient to dispose of the matter. The Imperial Parliament found in existence at that time the federation of Canada. Under the operation of secs. 91 and 92 of the British North America Act 1867, the competence to deal with criminal law generally as relating to conduct wa,s already in the Dominion Parliament, while matters of procedure and the constitution of Courts were confided to the Provincial legislatures. I think the British Parliament, in dealing with what it defines as a “ British possession ” with a central legislature had in its mind the rela tions of central and subordinate authorities such as existed in
4 C.L.R.] OF AUSTRALIA.
287
Canada, and had no intention to apply a rule of this kind to any R- C- of A
future central legislature unless it should be constituted with
^ 9^
powers to meet the case. In the case of Australia, if the Imperial
M cK elvey
Parliament did not endow the central legislature with power to f̂EAGHER
make laws to meet the case, it seems to me the power to deal -----
Barton J.
with the Fugitive Offenders Act remains where it was before federation, and the law previously in force in Victoria must stand. Therefore, whichever position is taken up, this objection must fail. I may say that I adopt the opinion expressed in the judgment of the Supreme Court in this case so far as it is applicable to this point, and I also adopt what was said by dlieckett J. in Fx parte Gerhard (1).
Another ([uestion was raised under .secs. 3, 30, and 39 of the Fugitive Offenders Act. It was contended that throughout this enactment and the detiriitions, the word “ in " must be read as “ of,” .so that, when the words' “ British possession ” are given the larger force and meaning contended for, a Judge or magis trate or other officer in a “British possession” must be regarded as a Judge or magistrate or other officer of the “ British possession” in that larger sense. It was said, therefore, that, in the case of the Commonwealth, where the matter is not dealt with by any authority of the Commonwealth, a case for the rendition of this ])erson would fail. I am not of that opinion, for the reason that I think the plain meaning of the words in the various parts of the Act i.s that a magistrate in a “ British possession ” means a magistrate performing his functions in the possession. That of course applies to the particular part of the possession where he performs his functions. So that, even if Mr. Arthur had suc ceeded in his able argument in showing that the Commonwealth was a “ Briti.sh possession ” for the purposes of this Act, still, in my opinion, he would have got no further in his attempt to destroy the authority under which the proceedings were taken hy reason of which the appellant remains in custody.
The next objection was that the indorsed warrant, by stating that the appellant committed “ the crime of contravening sec. 76 of Law 47, 1887 (Natal),” did not mention an offence within the meaning of sec. 5 of the Fugitive Offenders Act. [His Honor
(I) 27 V.L.R., 244, at p. 251 ; 25 A.L.T., 127.
288 HIGH COUKT
[1906.
H.C. OF A. read the section and continued]. Tlie objection is that the
| 1906. | words “ the offence mentioned in the warrant ” are not satisfied |
M cK elvey
by the w o rd sth e crime of contravening section 7(i of Law 47,
V.
1887 (Natal).”
Now, I am strongly of opinion that, if tlie certifi
M eagher .
cate of the Attorney-General and the evidence of Mr. Calder can
Barton J.
