Reg v Martell [1897] FJLawRp 1; [1875-1946] 3 FLR 32 (25 October 1897)

[1875-1946] 3 FLR 32

SUPREME COURT OF FIJI

Criminal Jurisdiction

REG

v

MARTELL

Berkeley, C. J.

October 25, 1897

Procedure for criminal offences under Pacific Order in Council, 1893: Arts.15, 66 - Indictable Offences Ordinance 1876, s.4 - Criminal Procedure Ordinance 1875, s.5.

The accused Martell was arrested in the New Hebrides and, after an investigation by a Deputy Commissioner was committed for trial to the Supreme Court of Fiji under Art.66 of the Pacific Order in Council, 1893, on a charge of manslaughter and was brought to Suva in custody. The Attorney-General entered a nolle prosequi in respect of this charge and the accused was released. He was immediately re-arrested by the police and brought before the Chief Police Magistrate at Suva on a charge of murder upon which he was committed for trial to the Supreme Court.

HELD –

(1) The Supreme Court of Fiji has under Art.15 of the Pacific Order in Council, 1893, original jurisdiction to hear and determine any civil or criminal matter arising at any place within the limits of the Order, and may do so according to the procedure usual in Fiji or according to the procedure under the Order.

(2) A British subject, may if found in Fiji, be committed for trial by a stipendiary magistrate there for an offence wherever committed, if such offence be one cognizable by the Supreme Court.

[EDITORIAL NOTE - The offence in this case was cognizable by the Supreme Court by virtue of Art.15 of the Pacific Order in Council, 1893. The authority for the committal by the magistrate was found in s.4 of the Indictable Offences Ordinance, 1876, (rep.) which was as follows:-

"In all cases of indictable crimes or offences of any kind or nature whatsoever committed on the high seas or in any creek harbour haven or other place in which the Admiralty of England have or claim to have jurisdiction and in all cases of crime of offences committed on land beyond the limits of this Colony for which an indictment may legally be preferred within such Colony it shall be lawful for the Stipendiary Magistrate of the district in which person charged with having committed any such crime or offence as aforesaid or with being suspected to have committed any such crime or offence as aforesaid shall reside or shall be supposed or suspected to reside or be to issue a warrant according to the form E in the Schedule hereto to apprehend the person so charged and to cause him to be brought before such Magistrate to answer the said charges and to be further dealt with according to law."

The power of magistrates to commit for trial is now given by s.215 of the Criminal Procedure Code (Cap. 4). See also Magistrates' Courts Ordinance (Cap. 3), ss.18, 19 and 22.

The references in the report to the Attorney-General's role of Grand Juror are preserved from the original report of the case by J. S. Udal Esq. who was at the time Attorney-General of Fiji and whose conception of his duty in this respect is, at least, of historical interest.]

Cases referred to:-

Reg v Stanbury [1862] 31 LJ MC 88; 5 LT 686; 9 Cox, cc 94; 14 Dig 147

PROSECUTION on a charge of murder.

The Attorney-General, J. S. Udal, for the prosecution.

H. S. Berkeley, for the defence, before the jury was sworn, raised an objection to the jurisdiction of the Supreme Court to hear the case under the circumstances in which it had now come before the Court. It appeared that the accused had originally been sent down by the Deputy Commissioner, Captain Browne, of H.M.S. Tauranga, who had investigated the case at the New Hebrides, for trial before the Supreme Court of Fiji under Art.66 of the Western Pacific Order in Council, 1893, upon a charge of manslaughter; but on the proceedings coming before the Attorney-General in the ordinary way, a nolle prosequi had been entered by him in his capacity of Grand Juror, and the accused, who was then in custody in Suva, was accordingly discharged. He was, however, immediately afterwards re-arrested by the police and brought before the Chief Police Magistrate at Suva on a charge of murder, upon which he was committed for trial to the Supreme Court, and a true bill having been found in this case by the Attorney-General the accused was now put upon this trial before the Chief Justice and a jury.

He contended that a case of this kind could only be removed for trial to the Supreme Court of Fiji under Art.66 of the Pacific Order in Council, 1893, and that the proceedings for manslaughter upon which he was committed for trial, having been quashed by the Attorney-General, he could not now be brought up before a stipendiary magistrate of the Colony of Fiji and committed for trial to the Supreme Court as if the offence had been committed in this Colony. A stipendiary magistrate in Fiji had no jurisdiction to entertain the preliminary proceedings upon a charge of murder committed in the New Hebrides, and he cited the case of Reg v Stanbury 31 LJMC 88 in support of this contention. The jurisdiction conferred by s.4 of the Indictable Offences Ordinance 1876,^[1] upon stipendiary magistrates in Fiji over crimes committed on lands beyond the limits of the Colony for which an indictment could legally be preferred within the Colony was dependent upon whether the accused person resided, or was supposed to reside, within the Colony; and that Martell, therefore, being resident in the New Hebrides, could only be committed for trial in Fiji by a Deputy Commissioner in the New Hebrides under Art.66 of the Pacific Order in Council, 1893, which negatived any preliminary hearing before a magistrate here.

The Attorney-General, J. S. Udal, contra, pointed out that, in addition to the powers conferred upon the Supreme Court of Fiji by Art.66 of the Order in Council over cases sent to it for trial by the Deputy Commissioners, by the provisions of Art.15 it had also an original jurisdiction to hear any criminal matter arising at any place within the limits of the Order. In the present case the defendant, a British subject, being in Fiji, was arrested on a charge of murder committed in the New Hebrides and was brought before the nearest magistrate and by him committed for trial in the ordinary way to the Supreme Court. This jurisdiction is also expressly conferred by s.4 of the Indictable Offences Ordinance, 1876, already alluded to, which not only extends the jurisdiction of the magistrates, as therein mentioned, over persons resident, or supposed to be resident, in the district of any stipendiary magistrate, but also over those who shall happen to "be" there; and Martell, when he was arrested, happened to be within the district of the Chief Police Magistrate at Suva. By s.5 of "The Criminal Procedure Ordinance, 1895^[2]", every information coming before the Supreme Court must have been previously investigated by a magistrate, and the case therefore - being brought according to the procedure allowed by Art.15, viz., "according to the procedure for the time being in use in Fiji" - was bound to have been brought first before the magistrate for committal for trial in the ordinary way.

H. S. BERKELEY, C.J. - Although a Deputy Commissioner may commit for trial before the Supreme Court of Fiji such a case as the present under Art.66 of the Pacific Order in Council, 1893, yet it is clear that under Art.15 of the said Order the Supreme Court of Fiji has original jurisdiction to hear and determine any civil or criminal cause or matter arising at any place within the limits of the Order in Council, and may do so either according to the procedure usual in Fiji, or according to the procedure under the Order. Further, that under s.4 of the Indictable Offences Ordinance 1876,^[3] a British subject, if found in Fiji, may be properly committed for trial by a stipendiary magistrate there, wherever the offence might have been committed, if the offence be one cognizable by the Supreme Court.

Objection overruled.

(His Honour, subsequently, at the request of the counsel for the defence, reserved the point for further consideration by the Court of Crown Cases Reserved under s.44 of "The Criminal Procedure Ordinance, 1875," but in the event which happened, namely, the acquittal of the accused, such further consideration was not necessary.)

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^[1] Repealed. See headnote of this report.
^[2] Repealed. Vide Criminal Procedure Code (Cap. IV). ss.215, 239, 75.

^[3] Repealed. Vide Editorial Note.