CO885-(10-11) — Page 48

PUBLIC RECORD OFFICE

| | | | | | | | | | | | | | | | ||||

C.O.

Reference :-

885

10 PUBLIC RECORD_OFFICE,* LONDON

ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC- COPYRIGHT PHOTOGRAPH—NOT TO

2

Report

That we have perused and considered the draft copies of the four instruments which are referred to in Sir Frederic Rogers' letter, and we think them well calculated to effect the objects desired.

+

But unless time presses we would suggest the propriety of deferring the appointment of Lieutenant-Governor until after the proposed Act of Parliament shall have been passed; our reason is, that the Keeling or Cocos Islands, previous to the appointment pos- of a governor, comes within the letter of the preamble to the proposed Act as a session of Her Majesty in which no Government has been established," which will not be the case after Mr. Ross' appointment.

We have, &c.

His Grace the Duke of Newcastle.

&c.

&c.

&C

(Signed)

RICHARD BETHELL. WILLIAM ATHERTON.

7228.

MY LORD DUKE,

No. 29.

(NEW SOUTH Wales.)

LAW OFFICERS to COLONIAL OFFICE.

Lincoln's Inn, July 18, 1860, We were honoured with your Grace's commands, signified in Sir Frederic Rogers' letter of the 20th June last, stating that he was directed by your Grace to transmit to us the copy of a Despatch from the Governor of New South Wales forward- ing a correspondence which had passed with the consul at Apia relative to a case kidnapping in the Navigators Islands.

of

We observe that the Attorney General of New South Wales alludes to the difficulty of cases in this kind of obtaining evidence admissible in the Colonial courts of justice.

Sir Frederic Rogers stated that there are of course in all such cases inherent diffi- culties which no legislation could remove. But it might be possible to facilitate in some degree the conviction of offenders by empowering Colonial courts of justice in the trial of certain offences committed on the high seas, to admit certain kinds of evidence given with certain formalities or to invest their officers or agents with the power of compelling British subjects to give evidence, even though such British subjects might be at the time beyond the Colonial jurisdiction. Sir Frederic Rogers was pleased to request that we would inform your Grace to what extent the difficulties suggested by the Attorney General of the New South Wales Government could in our opinion be removed by legislation, and, if so, by what enactments this object can be accomplished and whether these enactments should be passed by the Imperial or Colonial legisla-

tures.

In humble obedience to your Grace's commands, we have carefully considered the above-mentioned Despatch, together with the questions submitted to us for our con- sideration, and have the honour to

Report

That we agree with the Attorney General of New South Wales in thinking that the kidnapping case, stated to have occurred in the Navigators Islands, comes within the Slave Trade Act, 5 Geo. 4. c. 113.; and also that the Imperial Statute, 9 Geo. 4. c. 31. s. 7., would cover the other case of shooting, &c. in the event of death, even of foreigners, ensuing, the offender being a natural born subject of Her Majesty.

The main difficulties, those relating to the evidence necessary to bring home the crime to the individuals committing it, we deem insuperable, regard being had to the cardinal rule in British criminal procedure that the accused must be confronted with the witnesses for the prosecution. The evidence must therefore be adduced viva voce, before the court charged with the trial of the culprit. To this sometimes inconvenient course the courts in England are obliged to submit, and the Colonial Courts cannot be relieved from a like necessity. Additional powers for compelling the attendance of witnesses to give evidence before Colonial Courts might, we think, be conferred with advantage, by Act of the Imperial Legislature; limited to the trials of crimes over which Colonial courts have jurisdiction. The Act should be a general Act, applicable to all superior criminal courts in the Colonies, which should be thereby made auxiliary to one another, so that the subpoena of the court of one Colony when indorsed by the court of another, should, subject to certain rules, have force and effect in the latter Colony; but great care will be required in defining the conditions on which the witnesses shall be compellable to obey the process, and the manner in which penalties for disobedience shall be enforced.

We have, &c.

(Signed)

&c.

His Grace the Duke of Newcastle,

&c.

&c.

RICHARD BETHELL. WILLIAM ATHERTON.

16278.--698.

95.-2786.