NORTHERN TERRITORY OF AUSTRALIA
 IN THE SUPREME COURT
No. 217 of 1958

REGINA

v.

JOHN LESLIE KELSEY
Ex parte JACK BAILEY

JUDGMENT.
(Delivered 31st October 1958)

Kriewaldt J:

Application for Writ of Habeas Corpus.

The applicant, Bailey, has applied for a writ of habeas corpus for the purpose of procuring his release from the Fannie Bay Gaol where he is at present detained on a warrant issued under the Fugitive Offenders Act 1881. The only ground urged in support of the application for the writ is that the offences in respect of which Bailey was charged are not offences which are covered by the Act.

On 7th October 1958 the Director of Public Prosecutions in England laid an information against Bailey before Sir Laurence Rivers Dunne M.C. the Chief Magistrate of the Police Court in London, England, alleging that Bailey had committed four offences against s.32(1) of the Larceny Act 1916. A typical allegation is the first one which alleges that Bailey "on the l0th day of September 1958 at 141 Victoria Street in the County of London with intent to defraud obtained from Rhonda Jackson a valuable security to wit a cheque for £20 by falsely pretending that Overland Coaches (London) was a genuine business of travel agents and tour organisers and that the said Jack Bailey was then in a position to organise a coach tour to India and steam passages from India to Australia. Contrary to Section 32 (1) of the Larceny Act of 1916."

After hearing evidence from nine persons the London Magistrate issued a warrant addressed to the constables of the London Metropolitan Police Force commanding them" to bring the defendant before the Bow Street Magistrate's Court forthwith to answer the said information". On the following day the Assistant Under-Secretary of State for the Home Department certified to the signature of the said Magistrate.

On 21st October 1958 the learned Crown Law Officer applied to me in Chambers under s.3 of the Fugitive Offenders Act 1881 to endorse the warrant to which application I acceded. 
On the same day Bailey was arrested by Sergeant Tiernan of the Northern Territory Police Force, acting under the endorsed warrant, and brought before the learned Stipendiary Magistrate who, after hearing oral evidence from Sergeant Tiernan, and reading the depositions forwarded with the English warrant, issued his warrant for the arrest of Bailey.

The warrant of the learned Stipendiary Magistrate, after reciting the issue of a warrant in England, the charges laid in England, the endorsement by me of the warrant, the arrest of the applicant, and that evidence had been produced to the Magistrate which raised a strong or probable presumption that Bailey had committed the offences mentioned in the warrant and that the offences were within Part I of the Fugitive Offenders Act 1881, commanded that Bailey should be forthwith conveyed to the Gaol at Fannie Bay and there delivered to the Keeper, and the Keeper was commanded to receive Bailey into his custody" and to keep him there for the space of 15 days from the date (of the warrant) or until he shall be thence delivered by due course of law".

Bailey was accordingly taken to the Fannie Bay Gaol. Two days later, on 23rd October 1958, he applied for a writ of habeas corpus for his release. The application for the writ was treated by his counsel and the learned Crown Law Officer, who appeared for the Keeper of the Gaol, as if an order nisi for the writ had been issued and as if the matter had come on for determination on a return setting forth the warrant of the learned Stipendiary Magistrate.

The matter was argued on 24th October and adjourned until this day when a short supplementary argument was heard and now it falls to me to decide whether the applicant is entitled to be released.

The provisions of the Fugitive offenders Act 1881 which are material on the present application are those found in Part I of that Act. They may be summarised, using language which is applicable to the facts of the present case: where a person is accused of a crime in England, a warrant may issue in England for his arrest, if the person accused (in the Act called a "fugitive") comes to the Northern Territory and the warrant is endorsed in the Northern Territory by me, the fugitive may be arrested and brought before a Magistrate of the Northern Territory who, if satisfied as to certain matters, may commit the fugitive to prison to await his return to England. The Magistrate is bound to inform the fugitive that he will not be given up to anyone for a period of 15 days and that he may apply to the Supreme Court by way of habeas corpus. After the expiration of 15 days, or a decision on an application for habeas corpus, the Government-General decides whether the fugitive shall be returned to England or not. If the Governor-General has not made his decision within one month the fugitive may apply to the Supreme Court to be discharged. 

The two important sections, so far as this application is concerned, are ss.5 and 9. Section 5 reads as follows:

"5. A fugitive when apprehended shall be brought before a magistrate, who (subject to the provisions of this Act) shall hear the case in the same manner and have the same jurisdiction and powers, as near as may be (including the power to remand and admit to bail), as if the fugitive were charged with an offence committed within his jurisdiction.

