Ffrost v Stevenson (1937) 58 CLR 528

• Jurisdiction: Papua New Guinea
• Judge: Latham CJ:
• Judgment Date: 13 August 1937
• Citation: (1937) 58 CLR 528
• Court: High Court
• Year: 1937

High Court: Latham CJ, Rich J, Dixon J, Evatt J, McTiernan J

Judgment Delivered: 13 August 1937

1 Extradition—From Commonwealth to Mandated Territory of New Guinea—Fugitive Offenders Act—Applicability—Form of order under, and under Service and Execution of Process Act—Service and Execution of Process Act 1901–1934 (No. 11 of 1901—No. 45 of 1934), s18, s28(1)(b), s28(1a)—Fugitive Offenders Act 1881 (44 & 45 Vict c69), s13, s14, s19, s36, s39—Orders in Council, 12 October 1925.

2 Constitutional Law—Mandated Territory of New Guinea—Legislative power of Commonwealth—In general—Extradition of offenders—Power of treaty legislation—Repugnancy—Colonial Laws Validity Act 1865 (28 & 29 Vict c63), s2—The Constitution (63 & 64 Vict c12), s51(xxix), s52(iii), s122.

3 Judiciary—Constitutional powers of the Commonwealth and States—Questions as to the limits inter se—Judiciary Act 1903–1934 (No. 6 of 1903—No. 45 of 1934), s40A.

2

Two Judgments; better one below

___________________________

FFROST v STEVENSON.

HIGH COURT OF AUSTRALIA.

FFROST

APPELLANT; APPLICANT,

AND

STEVENSON

RESPONDENT. RESPONDENT,

ON APPEAL FROM THE SUPREME COURT OF NEW SOUTH WALES.

1937: SYDNEY, May 10, 11, 13; Aug. 13.

Extradition—From Commonwealth to Mandated Territory of New Guinea—Fugitive Offenders Act—Applicability—Form of order under, and under Service and Execution of Process Act—Service and Execution of Process Act 1901–1934 (No. 11 of 1901—No. 45 of 1934), s18, s28(1)(b), s28(1A)—Fugitive Offenders Act 1881 (44 & 45 Vict. c. 69), s13, s14, s19, s36, s39—Orders in Council, 12th October 1925.

Constitutional Law—Mandated Territory of New Guinea—Legislative power of Commonwealth—In general—Extradition of offenders—Power of treaty legislation—Repugnancy—Colonial Laws Validity Act 1865 (28 & 29 Vict. c. 63), s2—The Constitution (63 & 64 Vict. c. 12), s51(xxix), s52(ii.), 122.

Judiciary—Constitutional powers of the Commonwealth and States—Questions as to the limits inter se—Judiciary Act 1903–1934 (No. 6 of 1903—No. 45 of 1934), s40A.

The Mandated Territory of New Guinea is a place out of His Majesty's Dominions in which His Majesty has jurisdiction. The relevant Orders in Council under the Fugitive Offenders Act 1881 (UK) are therefore effectual to apply Part II. of that Act for the purpose of the mutual surrender of fugitives between the Mandated Territory and the Commonwealth.

So held by the whole court.

2

Held, further, by Latham CJ and Evatt J, and semble by Rich J (Dixon J and McTiernan J not deciding), that the Commonwealth Parliament has power to make legislative provision for the mutual surrender of fugitives between the Mandated Territory of New Guinea and the Commonwealth, and that s28(1)(b) and s28(1A) of the Service and Execution of Process Act 1901–1934, to the extent at least to which they make such provision, are valid. Per Latham CJ: The source of the power is the combination of s122 and s51(xxix) of the Constitution, or, possibly, s52 (iii.) in relation to s122. Per Evatt J: Its source is s51(xxix).

Held, further, by Latham CJ and Evatt J (Rich J not deciding, and Dixon J and McTiernan J contra), that the relevant provisions of the Service and Execution of Process Act 1901–1934 and the regulations thereunder, in their application to the surrender of fugitives between the Commonwealth and the Mandated Territory, are not repugnant to the relevant provisions of the Fugitive Offenders Act 1881 (UK), and the Orders in Council applying the same as between the Commonwealth and the Mandated Territory.

Held, further, by the whole court, that the determination of the validity of s28(1)(b) and s28(1A) of the Service and Execution of Process Act 1901–1934, in their application to the surrender of a fugitive from New South Wales to the Mandated Territory of New Guinea involved a question of the limits inter se of the constitutional powers of the Commonwealth and the States within s40A of the Judiciary Act 1903–1934.

