Laurent v Williams ((1963 - 1964) Z and NRLR 4) [1963] ZMHCNR 1 (27 April 1963)

LAURENT v WILLIAMS (1963 - 1964) Z and NRLR 4 1963 - 1964 Z and NRLR p4 In the mater of WILLIAM HENRY LAURENT (Applicant) and PETER WILLIAMS (Respondent) and in the mater of an Applica�on for an Order of Habeas Corpus ad Subjiciendum. [Before the Honourable the Ac�ng Chief Jus�ce, Mr. Jus�ce BLAGDEN on the 25th, 26th and 27th April, 1963.] Flynote Applica�on an order of habeas corpus - legality of arrest - proceedings under the Fugi�ve Offenders Act, 1881 - Order 59 of the Rules of the Supreme Court - sec�on 22 (g) of the Criminal Procedure Code, Cap. 7. Headnote A warrant was issued for the arrest of Laurent by the Chief Magistrate for Southern Rhodesia and the Northern Rhodesia Police were so informed. An officer of the Northern Rhodesia Police although not in possession of the warrant, proceeded to arrest Laurent. It was alleged that this arrest was illegal and Laurent should be released. Held: As the officer had reasonable grounds to suspect that Laurent had been concerned in an act commited outside Northern Rhodesia which if it had been commited inside the territory would have been punishable as an offence, and also the offence was one for which he was liable in terms of the Fugi�ve Offenders Act, 1881, to be apprehended and detained, the arrest was lawful. Writ discharged. Case cited: Christie v Leachinsky [1947] 1 All ER 567. C J I Cunningham for the applicant D W Levett - Yeats, Acting Director of Public Prosecutions for the respondent Judgment Blagden J: This judgment is in respect of proceedings for the issue of a writ of habeas corpus ad subjiciendum. The short history of the mater is as follows. On the morning of 24th April, 1963, a signal was received by the police in Lusaka to the effect that a warrant for the arrest of the applicant for forgery and utering had been issued by the Chief Magistrate of Southern Rhodesia in Salisbury. The signal contained informa�on to assist in the iden�fica�on of the applicant. At about 3.30 p.m. on the same day Assistant Inspector Rufus arrested the applicant. The circumstances under which this arrest were made are the subject of affidavits made by Mrs. Laurent, the applicant's wife; Inspector Rufus; the applicant himself; and a further affidavit by Rufus. There is some conflict between them. Some �me a�er the arrest Mr. Cunningham was instructed to act on behalf of the applicant. As a result of the instruc�ons he received, Mr. Cunningham came to the conclusion that the applicant's arrest was 1963 - 1964 Z and NRLR p5 BLAGDEN J unlawful. He communicated the police and informed them that if the applicant was not released he would make applica�on for leave to issue a writ of habeas corpus. The applicant was not released, and at about 3.30 p.m. on 25th April, 1963, he was taken to the resident magistrate's court. He was not, however, brought before the magistrate but was lodged in a cell at the court. While he was there applica�on was made to the ac�ng senior resident magistrate for the issue of a provisional warrant under sec�on 16 of the Fugi�ve Offenders Act, 1881. This warrant was issued. It contains a patent defect on its face in that it refers to sec�on 16 of the Colonial Prisoners Removal Order in Council, 1907. There is no such provision. But so far as this applica�on is concerned nothing turns on this error. Contemporaneously with these proceedings before the ac�ng senior resident magistrate, Mr. Cunningham made applica�on to me ex parte for a writ of habeas corpus. This was following the procedure laid down by Rules of the Supreme Court, Order 59, rule 14 (a), applicable here by reason of sec�on 10 of the High Court Ordinance, Cap. 3. At this stage of the proceedings the only affidavit in support of Mr. Cunningham's applica�on was the affidavit by the applicant's wife, Mrs. Laurent, who was present at his arrest. Paragraphs 6 and 7 of her affidavit read as follows: 6. That at approximately 3.30 p.m. on Wednesday the 24th day of April 1963 I was at 29 Church Road aforesaid when two men, one in the uniform of the Northern Rhodesia Police and another in plain clothes arrived at the said address and my said husband arrived a few moments later, whereupon the man who held himself out to be a Criminal Inves�ga�on Department Officer of the Northern Rhodesia Police showed a warrant card of iden�ty and therea�er administered words of cau�on and men�oned the words " forgery and utering " without iden�fying any date or specifying any par�cular place