[HOUSE OF LORDS]

AND

Fugitive Offender - Evidence - Defence - Offences involving fraud in relation to company - Defence that acts first disclosed by fugitive under compulsory examination in liquidation of company - Whether fugitive given fair opportunity to put forward defence - Whether defence under Australian law to be taken into account by magistrate in considering whether evidence sufficient to warrant trial - Fugitive Offenders Act 1967 (c. 68), ss. 3 (1)

(c), 7 (5) (a)¹ Crimes Act, New South Wales (No. 40 of 1900), s. 177 (as amended)²

Australia - New South Wales - Crime - Company - Fraud - Defence - "First disclosed" - Statement of something already known from other source - Whether capable of amounting to first disclosure - "Such act" - Whether reference to offence charged - Crimes Act, New South Wales (No. 40 of 1900), s. 177 (as amended by Crimes (Amendment) Act, New South Wales (No. 31 of 1951), s. 10, Sched., and Crimes and Other Acts (Amendment) Act, New South Wales (No. 50 of 1974), s. 6 (bb)

The respondent government sought the return of the appellant under the Fugitive Offenders Act 1967 on a number of charges of fraud in relation to a company. All the offences charged were "relevant offences" within section 3 (1) (a) of the Act. Certain of the charges would be prosecuted in Australia under section 173 of the Crimes Act 1900. At least by June 1974 the appellant was in possession of the charges and of the evidence against him with a print of the Act of 1900 containing sections 173 and 177 on facing pages. He retained solicitors and counsel. On July 9 he had a conversation with an investigating officer from New South Wales in which the compulsory examination of him which had taken place in 1972 under section 249 of the Companies Act 1961 of New South Wales concerning the affairs of the company the subject of the charges, then in liquidation, was mentioned. The appellant did not ask the respondent government for a transcript of that examination. At the committal proceedings he was not represented. The clerk of the court had explained to him beforehand at length the nature of the proceedings and his right to give evidence and call witnesses. The magistrate again explained those matters to him when the proceedings started. On October 24, 1974, the investigating officer was in the witness box and the appellant sought to examine him about the section 249 examination, but that attempt failed since the officer had not been present at that examination. Leading counsel for the prosecution put forward a number of arguments against the introduction of the section 249 examination into the proceedings. On October 29 the prosecution's case was closed and the magistrate held that there was a case to answer on most of the charges. The appellant then requested an adjournment for some weeks to investigate the section 249 proceedings. He was handed a transcript of the evidence given in those proceedings. The magistrate refused the adjournment and also a further adjournment to call witnesses for which the appellant asked. The appellant declined to give evidence himself. The magistrate committed the appellant under section 7 (5) of the Act of 1967. The appellant applied to the Divisional Court of the Queen's Bench Division for a writ of habeas corpus. He did not put the transcript of the section 249 proceedings in evidence, but contended that those proceedings provided him with a defence under section 177 of the Act of 1900. The Divisional Court refused the writ.

1 Fugitive Offenders Act 1967, s. 3: "(1) For the purposes of this Act an offence of which a person is accused ... is a relevant offence if - (a) in the case of an offence against the law of a designated Commonwealth country, it is an offence which, however described in that law, falls within any of the descriptions set out in Schedule 1 to this Act, ... and (c) in any case, the act or omission constituting the offence, or the equivalent act or omission, would constitute an offence against the law of the United Kingdom if it took place within the United Kingdom ..."

S. 7: "... (5) Where ... the court of committal is satisfied, after hearing any evidence tendered in support of the request for the return of that person or on behalf of that person, that the offence ... is a relevant offence and is further satisfied - (a) where that person is accused of the offence, that the evidence would be sufficient to warrant his trial for that offence is if it had been committed with the jurisdiction of the court; ... the court shall, ... commit him to custody to await his return..."

2 Crimes Act 1900, s. 177, as amended: see post, p. 751G-H.

On appeal by the appellant by leave of the House of Lords: -

Held, dismissing the appeal, that the appellant had had a fair opportunity of presenting his case with regard to section 177 to the magistrate and the magistrate had been entitled to refuse the adjournments sought and, since the appellant had not given evidence to support his case under section 177, to proceed on the basis that the defence under that section did not arise before him; that the prosecution had not acted improperly or without due candour or fairness and there had been no breach of natural justice; that, further, the appellant had had since the proceedings in the magistrate's court every opportunity to demonstrate, if he could, that he had such a defence under section 177 as would make it right not to commit him on the charges in question; and that, accordingly, the appeal failed and there was no justification for remitting the matter for further investigation by the magistrate or the Divisional Court (post, pp. 750A - B, E, F, 753H - 754A, 757D-F,G, 758B).