Form of order for return of a fugitive under the Fugitive Offenders Act 1881 (UK) and the Service and Execution of Process Act 1901–1934, respectively, and, in particular, whether such order must be in the form of a warrant, considered.

Status of the Mandated Territory of New Guinea, and source of, and limitations, if any, upon the Commonwealth's legislative power thereover, discussed.

The Commonwealth's power of treaty legislation under s51 (xxix.) of the Constitution considered by Evatt J.

Decision of the Supreme Court of New South Wales (Full Court) varied.

APPEAL from the Supreme Court of New South Wales.

An application was made by Galfred Mervyn Collins Ffrost to the Full Court of the Supreme Court of New South Wales to make absolute an order nisi for a writ of prohibition to restrain further proceedings on an order made on 26th January 1937, by a magistrate of the State of New South Wales, that the applicant, Ffrost, should "be returned to the Territory of New Guinea, and for that purpose should be delivered into the hands of" the respondent, "Henry James Stevenson, Warrant Officer of the New Guinea Police Force, 3 bringing the warrant." Alternatively, a writ of certiorari was asked for removing into the Supreme Court the application for the order, that it might be quashed, and, also, a writ of habeas corpus directed to Stevenson and the governor of Long Bay Gaol.

Ffrost, for about three years, had been employed by Burns Philp & Co Ltd as an overseer and medical assistant at Meto Plantation, Witu, in the Mandated Territory of New Guinea. He had finished, or had almost finished, his three years' service with his employer when it released him from his engagement to enable him to return to Sydney, where he arrived about the end of November 1936, and he continued to reside there with a view to completing, at Sydney University, a medical course of which, prior to the engagement referred to above, he had already completed the first four years.

On 8 January 1937 at Rabaul, Territory of New Guinea, a native, Bonri, was found guilty by Chief Judge Wanliss, on a charge of manslaughter, of unlawfully killing another native, Mul Mul, at Meto Plantation, in the Witu Group, on 28th October 1936. During the hearing of this charge statements were made which implicated Ffrost in the killing of Mul Mul. As the result of these statements a warrant was issued under the District Courts Act 1924–1935 (NG), at Rabaul, on 9th January 1937, by one D. Waugh, who signed as district officer and justice of the peace. In the warrant it was stated that information on oath had been laid before the magistrate that Ffrost, on 28th October 1936, unlawfully killed Mul Mul contrary to the provisions of s303 of the Criminal Code of the State of Queensland in its application to the Mandated Territory, and commanded the arrest of Ffrost. Upon being informed by way of an information of the issue of the above–mentioned warrant and of its contents, a magistrate of the State of New South Wales, at Sydney, on 9th January 1937, and purporting to act under s18 of the Service and Execution of Process Act 1901–1934, issued a provisional warrant commanding that Ffrost be apprehended and brought before a New South Wales magistrate. Ffrost was arrested on 11th January 1937. When the original warrant issued at Rabaul reached Sydney a New South Wales magistrate, on 25th January 1937, indorsed on it a statement that he had been informed on oath of the authenticity of the signature of 4 D. Waugh appearing thereon and that Waugh had lawful authority to issue the warrant. This is the form of indorsement used under s13 of the Fugitive Offenders Act 1881 as a backing of an original warrant sufficient to authorise the apprehension of the person named and the bringing of him before a magistrate. At this stage, therefore, there were two processes out against Ffrost, the provisional warrant issued at Sydney on 9th January 1937, and purporting to be under the Service and Execution of Process Act 1901–1934, and the backing of 25th January 1937, presumably purporting to be made under the Fugitive Offenders Act 1881. When Ffrost was brought before a magistrate on 25th January, the magistrate had before him both the provisional warrant and the backed original warrant. A contention was raised on Ffrost's behalf before the magistrate that the Fugitive Offenders Act 1881 was not applicable, and that, therefore, no order could be made for his return under s14 of that Act. That was contested, and it was submitted that that Act was available, and that, if it were not, the order for Ffrost's return could be made under the Service and Execution of Process Act 1901–1934. The magistrate ruled that the provisions of the Fugitive Offenders Act 1881 did not apply, and that the Service and Execution of Process Act 1901–1934 did apply. Apparently a further...