If the endorsed warrant for the apprehension of the fugitive is duly authenticated, and such evidence is produced as (subject to the provisions of this Act) according to the law ordinarily administered by the magistrate, raises a strong or probable presumption that the fugitive committed the offence mentioned in the warrant, and that the offence is one to which this part of this Act applies, the Magistrate shall commit the fugitive to prison to await his return, and shall forthwith send a certificate of the committal and such report of the case as he may think fit, if in the United Kingdom to a Secretary of State, and if in a British possession to the governor of that possession.

Where the magistrate commits the fugitive to prison he shall inform the fugitive that he will not be surrendered until after the expiration of fifteen days, and that he has a right to apply for a writ of habeas corpus, or other like process.

A fugitive apprehended on a provisional warrant may be from time to time remanded for such reasonable time not exceeding seven days at any one reasonable time not exceeding seven days at any one time as under the circumstances seems requisite for the production of an endorsed warrant."

Section 9 reads as follows:

"9. This part of this Act shall apply to the following offences, namely, to treason and piracy, and to every offence, whether called felony, misdemeanor, crime, or by any other name, which is for the time being punishable in the part of Her Majesty's dominions in which it was committed, either on indictment or information, by imprisonment with hard labour for a term of twelve months or more, or by any greater punishment; and for the purposes of this section, rigorous imprisonment, and any confinement in a prison combined with labour, by whatever name it is called, shall be deemed to be imprisonment, with hard labour.

This part of this Act shall apply to an offence notwithstanding that by the law of the part of Her Majesty's dominions in or on his way to which the fugitive is or is suspected of being it is not an offence, or not an offence to which this part of this Act applies; and all the provisions of this part of this Act, including those relating to a provisional warrant and to a committal to prison, shall be construed as if the offence were in such last-mentioned part of Her Majesty's dominions an offence to which this part of this Act applies."

It will be seen that under s.5 the jurisdiction of the Magistrate to make the order committing the fugitive to prison to await his return to England depends upon three factors. In the first place he must be satisfied that the "endorsed warrant" has been "duly authenticated". Secondly, the Magistrate must be satisfied that there is a "strong or probable presumption that the fugitive (has) committed the offence mentioned in the warrant". Finally, the Magistrate must be satisfied that the offence with which the fugitive is charged is one to which Part I of the Act applies.

In the present case the applicant has not challenged the first and second of these prerequisites; the challenge is confined to the third matter, but it may not be out of place to say a word or two about the other two conditions of jurisdiction. The warrant signed by the learned Stipendiary Magistrate in one of its recitals says that the English warrant had been duly authenticated by me. That is obviously an incorrect recital. I have no power under the Act to "authenticate" the warrant. My only power is to "endorse" the warrant. The word "authenticated" in s.5 would seem to me to mean that some evidence is produced to the Magistrate verifying the signature of the person who issued the warrant and also the signature of the person who endorsed the warrant. So far as the second requirement is concerned, that there must be a "strong or probable presumption that the fugitive has committed the offence", there has been a conflict of judicial opinion as to what these words means. In the case of Ex Parte Septimus Smith (1909) N.S.W.S.R.570 at p.575, the Full Court of the State of New South Wales came to the conclusion that those words meant that there must be almost a certainty of guilt. Special leave to appeal from this decision was refused by the High Court: see 9 C.L.R.490. A contrary view however was expressed in the case of R v. The Governor of Brixton Prison, ex parte Bidwall (1937) 1 K.B.305 at p.314 where the view was taken that the words meant that the evidence need only be sufficient, if not contradicted, to enable a jury to convict. Fortunately, I do not have to decide today between these two contentions.

The offences to which the Fugitive Offenders Act 1881 applies are divided by s.9 into three classes. The first class consists of two named offences, namely treason and piracy.

The second class is expressed in these terms:

"… and to every offence, whether called felony, misdemeanor, crime, or by any other name, which is for the time being punishable in the part of Her Majesty's dominions in which it was committed, either on indictment or information, by imprisonment with hard labour for a term of 12 months or more."

The third class mentioned in s.9 consists of offences punishable "by any greater punishment" than the offences in the second class.

The question for decision is whether offences under s. 32(1) of the Larceny Act 1916 are within either the second or the third class of offences mentioned in s.9. The words "imprisonment with hard labour" are defined in s.9. For the purpose of that section, imprisonment with hard labour includes "rigorous imprisonment, and any confinement in a prison combined with labour, by whatever name it is called."

The point taken by counsel for the applicant was this: the Larceny Act 1916 s.32(1) provides for punishment by way of penal servitude. The Criminal Justice Act 1948 has abolished that type of punishment as well as imprisonment with hard labour and has substituted in each case the punishment of imprisonment. As a result, all offences which were formerly punishable by penal servitude or imprisonment with hard labour are today punishable only, but offences so punishable are not within s.9 of the Fugitive Offenders Act 1881.