Per Viscount Dilhorne and Lord Simon of Glaisdale. In deciding under the Act of 1967 whether the evidence adduced would be sufficient to warrant the trial of the fugitive for the relevant offence if it had been committed within the jurisdiction of the court the magistrate has to have regard to the law of England, not to Commonwealth statutes other than those relating to the offence charged or to whether the trial would lead to conviction in the Commonwealth territory (post, pp. 756F, 757F).

Per Viscount Dilhorne. "Such act" in section 177 of the Act of 1900 refers to the act in respect of which the offence is charged. Stating what is already known from another source does not amount to first disclosure within the meaning of section 177 (post, pp. 755B-C, D, 755H - 756A).

Decision of the Divisonal Court of the Queen's Bench Division affirmed.

The following cases are referred to in the opinion of Viscount Dilhorne:

Foster v. Federal Commissioner of Taxation (1951) 82 C.L.R. 606.

Reg. v. Governor of Brixton Prison, Ex parte Rush [1969] I W.L.R. 165; [1969] 1 All E.R. 316, D.C.

Reg. v. Gunnell (1886)16 Cox C.C. 154.

Reg. v. Skeen and Freeman (1859) 8 Cox C.C. 143.

Rex v. Tuttle ,(1929) 21 Cr.App.R. 85, C.C.A.

The following additional cases were cited in argument:

Atkinson v. United States of America Government [1971] A.C. 197; [1969] 3 W.L.R. 1074; [1969] 2 All E.R. 1146; [1969] 3 All E.R. 1317, D.C. and H.L.(E).

Dallison v. Caffery [1965] 1 Q.B. 348; [1964] 3 W.L.R. 385; [1964] 2 All E.R. 610, C.A.

Reg. v. Governor of Brixton Prison, Ex parte Mourat Mehmet [1962] 2 Q.B. 1; [1962] 2 W.L.R. 686; [1962] 1 All E.R. 463, D.C.

Rex v. Governor of Brixton Prison, Ex parte Schtraks [1964] A.C. 556; [1962] 3 W.L.R. 1013; [1962] 3 All E.R. 529, H.L.(E.).

Reg. v. Governor of Brixton Prison, Ex parte Shuter [1960] 2 Q.B. 89; [1959] 3 W.L.R. 603; [1959] 2 All E.R. 782, D.C.

Reg. v. Maywhort [1955] 1 W.L.R.848; [1955] 2 All E.R. 752.

Reg. v. Thames Magistrates' Court, Ex parte Polemis [1974] 1 W.L.R. 1371; [1974] 2 All E.R. 1219, D.C.

Rex v. Governor of Brixton Prison, Ex parte Percival [1907] 1 K.B. 696, D.C.

Rex v. Governor of Brixton Prison, Ex parte Servini [1914] 1 K.B. 77, D.C.

Rex v. Wandsworth Justices, Ex parte Read [1942] 1 K.B. 281; [1942] 1 All E.R. 56, D.C.

APPEAL from the Divisional Court of the Queen's Bench Division.

This was an appeal by Murray Richard Harrod by leave of the House of Lords given on January 16, 1975, from the judgment of the Divisional Court of the Queen's Bench Division (Lord Widgery C.J., Melford Stevenson and Watkins JJ.) on December 3, 1974, whereby they dismissed an application by him for a writ of habeas corpus directed to the Governor of Pentonville Prison. The appellant was detained in the prison pursuant to an order made by Sir Frank Milton, the Chief Metropolitan Magistrate, sitting at Bow Street Magistrates' Court on October 28, 1974, under section 7 (5) of the Fugitive Offenders Act 1967 committing the appellant to custody pending his return to Australia pursuant to a request made by the Government of Australia. The Divisional Court refused the appellant leave to appeal.

The facts are stated by Lord Wilberforce and Viscount Dilhorne.

Leolin Price Q.C. and Sir Francis Lowe for the appellant.

Victor Durand Q.C. and David Miller Q.C. for the Government of Australia.

Richard Du Cann and Clive Nicholls for the Secretary of State for Home Affairs and the prison governor.

Richard Du Cann as amicus curiae.

Their Lordships took time for consideration.

