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Inclosure 8 in No. 7.
Memorandum by Chief Justice on Circular Despatch of December 31, 1870.
IT does not occur to me that it is advisable that the provisions of this Bill should be extended to other offences besides those specified in it.
The Fugitive Offenders Act, 6 and 7 Vic., c. 34, amended by 16 and 17 Vic., c. 118, sufficiently provides for cases, in general, of offenders escaping from one Colony to another. But the suggested enactment is necessary to meet cases not there included, where persons carry on a trade as receivers of goods stolen out of the jurisdiction of the Colony wherein such receivers are found possessed of such goods. In such cases the receivers are amenable to neither the one jurisdiction nor the other. They cannot be tried in the Courts of the Colony wherein they carry on their demoralising trade, nor are they amenable to the Tribunals of the Colony wherein the goods were stolen by others. While necessarily legislating for cases of receivers, it is advisable to include, as does the draft Bill, the cases of stealers of property when they are found in possession of the stolen goods.
On like principle, perhaps (referring to the question submitted in a recent despatch. 6th July, 1870, from the Secretary of State to your Excellency), it may be deemed advisable to provide for the possible case of perjury and false swearing made in affidavits sworn out of the jurisdiction of a Colony where such affidavit is used in any judicial proceedings within such Colony. Such affidavits should not be used with impunity; but the enactinent should not be so general as to render the offence cognizable in Colonies wherein the affidavits are neither sworn nor used.
I think that the enactment suggested by the paragraph of Mr. Lilly's Memorandum would be too general. He writes:—
"Perjury committed by British subjects in any part of the world in affidavits to be used in Courts within Her Majesty's Dominions ought to be made punishable by enact- ment of the Imperial Parliament, when the criminal can be found in any part of the dominions."
ARCHD. PAULL BURT.
March 24, 1871.
(Signed)
Inclosure 9 in No. 7.
Memorandum by Chief Justice on Circular Despatch of February 20, 1871.
IN the year 1865 the Legislative Council passed an Ordinance, adopting the provisions of the Criminal Statutes Consolidation Act of 1861, with the exception of the 11th and 18th sections of the Statute 24 and 25 Vict., c. 100. The exception was made for the purpose of retaining in the category of offences punishable with death the under- mentioned heinous crimes:-
1st. Administering poison or wounding with intent to murder. 2nd. Rape.
3rd. Burglary with violence.
The third section of the same Statute was also excepted to avoid the necessity which would otherwise be imposed, of burying the body of every person executed for murder within the precincts of the prison in which he shall have been last confined after
conviction.
In respect to stealers of property in any part of Australasia, who might have the stolen property in this Colony, it was desirable to enact provisions analogous to those contained in the 114th section of the Statute 24 and 25 Viet., c. 96, respecting stealers
other any
part of property in one part of the United Kingdom who have the same in the United Kingdom, but such enactments are beyond the scope of Colonial legislation. The recently proposed Act, to be passed by the Imperial Parliament, will, however, effectually remedy this defect; and with the jurisdiction over offences committed within the jurisdiction of the Admiralty, conferred by the Imperial Statute 12 and 13 Viet c. 96, and the jurisdiction over fugitive offenders conferred by the 6 and 7 Vict., c. 34, amended by 16 and 17 Viet., c. 118, the Penal Code of this Colony will be in strict unison with the laws of England as they existed on the passing of the Criminal Statutes Consolidation Acts of 1861.
All such criminal offences as may not be within the provisions of these Consolidated
{
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Acts are, as in England, triable and punishable under the Common Law, and other unrepealed Statutes in force in this Colony.
By the "Supreme Court Ordinance, 1861," criminal procedure is directed to be in conformity with that of the Courts of England, with the sole exception that all crimes, misdemeanors, and offences, shall be prosecuted by information in the name of Her Majesty's Attorney-General, or some Counsel for the Crown duly authorized in that behalf, thus providing a Public Prosecutor and dispensing with the services of a grand jury.
The Penal Code and criminal procedure thus established, together with the laws analogous to those of England, regulating the several duties of Magistrates, furnish great facilities to all concerned in the administration of justice, and render the Books of Practice and the decisions of the Courts in England available for their guidance.
I do not think that it would be advisable to substitute any new code for a system so strictly in accord with the Criminal Code of England, and which is working so satisfac- torily in this Colony.
Sir,
Chief Justice's Chambers, May 11, 1871.
(Signed)
Inclosure 10 in No. 7.
ARCHD. PAULL BURT.
Chief Justice's Chambers, Perth, September 27, 1871.
I HAVE the honour to return the Earl of Kimberley's Circular despatch, dated Downing Street, 8th August, 1871, forwarded for my perusal and information.
As your Excellency, by a Minute on that despatch, requests that I will make any remarks that I may think fit upon the subject thereof, I inclose a copy of a letter I addressed, under date 17th June last, to the Honourable Mr. Casey, the Chairman of the Commission, on receiving from him a copy of the "First Report of the Royal Com- mission of the Colony of Victoria on the subject of Intercolonial Legislation, and a Court of Appeal for the Australian Colonies." The perusal of this letter will place your Excellency in possession of the view I take of the several subjects of that Report, and of my opinion in particular of that part of the Report, the subject of his Lordship's present despatch, relative to appeals to Her Majesty in Council.
Regarding as I do the right of appeal to Her Majesty in Council as one of the most valuable privileges possessed by the Colonies, I have read with satisfaction the Lord President's letter, with the statement thereto annexed, which so clearly corrects the misapprehension existing in the minds of the Royal Commission in Victoria on the subject of appeal from these Colonies.
To His Excellency the Governor, *&c. &c. &c.
Sir,
I have, &c. (Signed)
ARCHD. PAULL BURT.
Inclosure 11 in No. 7.
Chief Justice's Chambers, Perth, Western Australia, June 17, 1875.
I HAVE the honour to acknowledge the receipt, by the last mail, of your letter of the 24th April, forwarding a copy of the first Report of the Royal Commission on Inter- colonial Legislation and a Court of Appeal, kindly explaining the action taken during the session of 1869 by the Legislative Assembly of Victoria, and, on behalf of the Commis- sioners, requesting that I would say if intercolonial legislation ought to be adopted, and if so, whether it should be effected as proposed by means of an Imperial Act, or by concurrent legislation in the Colonies; whether the extradition of offenders should apply to all persons charged with indictable misdemeanors, or whether the misdemeanors should be specified, and whether the intercolonial comity should extend to the subjects of naturalization, marriage, patents and copyrights.
In compliance with your request, I have to state, first, in my opinion, the contem- plated system should be effected by means of an Act of the Imperial Parliament as proposed. Concurrent legislation in the Colonies would fail to give effect to many of the necessary provisions.
With reference to the extradition of offenders, I much fear that the proposed power
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