or alleging any par�cular person who had been defrauded or deceived. Thereupon my said husband was arrested and taken away by the police without any warrant for his arrest having been shown to him. 7. That I am advised by the legal prac��oner ac�ng on behalf of my said husband Colin J I Cunningham that he has been informed by Keith Young a member of the Criminal Inves�ga�on Department sta�oned at Church Road Lusaka aforesaid that a telegraphic warrant has been received from the police at Salisbury but that the said warrant has not been endorsed by any magistrate within whose jurisdic�on my said husband has been arrested and notwithstanding the fact of his arrest on the said 24th day of April 1963 my said husband has not been brought before any Court in Northern Rhodesia. Prima facie it appeared that the applicant had been arrested on the authority of the signal from Salisbury, and on the basis that that signal was a warrant of sufficient authority to jus�fy the arrest. The signal was, of course, in no sense a warrant and there is no such thing as a 1963 - 1964 Z and NRLR p6 BLAGDEN J "telegraphic warrant". I accordingly made an order that a writ - or as it was expressed in the order, an order - of habeas corpus should issue directed to the respondent, Assistant Superintendent Williams, who, as officer in charge Lusaka Central Police Sta�on, had the applicant in his custody, requiring him to have the body of the applicant brought before a judge immediately a�er receipt of the writ. The respondent made a return of the writ in accordance with Order 59, rule 22, sta�ng that the applicant's arrest on the 24th April, 1963, by Inspector Rufus, had been made without warrant under the provisions of sec�on 22 (g) of the Criminal Procedure Code; and further that on the 25th April, 1963, the Ac�ng Senior Resident Magistrate, Lusaka, had issued a provisional warrant for the applicant's arrest under sec�on 16 of the Fugi�ve Offenders Act, 1881, but that that warrant had not been executed pending the hearing of the habeas corpus proceedings. For the Crown Mr. Levet - Yeats took the preliminary point that the applicant was in default of the provisions of Order 59, rule 15, which is in the following terms: 15. The applica�on may be made ex parte and shall be accompanied by an affidavit by the person restrained showing that it is made at his instance and se�ng out the nature of the restraint: Provided that where the person restrained is unable owing to the restraint to make the affidavit the applica�on shall be accompanied by an affidavit to the like effect made by some other person which shall state that the person restrained is unable to make the affidavit himself. I think there was some substance in this objec�on. The applicant had not made an affidavit and neither in his wife's affidavit nor in Mr. Cunningham's subsequent affidavit was there the specific statement that the applicant was unable to make the affidavit himself, although I think it would be fair to say that the inference was there. I could not agree, however, with Mr. Levet - Yeats' submission that this was fatal to the applica�on. The mater was capable of remedy. I think it would be en�rely contrary to the spirit of the remedy of habeas corpus to allow it to be defeated by any irregularity of procedure which was capable of remedy without prejudice to the other side. The remedy, of course, was to allow the applicant to swear to the required affidavit. Mr. Cunningham gave an undertaking that this would be done, and Mr. Levet - Yeats agreed to the hearing being con�nued on that undertaking. Subsequently he himself asked leave to file a number of further affidavits. Mr. Levet - Yeats also took objec�on to Mr. Cunningham, as counsel in the case, himself swearing an affidavit. There was no substance in this objec�on in the circumstances of the case. For the applicant, Mr. Cunningham correctly submited that the applicant's arrest was not carried out under any lawful warrant. If the applicant's arrest was lawful, it was lawful by virtue of the provisions of sec�on 22 (g) of the Criminal Procedure Code and nothing else. This sec�on provides that - 1963 - 1964 Z and NRLR p7 BLAGDEN J 22. Any police officer may, without an order from a magistrate and without a warrant, arrest - (g) any person whom he suspects, upon reasonable grounds, of having been concerned in any act commited at any place out of the Territory which, if commited in the Territory, would have been punishable as an offence, and for which he is, under the Extradi�on