March 19. LORD WILBERFORCE. My Lords, the circumstances giving rise to this appeal can be stated without elaboration. The Government of Australia is seeking the removal of the appellant, Mr. M. R. Harrod, to Australia under the Fugitive Offenders Act 1967. It desires to prosecute him - and also a Mr. R. W. Robertson who has been involved in these proceedings - on a number of charges of fraud in relation to a company, George Hudson Pty. Ltd., of which he was a director. Two are charges of conspiracy, four are charges of fraudulent misapplication of sums of money, one is a charge of cheating and defrauding the company and its creditors. There is no doubt that these are all "relevant offences" within section 3 of the Act. The Chief Metropolitan Magistrate, after a hearing of several days in October 1974, found that a prima facie case was made out and committed the appellant to Pentonville Prison to await removal.

The appellant applied to the Queen's Bench Division for a writ of habeas corpus which was refused on December 3, 1974. He applied to the Appeal Committee for, and was granted, leave to appeal to this House.

The ground, and the only ground, upon which the appellant rested his appeal arises out of some provisions in the legislation of New South Wales. Under the Companies Act 1961, section 249 (similar to section 268 of the English Companies Act 1948), the appellant was ordered to attend for examination concerning the affairs of the company - then in liquidation. He did so attend and a lengthy examination took place by question and answer upon oath recorded in a transcript. Section 177 of the Crimes Act 1900, as amended (similar to section 43 (2) of the English Larceny Act 1916, now repealed), provides that no person shall be convicted under (inter alia) section 173 of that Act in respect of any act or omission by him if, before being charged, he first disclosed such act or omission on oath under

(inter alia) compulsory examination in the liquidation of a company. Certain of the charges against the appellant would be prosecuted under section 173. The appellant's complaint before the Divisional Court was, essentially, that he had been denied by the learned chief magistrate an opportunity of making good a contention under section 177 which would have provided an answer to such of the charges as were laid under section 173. It was on the same basis that he sought and obtained leave to appeal to this House. A first look at the matter might suggest that there was some substance in this contention, particularly in a context, namely, that of the liberty of individuals, in which the courts are scrupulous to see that no injustice or procedural irregularity has occurred. But, after the examination of the facts which has taken place in this House, I am satisfied that no semblance of either has been established. My reasons for this conclusion follow from the facts themselves.

The appellant was arrested on provisional warrant on May 15, 1974, and in due course was granted bail. At least by June 1974 he was in possession of the charges and of the evidence against him, which included a print of the New South Wales Crimes Act 1900, containing, on facing pages, sections 173 and 177. He retained solicitors and counsel. On July 9 he had a conversation with Mr. A. G. O. Sindel, an investigating inspector from New South Wales, in which the examination under section 249 (ante) was mentioned. The committal proceedings were to start before the Chief Metropolitan Magistrate on October 14,1974. On October 10 the appellant saw the chief clerk at Bow Street and said that he would not be legally represented. The clerk explained to the appellant, at length ("about an hour"), the nature of the proceedings and his right to give evidence and call witnesses. These matters were again explained to the appellant by the chief magistrate himself on October 14, when the committal proceedings against the appellant and Robertson started. On October 24, Mr. Sindel was in the witness box and the appellant attempted to cross-examine him about the section 249 examination, but this attempt failed, since the witness had not been present at the examination. Leading counsel for the prosecution, in addition, put forward a number of arguments against the introduction of the section 249 examination into the proceedings. On October 29, 1974, the prosecution's case was closed and the learned magistrate held that there was a case to answer on certain (that is, most) of the charges.

Thereupon, counsel for Mr. Robertson, against whom a similar committal order was asked for, requested an adjournment for some weeks so as to investigate the section 249 proceedings. The appellant did likewise. Leading counsel for the prosecution submitted that the section 249 proceedings were not admissible but said that he would supply a copy of the evidence to Mr. Robertson's counsel for his eyes only, and also a copy to the appellant. There was then an adjournment for 20 to 30 minutes, during which the clerk handed a transcript of the evidence to the appellant (later it turned out to be defective, but this was not commented on at the time). After the adjournment, the chief magistrate refused a further adjournment with regard to the section 249 proceedings. The appellant then asked for an (unspecified) adjournment to call witnesses, but this was refused. The appellant declined to give evidence himself. Thereupon the magistrate committed both the appellant and Robertson under section 7 of the Fugitive Offenders Act 1967. Leading counsel for the prosecution then said that he would supply both the appellant and Robertson with a transcript of the section 249 proceedings and this was done.

My Lords, I am of opinion that the learned magistrate had every right to act as he did. Perhaps the prosecution were ill-advised in the course they took as regards the transcript: probably some of the grounds for their action were legally unsound, but I cannot find that they acted improperly, or contrary to the degree of candour and fairness which is expected of requesting governments under this (as also the Extradition) Act. The learned magistrate, faced with the possibility of indefinite delay on the part of the appellant and his failure to have witnesses available, was, in my opinion, entitled to refuse a further adjournment. And, since the appellant did not choose to enter the witness box and by evidence on oath to support a case under section 177 of the Crimes Act 1900, the learned magistrate was, in my opinion, quite right to proceed on the basis that a defence under that section did not arise before him.

