1923. April 30. McCawley C.J. [IN THE FULL COURT.] THE KING v. ROBERT RUTLEDGE, Ex parte LAIDLAW. Criminal law-Inquest of death-Refusal of suspected person to take oath or be examined-Committal of such person to prison by Magistrate-Prisoner admitted to bail by Supreme Court Judge -Application for habeas corpus-Discharge of prisoner ordered. A woman died at a private hospital a little while after an illegal operation had been performed on her. L. was summoned as a witness to give evidence at an inquest of death, held by a Magistrate under The Inquests of Death Act of 1886She attended the inquest, but refused to take an oath or to submit herself for examination, on the ground that it appeared from the evidence which had already been given, and from the manner in which the inquest was being conducted, that she was suspected of having caused the death, and that she was likely to be charged with having caused the death. The Magistrate thereupon committed her to prison for an unspecified period. Bail was allowed by a Justice of the Supreme Court, who also granted an order nisi for a writ of habeas corpus to the gaoler. After argument on the motion absolute, counsel for the Crown withdrew all opposition to the discharge of the prisoner, and intimated that she would not be called as a witness before the inquiry. Semble: A witness called to give evidence on the holding of an inquest of death under The Inquests of Death Act of 1868, may refuse to answer questions, the answers to which may tend to incriminate the witness. Semble: The objection to answer on that ground may be taken before the witness is sworn, where it appears that the answer to any relevant question might tend to incriminate. ORDER NISI FOR HABEAS CORPUS. This was an application to the Full Court to make absolute an order nisi for a writ of habeas corpus. The facts were as follows:- 1. On several days in March and April, 1923, an inquest of death was held at Brisbane, by a Police Magistrate, under The Inquests of Death Act of 1866, to enquire into the cause of death of one Maud Barbara Morrison, who died on 22nd February, 1923, at a registered lying-in hospital conducted by the prosecutrix, at Victoria Parade, off Prospect Terrace, Brisbane aforesaid. 2. At the inquest, evidence on oath was given, inter alia, to the following effect: (a) That F. C. Mullett and Maud Barbara Morrison made an agreement with Louisa Laidlaw that she should procure a miscarriage upon Maud Barbara Morrison who was then pregnant in consideration of the payment of £30 by Mullet to Louisa Laidlaw; (b) that in pursuance of the said agreement and for the purpose of enabling Louisa Laidlaw to procure the miscarriage Maud Barbara Morrison entered the lying-in hospital of Louisa Laidlaw as a patient on 19th February, and that she died there on 22nd February, 1923; (c) that Mullett paid to Louisa Laidlaw £30, which was repaid to him after the death of Maud Barbara Morrison, and when the money was repaid, Louisa Laidlaw then asked him to say (if he were questioned by the police) that he had paid her no money and that Maud Barbara Morrison had entered the home on 21st February, and that if he would not do so she might get five years' imprisonment; (d) that Maud Barbara Morrison whilst a patient in the said lying-in hospital informed another woman that Louisa Laidlaw had inserted into her person a long instrument; (e) that the cause of her death, as shown by post-mortem examination was (i.) abortion, (ii) septicemia, and that the condition of the uterus indicated that force had been used by the introduction of some instrument into the uterus. 3. At the inquest Louisa Laidlaw was represented by counsel. 4. After considerable evidence at the inquest had been given, and previously to calling up Louisa Laidlaw to be sworn or to give evidence, the Magistrate in addressing counsel for Louisa Laidlaw, remarked: "Remembering the evidence as I do, I am inclined to think there is a charge against your client," meaning Louisa Laidlaw. 5. After that evidence had been given the Magistrate ordered Louisa Laidlaw to take an oath for the purpose of being examined concerning the subject matter of the inquest-namely, the cause of death of Maud Barbara Morrison. 6. Louisa Laidlaw refused to take an oath or to be examined upon oath concerning the subject matter of the said inquest, upon the grounds following:-That it appeared from the evidence already given and from the manner in which the inquest had been conducted—(a) that she was suspected of having caused the death of Maud Barbara Morrison; (b) that she was likely to be charged with having caused the death of Maud Barbara Morrison; and that therefore she was not bound to make oath as a witness or to give any evidence concerning the subject matter of the said inquest. 7. The Magistrate thereupon issued a warrant of commitment of Louisa Laidlaw, and she was taken to the watchhouse at Brisbane, under the authority of the warrant. The prisoner was released on bail under an order made by F.C. THE KING v. ROBERT F.C. THE KING ?. ROBERT RUTLEDGE, Ex parte LAIDLAW. Shand J., and that learned Judge also granted an order nisi calling on Robert Rutledge, the keeper of the watchhouse at Brisbane, to show cause why a writ of habeas corpus should not issue on the grounds-(1) that the said Louisa Laidlaw was illegally in custody; (2) that the warrant of commitment under which the said Louisa Laidlaw is in custody was invalid as- (a) a Justice holding an inquest of death under The Inquests of Death Act of 1886 has no jurisdiction to compel a person suspected of or likely to be charged with having caused the death of the person the cause of whose death is the subject of such inquest to make oath or to give evidence at the said inquest; (b) that the said Louisa Laidlaw did allege just excuse for her refusal to make oath and to give evidence at the said inquest; (c) that the Police Magistrate had no jurisdiction to commit the said Louisa Laidlaw on the admitted facts; (d) that the said Louisa Laidlaw was admittedly a person suspected