be accepted as evidence for the present purpose, then there is prim d facie- evidence that there is a crime known in Natal as “ contravening sec. 76 of Law 47,1887 (Natal).” That evidence is unrebutted. The Attorney-General of Natal has certified that; —“ The crime of contravention of sec. 76 of the Insolvency Law No. 47 of 1887 with which William A. McKelvey is charged is punishable in the Colony of Natal,” &c. Mr. Calder, a solicitor practising at Durban, in Natal, where the crime is alleged to have been committed, was called before the Chief Magistrate of Durban, where the depositions were taken which were transmitted here, and he deposed that the law- of Natal was as contained in the tran.script put in evidence there and attached to his deposition. I shall deal presently with the question whether the certificate of the Attornej ’̂-General and the deposition of Mr. Calder can be taken as evidence for this purpose. That the description of the offence appears to have been thought sufficient in Natal is borne out by the depositions which are headed by that charge, The case with reference to fugitive offenders is not the same as under the Extradition Act, because the second paragraph of sec. 9 of the Fugitive Offenders Act 1881 provides that:— “ This part of this Act shall apply to an offence notwithstanding that bj’ the law of the part of Her Ma;jesty’s dominions in or on his way to which the fugitive is or is suspected of being it is not an offence, or not an offence to which this part of this Act applies; and all the provisions of this part of this Act, including those relating to a provisional warrant and to a committal to pri.son, shall be construed as if the offence were in such last-mentioned part of Her Majesty’s dominions an otfence to which this part of this Act applies.” That gets rid of the necessity of showing that the otfence chargeable in the jurisdiction from which a fugitive has escaped is an otfence known and recognized in the jurisdic tion to which his escape has been made. It therefore renders the
4 C.L.H.] OF AUSTRALIA.
•289
case of Ex parte Piot (1), a doubly strong authority in favour of H. C.
o f a .
liolding that there has been a sufficient description of the offence
for the purpose of this Act in this warrant. In
Ex parte Terraz
M cK elvev
V.
(2), Huddleston B. .said:—“ Warrants in execution are in the M eaghkk.
nature of convictions, and it has always been held that warrants
Barton J.
of that class require considerable strictness, for the reason that when the party is brought up on habeas corpus, and is held under a warrant in execution, the Court can only judge by what appears in the warrant whether a crime has been committed, and whether the alleged criminal is properly held in custody. But warrants for apprehension are merely instruments not directed to the pri.soner, but directed to the officer for his protection, and to enable him to take the person into custody either for the purpose of impiiry, or of holding him in cus tody while the inquiry is going on, or of keeping him in safe custody for some of the reasons I have mentioned. Now, doubtle.ss the latter class of warrants, namely where the paity is to be held in safe custody during a particular time, would seem to reijuire more particularity than a warrant for ajjpre- hension; but there are clear authorities to show that warrants for safe custody, even for public purposes, or for the protection of the public or individuals, may be in general terms.” The learned Baron cited the case of Rex v. Despard (3) and authorities to the same effect. I am of opinion, therefore, first, that on the as sumption of the admissibility already mentioned, there is primd facie evidence that the offence is one known to the law of Natal, and that that is the offence mentioned in the warrant, and, secondly, apart from that, I am of opinion that it was not neces sary to describe the offence with any greater ^particularity than has been observed in the warrant.
Then there is an objection that the ottence mentioned in the warrant is not within sec. 9 of the Fugitive Offenders Act 1881, as the creation of that offence was ultra vires of the legislature of Natal, and that, inasmuch as the accused person would have to be out of the territory before he could be said to liave quitted Natal, there was no jurisdiction in the local legislature to pass a
(I) 4S L.T., 120.
(2) 4 Ex. D., 63, at p. 68.
7 T.R., 736.
VOL. IV.
•290 HIUH COURT
[190G.
If. C. OF A
law to punish him for that quitting.
That objection sounds very
1906. well on its face, but there are two sides to it. It is urged that a
McK elvev
man cannot be said to have quitted a country while he is in it,
V.
M ea g h er .and that the legislature of that country cannot pass a law to
punish him for having quitted it when he is outside, and the
Barton J.