But the matter does not end there. The,appellant was duly supplied with a transcript of the section 249 proceedings. He applied for habeas corpus. He did not put the transcript in evidence. He swore a long affidavit raising a number of matters of, as it turned out, no substance, which contained, as to the section 249 transcript, only this passage:

"In fact on my own reading of such copies of the section 249 proceedings as the government has supplied, they are helpful to me and provide me with a defence under section 177 of the Crimes Act 1900."

On his application for leave to appeal to this House the transcript was not put in evidence, but the Appeal Committee requested that it be available on the appeal. It was then available, but leading counsel for the appellant (who, I should like to say, made the very best of the appellant's case) did not in his opening point to any specific or relevant disclosures in the transcript such as would bring the case within section 177.

My Lords, on this, I am of opinion that if, which I hold not to be the case, there was any remnant of doubt as to whether the learned magistrate had given the appellant every fair opportunity to present his case, he has had every opportunity since then to demonstrate, if he could, that he has such a statutory defence to the charges under section 173 of the Act of 1900 as would make it right not to commit him on those charges. He has totally failed to do so, and I can see no justification for, as we are asked, remitting the whole matter to the Queen's Bench Division or to the Chief Metropolitan Magistrate for further investigation. The appellant has had every chance. There has been no unfairness or irregularity at any point. Any defence under section 177 (a complicated section and one which may involve the investigation of issues of fact) remains open to him in New South Wales.

I add two observations. First, it has been far from easy to bring out and state clearly the full facts regarding the section 249 proceedings. Only at a late stage in the appeal were these clearly perceived. Had they been seen and understood at an earlier stage, I have much doubt whether the appellant would ever have been given leave to appeal to this House. Some responsibility for this must rest upon counsel for the prosecution, who were present at Bow Street throughout the proceedings, and it was no doubt because of this that Lord Widgery C.J. felt obliged to utter some criticisms. Although there was an unfortunate failure adequately to explain what was in the papers and which substantially supported the prosecution's own case I think it is right to acquit counsel and solicitors of any desire to conceal or mislead or of any other improper action.

Secondly, there were canvassed in argument a number of interesting points of law, as to the meaning of section 177 of the Act of 1900 and as to various points under the Fugitive Offenders Act 1967. In the view which I take, these do not arise for decision; the learned magistrate made no pronouncement on them - nor is there any suggestion that he went wrong in law in any way. I do not think it expedient to pronounce upon them. As regards section 177, this is New South Wales legislation with, since 1968, no counterpart here. It is hardly necessary to say that any point on the section and any contention under it remains open to the appellant in any proceedings in the courts of New South Wales following upon his removal.

I would dismiss the appeal.

VISCOUNT DILHORNE. My Lords, the respondents, the Government of Australia, initiated proceedings under the Fugitive Offenders Act 1967 to secure the return of the appellant and a Mr. Robertson to Australia to face 13 charges of a serious character all involving fraud. On October 28, 1975, the chief magistrate committed them to custody to await their return to Australia on seven charges, three of them for conspiracy, three alleging the fraudulent misapplication of property of a company, George Hudson Pty. Ltd., and one of aiding and abetting the fraudulent misapplication of the property of another company, Kimberley Mineral Holdings Ltd. The three charges of fraudulent misapplication of the property of George Hudson Pty. Ltd. related to the sums of $750,000, $250,000 and $100,000 making in all $1,100,000.

Section 249 of the Companies Act, No. 71, 1961, of New South Wales gave a court of that country power to summon before it any person: "whom the court deems capable of giving information concerning the ... dealings, affairs or property of the company" in liquidation, and to examine the persons summoned on oath. In the exercise of that power the appellant and Mr. Robertson were examined on oath with regard to the affairs and property of George Hudson Pty. Ltd. The examination of the appellant began on January 20, 1972, and lasted several days. The transcript of that examination extends to 168 pages.

Provisional warrants were issued on May 6, 1974, for the arrest of the appellant and Mr. Robertson and on May 15, 1974, the appellant was arrested and granted bail. On August 5 the original documents in support of the application for extradition were received at Bow Street Magistrates' Court. Those documents included a copy of the Crimes Act 1900, as amended by the Crimes and Other Acts (Amendment) Act 1974, of New South Wales. The three offences of fraudulent misapplication on which the appellant was committed for trial charged him with offences against section 173 of that Act.