The answer made by the Crown to this contention is that under s.52 of the Criminal Justice Act 1948, the Secretary of State may make rules regarding the "employment" of prisoners that he has done so, and that the rules he has made provide that prisoners be put to useful employment, from which it is argued that offences which were formerly punishable by penal servitude or imprisonment with hard labour but are today punishable by imprisonment only fall within the second class of offences mentioned in s.9 as defined by that section.

Before I proceed to discuss these two opposing contentions a preliminary point must be faced, namely whether, in the circumstances of this case, the writ of habeas corpus is available. The power to apply for a writ of habeas corpus does not depend upon the Fugitive Offenders Act 1881. Section 5 merely says that when the Magistrate commits the fugitive to prison he shall inform him that he has a right to apply for a writ of habeas corpus or other like process. The right to apply for the writ rests on the common law. As it is well known, the writ of habeas corpus is designed to provide a method whereby a speedy decision may be obtained regarding the legality of the imprisonment of any person. One of the limitations to the use of the writ is that the writ cannot be used as a substitute for appeal. Another limitation of the use of the writ is that it cannot be used to question the decision of an inferior court on a matter which is within the jurisdiction of the inferior court to decide. In the case of R v. Commanding Officer of Morn Hill Camp. Ex p. Ferguson (1917) 1 K.B. 176, the applicant for the writ was an Irishman temporarily working in England who had been committed to a military camp on the basis that he was an absconder from military service. Lord Reading at page 179 said:

"In this case the magistrate has held that the Prosecutor was 'for the time being ordinarily resident in Great Britain' within the meaning of s.1 of the Military Service Act, 1916 (Session 2). The prosecutor has sought to question that decision by means of a writ of habeas corpus. If the jurisdiction exercised by the magistrate is a jurisdiction which has been conferred upon him by the statute, then, notwithstanding that he may have come to a wrong decision on the facts or upon the law, it is clear that his decision cannot be questioned by this procedure. In the present case there is no doubt as to the jurisdiction of the magistrate. It is not suggested that he was not the proper tribunal to deal with the case. It is suggested that he came to a wrong conclusion. But if an erroneous decision of a magistrate entitled a party detained by the magistrate's order to come to this Court for a Writ of habeas corpus, that writ would furnish a ready means of appealing to this Court from every decision of a magistrate ordering the detention of an offender. If there were no means of questioning a magistrate's order, there might be some ground for invoking the assistance of this court in the way chosen in this case, but there is a well known procedure by way of special case whereby the decisions of magistrates can be inquired into. In my opinion we have no jurisdiction to interfere in such a case as the present."

As I have said, under s. 5 the jurisdiction of the Magistrate depends upon the three matters I have mentioned. He must decide each of them before he can act. The first question before me is whether the decision of the Magistrate on any one of those three matters, assuming it to be incorrect, can be reviewed on habeas corpus.

There are many cases both in Australia and in England under the Fugitive Offenders Act 1881 where the decision of an inferior court has been reviewed on habeas corpus. In the case of In re Dargavel (1882) 16 S.A.S.R. 62 the prisoner as released on habeas corpus because there was no evidence before the Magistrate that a warrant had been issued in England. In the case of Re Ley & Ley (1883) 17 S.A.L.R. 104 the prisoners were released on habeas corpus because there was no evidence before the Magistrate that the English warrant had been endorsed in Australia. In the case of Ex parte Septimus W. Smith (1908) N.S.W.S.R. 593 the prisoner was released on habeas corpus because the appellate court thought that the evidence before the Magistrate did not show a strong or probable presumption of guilt. Further proceedings against Smith are reported in (1909) 9 N.S.W.S.R.570. The prisoner, after his release, was arrested a second time and additional evidence was produced before the Magistrate. The Full Court held that there was still not sufficient evidence to show a strong or probable presumption of guilt.

In England in the case of R v. The Governor of Brixton Prison. ex p. Percival (1907)1 K.B.696 the prisoner was released because no evidence was brought before the Magistrate that the offence with which he was charged was punishable with hard labour for 12 months or more. It is difficult from a perusal of the report in the Authorised Reports to see what was actually decided, but the matter becomes clear when one turns to the report in 23 T.L.R.238.The position was that the prisoner had been charged with offences against the Crimes Act 1896 of the State of Victoria. The only evidence before the Magistrate in England was that offences against the Crime Act 1890 were punishable in Victoria by imprisonment with hard labour for 12 months or more. The Court of Appeal held that in the absence of evidence that crimes against the 1896 Act were so punishable the prisoner must be released. See also R. v. Spilsbury (1898) 2 Q.B. 615 where the Court considered whether the evidence raised a strong or probable presumption of guilt and decided that it did.