argument amounts to this, that whether the man is inside or out side the country, he cannot be punished for quitting it. Although the argument is ingenious, I think it is too finely drawn to com mend itself. Here is an act which can only be criminal in so far as it relates to the territory which a man has left, and which is not in itself criminal in re.spect of that man’s entrance into another territory. It is said that the country from which lie has escaped as the perpetrator of a fraud cannot punish him for the fraudulent escape upon his return. Is it true that a British self- governing community is thus at the mercy of the peiqietrator ?I think the offence of quitting Natal under the circumstances described in this enactment is an offence capable of being made subject to punishment by the legislature of Natal, certainly by no other legislature, so far as I know, of any self-governing part of the British Dominions. The attempt by a man to quit and take with him property which should be divided amongst his creditors, and also the making preparations for quitting, are admittedly punishable in Natal. It is argued that, while in the inception of that offence it is punishable, still when those preparations have been brought to a successful issue and the attempt is perfected, the person who otherwise would be an offender, ceases to be an offender amenable to the criminal juris diction of the country which is quitted. I cannot accept that argument. The element of fraud, no doubt, must upon the trial be seen to be in the tran.saction, but, in the circumstances described in the Statute, fraud will, from the terms of it, be assumed prim d ja d e , because the Statute says that the offender is to be held to be guilty of the offence unless tlie jury is satisfied that there was no intent to defraud. It is therefore the ante cedent intention, formed at the time of making preparations to quit and of attempting to quit, and before either of them amounts to the act of quitting, which is to be considered, and it is only then that the criminal intent is or can be formed. The intention
4 C.L.K.] OF AUSTRALIA.
291
of tliis Act is to make that criminal intent punishable when it is H- C. of a .
coupled with a ‘successful escape. It would be going altogether
^*9^
beyond reason to hold that the legislature of Xatal could not m̂cKei.vey
V.
validly pass an Act for punishing an offence of that kind.
M eaghee .
I’he remaining objection was that the certificate of the Attorney-
Barton J.
General of Natal and the evidence of Mr. Calder taken before the local tribunal of Natal are not evidence of the law of Natal in a A îctorian Coin-t in a proceeding under the Fugitive Offen ders Ad. I do not thiidv that objection is supported by any authority. I could understand there being proceedings in which the technical objection would prevail, but I do not think that would be tlie case in proceedings of this kind, where the primary object of the whole thing is to satisfy the mind of the authority in the country to wliich the escape has been made tliat there is strong and probable ground to suppose that a person lias committed a crime against the laws of the country from which he has fled. I certainly should refuse to hold that the authority described in the Act, in considering evidence brought before it from another possession of the Crown as to the commis sion of an offence against the laws of that other possession, is not entitled to satisfy its mind by reading evidence given by experts in the laws of that other possession as to what those laws are, notwithstanding that that evidence has been taken in that other possession, and not in the possession in which the authority is sitting. I am glad to be able to come to such a conclusion when I consider the reciprocal usefulness of this Act to all parts of the British dominions, the evil consequences of a too technical construction of it, and the difficulties which beset its adminis tration. For these reasons I concur with the learned Chief Justice that the appeal must be dismissed.
O’Connor J.
I also am of opinion that the Supreme Court of
Victoria came to a right conclusion in this case. It is not neces sary for me to follow mj' learned brethren in considering the various ingenious points submitted by Mr. Arthur. There are, however, two extremely important questions which he raised upon which I think it right to add something. Those are, first, that the Chief Justice of A îctoria had no jurisdiction to indorse
292 HIGH COURT
[1906.
H. C. OF A. the warrant, and, secondly, that tlie magistrate who heard the
ca,se had no jiiri.sdiction to entertain it. Tlie judgment delivered
M cK elv ef
by the Supreme Court was sufficient to decide the case as it now
V.
M eagher . stands, the onlj ̂ matter now in controversy being whether the
warrant was properly indorsed by tlie Chief Justice and whether
O’Connor J.
the magistrate properly heard the case.