Section 177 of that Act, as amended, reads as follows:

"No person shall be convicted of any offence under any of the sections from section 165 to section 176 both inclusive in respect of any act or omission by him, if, before being charged with the offence, he first disclosed such act or omission, on oath, ... under compulsory examination in some matter in the liquidation of a corporation."

Throughout the early stages of the proceedings in this country the appellant had solicitors acting for him and at the conclusion of a remand hearing on July 9, 1974, the appellant in a conversation with Mr. Sindel, an account- ant from New South Wales, said that he had " engaged the best counsel that money can buy " and referred to the examination under section 249 to

which he had been subjected. At the request of his solicitors, the hearing of the respondents' application was delayed until October 14, 1974. On October 10, 1974, the appellant told the chief clerk of Bow Street Magistrates' Court that he would not be legally represented at the magistrates' court and he was not legally represented from then on at that court.

Between July 9 and October 10, 1974, when, it was not disputed, the appellant had solicitors acting for him, no request was made to the representatives of the respondents, the Government of Australia, for a transcript of the appellant's examination under section 249, though it must have been apparent even on a cursory examination of the Crimes Act 1900 that section 177 might conceivably operate as a bar to the appellant's conviction for offences under section 173 of that Act.

The opening and presentation of the case against the appellant took place on October 14, 15, 17, 21 and 24. On October 25 counsel for Mr. Robertson submitted that there was no case to answer. He was followed by the appellant who concluded his speech on October 28.

On October 24 the appellant sought to ascertain from Mr. Sindel who was then in the witness box what he had said in the course of his examination under section 249, and claimed that what he had said would give rise to a defence under section 177 of the Crimes Act 1900.

Mr. Durand for the respondents, the Government of Australia, objected to statements made by the appellant in that examination being introduced in evidence on a number of grounds to which I do not think it necessary to refer. Suffice it to say that that evidence was not introduced. The appellant, who had been advised both by the chief magistrate and by the chief clerk on a number of occasions of his right to give evidence and to call witnesses, then intimated that he might want to call Mr. Sindel at a later stage and the chief magistrate said that he could.

On October 28 after the chief magistrate had ruled against the submission that there was no case to answer, counsel for Mr. Robertson asked for an adjournment for some weeks, so that his instructing solicitors could investigate the section 249 proceedings and decide to what extent they either could or would rely on section 177 of the Crimes Act 1900. The appellant adopted this argument and also asked for an adjournment. Mr. Durand then submitted that the evidence taken in the section 249 proceedings was not admissible in evidence and said that he had strict instructions not to introduce it in evidence in the English proceedings. He said, according to the affidavit sworn by Mr. Hines, the chief clerk of Bow Street Magistrate's Court, that he was prepared to supply a copy of the evidence given by Mr. Robertson to his counsel for his eyes only and a copy of the appellant's evidence to him personally. Why Mr. Robertson should not have been allowed to see a copy of the evidence he had given was not explained.

In the course of his argument in this House, Mr. Durand said that, as counsel for Mr. Robertson had not accepted his offer to show him a copy of Mr. Robertson's evidence on a counsel to counsel basis, he had not provided a copy of the appellant's evidence for him to see. On being referred to Mr. Hines' affidavit he recognised that his recollection was wrong and he accepted that what was stated in the chief clerk's affidavit was correct. That says that the chief clerk was on October 28 handed a copy of the section 249 proceedings by Mr. Durand and that the chief clerk then handed it to the appellant. The appellant in an affidavit sworn on November 11, 1974, stated that part of what was handed to him was part of the section 249 proceedings relating to Mr. Robertson but that this error was remedied

after he was committed. He made no complaint to the chief clerk that he had not received the full record of his examination under section 249. If he had done so, no doubt the error would have been remedied then. If he was given part of the proceedings relating to Mr. Robertson, that does not mean that he was not given a complete transcript of the proceedings relating to him and in his affidavit he does not say that he did not receive a complete transcript.

After these copies had been handed over counsel for Mr. Robertson said his client did not wish to give evidence or to call witnesses. The appellant then asked for an adjournment of indefinite duration to call witnesses from Australia. The chief magistrate pointed out that the appellant did not have his witnesses at the court although he had been given ample opportunity to have them there. The appellant's application was refused. The appellant then said he did not wish to give evidence.

The chief magistrate then committed him and Mr. Robertson into custody to await their return to Australia. Mr. Durand then said he was prepared to provide the appellant and Mr. Robertson with a transcript of all the section 249 proceedings " ... in order to assist them in any habeas corpus application which they might wish to make in the High Court."