Despite this current of authority, the law, I think, is clear that habeas corpus cannot be used to challenge the decision of an inferior court on a matter within the jurisdiction of the court, if there is any evidence on which the lower court could have held that it had jurisdiction. Of particular interest to those of us who live in the Northern Territory is the case of Wall v R. ex p. King Won (1927) 39 C.L.R. 245. The facts were that two Chinese were charged in the Darwin Police Court with being prohibited immigrants. They were remanded in custody and a date was set for the hearing. Before that date they applied to the Supreme Court for release on habeas corpus alleging that they were not prohibited immigrants. Mr. Justice Roberts held that they were not prohibited immigrants and released them. The High Court on appeal decided that there was no appeal from any decision releasing a prisoner under habeas corpus but all of the Justices of the High Court indicated that in their opinion Mr. Justice Roberts had been wrong in inquiring into the question of whether the prisoners charged were immigrants or not. The five Justices who combined in a joint judgment said, at p. 251: 

....it may well be that the learned Judge should have discharged the order after having ascertained that the proceedings were properly before the Police Court and that in the course of those proceedings the order for commitment was one authorised by law."

Mr. Justice Isaacs, who dissented on the main point decided, quoted many authorities to the effect that on an application for habeas corpus the issue is only whether the inferior court had jurisdiction to decide the point and evidence on which it could act not whether it came to a correct decision. Mr. Justice Higgins, with his usual clarity, put the position in the following passage at p.263:

"It is true that he had jurisdiction to release the prisoner if he were detained without legal justification; but he had no jurisdiction to release the prisoner on any other ground; and here he ordered the release on the express and sole ground that the prisoner was not an immigrant. That fact the Judge had no jurisdiction to try; that fact was for the Special Magistrate to try. What the Judge had to try was the question whether the warrant of commit for safe custody during an adjournment of the hearing before the Special Magistrate was a valid ground for detention; and the Judge did not apply himself to the consideration of that warrant at all."

In Ex p. Williams 51 C.L.R. 545 the facts were that the accused had been sentenced to imprisonment for 18 months for a breach of a Federal Statute. The Federal Attorney-General appealed to the Court of Criminal Appeal in New South Wales which increased the penalty to three years. The prisoner appealed to the High Court where the six Justices who heard the appeal were equally divided with the consequence that the judgment of the Full Court of New South Wales stood. Amongst the people whose judgment did not prevail was the Chief Justice. When the prisoner had served 18 month applied to the High Court on habeas corpus hoping that the same six Justices would sit and that the Chief Justice would not have changed his opinion, and that therefore, if the Court were still evenly divided, the opinion of the Chief Justice would prevail with the result that the applicant would be released at the expiration of 18 months. Mr. Justice Dixon (as he then was) at p.549 pointed out that whether the Court of Criminal Appeal in New South Wales were right or not was immaterial and habeas corpus was an inapplicable way of reviewing that decision. 

More closely in point is the case of Mc Arthur v Williams (1936) 55 C.L.R. p.324. That case was concerned with Part II of the Fugitive Offenders Act 1881 but Part I was discussed. Sir John Latham, C.J., at p.329 said:

"If the New Zealand warrant was not issued by a person having lawful authority to issue it, the New South Wales magistrate ought not to have made an order for the return of the prisoner under sec.14. It is not that the existence of a valid warrant is a condition of the jurisdiction of the New South Wales magistrate. In my opinion, sec. 14, expressly requiring that the magistrate should be satisfied that the warrant was issued or not. The magistrate may decide this question in a manner which in the opinion of a superior court may be right or wrong, but he has jurisdiction to decide it, and if he decides it wrongly the remedy must be found in some form of appeal, if there is provision for such an appeal, if there is provision for such an appeal, and not in the prerogative writs."

Mr. Justice Starks at P.349 said:

"The only question is whether the New Zealand magistrate had jurisdiction to issue his warrant for the apprehension of the accused: the magistrate's decision upon matters within his jurisdiction, even if erroneous, cannot be questioned: there is no appeal in these proceedings from the magistrate's decision."

In the joint judgment of Dixon, Evatt and McTiernan J.J. at p.364 the following passage appears:

"The magistrate making an order under sec. 14 acts judicially and must be satisfied by evidence of such a matter of foreign law. The validity of his order, as distinguished from the legal propriety of his making it, could not, in our opinion, be affected by an erroneous determination of such a question. The actual existence under the law of one possession in the magistrate who issued the warrant of an authority to do so is not made a condition precedent to the jurisdiction of the magistrate of the other possession to order the fugitive's return. On the contrary, it is a matter which he is called upon to decide in course of exercising his jurisdiction. It is, therefore, not a ground upon which a prerogative writ of prohibition can be obtained. No irregularity in the proceedings can be obtained. No irregularity in the proceedings before the magistrate is suggested, and mere error, as distinguished from excess of jurisdiction, is no ground for a writ of certiorari and no other ground appears."

