R v Fineberg

JurisdictionNew Zealand
Judgment Date19 December 1967
Date19 December 1967
CourtCourt of Appeal
New Zealand, Supreme Court, Auckland.
Court of Appeal, Wellington.

(Moller J.)

(North, President; Turner and McCarthy JJ.)

The Queen
and
Fineberg.

Jurisdiction In general Territorial Territorial limits of New Zealand Statute providing for jurisdiction over crimes on board Commonwealth ships on the high seas Whether unconstitutional Whether contrary to international law Whether intra vires New Zealand legislature The law of New Zealand.

Jurisdiction On the high seas Piracy Other crimes Attempted murder New Zealand Statute providing for jurisdiction over crimes on board Commonwealth ships on the high seas Whether unconstitutional Whether contrary to international law Whether intra vires New Zealand legislature The law of New Zealand.

States as international persons Composite and dependent States and territories British Commonwealth of Nations New Zealand New Zealand Constitution Acts and Statute of Westminster Whether New Zealand General Assembly possesses power to legislate with extraterritorial effect The law of New Zealand.

Summary: The facts.Fineberg, who was not a New Zealand citizen, was charged with attempted murder on board a Commonwealth ship on the high seas about 200 miles from the coast of New Zealand. The ship on which the alleged crime took place had set sail from Australia. In response to a distress call, the ship and its passengers were rescued and taken to New Zealand, where Fineberg was subsequently prosecuted. Section 8 of the New Zealand Crimes Act, 1961, provides as follows:

(1) This section applies to any act done or omitted beyond New Zealand by any person

(a) On board any Commonwealth ship; or

(b) On board any New Zealand aircraft; or

(c) On board any ship or aircraft, if that person arrives in New Zealand on that ship or aircraft in the course of or at the end of a journey during which the act was done or omitted; or

(d) Being a British subject, on board any foreign ship (not being a ship to which he belongs) on the high seas, or on board any such ship within the territorial waters of any Commonwealth country; or

(e) Being a New Zealand citizen or a person ordinarily resident in New Zealand, on board any aircraft;

(2) Where any person does or omits any act to which this section applies, and that act or omission would, if it occurred within New Zealand, be a crime then he shall be liable as if the act or omission had occurred in New Zealand:

Provided that it shall be a defence to prove that the act or omission would not have been an offence under the law of the country of which the person charged was a national or citizen at the time of the act or omission, if it had occurred in that country.

At the trial Fineberg moved to quash the indictment on the ground that the Court was without jurisdiction, Section 8 of the Crimes Act being ultra vires the legislative power of the General Assembly of New Zealand.

Held (at first instance): that the motion to quash the indictment must be dismissed, Section 8 of the Crimes Act not being ultra vires the New Zealand General Assembly. The legislative powers of the General Assembly were restricted by the New Zealand Constitution Act, Section 53, providing that

It shall be competent to the said General Assembly to make laws for the peace, order, and good government of New Zealand, provided that no such laws be repugnant to the law of England;

The proviso relating to repugnancy to the law of England had been deprived of value by the New Zealand Statute of Westminster Adoption Act (adopting Section 2 of the Statute of Westminster). In effect Section 53 had also been amended in pursuance of Section 3 of the Statute of Westminster, which provided that the Parliament of a Dominion has full power to make laws having extraterritorial operation. However, the legislative power of the General Assembly was stillsince it had never repealed (even impliedly) Section 53trammelled by the requirement, in effect, that its legislation must be for the peace, order, and good government of New Zealand, even though such laws have an extraterritorial operation. Taking into account the provisos contained in Section 8 of the Crimes Act, to some extent limiting its effect, and, in particular, that the consent of the Attorney-General and a certificate from him that it was expedient that proceedings be instituted must first be obtained before the institution of proceedings, Section 8, although containing elements of extraterritorial operation, nevertheless came within the general scope of, and at least in some aspects and relations bore upon, the peace, order and good government of New Zealand.

Fineberg was convicted of attempted murder. He appealed on the ground, inter alia, that the court lacked jurisdiction. It was contended on his behalf that the proviso that the consent of the Attorney-General must be obtained before proceedings were instituted indicated that the provisions should be read in accordance with the principles of international lawand in international law criminal jurisdiction was always territorial.

Held (on appeal): inter alia, that this argument depended on the proposition that expedient was a word of ambiguous meaning and therefore should be construed in such a way as to avoid a breach of international law; the word expedient was not, however, ambiguous. The considerations implied in this direction to the Attorney-General were that he should consider both the implications of the prosecution outside New Zealand and have regard to the due course of the administration of justice in New Zealand.

The following is the text of the judgment at first instance:

On 6 September 1967 an indictment was presented in the Supreme Court at Auckland against Neville Fineberg charging that on or about the 19th day of June 1967 on board a Commonwealth ship, namely the South Pacific, on the high seas, (he) did attempt to murder Wylie Hanby Roberts.

As soon as the indictment was presented, Mr. Patterson announced that he appeared for Fineberg, and then moved that it be quashed on the ground that it did not state in substance a crime.

As the argument developed it became apparent that the application was really a challenge to the Court's jurisdiction, this challenge being founded on a submission that the enactment of section 8 of the Crimes Act 1961 was ultra vires of the General Assembly of New Zealand. For the purposes of this case section 8 provides [in part] as follows:

(1) This section applies to any act done or omitted beyond New Zealand by any person

(a) On board any Commonwealth ship; or

(b) On board any New Zealand aircraft; or

(c) On board any ship or aircraft, if that person arrives in New Zealand on that ship or aircraft in the course or at the end of a journey during which the act was done or omitted; or

(d) Being a British subject, on board any foreign ship (not being a ship to which he belongs) on the high seas, or on board any such ship within the territorial waters of any Commonwealth country; or

(e) Being a New Zealand citizen or a person ordinarily resident in New Zealand, on board any aircraft;

Provided that paragraph (c) of this subsection shall not apply where the act was done or omitted by a person, not being a British subject, on any ship or aircraft for the time being used as a ship or aircraft of any of the armed forces of a country that is not a Commonwealth country.

(2) Where any person does or omits any act to which this section applies, and that act or omission would, if it occurred within New Zealand, be a crime under...

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