CO129-236 - Others - 1887 — Page 120

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it He then goes on to quote from the warrant of committal: Whereas it hath appeared to me a inagistrate for the said Colony, is a subject of China and that there is probable cause, &c.,' and asks if this form is sufficient-and cites Baron Parke's Judgment, Ex. Chamber, in Howard and Grossett. 10, Q.B., at p. 411-452. Paley Conviction 182: In the case of spo authorities given by Statutes to Justices or others acting out of the ordinary course of Common Law, the instruments by which they act, whether warrants to arrest, commitment orders, convictions or inqui- sitions ought, according to the course decision, to shew their authority on t face of them by direct averment or neces- sary intendment." Mr Justice Snowden goes on to say: 'Of course greater nicety is required in the case of summary convic- tion, and where the commitment is in execution, than where prisoners are re- manded or committed to prison for further disposal only. He further states that he is of opinion that in cases of rendition the accused are entitled to the protection of every formality the law throws around theru, and that it is the duty of this Court before whom they claim their discharge to see that there has been no shortcoming in this respect. In Paley on Convictions, pages 201 and 202, it is stated that the convic tion must likewise specify the time and place of committing the fact complained of. The precise day need not be named if the fact be alleged to have happened hetween such and such a day--see also 2 | Hawkins, c. 25, sec. 82. It is quite true, as Mr Francis pointed out, that Jervis' Acts have not been made the law of the Colony, and that so far as indictable offences are concerned the procedure would be in strict law according to 7 Gen. IV, c. 61. Jorvia' Acts became law in England in 1849, and introduced certain chauges which are pointed out in Stephens' fistory of the Criminal Law of England. But Sec. 1 of 7 George IV, c. 64, after describing how persons are to be examined in indictable offences with the view to commitment, in- dicates that evidence may be adduced by the accused-or snch evidence shall be udduced on behalf of the prisoner charged, &c. 'Provided however that nothing herein contained shall be construel to re- quire any such Justice or Justices to hear evidence on behalf of any person so charged as aforesaid unless it shall appear to him or them to be meet and conducive to the ends of Justice to hear the same,' Now Ord. 2 of 1850 directs that the magistrate shall investigate rendition cases as he would in- dictable offences. In 1849 Lord Dentuan, C. J., said that where a person charged with felony has witnesses in attendance at the time of the examination before the magis- trate they should then be examined if the prisoner wishes it. See Oke's Magisterial Synopsis, Vol. II, page 901, and in screral previons cases where persons were charged with having stolen property and gave re- ferences to persons from whom they received the same the Judges have stated that such persons should be sent for and examined with the view of exonerating or contradict- ing the aemused -3) and 3! Vic., c. 35 § 3. directs Justices in England to ask prisoners whether they have witnesses and directs their examination and to be placed under recognisances like witnesses for the prose- cution. Prisoners committed for trial are by local Ord. almost in the same terms as in Jervis Act, to be informed that if they wish to make a statement they may do so, but that it will be taken down in writing and may be used in evidence, and although the act of 30 and 31 Vic. has not been for- mally made law here yet the practice has been to allow prisoners to call witnessos as 'meet and conducive to the ends of Justice.'| In his argument the learned counsel called our attention to Clarke's work on extradition and the rules of practice in different coun- tries

At page 177 the learned author states in reference to English practice that when the fugitive is apprehended he is brought before the Police Magistrate, who hears the case in the same mannor, and has the same jurisdiction and powers as near as may be as if the prisoner were charged with an indictable offence committed in Eng-

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and,' and he may receive evidence to shỏi that the offence is a political one and not an extradition crime. The writer then proceeds to discuss the question as to the duty of the Magistrate to receive evidence for the prisoner. He cites various opinions, and gives the views of the late Lord Cairns, who referred to the minutes of a Confer- ence held at Paris wherein it was stated that a prisoner brought before a magistrate would be entitled to deny his identity with the person named in the warrant, stated that as to an accused person being pre- cluded from entering into any other defence than a denial of his identity he differed eu- tirely from that view, for he apprehended that it would be quite open to him to pro- duce any evidence in his power to contro- vert the allegations made in the depositions." Clarke page 185. The writer seems to take the view that the Magistrate should only hear evidence for the prosecution except as to political offences-ar that the crime was not an extradition crime-but with all respect to the learned author we think that the

and English practice the demands of justice are in accord , with Lord Cairns' view and the view that was announced by this Court in 1881. See judgment of the late Mr Justice Snow- den, 18th Nov., 1881. From the form of warrant of counnittal under the Extradition Act of 1870 it would appear that the pri- soner is brought before the Magistrate to shew why he should not ho surrendered in pursuance of the Extradition Act 1870, on the ground of his being accused and forasmuch "ફ no sufficient cause has been shown to me why he should not be surrendered in pursuance of the said Act: This is there- fore, &c.' In Oke's Magisterial Synupsis, 899, in the font-note 29, dealing withi i judictable offences, the author cites Mr Justice Bayley in Cox v. Coleridge as saying I think that a Magistrate is clearly bound in the exercise of a sound discretion not to commit any one unless a prima facie case is made out against him by witnessER entitled to a reasonable degree of credit.' Justices ought not therefore to balance the evidence and decido according as it pre- ponderates, for this would in fact be taking upon themselves the functions of a petty jury and he trying the case. They should consider whether or not the evidence nakes out a strong or probable or even a conflicting case of guilt. In any one of such cases they should commit the accused to trial. We think the above gives the true rule for dealing with extradition cases here, and the Magistrate should ask himself if the offence had been committed within this jurisdiction, should he commit for trial at the Supreme Court. If so he should com- nit under the Ordinance, and thus enable the Governor to carry out the treaty obli- gation. On the other hand, if the Magis trate after investigating the case, as he does an indictable offence, comes to the conclu- sion that there is no probable cause for be- lieving that the person before him committed the crimes charged, then be should not put it in the power of the Governor to deliver him up if he thought fit, but discharge him. It seems to us from a careful perusal of the documents before ns that the committing Magistrate interpreted prima facie case, aud 'probable cause' to mean evidence on one side--and on one side alono---but that is too narrow a meaning to put upon those terms. There may be a conflict of testimony and yet a prima fucie case, or probable cause. The Magistrate refused evidence for the prisoner apparently because of some order or other that he got from the Executive Government. He does not, from the in- formation before us, appear to have refused it of his own sense of right, and we think that in result, from whatever cause, an in- justice has been done to the prisoner by the refusal of the evidence on his behalf press- ed on the Magistrate. Mr. Justice Snow- den in the case already cited stated that in the depositions there was no statement that the accused were called on to plead. Above all it does not appear that they were asked what they had to say in their defence although they might have been able to show beyond doubt, either mistakeu defence identity

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