In the case of R v. Lincolnshire Justices ex p Brett (1926) 2 K.B 193 the Court of Appeal decided in a case where a writ of certiorari was asked for that an erroneous decision by an inferior court on a matter as to jurisdiction could not be reviewed in that way. There is obviously no distinction between certiorari and habeas corpus on this aspect. It is, however, to be noted that in all of these cases where the appellate court refused relief there was some evidence on which the lower court could act. Where there is no evidence on which the lower court find the matters essential to its jurisdiction the point is open on habeas corpus: see Re Sage (1958) 1 W.L.R. 387 at p. 390.

In the present case there was undoubtedly some evidence before the Magistrate on which he could make a finding that each offence alleged against Bailey was within s.9 of the Fugitive Offenders Act. He had before him an affidavit by an English Barrister-of Law to that effect and hence there was evidence on which the Magistrate could so decide. I am, therefore, of the opinion that the applicant is not entitled on his present application to a writ of habeas corpus for his release.

That, however, is not the end of the matter. Section 10 of the Act provides a means whereby the point which has been raised may be brought into this Court to be decided. Section 10 reads as follows:

"10. Where it is made to appear to a superior court that by reason of the trivial nature of the case, or by reason of the application for the return of a fugitive not being made in good faith in the interests of justice or otherwise, it would, having regard to the distance, to the facilities for communication, and to all to circumstances of the case, be unjust or oppressive or too severe a punishment to return the fugitive either at all or until the expiration of a certain period, such court may discharge the fugitive, either absolutely or on bail or order that he shall not be returned until after the expiration of the period named in the order, or may make such other order in the premises as to the court seems just."

There is ample authority that this section may be used to consider the points which the Magistrate would have to consider under s.9. I need do no more than refer to Mc Arthur v. Williams 58 C.L.R. 324 at p. 331, per Latham C J., at p. 305 per Starke J. and at pp. 364 and 365 in the joint judgment to which I have referred.

An application for habeas corpus may be combined with an application under s.10 although it is probably better, to have two separate applications: see R. v. Governor of Brixton Prison ex. P. Savarkar (1910) 2 K.B. 1056, especially the judgment of Lord Justice Fletcher Moulton at p.1075. If necessary, I would allow the summons for the writ of habeas corpus to be amended to include an application for relief under s.10. I note that in R. v. Governor of Brixton Prison, ex p. McCheyne (1951) 1 T.L.R.1155, the Court on a ground which is applicable only under s.10 made a habeas corpus order for the release of the prisoner.

Since the matter has been fully argued I am prepared to treat the present application as if it had been made under s.10, but without prejudice to the fugitive to make another application under that section, if so advised, based on any other reason appearing in that section. Incidentally, in my opinion the sentence at the beginning of the judgment in the case of Ex p. Percival as reported in 23 T.L.R. at p.239 that "it was quite clear that section 10 of the Fugitive Offenders Act, 1881, only applied to the particular cases mentioned in it, and did not give the Court a general discretion" is not a correct statement of the law.

On an application under s.10 the question arises: what is the proper method of approach to be adopted when such an application is made? There are two conflicting views. The one is that the Fugitive Offenders Act is a penal statute which should be construed strictly; the other view is that the Act is a remedial Act which should be construed liberally.

In Ex p. Percival (1907) 1 K.B. 696 at p.706 Lord Alverstone C.J. gave expression to the strict view when he said:

" … having regard to the fact that we are dealing with the criminal law, we must apply the general principles of the criminal law, and the prosecutor must make out his case. We are also dealing with a branch of the criminal law which affects the liberty of the subject, and that condition should under ordinary circumstances be clearly fulfilled." 

The opposite point of view was taken in McKelvey v Meagher (1906) 4 C.L.R. 265. Mr. Justice Barton at p.291 said this:

"I could understand there being proceedings in which the technical objection would prevail, but I do not think that would be the case in proceedings of this kind, where the primary object of the whole thing is to satisfy the mind of the authority in the country to which the escape has been made that there is strong and probable ground to suppose that a person has committed a crime against the laws of the country from which he has fled."