It appears to me that
both had jiiri.sdiction to do what they did. I am of opinion that the Supreme Court of Victoria was right in holding that a “ Judge of a superior Court ” is a Judge exercising jurisdiction in the part where the fugitive was apprehended. I think they were also right in holding that a magistrate, who is a magistrate in that part of His Majesty’s dominions having jurisdiction where the fugitive was arrested, had jurisdiction to hear the matter. But the next step which must be takeii is the issuing of the warrant, wliich will necessarily bring up for decision the (juestion whether Victoria is a “ British pos.session ” within the meaning of the Act. Before the necessary authority for the surrender of the fugitive can be issued it will be nece.ssary to decide whether the officer to sign should be the Governor of Victoria or the Governor- General. As that point is submitted to us we must decide the whole question of jurisdiction. It will be useful, in considering the scope and intention of the Fugitive Offenders Act, to remem ber the basis upon which it rests. It rests upon the principle of extradition. It is an application to the various po.ssessions of the British Crown inter se of the principle of extradition which obtains between different countries. In the case of foreign countries the extradition relations of Great Britain are settled by treaties, and in the case of such treaties it has always been the law that, whilst the scope of extradition is fixed by treat}', the procedure for arrest, identification, and proof is determined by the law of the State or country in which the alleged criminal is found. It has therefore been settled for many years, as pointed out in Brotvn v. Lizars (1), at all events in Great Britain, that the procedure by which extradition treaties are carried out is regulated by Statute and must be controlled by Statute. In the case of the Fugitive Offenders Act, applying as it does between different parts of the British Dominions, the Imperial legislature
(1) 2 C.L.R., 8S7.
4 C.L.K.] OF AUSTRALfA.
293
lian in its own hands power botli to settle the terms upon which
H. C. OF A.
1906.
t'ugutive offenders are to be surrendered, and also to regulate the
procedure to be adopted in surrendering them. But it must be
McK elvey
V.
remembered—and it is important in regard to the statement of M eagher .
the offence in the warrant—that all these proceedings are merely
O’Connor J.
to inform the executive whether persons should be surrendered or not. The act of surrender is tlie act of the executive just as ill the case of extradition. Such being the general principle upon which the surrender of fugitive offenders is founded, we find that the Act itself specifies the class of offences to which it is to apply and has given power to limit those offences in certain cases to the local or central legislature—that is the central legislature of a “ British possession ”—as the case may be, and has the criminal law procedure of the possession in which a fugitive is found for the purpose of identifying him, proving the offence, and informing the executive officer of the circumstances which made it neces.sary or expedient to order the surrender. It may be gathered also from the Act that it necessarily presupposes two things : first, that the criminal procedure in the possession in which the fugitive is found is uniform, and, secondly, as the provisions are to be worked mutually between the different possessions, that there is a uniform criminal law in every part of the possession in which the offence is committed. I entirely assent to Mr. Irvine’s argu ment on that point. The position may be put in another way. Assuming that there was in some form a union of all the provinces of South Africa, it is clear that in this case the magistrate would have to a.scertain what was the law of the union, not what was the law of Natal. And, unless there were a uniform criminal law of the union, how would it be possible for him to ascertain what was the law of the union ?
Such being the Act as it has existed from 1881 up to the inauguration of the Common'wealth, it is contended that the passing of the Commonwealth of Australia Constitution Act has entirely altered its administration and application. The effect of Mr. Arthur’s argument inay be stated in a very few words :—It is that all the machinery for the purpose of surrendering fugitive offenders between the States of Australia and other portions of the British Empire suddenly came to an end on the inauguration
294 HIGH COURT
[190G.
H.C. OF A. of the Commonwealth, and that all the States of Australia have
| 1906.since been without the necessary machinery for carrying out the |
McK elvkyFugitive Offenders Act, and unable to perform their statutory
V.