and Fugi�ve Offenders Ordinance, or otherwise, liable to be apprehended and detained in the Territory; Now, was the applicant's arrest an arrest without warrant under this provision or not? According to the affidavit of the applicant, who had been in court and heard all the proceedings and arguments before me from the �me I adjourned the mater into open court, Inspector Rufus, a�er iden�fying himself by his police warrant card, told the applicant that he had a telegraphic warrant for his arrest from Salisbury on a charge of forgery and utering. If Inspector Rufus truly said this, it was tantamount to his informing the applicant that he was arres�ng him on warrant, whereas, in fact, he had no lawful warrant by which to arrest him. I cannot accept Mr. Levet - Yeats' submission that notwithstanding a reference to a non-existent warrant an arrest would be lawful if in other respects it complied with the provisions of sec�on 22 (g) of the Criminal Procedure Code. I would be reluctant to hold that an arrest could be lawful when it was brought about by such a fundamental deceit. It would be contrary to the principle of the decision in Christie v Leachinsky [1947] 1 All ER 567 to which reference has been made on several occasions during the course of these proceedings. The applicant was en�tled to be told, and truthfully told, why he was being arrested. That requirement would not be met by his being told he was being arrested under warrant when, in fact, there was no warrant. The affidavit of the applicant's wife does not really assist in deciding whether Rufus used words indica�ng that he was arres�ng the applicant under any form of warrant. It is true that she, in paragraph 7 of her affidavit, does make use of the expression " telegraphic warrant ", but this was in connexion with some informa�on she received from Mr. Cunningham. Inspector Rufus, who was allowed to swear a further affidavit so as to give him an opportunity to answer this point, has categorically denied that he used the words " telegraphic warrant " at any �me during the conversa�on which ensued whilst he arrested the applicant. I have given this mater careful considera�on and I accept Inspector Rufus' affidavit evidence that he never used these words. In making his arrest Inspector Rufus relied on the informa�on supplied in the wire from Salisbury. This signal contained these words: . . . warrant of apprehension issued by Mr. Arnold Marson Chief Magistrate for the Colony of Southern Rhodesia for William Henry Laurent subject of cheque fraud and forgery and utering which occurred Salisbury between 18.3.63 - 11.4.63 . . . It went on to give a descrip�on of the applicant and a reference to a special supplement of the Bri�sh South Africa Police Gazette, to which, of course, the Lusaka Police had access, wherein further informa�on regarding the applicant, and his photograph, was available. 1963 - 1964 Z and NRLR p8 BLAGDEN J On the strength of this informa�on I am sa�sfied that Inspector Rufus did have reasonable grounds to suspect that the applicant had been concerned in an act commited outside Northern Rhodesia which if it had been commited in Northern Rhodesia would have been punishable as an offence. This is the principal requirement of sec�on 22 (g) of the Criminal Procedure Code. The remaining requirement is that the offence is one for which the applicant is " under the Extradi�on and Fugi�ve Offenders Ordinance, or otherwise, liable to be apprehended and detained " in Northern Rhodesia. The Extradi�on and Fugi�ve Offenders Ordinance, Cap. 10, would not be applicable to the present case, but the words " or otherwise " are wide and would cover the applica�on of the Fugi�ve Offenders Act, 1881. Clearly forgery and utering are offences in respect of which the applicant would be liable to be apprehended and detained under that Act. It follows that I am sa�sfied that it was lawful to make the arrest and this would be so even if the officer making the arrest was not precisely aware of the provisions of sec�on 22 (g) of the Criminal Procedure Code. That may have been the case here. But all that Inspector Rufus had to do here was to make his arrest in accordance with sec�on 15 (1) of the Criminal Procedure Code and, because he had no warrant, explain to the applicant the true ground of his arrest, and my finding on the affidavit evidence is that that is what he did. It follows that I find the applicant was lawfully arrested. The writ must be discharged and the applicant remanded in custody pending further proceedings.