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PUBLIC RECORD OFFICE

C.O.885

Reference :-

ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC-

COPYRIGHT PHOTOGRAPH-NOT TO

16 PUBLIC RECORD OFFICE, LONDON

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That Mr. Just was accordingly to request us to take these facts into our con- sideration and to advise :-

(1) Whether it was competent for His Majesty to give any instructions to the Governor-General of the Commonwealth of Australia as to the reservation of Bills?

(2), If so, whether such instructions should be given under the sign manual and signet or whether they could be given through a Secretary of State?

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(3) Whether in assenting to or reserving a Bill (as to which the Governor- General had received no instructions, even if instructions could be given) the Governor- General was bound to act on the advice of his Ministers or was required to exercise Iris personal discretion after consideration of the advice tendered to him?

(4)What was the proper construction of Section 58 of the Constitution? We have taken the papers into our consideration, and, in obedience to your Lordship's commands, have the honour to

Report-

(1) That in our opinion it is competent for His Majesty to give instructions to the Governor-General of the Commonwealth as to the reservation of Bills.

We think that the Governor-General being an Imperial officer can be required

to exercise his discretion in accordance with the desires of the Crown.

(2) We'think that either course can be adopted in proper circumstances.

(3) We think that the Governor-General is not bound in such a case to act on the advice of his Ministers and that he is bound to exercise his personal discretion after consideration of the advice tendered to him.

The Right Honourable

The Earl of Elgin, K.G.,

&c.,

&c.,

&c.

We have, &c.,

JOHN L. WALTON.

W. S. ROBSON.

43107

No. 88.

(EAST AFRICA PROTECTORATE)

LAW OFFICERS to FOREIGN OFFICE.

[Question whether a confirmation of a death sentence is valid if signed by only two Judges of the Court of Appeal.]

SIR,

Law Officers' Department,

November 12, 1907. WE were honoured with your commands signified to us in Sir F. A. Campbell's letter of the 30th August last, stating that he was directed by you to transmit to us the accompanying despatch from His Majesty's Agent and Consul- General at Zanzibar, forwarding a request from Acting Judge Murison for a definite ruling upon a point of law relating to the jurisdiction of the Judges of the Appeal Court for Eastern Africa.

That we should observe that the point in question was whether a confirmation of a death sentence was valid if signed by only two Judges of the Court of Appeal, or whether it must be signed by three Judges of that Court.

That you were of opinion that a confirmation of a sentence of death passed by

a Court of Session was valid if signed by two only of the Judges of the Court of Appeal for Eastern Africa, and that the signatures of three Judges of that Court were not essential to the validity of such confirmation.

That the question appeared to depend solely upon the construction of certain sections of the Bombay Criminal Procedure Code.

That under Section 374 a sentence of death passed by a Court of Session must be submitted for confirmation to the "High Court," which by Section 4 (j) was defined as meaning "the highest Court of Criminal Appeal or revision for any local area," and that in Zanzibar the Court of Appeal for Eastern Africa corre- sponded with that definition.

That Section 375, which enabled the High Court as so defined to confirm a sentence of death so submitted to it, provided that no order of confirmation should be made until the period allowed for preferring an appeal had lapsed, or, that if an appeal was presented within such period, until such appeal was disposed of.

That this would seem to distinguish in effect between the formal confirmation of a death sentence, and an appeal in criminal cases.

That Section 377 in terms provided that the confirmation of the sentence should, when the High Court consisted of two or more Judges, be made and signed by at least two of them.

That for the purposes of the Bombay Criminal Procedure Code the "High Court" in Zanzibar was represented by the Court of Appeal for Eastern Africa. That this Court "consists of two or more Judges," and that it would seem to follow that under Section 377 the confirmation of a death sentence must be "made and signed by at least two of them.”

That, in other words, jurisdiction for this purpose would seem by this section to be conferred on any two of the Judges.

That the Appeal Court Order in Council, 1902, Article 5, and the Appeal Court Rules 17 and 18 did not appear to affect the question. That they obviously were applicable only to appeals in the strict sense, and not to the formal confirmation of a death sentence, the procedure as to which was expressly provided for by the sections of the Criminal Procedure Code referred to above.

That Sir F. Campbell was to request that we would be so good as to take this matter into our consideration and furnish you with our opinion as to whether a confirmation of a death sentence was legally valid if signed by only two Judges of the Court of Appeal, or whether it was essential that it should be signed by three Judges.

That it might be added that the practical importance of this question was due to the fact that on many occasions three Judges were not available for this purpose, one of the three frequently being absent on leave.

That you would also be glad to receive any general observations on the subject which we might wish to offer.

25 We 97 1207 D&S 5 3069

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