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minutes and letters which will be found deposited in the office of His Excellency the Governor.

1. My letter addressed to the Colonial Secretary for the consideration of Governor Hampton when forwarding draft of bill for consolidating and amending the Statute Laws and Ördinances relating to Criminal offences, dated 1st May, 1865.

2. Memorandum (on Circular despatch, dated Downing Street, 31st December, 1870) dated 24th March, 1871.

3. Memorandum (dated 11th May, 1871) on Circular despatch, dated Downing Street, 20th February, 1871.

4. Memorandum (dated 27th September, 1871) on Earl Kimberley's despatch, dated Downing Street, 8th August, 1871, and copy of my letter accompanying the memo- randum addressed by me to the Honourable Mr. Casey under date 17th June, 1871.

(Signed) ARCHD. PAULL BURT, Chief Justice.

Chambers, Perth, June 17, 1975.

P.S.-It may be contended that the proposed Act should be construed as supple- mental to, and not inconsistent with, the Imperial legislation upon the same subject. But the proposed provisions would substitute and not merely supplement the provisions of the Imperial Acts. However, apart from this point, the great difficulty that presents itself to inter-Colonial legislation upon the subject of extradition of fugitive offenders is the impracticability of providing effectually for the removal of the accused from the Colony wherein he may be arrested to the jurisdiction of the Colony wherein his offence was committed, inasmuch as any warrant or other process issued in the latter Colony for such purpose would be illegal, and any officer endeavouring to execute such process beyond the jurisdiction of the Colony might be resisted.

Inclosure 4 in No. 7.

Memorandum of Attorney-General.

Memo. for his Excellency the Governor.

A. P. B.

THIS Bill consists of two parts. The first relates to apprehending in this Colony of persons who have committed offences in other Colonies, and sending them to those

process

of Colonies to take their trials. The second part relates to the recovery by civil property brought into this Colony, which has been acquired from its lawful owner by means of an offence in one of the other Colonies, and generally to the recovery in this Colony of damages for offences committed in the other Colonies.

2. As to the first part of the Bill, I take it that it is beyond the competence of the local Legislature to deal with it. With great deference to the Chief Justice, I cannot coneur with him in thinking that the proposed Bill is in its provisions repugnant to the Imperial Act 6 & 7 Vict., cap. 34. That Act says (in effect) that if a person charged with having committed an offence in Colony A, and against whom a warrant shall have issued in such Colony, shall be in Colony B, it shall be lawful for the Chief Justice of Colony B to endorse his name on the warrant, and such person may then be lawfully arrested, and if a case is made against him in Colony B, he may be sent to Colony A to take his trial.

The proposed Bill goes a step further, and says, in effect, that a person may be charged in the Colony of Queensland with having committed an offence in another Colony, and thereupon any Queensland magistrate may have him arrested, brought up before him, and if a case is made out, then the Governor may send him to the Colony where the offence was committed to take his trial.'

The Imperial Act says what may be done when a warrant has issued in the Colony where the offence was committed; the local Bill goes on to say what may be done The Act and the irrespectively of the question whether a warrant has issued or not. Bill are both permissive; the one gives certain powers in certain cases, the other gives The Act does not say, "Whereas it is expedient to make similar powers in other cases. proper provision for the liberty of the subject, be it enacted that extradition shall never be made from one Colony to the other except when a warrant has issued in the Colony where the offence was committed, and has been endorsed in the Colony from which the All that can be said of the Bill is that it provides for a extradition is to take place." class of cases to which the Imperial Act does not extend.

3. My objection to the Bill is this: Extradition cannot be made without sending the

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offender away by sea. Our jurisdiction does not extend beyond three miles from the shore. Consequently a prisoner sent away, bound for one of the other Colonies, would be in unlawful custody as soon as he got beyond our limits. The captain of the ship would have no right to receive him for the purpose of carrying him as a prisoner beyond our limits, and he would be liable in any part of Her Majesty's dominions to an indictment under the Merchant Shipping Act 1854, sec. 267, for assault and false imprisonment. Moreover, the prisoner might try to escape, and if in his efforts to escape, and with a view to effect his escape he killed a man, the killing would be justifiable homicide.

The case of the Queen v. Lesly (29th June, 1797) is directly in point, and shows that the Imperial Legislature alone can make it lawful for the captain of a ship to receive `a prisoner, and take him away out of the limits of Colonial jurisdiction as a prisoner to

another Colony:

4. For these reasons I am decidedly averse to the adoption by the Local Legislature of the suggested Bill, but am at the same time of opinion that the powers which this Bill professes to give ought to be given by the Imperial Parliament. For instance when we get the telegraph line finished to the other Colonies we may have intelligence that A. B. has committed an atrocious murder in South Australia, and has gone off by the mail steamer, and we should, under the existing state of the law, be unable to apprehend him at Albany for want of the warrant.

5. As to the second part of the Act, I think it perfectly superfluous. The Supreme Court has already got the jurisdiction which the Bill professes to give. If I am robbed in one of the other Colonies and find the thief here, I may sue him for damages, or if I find a man here in possession of the property stolen from me. I may sue him for it and am entitled to recover, unless he can show that he has become lawfully entitled to the property as against me. As to the powers of attachment given, our law is already pretty strong on that point. as it provides that as soon as you issue your writ against A you can get an attachment against B, of moneys of A in his possession. The framer of the Bill appears to think (see sec. 15, ad. fin.) that if I am robbed in Victoria and, finding the thief here, sue him for damages, the fact that the taking my property in Victoria amounts to a felony committed in that Colony, would bar my action here. Two recent authorities on this subject are Wells r. Abrahams, L.R.. 72 b., and Osborne r. Gillett, L.R. Ex. ; another is White r. Spatique 13 M. and W. None of these cases go to the length of saying that the Court will stop an action properly brought because public justice has not been vindicated in a foreign country. The framer of the Bill also appears to think (see sec. 15, ad fin.) that the pendency of any action on the same subject in one of the other Australian Colonies would be a bar to an action in Queensland. There, however, he is wrong (see Cox v. Mitchel, 29 L.J., 33 C.P.), this case shows that the Court will not even regard it as grounds for staying proceedings.

(Signed) HENRY H. HOCKING, Attorney-General. Perth, July 8, 1875.

Inclosure 5 in No. 7.

Memorandum by Chief Justice,

I HAVE perused the Memorandum of the Attorney-General of this date; while in accord with him on all other points I cannot recognize the competency of Queensland to go a step further, as he expresses it, and in effect to extend to all misdemeanors and to transfer to local Magistrates in Queensland a parliamentary jurisdiction over offences committed in another Colony; and this, irrespectively of the question whether or not a warrant has issued, when the Imperial Acts legislating upon this subject require action to be first taken in the Colony where the offence is committed, and restrict such action to cases of treason and felony, and further require the proceedings thereon in the foreign Colony-as a safeguard-to be under the superintendence and conduct of the Chief Justice of such Colony.

(Signed)

Chambers, Perth, July 8, 1875

(559)

ARCHD. PAULL BURT, Chief Justice.

PUBLIC RECORD OFFICE

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