Mr. Justice O'Connor at p.296 said this:

"The other objection is that the offence is not sufficiently described in the warrant. In considering that we must remember what is the object of these proceedings. It is to enable the chief executive officer of the State to carry out the obligation of aiding another portion of His Majesty's dominions in the administration of justice by surrendering a fugitive offender. That obligation is imposed by sec.6 upon the governor of a British possession and he may, after all proceedings have been taken, and after the decision of any question raised on habeas corpus, 'if he thinks it just, by warrant under his hand order that fugitive to be returned to the part of Her Majesty's dominions from which he is a fugitive.' This procedure is to enable the Governor to form an opinion whether it is just that the fugitive should be returned. I think that the distinction pointed out by Huddlestone B., in Ex parte Terraz, 4 Ex. D., 63, between warrants of apprehension for safe custody pending investigation before the proper tribunal, and warrants in execution of a sentence or punishment is a clear one. Both warrants in this case come within that class in which the warrant is not an authority for the carrying out of punishment, but simply a warrant for safe custody of a person who has been charged with having committed an offence until that offence can be inquired into by the tribunal which has cognizance of it. That being so, the principles which should guide us in examining the warrant are those which should guide the Court in examining a warrant for safe custody."

The proceedings before the Magistrate and the proceedings before me are not final in their nature in the sense that they will not determine that the applicant be returned to England. That decision rests with the Governor-General. The procedure prescribed by the Fugitive Offenders Act 1881 provides a method for the return of a person charged with an offence to the country where the offence is said to have been committed. It is obvious that guilty persons should be punished. They should not escape punishment because they were able to leave the locality where the offence was committed. There is, however, a duty in the authorities of the locality where such a person may happen to be, to see that an accused person is not sent to another place for trial if to do so would be oppressive or unjust or not in accordance with the provisions laid down by the Act. Hence, unless the Fugitive Offenders Act 1881 applies to the offence alleged against the applicant s.10 requires me to release him. I must, therefore, come to a decision whether the applicant is charged with a crime which falls within s.9 of the Fugitive Offenders Act 1881.

On that question I shall express opinion as if I had all relevant material before me instead of only the opinion expressed in the deposition of Mr. Nugent taken in the English proceedings. I could procure all the material needed by adopting the device of sending the matter back to the Magistrate for further evidence. That was done in the case of Re Smith (1908) N.S.W.S.R. 593 to which I have referred. The power to remit the case for further evidence was referred to in Re Percival (1907) 1K.B. 696. Where a court regards itself as competent to decide a question arising under a foreign system of laws it would be a futile process to send the matter back to a lower court for the purpose of having placed formally on the record status and decisions of which the court is already fully aware. The High Court in Williams v. McArthur, supra, referred to New Zealand cases and statutes and it is unlikely that these were proved in evidence in the court below. In the case of R v. Secretary of State for India, ex p. Ezekiel (1941) 2 A.E.R. 546 the Court looked at the Indian Acts and decided between two conflicting experts: see at p.550. In Percival's case, supra, the Court referred to a statute of the State of Victoria although that statute had not been referred to in the formal evidence of Victorian law. Every day I refer to English statutes and decisions and I have never regarded myself as not competent to ascertain English law. My right as a matter of law, to go direct to the books is probably to be found in the fact that Mr. Nugent, who gave evidence in London as to the relevant law, has in his depositions referred to the Larceny Act 1916 and to the Criminal Justice Act 1948. Buerger v. New York Life Assurance Co 43 T.L.R. 601, I think, shows that I am therefore entitled to make independent research into English law. I refer to the following passage in the judgment of Lord Atkin at p.607:

"It is, of course, true that when he vouches a statute to support his evidence the statute forms part of his evidence, and must be considered in the consideration of his evidence as a whole. And it is also true that where experts on the foreign law differ amongst themselves the Court will often have to resolve the conflict by looking at the statutes or documents and deciding for themselves the more probable contention. And this course will be more probable contention. And this course will be more readily undertaken where the dispute is as to the effect of legislation, as in the United State of America, expressed in English in respect of a jurisprudence which is known to English Judges. And it may also happen occasionally that a foreign expert may arrive at results so extravagant and involving such a misunderstanding of conceptions familiar to lawyers of all countries that an English Court may have to reject his evidence, and eventually come to the conclusion that they can safely interpret the words for themselves, or fall back upon the presumption that the proper methods of construction coincide with the English." 

Section 32 of the Larceny Act 1916 after creating offences says that the offender "shall be guilty of a misdemeanor and on conviction thereof liable to penal servitude for any term not exceeding five years."

Penal servitude is not mentioned by name in s.9 of the Fugitive Offenders Act 1881. A thought immediately suggests itself: was larceny within s.9 of the Act between 1916 and 1948? An offence punishable up to 1948 with penal servitude came within the Fugitive offenders Act 1881 only if penal servitude came within the definition of hard labour found in s. 9 of the Act, or if penal servitude was a "greater punishment" within the meaning of that section. To hold that penal servitude fell into the "hard labour" class requires recourse to rules made for the employment of prisoners; to hold that penal servitude was a greater punishment requires the various types of punishments to be arranged in order of severity.

