19290.
PUBLIC RECORD OFFICE
Reference :-
6
mmimuhim C.O. 885
14 PUBLIC RECORD OFFICE, LONDON
ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC- COPYRIGHT PHOTOGRAPH—NOT TO
SIB.
No. 154.
(VICTORIA.)
LAW OFFICERS to COLONIAL OFFICE,
Royal Courts of Justice,
31st August, 1897.
WE were honoured with your commands signified in Sir Jolm Bramston's letter of the 13th instant, stating that he was directed to forward for our consideration a copy of a despatch from the Governor of Victoria on the want of proper means for enforcing the 15th section of the Fugitive Offenders Act, 1881, and that he was to ask us to be good enough to advise whether any and, if so, what amendment of the law was required.
That it seemed to you that if a Magistrate in (say) Victoria issued a summons to a man in (say) New South Wales, and it was endorsed by a Magistrate in the latter Colony and served, the question arose, what would be the consequence of disobedience.
That
the man would (under section 15) be under legal obligation to obey ("he shall obey the summons ") and that in default he would be liable to be tried and punished either in Victoria or in New South Wales and would be liable to the punishment imposed by the law of the possession in which he was tried. But if (as was probable) the powers of the Magistrate were rather in the direction of compelling attendance than of punishing non- attendance, this probably would not amount to much.
That if it were a case of disobedience by a man in New South Wales of a subpœna from the Supreme Court in Victoria it was not clear how he could be dealt with in New South Wales. That the subpena would have been endorsed by a Magistrate in New South Wales; but it was doubtful whether he could be punished there as the Suprene Court of that Colony, would have had nothing to do with the matter, and had jurisdiction only over contempts of its own powers, and though it was presumed that he would have been guilty of an offence punishable in Victoria, he would not have committed it in Victoria so as to be liable to extradition to that Colony under section 2 of the Act.
In obedience to your commands we have considered the question and have the
honour to
Report—
That, we agree with the Victorian Law Officers in thinking that the section contem- plates trial and conviction—not proceedings for contempt, which are inapplicable in the
circumstances.
We think that in Colonies where the English common law prevails an indictment would lie at common law for disobedience to the injunction of the legislature to obey the summons-no special remedy being provided.
We recommend, however, that each Colony should legislate on the subject, prescribing the mode of trial and the punishment. We think this course much preferable to reliance on indictment under the common law.
The Right Hon. J. Chamberlain, M.P.,
&c.,
&c.,
&c.
We have, &c..
RICHARD E. WEBSTER. ROBERT B. FINLAY.
14541-27-9,97 Wr 20260)
D&S