§ 208. “Criminal Process.”

Process includes the doing of something in a criminal court or proceeding, as well as in a civil court or proceeding. A summons from a judicial officer to appear and answer a criminal charge is a process. A warrant issued by a judicial officer, directing the arrest of a person on a criminal charge, is a process.

The power conferred by this part of the sub-section will enable the Federal Parliament to deal with a class of cases which, it has been held, is not within the competence of the Colonial legislatures to regulate; viz., the transfer of persons charged with crime from one colony to another. This disability is founded on the territorial limitations to which the Colonial legislatures are restricted.

In 1855 the law officers of the Crown in England, on being asked to give their opinion with reference to a case arising in British Guiana, said—“We conceive that the Colonial legislature cannot legally exercise its jurisdiction beyond its territorial limits—three miles from the shore—or, at most, can only do this over persons domiciled in the colony who may offend against its ordinances even beyond those limits, but not over other persons.” (Forsyth, Constitutional Cases, p 24.)

In 1861 a Canadian Act was passed and assented to by the Governor which purported to give jurisdiction to Canadian magistrates, in respect of certain offences committed in New Brunswick by persons afterwards escaping to Canada. By order of the Queen in Council, 7th January, 1862, this Act was disallowed, as being in excess of the jurisdiction belonging to the Canadian Parliament, and only to be properly effected by Imperial legislation; or by an arrangement in the nature of an agreement of extradition between the two provinces, to be carried into effect by Acts of the two provincial legislatures. (Todd's Parl. Gov. in the Col. 2nd ed. p. 177.)

In Ray v. MacMackin (1875), 1 V.L.R. (L.) 274, it was decided that the power of extradition, from one part of the British dominions to another, was not inherent in the legislature of any colony, but required the sanction of the Imperial Parliament; that a Colonial legislature may authorize the exclusion from its territory of a person charged with having committed an offence in another colony, and it may order his punishment unless he leaves, but it cannot authorize the sending him in custody out of its territory into another colony. This was the case of a man arrested in New South Wales on a warrant issued by a magistrate in Victoria. The warrant was endorsed in New South Wales by a justice of that colony, who directed a constable to remove the accused in custody to Melbourne. The endorsement was made by the Sydney justice on the authority of a New South Wales Act (14 Vic. No. 43, s. 4). This section was passed before the separation of Victoria from that colony, and applied the provisions of Jarvis

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Act (11 and 12 Vic. c. 42) as to backing warrants. It was intended to authorize the backing of intercolonial warrants, making them operate in the same manner as was the case between England and Ireland. In an action afterwards brought in Victoria by the arrested man against the arresting constable, for false imprisonment in placing him in a vessel and in conveying him over the high seas from Sydney to Melbourne, it was held by the Supreme Court of Victoria that the Act was ultra vires and was no defence to the action. “It was distinctly enunciated that the superior Courts in England will regard Acts of Colonial Legislatures in the same way as they regard Acts of foreign countries legislating with respect to their inhabitants within the limits of their authority. Any attempt to exercise jurisdiction beyond the boundaries of their own territory, domestic or distant, by either one or the other, is treated as being beyond the powers of their legislatures. Whatever power or authority the Legislature of New South Wales has to frame laws to cause persons charged with the commission of misdemeanours in other countries, to be apprehended within that colony, and to be detained in prison there, it is a totally different thing to say that it can give a magistrate power to expel such persons from the colony, and send them across the seas to another part of the world.” (Per Barry, J., 1 V.L.R. (L) p. 280.)

In 1863 the New Zealand Legislature passed the Foreign Offenders Apprehension Act, which authorized the deportation of persons charged with indictable misdemeanours committed in other Australian colonies, and their surrender to the authorities of the colony where the offence was committed. Doubts were at the time entertained as to its validity, but it was not disallowed. In 1879 one Gleich, an absconding bankrupt from South Australia, was arrested in New Zealand, and it was proposed to deport him back to South Australia. He was brought before the Supreme Court of New Zealand, which decided that a colonial legislature had no power to authorize the conveyance on the high sea to another colony, and the detention outside its jurisdiction, of any person whatever; that such power could be only exercised either directly by the authority of an Imperial Act, or in the exercise of power expressly conferred on a colonial legislature, by an Imperial Act. (Todd, Parl. Gov. in Col. 2nd ed. p. 303.)

In the case of Regina v. Call, ex parte Murphy (1881), 7 V.L.R. (L.) 113, the Supreme Court of Victoria decided that the power given by section 63 of the Justices of the Peace Statute, 1865 (Vic.), to a justice in Victoria, to endorse a warrant for the apprehension of an offender, “whether such warrant has been issued in Victoria or elsewhere,” was not ultra vires, as it did not direct any act to be done beyond the territorial limits of Victoria. It was, further, the opinion of the court that on the production of a warrant issued in New South Wales, and proof of the handwriting of the justices issuing it, and that the person bringing it is one of the persons to whom it was originally addressed, it is the duty of the justices to whom it is produced to endorse it; but the last few lines of the form in the 13th schedule referred to in the margin of sec. 63 are not warranted by that section, and are incongruous. Such endorsement will then authorize the person holding the warrant to take the offender to the border of the colony, where the warrant itself will authorize him to complete the execution of it. Per Higinbotham, J.: “The endorsement would authorize the taking of the offender into New South Wales to the justice who issued the warrant.” (7 V.L.R. [L.] 113.)

