Collis v Smith [1909] HCA 53; (1909) 9 CLR 490 (25 August 1909)

HIGH COURT OF AUSTRALIA

Collis Appellant and Smith Respondent.

H C of A

On appeal from the Supreme Court of New South Wales.

25 August 1909

Griffith C.J., Barton, O'Connor, andIsaacs JJ.

Brissenden, for the appellant:

Wise K.C. (Perry with him), for the respondent.

Brissenden, in reply.

Wise K.C.,

Aug. 25th

Griffith C.J.

The jurisdiction of the magistrate in this case to commit the fugitive to prison depends, under sec. 5 of the Fugitive Offenders Act 1881, upon whether the evidence adduced to him raises, according to the law ordinarily administered by him, a strong or probable presumption that the fugitive has committed the offence mentioned in the warrant. If the evidence did not disclose such a case, then he had no jurisdiction to make the order of committal.

The Supreme Court, on an application for a writ of habeas corpus, is bound to examine the evidence in order to see whether it discloses such a case or not.

In the present case the Supreme Court, having the evidence before it, examined it. There is no conflict of fact. The facts are admitted. But whether the fugitive had committed any offence or not depends upon an inference of fact which must be drawn by a jury. One jury might find that that additional fact does not exist, another perhaps might think that it does. Now supposing a case of this sort, arising in New South Wales, had been left to a jury and the jury had convicted, and on appeal the Supreme Court had held that there was no evidence to go to the jury, and quashed the conviction, it is quite clear that in such a case this Court would refuse special leave to appeal, on the principle laid down by the Privy Council in many cases, and followed by this Court, particularly in Bataillard v. The King[1] and McGee v. The King[2], where reference was made to In re Dillet[3] and other English cases; and the principle was again affirmed quite recently by the Privy Council in Tshingumuzi v. The Attorney-General of Natal[4]. This Court never grants special leave to appeal in criminal cases upon questions of fact. There is also an abstract question of law, which, it is suggested, might arise if the fugitive were sent back to Cape Colony and convicted. What would be the decision of that abstract question of law by the Supreme Court of Cape Colony I do not know. It would be much more satisfactory that the Court of Cape Colony should determine it than that we should do so.

In my opinion the case falls within the rule that this Court will not grant special leave to appeal in criminal cases upon a mere question of fact, and the motion for special leave should, therefore, be dismissed.

Barton J.,

O'Connor J., and

Isaacs J.

concurred.

Special leave refused.

Solicitor, for the appellant, J. V. Tillett, Crown Solicitor for New South Wales.

Solicitor, for the respondent, E. R. Abigail.

[1] [1907] HCA 17; 4 C.L.R., 1282.

[2] [1907] HCA 16; 4 C.L.R., 1453.

[3] 12 App. Cas., 459.

[4] (1908) A.C., 248.