The Penal Service Act 1853 in s.6 provided that persons sentenced to be kept in penal servitude could be kept in a prison and that such persons "may during such term be kept to hard labour and otherwise dealt with in all respects as persons sentenced to transportation may now by law be dealt with while so confined." The Transportation Act 1824 by s.14 provided that convicts could be kept at hard labour "under such regulations… as by such secretary of state shall from time to time be prescribed." The Prison Act 1898 by s.4(1) provided that "the mode in which sentences of penal servitude or imprisonment WITH HARD LABOUR ARE TO BE CARRIED OUT MAY BE REGULATED BY prison rules", and by sub-section (2) that "in making such rules, regard shall be had to the sex, age, health, industry, and conduct of the prisoners." It seems to me that in English law up until 1948 penal servitude ranked as a higher form of punishment, as more severe form of punishment, than imprisonment with hard labour. See R v. Phillips 90 L.J.K.B. 508. The order of severity seems to have been first, death; second, after the abolition of transportation penal, servitude; and third, imprisonment with hard labour.

It seems to me that the scheme s.9 of the Fugitive Offenders Act 1881 was to place, for some reason not obvious, treason and piracy in one class, then to select the less serious offences and put them into a separate class excluding all offences where the penalty which could be imposed was lower than imprisonment with hard labour for 12 months, and finally to put into a third class the more serious offences which were punishable by any form of punishment regarded as greater than hard labour for 12 months. The applicant's contention that he is entitled to be released rests upon the abolition in England in 1948 of the two types of sentence until then respectively known as penal servitude and imprisonment with hard labour.

The Criminal Justice Act 1948 s.1(1) reads:

"1. (1) No person shall be sentenced by a court to penal servitude; and every enactment conferring power on a court to pass a sentence of penal servitude in any case shall be construed as conferring power to pass a sentence of imprisonment for a term not exceeding the maximum term of penal servitude for which a sentence could have been passed in that case immediately before the commencement of this Act."

Sub-section (2) reads:

"1. (2) No person shall be sentenced by a court to imprisonment with hard labour; and every enactment conferring power on a court to pass a sentence of imprisonment with hard labour in any case shall construed as conferring power to pass a sentence of imprisonment for a term not exceeding the term for which a sentence of imprisonment with hard labour could have been passed in that case immediately before the commencement of this Act; and so far as any enactment requires or permits prisoners to be kept to hard labour it shall cease to have effect."

Both of these sub-sections substitute a simple sentence of imprisonment for the punishment previously applicable. Section 52 provides that the Secretary of State may make rules, inter alia, for the "employment" of "persons required to be detained" in prisons.

The argument before me was conducted on the basis that unless the offences under s.32 of the Larceny Act 1916 fell within the second class of offences in s.9 of the Fugitive Offenders Act 1881 the applicant is entitled to be discharged. No reliance was placed by the Crown on the words "or any greater punishment" nor are those words relied on in the deposition of Mr. Nugent.

A Resident Magistrate in Perth, Mr. Rodriguez has decided that the abolition in England in 1948 of imprisonment with hard labour and the abolition in England of penal servitude prevents offences punishable with imprisonment alone falling within s.9 of Act. In effect, in his view, the 1948 Act has resulted in the virtual repeal of Part I of the Fugitive Offenders Act 1881. His decision is noted in Vol. 16 of Hals (3rd ed.) at p.585 in a foot note in which the learned editor of Hals, however, expresses a different view. The author of the article on Ex-tradition in Hals in probably the same person who gave evidence in this case before Sir Laurence Rivers in Dunne in England unless it is mere coincidence that these two persons have the same name.

In my opinion the better view is that before 1948 offences punishable by penal servitude were not within the second class of offences mentioned in s.9 but rather fell into the third class. The distinction between imprisonment with hard labour and imprisonment without hard labour as well as between penal servitude and hard labour was before 1948 largely illusory in England. Prisoners who were not sentenced to penal servitude or imprisonment with hard labour were divided into three Divisions. The court imposing the sentence could say into which Division the prisoner was to be placed. If the court did not indicate the Division the prisoner was placed into the Third Division but the prison visiting committee had the power to remove a prisoner from the Third Division and put him into the Second Division. Prisoners in the Third Division were treated exactly like prisoners sentenced to hard labour or prisoners sentenced to penal servitude. The only distinction would seem to have been that Third Division prisoners received a mattress to sleep on during the first 14 days of incarceration whereas prisoners sentenced to imprisonment with hard labour or to penal servitude did not. Before 1948 only First Division prisoners were not kept at work. There was consequently no real distinction between imprisonment with hard labour and imprisonment without hard labour nor between penal servitude and imprisonment with hard labour. The reason why the Fugitive Offenders Act 1881 was thought not to apply to such crimes as conspiracy at common law was that persons guilty of that crime were usually sentenced to imprisonment in the First Division. From this I deduce that s.9 of the Fugitive Offenders Act 1881 is directed to describe class of crimes rather than to describe the nature of the punishment suffered by offenders.