Applications on behalf of the appellant and Mr. Robertson for writs of habeas corpus were made to the Divisional Court on a number of grounds. These applications were rejected, and the appellant now appeals with the leave of this House on the ground, and only on the ground, that the failure to supply him with a transcript of his examination under section 249 in sufficient time to enable him to decide whether or not to contend and to seek to establish before the chief magistrate that he was entitled to rely on section 177 of the Crimes Act 1900 as a bar to his committal on the three charges preferred under section 173 of that Act was a denial of natural justice of such a character as to render it unjust or oppressive to commit him to return to Australia to face those charges.

This contention was rejected and in my opinion rightly rejected by the Divisional Court. Lord Widgery C.J. in the course of his judgment, with which the other members of the court agreed, said that no complaint could be made of the chief magistrate's conduct. In my opinion that is clearly the case. The appellant's contention is based, and solely based, on the conduct of Mr. Durand.

When on October 24 the appellant first referred to section 177, it may be that Mr. Durand thought that he was being asked to put the transcript of the appellant's examination under section 249 in evidence as part of the prosecution's case. He was fully entitled to refuse to do so. I do not, I must confess, find it easy to understand why, if he was prepared to supply the appellant with a transcript on October 28, he should have refused to do so on October 24, but the explanation may be that he was not then asked to supply a transcript to the appellant but only to put it in evidence, or, if he was then asked to supply a copy, that he did not understand that to be the request made to him.

However that may be, in my opinion the fact that on October 24 the appellant was not supplied with a copy of his section 249 examination does not suffice to constitute a denial of natural justice. This is not a case where there has been a failure on the part of the prosecution to disclose the name of a witness who has made a statement which might help the defence. The appellant cannot have forgotten his examination under section 249, though he may well have forgotten what he then said. It cannot have escaped notice that section 177 might possibly apply and there was nothing to stop

him or his advisers from asking to be supplied with a copy of the transcript long before the penultimate day of the lengthy hearing before the chief magistrate.

For these reasons I do not regard the refusal of Mr. Durand to supply a transcript to him on October 24, if in fact one was asked for then, as constituting a denial of natural justice.

Furthermore, the production of that transcript would not, whatever its contents, suffice to show that section 177 applied.

That section appears to be modelled on section 85 of the Larceny Act 1861. Section 43 (2) of the Larceny Act 1916 also appears to be modelled on section 85. Section 43 (2) is in the following terms:

"No person shall be liable to be convicted of any offence against sections 6, 7 (1), 20, 21 and 22 of this Act upon any evidence whatever in respect of any act done by him, if at any time previously to his being charged with such offence he has first disclosed such act on oath, in consequence of any compulsory process of any court of law or equity in any action, suit, or proceeding which has been bona fide instituted by any person aggrieved."

There are some differences in language between section 85 and section 43 (2) on the one hand, and section 177 on the other. Sections 85 and 43 (2) enact that "No person shall be liable to be convicted... ." Section 177 begins with the words: "No person shall be convicted... ." Sections 85 and 43 (2) have the words " ... upon any evidence whatever in respect of any act done by him, ..." Section 177 does not contain the words "upon any evidence whatever."

In my opinion these differences in language do not lead to any difference in meaning. Each section operates as a bar to conviction for an offence specified in the section, in sections 85 and 43 (2) in respect of "any act done by him" and in section 177 in respect of "any act or omission by him." If he has first disclosed in an examination to which the section applies such act, or, in the case of section 177, such act or omission, on oath, then the section operates as a bar to conviction even if the evidence for the prosecution is wholly independent of the accused's statements in the course of his examination.

Section 43 (3) of the Larceny Act 1916 makes a statement or admission made in the compulsory examination in bankruptcy inadmissible in evidence in proceedings for certain offences against its maker.

When considering this matter the Criminal Law Revision Committee in its Eighth Report on Theft and Related Offences (1966) (Cmnd. 2977) said (para. 203):

"... the choice is, between giving the offender immunity from criminal liability, as under [the Larceny Act] 1916, section 43 (2), and merely making his statement or admission inadmissible in evidence against him in the criminal proceedings under section 43 (3)."

In their view the right course was to make the statement or admission inadmissible against the maker in criminal proceedings (para. 204). Effect appears to have been given to their view in section 31 of the Theft Act 1968, which repealed the Larceny Acts 1861 and 1916.