of or likely to be charged with having caused the death of the person the cause of whose death was the subject matter of the said inquest; (e) that the said warrant of committal imposes an indefinite term of imprisonment. The respondent filed an affidavit in which he set out: On 20th April, 1923, I received the warrant of commitment (annexed). On the same day, pursuant to the said warrant, I received Louisa Laidlaw into my custody in the said watchhouse. I safely kept the said Louisa Laidlaw in the said prison until there was served on me an order of Mr. Justice Shand. The order granted bail on recognizance to appear at the Full Court, and upon receipt of the said order the said Louisa Laidlaw was forthwith discharged from custody. Neal Macrossan, for the appellant, moved the order absolute. The application raises the question of the power of a Magistrate holding an inquest of death under The Inquests of Death Act of 1866 to compel a person who is suspected of having caused the death which is the subject of inquiry, and who is likely to be charged with having caused that death, to give evidence touching the subject matter of the inquiry. [LUKIN J. Should the objection to give evidence have been made after the witness was sworn?] There is no direct authority on the question. The witness should not be compelled to admit her name, as such admission might furnish evidence of identity which possibly would not otherwise be obtainable. The inquiry was not a judicial inquiry, and if the witness has the right to refuse to give evidence she has the right to refuse to take the oath. The witness attended the inquiry in order to take the objection. He referred to R. v. Colmer (1), R. v. Smith (2). Hert, for the Crown, showed cause. The Coroner's Court was a Court of Record, and a coroner's decision as to whether a witness was bound to answer a question would not be interfered with by a higher court unless a case of fraud were established. It cannot be said that there is any "suspected person" in a Coroner's Court, which merely conducts an inquiry. It was for the Magistrate to decide as to the relevancy or otherwise of a question asked of a witness, and in the absence of fraud his discretion will not be interfered with. The witness must first take the oath and then make his objection. : [LUKIN J. It is hardly a question of the exercise of a discretion. Any question that was relevant to the cause of the death was relevant to the subject matter of the inquiry. It is clear, however, that the objection was bona fidé, and the question is whether the Magistrate under the circumstances had the power to commit the witness. The Magistrate appears to have proceeded on the assumption that he had a right to insist upon the witness being called and answering questions which might be put to her. As Mr. Macrossan has pointed out, the witness by admitting her name might be furnishing some evidence of identity which might tend to incriminate her. A witness need only answer relevant questions, and it is difficult to suggest any question in this case (as, indeed, in most cases) which would be relevant to the inquiry, and which might not tend to incriminate the witness.] At this stage of the argument, counsel for the Crown accepted an intimation from the Court that it was not advisable, under the circumstances, for the Crown to press the claim that the witness should be compelled to submit herself for examination, and he withdrew any opposition to the prisoner's discharge. Per Curiam: The person in custody will be discharged. There will be no order as to costs. Prisoner discharged; no order as to costs. Solicitors for the appellant: D. J. O'Mara & Robinson. Solicitor for the Crown: H. J. H. Henchman, Crown Solicitor. (1) 1864, 9 Cox C.C. 506. (2) 1908, St. R. Qd. 83. F.C. THE KING v. ROBERT 1923. July 17, 19, 23. McCawley C.J. [IN THE FULL COURT.] HANSEN v. JOHNSTON. Liquor Law-Person “found on licensed premises at a time when such licensed premises are required to be closed”- -"Closed" Good Friday-The Liquor Act of 1912 (3 Geo. V., No. 29), 88. 81, 85. Sec. 85 sub-sec. 1 of The Liquor Act of 1912 provides: Every person found on licensed premises at any time when such premises are required by this Act to be closed, shall be liable. . . to a penalty . . . unless in any case he satisfies the Court that he was an inmate, servant, or lodger on such premises, or that otherwise his presence on such premises was not in breach of the provisions of the Act with respect to the closing of licensed premises; and s. 81 sub-sec. 2 of the Act provides: No licensed victualler or wine-seller shall keep his house open for the sale of liquor on Sundays or on Good Friday The respondent was charged before a Licensing Court with being found on licensed premises at a time when such licensed premises were required to be closed-viz., 30th March, 1923, the same being Good Friday. The respondent was not a lodger or an inmate in the licensed premises, and was not a servant of the licensee. The Licensing Court dismissed the complaint on the ground that the complaint disclosed no offence. Held, that the word "closed" in s. 85 sub-sec. 2 had the meaning of closed for the sale of liquor, and that an offence was alleged in the complaint. SPECIAL CASE. This was a special case stated by a Police Magistrate. The respondent was charged under s. 85 of The Liquor Act of 1912, with having been "found on the licensed premises of one Thomas Peter Maher, known as Tattersall's Hotel at a time when such licensed premises were required by The Liquor Act of 1912 to be closed-viz., on 30th March, 1923, the same being Good Friday." The complaint was dismissed. The facts as set out in the special case were:-1. On the case being called on, respondent's solicitor pleaded not guilty, and objected to the complaint on the ground that it disclosed no offence. 2. The appellant stated that he was ready and able to call evidence to show that the respondent was found on the licensed premises on the day charged in the complaint, and that when accosted by |