Lord Thankerton:-

On 24th March 1943, the Chief Justice of Palestine, sitting alone as the Court of Criminal Assize at Haifa, convicted the appellant of murder contrary to S. 214 (b), Criminal Code Ordinance, 1936, and sentenced him to death. An appeal by the appellant was dismissed on 17th April 1943, by the Supreme Court of Palestine, sitting as the Court of Criminal Appeal, and the appellant, by special leave, now appeals against that judgment. Mr. Beyfus, in his full and able argument on behalf of the appellant, conveniently submitted his contentions under two heads, viz., those which challenged the constitution of the Court of Criminal Assize by which the appellant was tried, and those which alleged grave impropriety in the course of the trial. As regards the constitution of the trial Court, the Chief Justice sat alone by virtue of Regulation No. 8 of the Palestine Defence (Judicial) (Regulations (No. 2), 1942, which provided as follows:

"3. Whenever the Chief Justice considers it expedient so to do he may, either generally or for the hearing of any particular case, direct that the Court of Criminal Assize shall consist of the Chief Justice or a British puisne judge, sitting alone, or with any one or more judge or judges of the Supreme Court, or with a president, or relieving president, or any one or more Palestinian judge or judges, of the District Court."

At the date of making these regulations, the constitution of the Court of Criminal Assize was prescribed by S. 10, Courts Ordinance, 1940 (no. 31 of 1940), under which, in the absence of any application by the accused, such Court must consist of three judges. No such application was made by the present appellant. Mr. Beyfus submitted that the Court of Criminal Assize was not validly constituted on three grounds, viz., (a) that regulation No. 8. already referred to which was made by the High Commissioner under the powers vested in him by Art. 8 of the Emergency Powers (Colonial Defence) Order in Council 1939, and the Emergency Powers (Defence) Act, 1939, was not within the powers thus vested in him, and was therefore ultra vires of the High Commissioner; (b) that, assuming that regulation No. 3 was intra vires of the High Commissioner, any direction made by the Chief Justice under it fell to be made by the Chief Justice himself, and there was no such direction in the present case, and (c) that, in any event, such a direction was an order within the meaning of S. 7, Palestine Interpretation-Ordinance, 1933 (no. 69 of 1938), which was applied to the Defence (Judicial) Regulations, 1942, by regulation No. 9 thereof, and which required publication in the Gazette before such an order could have the force of law. These submissions were raised for the first time before this Board.

(a) It is unnecessary to refer to the Order in Council of 1939 in detail; it is sufficient to state that its effect was to extend the Emergency Powers (Defence) Act, 1939, to Palestine, and, for present purposes, that the parts of

S. 1 of the Act which are material may be read as originally enacted, with the substitution of the High Commissioner for His Majesty in Council. The material parts of S. l are as follows:

"1.-(1) Subject to the provisions of this section, His Majesty may by Order in Council make such Regulations (in this Act referred to as 'Defence Regulations') as appear to him to be necessary or expedient for securing the public safety, the defence of the realm, the maintenance of public order and the efficient prosecution of any war in which His Majesty may be engaged, and for maintaining supplies and services essential to the life of the community."

(2) .........

(3) Defence Regulations may provide for empowering such authorities, persons or classes of persons as may be specified in the Regulations to make orders, rules and byelaws for any of the purposes for which such Regulations are authorised by this Act to be made, and may contain such incidental and supplementary provisions, as appear to