Mr. Durand contended that the offences with which the appellant was charged under section 173 were offences in respect of his acts in misapplying specific sums of money. He further contended that the transcript of the

appellant's evidence did not contain any disclosure by the appellant that he had misapplied those sums and he drew attention to a number of answers given by the appellant in which he asserted that the sums had been applied for a legitimate purpose.

Mr. Price, on the other hand, contended for the appellant that that was too narrow a construction to place on section 177. He submitted that it applied if the appellant had first disclosed acts done by him which it was necessary for the prosecution to establish. He further contended that the transcript did contain statements by the appellant admitting misapplication by him.

Detailed examination of the transcript of evidence would be necessary to determine whether or not it contained any admissions by the appellant of misapplication. I am unable to accept Mr. Price's argument for I think that the fact that the section says "such act," referring back to the act in respect of which the offence is charged, supports Mr. Durand's contention. I find support for this in the observations of Avory J. in Rex v. Tuttle (1929) 21 Cr.App.R. 85, a decision on section 85 of the Larceny Act 1861, when he indicated, at p. 90, that the act which had to be disclosed for the section to apply was the " ... act which rendered him liable to be charged with a criminal offence, ..."

Even if in his examination the appellant had admitted that he had misapplied the sums, the subject of the charges under section 173, it does not follow that he could rely on section 177, for to do so he would have had to establish that what he had admitted was not already known. In Reg. v. Skeen and Freeman (1859) 8 Cox C.C. 143, the defendants sought to rely on the proviso to section 6 of 5 & 6 Vict. c. 39:

"... that ... no agent ... shall be liable to be convicted by any evidence whatsoever in respect of any act done by him, if he shall, at any time previously to his being indicted for such offence, ... have disclosed the same in any examination or deposition before any commissioner of bankrupt."

They had been examined in bankruptcy after having been committed for trial and the evidence on which they were committed covered the same ground as their statements in their examination. The majority of the judges, 9 out of 14, held that stating what was already known was not disclosure within the section.

In Reg. v. Gunnell (1886)16 Cox C.C. 154, a case decided on section 85 of the Larceny Act 1861, Lord Coleridge C.J. said, at p. 157: "I am disposed to think that the word 'disclosed' is rightly interpreted to mean the making known that which before was not known." And in Foster v. Federal Commissioner of Taxation (1951) 82 C.L.R. 606, 614-615, an Australian case, Latham C.J. expressed the opinion that disclosure consisted of revealing or making apparent that which was previously unknown.

The inclusion in section 85 of the Larceny Act 1861, in section 43 (2) of the Larceny Act 1916 and in section 177 of the Crimes Act 1900 of the requirement that the act or omission must be "first disclosed" reinforces the view that for section 177 to apply that which was admitted in the course of the compulsory examination must not be something already known.

Neither in the magistrates' court nor in the Divisional Court did the appellant make any attempt to establish that what he said in the course of his examination was not already known to the authorities. In an affidavit sworn before the hearing in this House he, however, swore that the matters he deposed to in his examination he was disclosing for the first time. But

disclosure by the appellant for the first time does not suffice to make section 177 apply.

Further, it does not follow, even if the appellant could rely on section 177 as an answer to the charges under section 173 at his trial, that he could do so in the committal proceedings in Bow Street. The functions and powers of a magistrate in committal proceedings under the Fugitive Offenders Act 1967 are, as they were in the Fugitive Offenders Act 1881 and are in the Extradition Act 1870, closely defined in the statute. He has the like jurisdiction and powers, as nearly as maybe, as a magistrates' court acting as examining justices (section 7 (2)). He has to be satisfied by evidence that the offence for which the committal is sought is a relevant offence (section 7 (5)) as defined in section 3 (1). He must be satisfied that the act or omission constituting the offence, or the equivalent act or omission, would constitute an offence against the law in the United Kingdom if it took place within the United Kingdom (section 3 (1) (c)). If that is not the case a committal will be quashed (see Reg. v. Governor of Brixton Prison, Ex parte Rush [1969] 1 W.L.R. 165). He has to be satisfied that the evidence adduced would be sufficient to warrant the trial of the fugitive for the relevant offence if it had been committed within the jurisdiction of the court.

In deciding whether the evidence would be sufficient to warrant trial if the offence had been so committed, a magistrate will have regard to the law of England. The language of section S of the Fugitive Offenders Act 1881 is more explicit as to this. Evidence produced had under that Act to be such as

"... according to the law ordinarily administered by the magistrate, raises a strong or probable presumption that the fugitive committed the offence . . ."