M eAGHEI!.duties towards other parts of the British dominions in the
administration of justice. This result has been reached, according
O'Connor J,
to Mr. Arthur, not by any implied repeal of the Act by the Con stitution, nor by the substitution of any provision in lieu of it, but in this way. Immediately on the inauguration of tlie Common wealth the Parliament of the Commonwealth became a “ central legislature” within the meaning of the Fugitive Offenders Act, and the Parliaments of the States became “ local legislatures; ” the local legislature, having dropped out of operation so far as this Act is concerned, all the powers conferred on it by the Act have come to an end. Whether the Act is to be so interpreted depends altogether upon the meaning of the words “central legislature” and “ local legislature.” One very useful rule in construing an Act is to take all the circumstances and conditions the legislature must have had in mind when the Act was passed. In 1881 there was only one federal form of government in the British dominions which could be said to have a central as contrasted with a “ local legislature,” and that was the federation of Canada. In that federation, the control of the criminal law was in the hands of the Dominion Parliament, and that Parlia ment having it in its power to enact criminal laws, was in a position at once to carry out the provisions of this Act. There was another form of union of provinces in which there was a “ central legislature ” and “ local legislatures ” and that was New Zealand. There it is quite plain that the power of exercising criminal jurisdiction, and of passing laws regulating criminal procedure was in the hands of the “ central legislature.” In various other portions of the British dominions there were Crown Colonies under the control of local legislatures with certain limited functions, but they were all controlled by a general legis lature which had jurisdiction to impose uniform criminal laws and uniform criminal procedure. Now, throughout these different forms of union there is one common feature, viz., the “ local legis lature ” is subordinate and the “ central legislature ” is supreme. The form of our Constitution places any analogy to such comsti-
4 C.L.H.l OF AUSTRALIA.
295
H. C. OF A.
tutions out of the que.stion.
The legislature of the Commonwealth
1906.
is supreme only as to certain matters. As to some of them it
has exclusive power, as to others its power is exclusive when
M cK elvey
V.
the Parliament has once acted. In respect to those matters in M eagher .
which power is not given to the Commonwealth Parliament, the
O’Connor J.
Constitution leaves the States in the enjoyment of the power which they had before the inauguration of the Commonwealth. Amongst the matters left in the hands of the States is the control of criminal procedure and the enactment of criminal laws. As to matters of legislation under the control of the Commonwealth the Commonwealth Parliament would have power incidentally to enact criminal laws and to provide the procedure for carrying them ijito effect. But there is no power except in that respect to enact uniform criminal law and procedure throughout the Com monwealth. So that the Commonwealth legislature has no power to establish that uniformity of criminal law and procedure which is necessary for the working of the A ct; and if the Commonwealth Parliament is the “ central legislature ” within the meaning of the Act it becomes unworkable. Having regard to these considera tions I have come to the conclusion that the Commonwealth legisla ture fulfils none of the conditions which are required in a “ central legislature,” within the meaning of the Fugitive Offenders Act and that this Act must be construed as not applying to the Commonwealth legislature. That being so, no change has been made by the passing of the Commonwealth of Australia Con- stitwtion Act in the powers of the States under the Fugitive Ofenders Act.
A.s.suming, however, that the legislature of the Commonwealth has power by legislation to carry the Act into effect,—that the exercise of one of the concurrent powers would enable all the provisions of the Fugitive Offenders Act to be complied with— then sec. 108 of the Constitution seems to afford a complete answer to the contention of Mr. Arthur. It is impossible that sec. 108 can be complied with if his argument is to have any effect. The object of that section was to prevent any gap in the
administration of State laws.
The express provision of sec. 108
is that:—“ Every law in force in a Colony which has become or becomes a State, and relating to any matter within the powers
296 HIGH COURT
[1906.
H. C. OF A.
of the Parliament of the Commonwealtli, shall, subject to this
1906. Constitution, continue in force in the State.” The position is
McK elvey
therefore this—if the Parliament of the Commonwealth has not
V.
M eagheb .power to make criminal law and procedure uniform, then that
Parliament is not a “ central legislature ” ; if it has the power
O’Connor J.
then, until it exercises it, the powers of the States remain.