Under the law as it stood up to 1948 the obligation to work, if the prisoner were sentenced to imprisonment with hard labour or penal servitude rested upon rules made under the Prison Act 1898. Prisoners who are today sentenced to imprisonment are required by rules to work. If s.9 is to be interpreted by looking at the punishment actually suffered by the prisoner I can see no distinction between the situation before 1948when compared with the situation after 1948. On that view the conclusion would be open that if larceny before 1948 came within the purview of s.9, it still does after 1948. It was not suggested that before 1948 larceny was not within s.9.

In my opinion, however, the better view is that before 1948 sentences of penal servitude fell into the third class mentioned in s.9 of the Fugitive Offenders Act 1881. That class comprises punishable by any greater punishment than imprisonment with hard labour for a term of 12 calendar months. I would have regarded any sentence of penal servitude as a sentence of greater severity, a sentence which may fairly be described as a "greater punishment" than imprisonment with hard labour for 12 months.

On that reasoning, the proper question to ask today is whether Bailey who, if guilty, is liable to be imprisoned up to five years, is today punishable in England by a "greater punishment" than the punishment which formerly was described as imprisonment for five years is a greater punishment than imprisonment with hard labour for 12 months formerly was. It follows that in my opinion s.9 of the Fugitive Offenders Act 1881 applied to offences against s.32 of the Larceny Act 1916, possibly for the reasons set out by Mr. Nugent in his deposition in this case, but more probably for the reasons I have mentioned.

This is sufficient to dispose of the application but there is another matter I feel that I should mention. I refer to the form of the warrant under which the applicant is at present in custody. The section of the Fugitive Offenders Act 1881 under which the Magistrate acted is s.5. Under that section his duty if he decided to sign a warrant was to "commit the fugitive to prison to await his return" to England.

In fact Bailey was not so committed. The command in the warrant to the Keeper is to "receive the said Jack Bailey into your custody in such Goal and to keep him there for the space of fifteen (15) days from the date hereof or until he shall be thence delivered by due course of law.

It may well be that the true construction of that warrant, it is at least arguable, that the applicant is entitled to be discharged at the expiration of the 15 days, which is probably at midnight between 4th and 5th November, but it may be earlier. It is at least a possible construction of the warrant that the closing words "or until he shall be thence delivered by due course of law" or until sooner discharged by an order of a competent tribunal". The reference to 15 days in the warrant would seem to be clearly a reference to the period mentioned in s.5 of the Act during which time the prisoner cannot be surrendered. In the same paragraph where that period is mentioned the prisoner's right to apply for a writ of habeas corpus is also mentioned and hence the true meaning of the warrant may well be that the "delivery" mentioned in the warrant refers to a delivery under an Order made in the habeas corpus proceedings. On the other hand, it may be that the words "thence delivered by due course of law" refer to the warrant the Governor-General may make under s.6 if he deems it just that the prisoner should be returned to England. Section 6 speaks of the prisoner being "delivered" into the custody of the person to whom the Governor's warrant is addressed. I express no opinion as to which view is correct.

I will not go so far as to employ the words of Sir James Penn Boucaut in re Badcliffe (1887) S.A.L.R. 99 at p. 109 where he said:

"....some people seem to think it sufficient to have a general idea of an Act of Parliament in their heads and to prepare their documents, trusting to their memory, no matter how their words may depart from the Act of Parliament."

I will, however, say that it would have been better and far easier to have adopted in the warrant the words of s.5 and to have committed Bailey to prison to await his return. It may be that no point will arise under the form of the warrant because the Governor- General may decide to act immediately after my decision to-day. He need not await 15 days for the decision. See R v. Spilsbury 1898) 2 Q.B. 615, 623. If authority is needed for the proposition that it is the Governor-General who must decide whether the applicant is to be returned to England or not: see McAthur v. Williams 55 C.L.R. 325 p. 356.

I refuse the application for habeas corpus on the ground that I have no jurisdiction on the application for the writ to review the decision of the learned Stipendiary Magistrate that the offences with which Bailey is charged fall within Part I of the Fugitive Offenders Act 1881.