PUBLIC RECORD OFFICE
Reference :-
C.O. 885
4
PUBLIC RECORD OFFICE, LONDON
ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC- COPYRIGHT PHOTOGRAPH-NOT TO
D
30
Inclosure 6 in No. 7.
Chief Justice's Chambers, May 1, 1865:
Sir,
I FORWARD, for his Excellency's consideration, and should it meet his approval, for the consideration of the Legislative Council, the draft of a Bill for consolidating and amending the Statute Laws and Ordinances relating to criminal offences.
In consequence of the omission to adopt the provisions of the Statute 9 and 10 Vict., c. 24, s. 1, previously to the enactment, in the year 1860, of the Ordinance 24 Vict. 1, s. 2 (analogous to the Statute 20 and 21 Vict., c. 3, s. 2), the Court is frequently obliged to pronounce a sentence of hard labour instead of penal servitude, the minimum term of penal servitude prescribed in many cases exceeding seven years. In these cases the limited term of hard labour is frequently an inadequate punishment for the offender, while the minimum term of penal servitude would be an excessive sentence. In many cases the Court has to elect either to award a term of ten, and in some instances fifteen years penal servitude, or to sentence the prisoner to imprisonment with hard labour for a term not exceeding three years.
Under these circumstances I deem it necessary to suggest to his Excellency the expediency of amending the law, and I submit that it is a fitting opportunity to apply to our Criminal Code the many material improvements effected in England by the passing of the Criminal Statutes Consolidation Acts of 1861.
By the proposed Ordinance we shall have consolidated in an amended form, in six Imperial Acts, enactments now in force in this Colony and to be found only on reference to Acts scattered through the Statute Books of England.
While, however, adopting and extending to this Colony the provisions of the Criminal Statute Consolidation Acts, it has forcibly occurred to me that, under the 、peculiar state of things in this Colony, his Excellency would not deem it an act of policy to adopt, without exception, the punishments which have been prescribed by those Acts. I have therefore, in assimilating our law for the punishment of offenders with that of England, excepted the 11th and 48th sections of the Statute, 24 and 25 Vict., c. 100, for the purpose of retaining as at present, in the category of capital offences punishable with death, the under-mentioned heinous crimes, viz. :—
1. Administering poison, or wounding with intent to murder.
1
2. Rape.
3. Burglary with violence.
I have, further, excepted the 3rd section of the same Statute to avoid the necessity, which would otherwise be imposed, of burying the body of any person executed for murder within the precincts of the prison in which he shall have been last confined after conviction.
The provisons of the Ordinance for suppression of violent crimes committed by convicts illegally at large, 17, Vict. 7, are in no way altered by this proposed Ordinance. Connected with the subject of our criminal jurisdiction in cases of larceny, there is a point of some importance to which I solicit his Excellency's attention. The proximity of Her Majesty's several possessions on the continent of Australia, each exercising an independent legislation, renders it desirable that jurisdiction should be conferred by the Imperial Parliament, in reference to these Colonics, similar to the jurisdiction given by the 114th section of the 24th and 25th Vict., cap. 96, with respect to the United Kingdom.
A person in this Colony receiving property stolen and sent to him from another Colony, such person knowing such property to have been stolen in another Colony, cannot be dealt with and punished in this Colony, the original taking not being an offence of which the Courts of Western Australia can take cognizance. Not long since, a quantity of jewellery stolen at Melbourne was found in the possession of accessories at Fremantle, to whom the property had been forwarded by the stealers to be disposed of. The offenders went unpunished.
A like inconvenience formerly experienced in the United Kingdom where the original taking was in Scotland or Ireland, gave rise to the enactment of the 13 Geo. III, c. 31, s. 5, and such enactment, repealed by 7 and 8 Geo. IV, c. 27, and re-enacted by 7 and 8 Geo. IV, c. 29, s. 76, now constitutes, on the repeal of the last-named statute, the 114th section of 24 and 25 Vict., c. 96.
These provisions, however, being beyond the scope of Colonial legislation, will not extend to the Colony by the adoption by the local Legislature of the statute of 24 and 25 Vict., c. 96.
Perhaps Her Majesty's Government may deem this subject, affecting as it does the several Colonies in Australia, of sufficient importance to warrant an application to
31
Parliament. I respectfully suggest that the object should be attained by the passing by the Imperial Parliament of a statute such as set forth in the draft herewith, or by an enabling statute. This latter course was recently pursued in a parallel case by the passing of the 23 and 24 Vict., c. 122.
The Hon. the Colonial Secretary,
Western Australia,
<
I have, &c.
(Signed)
ARCHD. PAULL BURT.
Inclosure 7 in No. 7.
Draft Bill by Chief Justice of Western Australia.
Act for the more effectual execution of the Laws for the Suppression of Larceny in
the several Australian Colonies.
WHEREAS it frequently happens in Her Majesty's Colonies in Australia that Preamble. persons, having stolen or otherwise feloniously taken chattels, money, valuable security, and other property in one Colony, carry or transmit the same to another Colony, and there have the same property in their possession or in the possession of accessories, and doubts are entertained whether such offenders can be indicted and tried in the Colony in hich they are found with such property: Be it, therefore, enacted by the Queen's most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows:-
1. If any person shall have in his possession, in any one of Her Majesty's Colonics Stealers of property already or hereafter established in Australasia, any chattel, money, valuable security, or in one Colony, who other property whatsoever, which he shall have stolen or otherwise feloniously taken in shall have such property in any any other of Her Majesty's possessions for the time being in Australasia, he may be other Colony of dealt with, indicted, tried, and punished for larceny or theft in that Colony in Australasia Australasia, may b There he shall so have such property, in the same manner as if he had actually stolen or tried and punished aken it in that Colony; and if any person, in any one of Her Majesty's Colonies in that Colony
ready or hereafter established in Australasia, shall receive or have any chattel, money, have the property. aluable security, or other property whatsoever, which shall have been stolen or otherwise feloniously taken in any other of Her Majesty's possessions for the time being in Australasia, such person knowing such property to have been stolen or otherwise eloniously taken, he may be dealt with, indicted, tried, and punished for such offence in that Colony in Australasia where he shall so receive or have such property, in the
ame manner as if it had been originally stolen or taken in that Colony.
where they may
2. Where any felony shall have been wholly committed within Australasia, the Accessories. fence of any person who shall be an accessory either before or after the fact to any sch felony may be dealt with, inquired of, tried, determined, and punished by any Court which shall have jurisdiction to try the principal felony or any felonies committed any place in which the act, by reason whereof such person shall have become such ccessory, shall have been committed; and in every other case the offence of any person ho shall be an accessory either before or after the fact to any felony may be dealt with, quired of, tried, determined, and punished by any Court which shall have jurisdiction try the principal felony or any felonies committed in any place in which such person all be apprehended or be in custody, whether the principal felony shall have been ommitted on the sea or on the land, or begun on the sea and completed on the land, or egun on the land and completed on the sea, and whether within Her Majesty's dominions without, or partly within Her Majesty's dominions and partly without; provided that person who shall be once duly tried either as an accessory before or after the fact, for a substantive felony, shall be liable to be afterwards prosecuted for the same fence.
3. The term "Australasia" shall signify and include New Zealand and Tasmania, as Interpretation of ell as Australia proper.
term "Australasia.”