The other objection is that the otfence is not sufficiently described in the warrant. In considering that we must remember what is the object of these proceedings. It is to enable the chief executive officer of the State to carry out the obligation of aiding another portion of His Majesty’s dominions in the administration of justice by surrendering a fugitive offender. That obligation is imposed by sec. 6 upon the Governor of a British possession, and he may, after all proceedings have been taken, and after the decision of any question raised on /<,a6c«s corpus, “ if he thinks it just, by warrant under his hand order that fugitive to be returned to the part of Her Majesty’s dominions from which he is a fugitive.” Tliis procedure is to enable the Governor to form an opinion whether it is just that tlie fugitive should be returned- I think that the distinction pointed out by Huddlcstone B., in Ex parte Terraz (1), between warrants of apprehension for safe custody pending investigation before tlie proper tribunal, and warrants in execution of a sentence or punishment is a clear one. Both warrants in this case come within that class in which the warrant is not an authority for the carrying out of punishment, but simply a warrant for safe custody of a person who has been charged with having committed an offence until that offence can be inquired into by the tribunal which has cognizance of it. That being so, the principles which should guide us in examining the warrant are those which should guide the Court in examining a warrant for safe custody. I have no doubt this offence is quite sufficiently stated. In the first place, we find that the certificate of the Attorney-General of Natal states the offence in the same way as it is stated in the warrant. He says :—“ I certify that the crime of contravention of section 76 of the Insolvency Law No. 47 of 1887 with which William A. McKelvey is charged is punishable in the Colony of Natal,” &c. We find also that the
(1) 4 Ex. D., 63.
4 C.L.K.] OF AUSTRALIA.
297
Chief Magi.strate of Durban in Natal is.sue.s the warrant in that H' U. of A.
form, charging that “ William A. McKelvey did commit the crime
of contravening .section 76 of Law 47, 1887 (Natal).”
M cK e l v e y
V.
The statement of the offence which is considered by the
M e a g h e r .
Attorney-General of Natal and the Chief Magistrate of Durban
O’Connor J.
to be sufficient, ought to be sufficient for a Court intrusted with the duty, not of finally deciding the case, but of determining whether there is evidence of an offence coming within that Act .sufficient to .satisfy the magistrate that the per.son charged was properly apprehended.
For these reasons I am of opinion that the .statement of the offence in the warrant is sufficient. I agree that this appeal should be dismissed.
Appeal dismissed.
Solicitor, for appellant, A. C. Secomb, Melbourne.
Solicitor, for respondent, Chiinness, Crown Solicitor for Victoria.
Refd to
Cons
Cons
Discd
Byrnes ct
Byrne:
Ellis V
V WelU Writs
Byri ■tics 6i
'yFieEfccloro/
Blurton V
Webbv
L.
Atkinson
Hopwood V R
157CLR57
Ministerfor
H opwoodv R
S9AUR396
Acl I90Z I’lir
Hanlon
(W 9)164
119̂ 98) 3 VR
0979) TasR
Abonanal &
^1^9J 199
ALR 520
Coitf ..
Dist
V Hill Sue
V m
Cons
(1999) 163
(1999) 73 Cons
Fcdihohcrston
v
Sue V Hill
XLR648
ALJR1016(1999) 199
TuUv(2002)
CLR462
83 SASR 302
Disi
Foil
ilm m j
Fcdthcrston v
[HIGH COURT OF AUSTRALIA.]
HOLMES A p p e l l a n t ;
ANGWIN R e s p o n d e n t .
APPEAL FROM A COURT OF DISPUTED RETURNS IN THE
STATE OF WESTERN AUSTRALIA.
Court of DUputed Returns—Electoral Acl (IF..4.), (Â o. 20 o / 1904), secs. 159-170—
H. C. o f A.
Final and Conclusive Jurisdiction—"Supreme Court o f a S la te’’— The
1906.
Constitution, {6.1 <fc 64 Viet.), sec. 73—Special Tribunal.
'——̂'
P e r t h ,
Disputed elections in Western Australia are, under the Electoral Act 1904,
23 24
heard and determined by the “ Supreme Court,” this tribunal being con-
____
stituted by a single Judge in the special manner prescribed by the Act. By
"j’
sec. 167 the decisions of the tribunal are declared final and conclusive. This
Hijrgins, JJ.
10
0
0