82
83
No. 2
Judgment of Wood, Acting
C.J.
delivered
1st April,
1931
Judgment of Lindsell, J.
delivered 1st
April, 1931 -continued.
14
Yet in the case of piracy jure gentium it would seem beyond doubt that international law has done no more than establish the principle that by engaging in piracy a person becomes hostis
CE
if
**
humani generis and forfeits all claim to protection by his own country; and that any country may therefore assume to punish him 'whether he is a subject of that country or not and wherever the offence is committed." [Cf. Roscoe's Criminal Evidence, 13th edition, p. 215.] What exactly constitutes a piracy and how it shall be tried and punished in any particular country within the comity of nations is left to be determined by that country.
LC
LE
15
river, creek or place shall be brought to trial in any Colony, then
No. 2.
10 **
10
and in every such case all Magistrates, Justices of Peace, Public Judgment of Prosecutors, Juries, Judges, Courts, Public Officers and other per- C.J. sons in such Colony shall have and exercise the same jurisdiction delivered
1st April, and authorities for inquiring of, trying, hearing, determining and
1931. adjudging such offences, and they are hereby respectively author- ised, empowered and required to institute and carry on all such pro- Lindsell, J. ceedings for the bringing of such person so charged as aforesaid delivered 1st to trial, and for and auxiliary to and consequent upon the trial of April, 1931 any such person for any such offence wherewith he may be charged
Wood, Acting
Judgment of
continued.
"
In England prior to 1536 the Lord High Admiral took coguisance of piracy as a crime, and by the Statute of Henry VII (28 Henry VIII, c. 15) passed in that year and by further Statutes of the first half of the 19th century first Royal Commissioners, then the Central Criminal Court and finally the Common Law Courts of Assize, Oyer and Terminer and Gaol Delivery assumed a concurrent jurisdiction. If any competent Court has jurisdiction, derived directly from Inter- national Law, to deal with piracy, what need was there to implement that jurisdiction by means of Statute? In this connection it is not without significance that whereas in other directions the Courts of 20 Common Law challenged the authority of the Admiral's Court (Volume 1 Halsbury, p. 59, paragraphs 86 & 87) they seem to have put forward no claim to jurisdiction over pirates.
It would thus appear that the jurisdiction of the English Courts over piracy jure gentium is based not on international law but on Statute; and if this contention is correct it follows inevitably that the jurisdiction of this Court in respect of such piracy is derived from the Statute 12 & 13 Vic. C. 96, the Admiralty Offences (Colonial) Act. 1849, and from no other source.
F
Section 2 of that Statute reads as follows:-
"If any person within any Colony shall be charged with the commission of any treason, piracy, felony, robbery, murder, con- spiracy of what nature or kind soever committed upon the sea or in any haven, river, creek or place where the Admiral or Admirals have power, authority or jurisdiction, or if any person charged with the commission of any such offence upon the sea or in any haven,
30
20
+
C
44
as aforesaid, as by the law of such Colony would and ought to have
been had and exercised or instituted and carried on by them respec-
tively if such offence had been committed and such person had been charged with having committed the same upon any waters situate "within the limits of any such Colony, and within the limits of the local jurisdiction of the Courts of Criminal Justice of such Colony."
FC
The very wording of this section to my mind goes to show it to be not merely declaratory of a jurisdiction already exerciseable by Colonial Courts but creative of a new jurisdiction.
That being so, it follows again that this Court in deciding what is and what is not a piracy, is bound by the interpretation of the term piracy which the English Courts and Statutes have placed upon it, and is not entitled to adopt any wider interpretation given by inter- national jurists. From Rex v. Dawson down to A.G. of Hong Kong v. Kwok A Sing the proposition that piracy is only another term for sea robbery, or in other words that robbery is an essential element of piracy has (so far as can be ascertained) never been seriously chal- lenged, and as regards the Statutes their language, particularly that of Section 2 of 1 Vict. c. 88, appears to be founded on the assumption 30 that piracy in itself involves something more than armed violence
at sea.
I
agree
therefore with my brother that the answer to the question
of law reserved is that an accused person cannot be convicted of piracy in circumstances where no robbery has occurred.
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NI