Re Ashman
| Jurisdiction | New Zealand |
| Judgment Date | 31 May 1976 |
| Date | 31 May 1976 |
| Court | Supreme Court |
(Wilson J)
Extradition Domestic legislation Commonwealth extradition scheme Fugitive Offenders Act 1881 (United Kingdom) Whether in force in New Zealand in 1976 Whether New Zealand part of Her Majesty's Dominions
States Independence Commonwealth New Zealand Emergence of New Zealand as an independent State in international law and in constitutional law Independence from United Kingdom Participation of New Zealand in Vietnam War United Kingdom membership of European Communities The law of New Zealand
Summary: The facts:The appellants, who were alleged to have committed offences of conspiracy to defraud in the United Kingdom, were detained in New Zealand on warrants issued by a stipendiary magistrate at Auckland under Section 5 of the Fugitive Offenders Act 1881 (UK), which provided for the arrest of someone who, having been accused of committing an offence in one part of Her Majesty's dominions, was found in another part of Her Majesty's dominions. In applications for habeas corpus the prisoners challenged the validity of the warrants, contending that the 1881 Act was no longer applicable in New Zealand.
Held:The applications were allowed and the prisoners discharged.
(1) In 1881, New Zealand had been a self-governing colony of the United Kingdom with the Parliament of the United Kingdom retaining the power to legislate for the colony. Thus the 1881 Fugitive Offenders Act had applied to New Zealand. In 1947 the New Zealand Parliament enacted the Statute of Westminster Adoption Act by virtue of which it acquired full power to make laws having extra-territorial operation. Subsequent repeals of relevant sections of the New Zealand Constitution Act 1952 by the New Zealand Constitution Amendment Act 1970 completed the process in the evolution of New Zealand as an independent State. Consequently, in 1976, when the United Kingdom repealed and replaced the 1881 Act with a new Act, its application was not extended to New Zealand. New Zealand was no longer a British possession or another part of Her Majesty's dominions but had become, both in constitutional law and in international law, an independent, sovereign State. Consequently, the 1881 Act conferred no jurisdiction to arrest and return to the United Kingdom persons, found in New Zealand, who were accused of having committed offences in the United Kingdom (pp. 2714).
(2) Lack of jurisdiction also rendered the warrants of committal invalid and necessitated the discharge. Moreover, the warrants were not validly endorsed under Section 5 of the 1881 Act. The warrants were issued by a magistrate in London and were endorsed by a judge of the Supreme Court of New Zealand. The Supreme Court was not a superior court for the purposes of the 1881 Act and therefore did not have the like criminal jurisdiction to that which was vested in the High Court of Justice in England. Thus no judge of the Supreme Court was authorized to endorse a warrant for the purposes of the 1881 Act. Therefore the warrants in the case were invalid in New Zealand and could not support a committal under Section 5 of the Act (p. 275).
(3) It was for the Government of New Zealand to decide whether to replace the 1881 Act with a functional statute or to conclude a treaty with the United Kingdom according to the provisions of the Extradition Act 1965 (p. 276).
The following is the text of the judgment of the Supreme Court:
These returns to writs of habeas corpus ad subjiciendum issued on 9 April 1976 were heard together because the warrants of committal of the prisoners were made in respect of the same alleged offencenamely, conspiracy to defraud William Smith (Merchant Components) Ltd, and Newbrit Ltd, within the jurisdiction of the Central Criminal Court in London, England. The Superintendent justified his detention of the prisoners by producing the warrants. The prisoners attacked the validity of the warrants on a number of grounds. After hearing argument I held that the warrants were invalid and ordered the prisoners to be discharged. I undertook to give my reasons in writing as soon as I was able to do so.
The warrants of committal were issued by a Stipendiary Magistrate sitting at Auckland in exercise of the jurisdiction which was claimed to have been conferred by s 5 of the Fugitive Offenders Act 1881 (44 & 45 Vict, c 69), but which counsel for the prisoners contended did not exist. They based this contention both on the broad ground that that Act is ineffective to confer it and on several narrower grounds which I shall discuss in due course.
The broad ground was founded on the proposition that the Act envisages that (in the circumstances of these cases) the United Kingdom and New Zealand are two parts of the dominions of the Queen of the United Kingdom and that however true that might have been when the Act was passed in 1881, it is no longer the case. This proposition involves a consideration of the history of the Act and the constitutional changes which have occurred since it was passed, as well as an examination of its provisions, with a view to ascertaining how far they can be made effective under the conditions as they now exist.
The statute was enacted by the Parliament of the United Kingdom on 27 August 1881. At that...
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