H. C. OF A. 1906.

MCKELVEY

v.

MEAGHER.

preparations for quitting Natal and for taking with him any part of his property to the amount of £20 or upwards which ought by law to be divided amongst his creditors he shall (unless the jury is satisfied that he had no intent to defraud) be guilty of an offence punishable with imprisonment for a time not exceeding two years with or without hard labour."

Held, that such law was not ultra vires the Colony of Natal.

An indorsed warrant sufficiently mentions, wihin the meaning of sec. 5 of the Fugitive Offenders Act 1881, the offence with which an alleged fugitive offender is charged, if the charge is substantially sufficient according to the law of the State where the warrant was issued.

is punishable

The Attorney-General of Natal having certified that "the crime of contravention of sec. 76 of the Insolvency Law No. 47 of 1887. in the Colony of Natal," &c. :

Held, that an indorsed warrant which alleged that the defendant had committed "the crime of contravening sec. 76 of Law 47, 1887, (Natal)," was sufficient to give a magistrate in Victoria jurisdiction to commit the defendant to prison to await his return to Natal.

The persons whose duty it is to administer the Fugitive Offenders Act 1881 in the part of the British Dominions where an alleged fugitive offender is arrested, must ascertain as best they can the law of the State from which such fugitive has come.

Depositions made in Natal in proceedings instituted in that Colony, which are the basis of a criminal charge there against a person who has come to Victoria, may be received in evidence before a magistrate on proceedings under the Fugitive Offenders Act 1981 to have that person sent back to Natal, there to be tried on that charge.

Decision of Supreme Court (In re McKelvey, (1906) V.L. R., 304 ; 27 A.L.T., 198), affirmed.

APPEAL from the Supreme Court of Victoria.

William Alexander McKelvey was apprehended on a provisional warrant on 5th November 1905, in Melbourne, brought before a justice of the peace, and remanded from time to time to appear at the City Court up to the 2nd February 1906, when he was charged, before J. A. Panton, Esq., a police magistrate of the State of Victoria, on a warrant purporting to bear at foot the signature of Percy Binns, who described himself as "Chief Magistrate, Durban, Natal." This warrant was in the following terms:-"To all constables and officers of the law proper for the execution of criminal warrants. Whereas, from information

1906.

taken on oath on the 19th day of October 1905 and succeeding H. C. OF A. dates, there is reason to believe that William A. McKelvey did commit the crime of contravening sec. 76 of Law 47, 1887 MCKELVEY (Natal). These are therefore to command you in His Majesty's MEAGHER. name to apprehend the person of the said William A. McKelvey, and bring him before me to be dealt with according to law. Given under my hand, at Durban, this 7th day of December 1905." The warrant was also sealed with a seal bearing the inscription" Resident Magistrate's Department, Durban." There were three indorsements on the warrant. The first described the alleged criminal. The second purported to bear the signature and to have affixed thereto the seal of the Colonial Secretary of Natal, Charles J. Smythe, and was as follows:-" I, Charles John Smythe, Colonial Secretary of Natal, do hereby certify that the signature, 'Percy Binns,' appended to this warrant is in the proper handwriting of Percy Binns, who is Chief Magistrate for the Division of Durban, in the Colony of Natal, and as such is authorized to issue warrants of arrest in terms of the provisions of the Fugitive Offenders Act 1881. Given under Given under my hand and seal of office at Pietermaritzburg, Natal, this 8th day of December 1905." The third indorsement was dated 18th January 1906, and signed by Sir John Madden, the Chief Justice of the State of Victoria. It was addressed to all members of the police force of Victoria, and to all persons to whom the warrant for the apprehension of McKelvey was originally directed, and proceeded :— Being satisfied that the said warrant was issued by some person having lawful authority to issue the same, I, John Madden, Chief Justice of the Supreme Court of the State of Victoria, do hereby indorse such warrant, and do hereby authorize and command all or any of the persons named herein in His Majesty's name forthwith to apprehend the above-named William Alexander McKelvey, and bring him before one of His Majesty's justices of the peace in and for the Central Bailiwick of the said State, there to be dealt with according to law."

:

On the 2nd February 1906 evidence was adduced before Mr. Panton that he had a jurisdiction in the State of Victoria similar to that exercised by a magistrate of the Bow Street Police Court in London, and the further hearing was adjourned until

1906.

MEAGHER.