Owing to the difficulties arising from the territorial limitations of the power of Colonial legislatures, it has been the practice of late years for fugitive offenders, escaping from one colony into another, to be arrested and returned under the provisions of Imperial Acts relating to the extradition of criminals.

IMPERIAL FUGITIVE OFFENDERS ACT.—By the Fugitive Offenders Act, 1843 (6 and 7 Vic. c. 34), provision was made for the apprehension in the United Kingdom, or in the Colonies, of persons charged with felony committed in a colony. By the Foreign Jurisdiction Act, 1878 (41 and 42 Vic. c. 67), this Act was extended to places to which the Foreign Jurisdiction Act, 1843, applied. After the decision of the Supreme Court of

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New Zealand in Gleich's case, holding that the New Zealand Foreign Offenders Apprehension Act, 1863, was ultra vires, the Governor of the colony in reporting the case to the Secretary of State for the Colonies expressed a hope that the Imperial Parliament would remedy the defect in the law, disclosed by that decision, by extending the procedure provided by the Fugitive Offenders Act, 1843. Shortly afterwards the Imperial Parliament passed the Fugitive Offenders Act, 1881 (44 and 45 Vic. c. 69), which formulated a uniform plan, facilitating the apprehension and trial of persons committing crimes in one part of the British dominions and escaping to another. This Act provides that a person, accused of having committed an offence in one part of the Empire, may, if found in another part, be apprehended and returned to the part from which he is a fugitive. A warrant issued in the part of the Empire from which the accused is a fugitive, and endorsed by the proper authority in the part of the Empire in which the accused is found, is sufficient authority for his arrest. A person found in one part of the British dominion and suspected of having committed an offence in another part, may also be arrested on a provisional warrant, signed by a magistrate in that part of the dominion in which he happens to be found. Upon his apprehension the accused must be brought before a magistrate, by whom he may be remanded pending the arrival of an endorsed warrant. After the expiration of fifteen days the Governor of the possession in which the arrest is made, or if the arrest is made in the United Kingdom, the Secretary of State, is authorized to issue a warrant ordering the fugitive to be returned to that part of the dominions from which he has escaped. The above provisions of the Act apply to all offences punishable, in the place where committed, by imprisonment with hard labour for a term of twelve months or more. By part II. of the Act a procedure of a simpler character is formulated and made applicable to groups of contiguous colonies, in which it may by Order in Council be declared in force. Under this part, the inter-colonial backing of warrants by magistrates, and the return of fugitives without the formality of a warrant signed by the Governor of a colony in which the fugitive is found, was legalized. This law was declared applicable to the Australian colonies by Order in Council, dated 23rd August, 1883.

The sub-section now under review will facilitate Federal legislation to enforce the service and execution throughout the Commonwealth of the criminal process issued by the courts of a State for the arrest of offenders within any State. It will enable the Parliament to formulate a simple procedure for effecting what now can only be done under the authority of the Imperial Fugitive Offenders Act, and to authorize the execution of magistrates' warrants for the apprehension of offenders in every part of the Commonwealth. This power is clearly restricted to inter-state extradition, or its equivalent. Inter-British and inter-national extradition will still be governed by Imperial legislation, although auxiliary laws may be passed by the Federal Parliament under 51—xix., “External Affairs,” facilitating the enforcement of the Imperial legislation. (See Notes, § 214, infra.)

INTER-STATE EXTRADITION IN AMERICA.—The part of this sub-section relating to inter-state arrest on criminal process provides a summary method of accomplishing inter-state extradition. The same object was aimed at by Art. IV. sec. ii. sub-sec. 2 of the Constitution of the United States of America, which enacts that “A person charged in any State with treason, felony, or other crime, who shall flee from justice and be found in another State, shall, on demand of the executive authority of the State from which he fled, be delivered up, to be removed to the State having jurisdiction of the crime.” The difference between the two procedures is, that under the Constitution of the Commonwealth, inter-state fugitives may be arrested and returned from one State to another without the intervention of the Executive Government of any State; the whole process may be a judicial one, superintended by the courts, and uncontrolled by the Executive in either State. In America the return of a fugitive offender from one State of the Union to another depends upon the will of the Executive Government of the State in which the offender is found.

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Some cases decided by the Supreme Court of the United States of America, under the above section, may be cited in illustration of its working and as showing what cases may be covered by the phrase “criminal process.” In Kentucky v. Dennison (24 How. 66), it was ruled that “the words of this article embrace every act forbidden and made punishable by a law of the State, whether treason, felony, or misdemeanour, and give the right to the State where any such crime is committed to demand the fugitive from the Executive of the State to which he has fled.” If a person is arrested in one State on an inter-state warrant, charged with having committed a crime in another State, it would appear that the State courts have power by writ of habeas corpus to inquire into the legality of the arrest. (Robb v. Connolly, 111 U.S. 624.) A person arrested upon a requisition warrant may have the legality of his arrest tested by the courts, and to this end the State courts have jurisdiction in habeas corpus. (Roberts v. Reilly, 116 U.S. 80.) It must appear that the crime with which the fugitive stands charged was committed within the State making the demand. This provision, by the obvious import of its terms, has no relation whatsoever to foreign nations, but is confined in its operation to the States of the Union. (Per Mr. Justice Barbour, in Holmes v. Jennison, 14 Pet. 587.)

51. (XXV.) The recognition209 throughout the Commonwealth of the laws, the public Acts and records, and the judicial proceedings of the States:

HISTORICAL NOTE.—This sub-section was introduced verbatim in the Bill of 1891 and was adopted by the Convention of 1897–8 without debate. (See Historical Note, p. 118.)