If it had been intended by Parliament to require a magistrate acting under the Act of 1967 to have regard to Commonwealth provisions such as section 177 when deciding whether or not to commit, I would have expected that to have been made explicit. There is no provision ~similar to section 177 now in English law. What the magistrate is required to decide is whether the evidence is sufficient to warrant trial if the offence had been committed within his jurisdiction, not to have regard to Commonwealth statutes other than those relating to the offence charged and not to have regard to whether the trial would lead to conviction in the Commonwealth territory.

If the magistrate is satisfied that the evidence warrants trial, he must - subsection 7 (5) is mandatory - unless committal is prohibited by any other provisions of the Act, commit the fugitive in custody to await extradition. Section 4 prohibits his return in certain circumstances. If he would, if charged with a United Kingdom offence, be entitled to be discharged on a plea of autrefois convict or autrefois acquit then he cannot be returned (section 4 (2)). This is the only plea in bar to which the Act refers and that is in my opinion significant and indicates that it is the only plea in bar to which the magistrate can have regard.

The magistrate is not by the Act given power to refuse to commit on account of the triviality of the offence or because of the length of time that has passed since the offence was alleged to have been committed, or because he thinks that the accusation against the fugitive is not made in good faith. Jurisdiction to consider such matters is given by section 8 (3) to the High Court in habeas corpus proceedings &nd that court can on those grounds discharge the fugitive from custody if it appears to the court that it would,

having regard to all the circumstances, be unjust or oppressive to return him.

A similar dichotomy of functions is to be found in the Extradition Act 1870 and the Fugitive Offenders Act 1881.

In the course of the argument the question was posed: could not the magistrate refuse to commit if in the course of the proceedings before him it became clear beyond doubt that in the Commonwealth country owing to a provision of the Commonwealth country's law the fugitive could not be convicted? If that did become clear, then one would not expect a Commonwealth government to continue with its application. But, should it do so, then I do not see that the Act contains any provision enabling the magistrate to discharge the fugitive on that account. It may be that under its inherent jurisdiction, which is preserved by section 8 (3), the High Court could do so, but section S says that if the magistrate considers there is sufficient evidence to warrant trial, he shall commit.

As I see it, the policy of the Act is to avoid imposing on the magistrate the burden of having to deal with maybe very difficult questions of Commonwealth law. The Act only requires him to decide whether the evidence suffices to warrant trial if the offence had been committed within his jurisdiction.

If this be right, then in this case the chief magistrate was bound by section 7 (5) to commit the appellant once he came to the conclusion that the evidence sufficed to warrant his trial, without regard to whether section 177 could operate as a bar to his conviction for offences under section 173.

In my opinion, for the reasons I have stated, there is no ground for saying that Mr. Durand's conduct led to a denial of natural justice to the appellant; production of the transcript of his examination under section 249 would not have sufficed to entitle him to rely on that section; and the chief magistrate would not have had power to refuse to commit him on account of section 177.

In my opinion this appeal should be dismissed.

LORD SIMON OF GLAISDALE. My Lords, I had the advantage of reading in draft the speech which has just been delivered by my noble and learned friend, Lord Wilberforce. I agree with it; and for the reasons which he gives I would dismiss the appeal.

I have also had the advantage of reading the speech prepared by my noble and learned friend, Viscount Dilhorne. I agree with his construction of the Fugitive Offenders Act 1967. But I prefer to indicate no view on section 177 of the Crimes Act 1900, since this has now no counterpart in English law.

LORD EDMUND-DAVIES. My Lords, I have had the advantage of reading the speech prepared by my noble and learned friend, Lord Wilberforce, and, for the reasons he gives, I would also dismiss the appeal.

As a member of the Appeal Committee which granted leave to appeal, I would only add that, had the course of events before, during and after the extradition proceedings before the learned chief magistrate been made clear to us when the application for leave to appeal was being heard, for my part I would have refused leave. But it was not, and accordingly I shared the concern expressed in the Divisional Court by Lord Widgery C.J.:

"... whether the failure to show the defendants their section 249 statements was such a denial of natural justice as to require us to delete from the list of charges upon which this extradition is sought those

which come under section 173 and thus potentially might have been protected by section 177."

However, in the light of the further and more correct information adduced before this House as to what really transpired, that concern has been completely dispersed, and I entertain no doubt that the proper outcome of this appeal is that it must stand dismissed.

LORD FRASER OF TULLYBELTON. My Lords, I have had the advantage of reading the speech prepared by my noble and learned friend, Lord Wilberforce, and, for the reasons given by him, I would dismiss the appeal.

Solicitors: Jeffrey Gordon & Co.; Coward Chance Treasury Solicitor; Director of Public Prosecutions.

M. G.