H. C. OF A. 9th February, when Mr. Panton, after overruling a number of objections raised by McKelvey's counsel to the legality of the MCKELVEY proceedings, and to the admissibility of certain evidence tendered for the prosecution, which objections are hereafter sufficiently referred to, issued a warrant of commitment, under which McKelvey was delivered and received into the custody of the keeper of the Melbourne Gaol, there to await his return to Durban. This warrant was given under Mr. Panton's hand and seal, and therein he described himself as a police magistrate in and for the State of Victoria and a justice of the peace of and for every bailiwick in the said State, and as having the like jurisdiction as one of the magistrates of the Metropolitan Police Court in Bow Street. It recited that William A. McKelvey (hereinafter called the accused) was brought before him on a warrant duly issued by Percy Binns, Esquire, Chief Magistrate for the Division of Durban in the Colony of Natal, and indorsed by Sir John Madden, one of the Judges of the Supreme Court of the said State of Victoria, pursuant to the Fugitive Offenders Act 1881, charged with having committed an offence to which Part I. of the said Act was applicable, viz., that the said William A. McKelvey did commit the crime of contravening sec. 76 of Law 47, 1887 (Natal). It further recited that the warrant so indorsed was duly authenticated, and such evidence of the criminality of the accused was produced before him, as, subject to the provisions of the said Act, according to the law ordinarily administered by him, raised a strong and probable presumption that the accused did commit the offence mentioned in the warrant, and the said offence was one to which Part I. of the Fugitive Offenders Act 1881, applied.

McKelvey having been committed to prison under this warrant, a habeas corpus was obtained directed to the keeper of the Melbourne Gaol, requiring him to bring up the body of McKelvey. On the return of the habeas before the Full Court of the Supreme Court of Victoria, McKelvey was remanded to prison to await his return to Natal (In re McKelvey) (1).

The other material facts are fully set out in the judgments hereunder.

(1) (1906) V.L. R., 304; 27 A.L.T., 198.

1906.

v.

McKelvey now appealed to the High Court on the grounds: H. C. OF A. 1. That the Full Court was wrong in holding and adjudging that J. A. Panton, Esq., a police magistrate of the State of MCKELVEY Victoria, had jurisdiction under the Fugitive Offenders Act 1881, or at all, to commit the said appellant to prison, the said J. A. Panton not being a magistrate of a British possession within the meaning of the said Act.

2. That the said Court was wrong in holding and adjudging that the warrant, issued in Natal, to apprehend the appellant in Victoria, was duly indorsed as required by sec. 3 of the Fugitive Offenders Act 1881, and that the said warrant, being indorsed by Sir John Madden, Chief Justice of the Supreme Court of Victoria, was indorsed by a Judge of a superior Court of a British possession within the meaning of the said Act.

3. That the Acting Chief Justice and Mr. Justice à Beckett were wrong in holding and adjudging that the warrant, which stated that the said appellant did commit the crime of contravening sec. 76 of Law 47, 1887 (Natal), did mention an offence within the meaning of the said Act.

4. That the said Full Court was wrong in holding and adjudging that the offence with which the said appellant was charged in the said warrant fell within sec. 9 of the said Act, and that the creation of such offence was not ultra vires the legislature of Natal.

5. That the said Court was wrong in holding and adjudging that the said warrant was duly authenticated as required by the said Act.

6. That the said Court was wrong in holding and adjudging that the depositions read herein were duly authenticated as required by the said Act.

7. That the said Court was wrong in holding and adjudging that what purported to be a certificate of the Attorney-General of Natal, certifying to the law of Natal, was evidence in Victoria of such law, and was duly authenicated as required by the said Act.

8. That the said Court was wrong in holding and adjudging that what purported to be a statement of one David Calder appearing in the depositions was evidence in Victoria of the law of Natal.

MEAGHER.

H. C. OF A. 1906.

9. That the said Court was wrong in holding and adjudging that the case for the prosecution raised a strong and probable MCKELVEY presumption that the appellant committed the offence mentioned in the warrrant.

v.

MEAGHER.

Arthur, for the appellant. The police magistrate had no jurisdiction to deal with this matter, nor had the Chief Justice of Victoria jurisdiction to indorse the warrant, because, on the passing of the Commonwealth of Australia Constitution Act, Victoria ceased to be a "British possession" or "a part of His Majesty's dominions" within the meaning of the Fugitive Offenders Act 1881. The effect of the definitions in sec. 39 of the latter Act is that the Commonwealth is now a "British possession," being under one "central legislature." The meaning of the words "central legislature" is to be determined at the time the Fugitive Offenders Act was passed. At that time the Dominion of Canada had been established, and if the Dominion then satisfied the definition of a "British possession,” and its legislature satisfied the definition of a "central legislature," so do the Commonwealth and its legislature satisfy these definitions.

[GRIFFITH C.J.-Suppose the central legislature has nothing to do with police, as is the case with the Commonwealth ?]

The Fugitive Offenders Act is not merely a police Act, it deals with external relations, and power as to external relations is expressly given to the Commonwealth by the Constitution.

[GRIFFITH C.J.-In Canada the Dominion Parliament has jurisdiction as to criminal matters, and the power not specifically granted to the Provinces is vested in the Dominion.

respects Canada differs from Australia.]

In those

But the constitution of criminal Courts and procedure in criminal matters was vested in the Provinces: See British North America Act 1867, secs. 91, 92 (14). Further, in New Zealand there was a case of the residuum of powers not being vested in the central legislature: See New Zealand Constitution Act 1852 (15 & 16 Vict. c. 72), sec. 19. Power to deal with matters relating to fugitive offenders is conferred on the Commonwealth by the Fugitive Offenders Act 1881. The intention of the Fugitive Offenders Act was that the persons who were to exercise authority in a British possession should be under the control