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PUBLIC RECORD
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C.O.885
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PUBLIC RECORD OFFICE, LONDON
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NOTES ON THE DRAFT CODE.
SECTION 5.-APPLICATION OF THIS CODE.
The jurisdiction of a colonial legislature is confined to its own territory the New South Wales law followed 24 and 25 Vict., c. 100. s. 57, in making bigamy a crime wherever it was committed; this was held to be invalid in R. v. Macleod, 1891; App., Ca. 458. Plainly it would be intolerable that a man while he was outside a colony should do something in the colony, eg., utter a forged cheque, or obtain goods by false pretences, and then enter the colony with impunity. I hope this section meets the difficulty; if it does I some what prefer this method to that adopted in Queensland, where an innocent act is made an offence. The difference between the two is however chiefly of academic interest.
SECTION 6.-OPERATION OF THIS CODE: HOW FAR EXCLUSIVE.
The following offences when committed in a colony may be tried in the colony by force of the following Acts-offences triable summarily under the Army Act, 44 and 45 Vict., c. 58, s. 168; offences under the Official Secrets Act, 1890, 53 and 54 Vict., c. 52, s. 6.
The following offences when committed in a colony may be tried in England by force of the following Acts-Admiral's jurisdiction, offences committed within, 28 Hen. 8, c. 15; and cf. The Admiralty Offences (Colonial) Act, 1849, s. 96; Army Act, certain offences by officers against, 44 and 45 Vict., c. 58, s. 162; Bigamy, 24 and 25 Vict., c. 100, 8. 57; Commissioners for Oaths Act, 1889, offences against, 52, Vict., c. 10, s. 9; Customs Consolidation Act, 1876, offences against, 39 and 40 Vict., c. 36, s. 229; Dockyards Protection Act, 1772, offences against, 12 Geo. 3, c. 24, s. 2; Explosive Substances Act, 1883, offences against, 46 and 47 Vict., c. 3, ss. 3, 5; Foreign Enlistment Act, 1870, offences against, 33 and 34 Vict., c. 90, s. 16; Foreign Marriage Act, 1870, offences against; Merchant Shipping Act, 1894, certain offences against, 57 and 58 Vict., c. 60, s. 684; murder and manslaughter, 24 and 25 Vict., c. 100, s. 9; mutiny, incitement to, 37 Geo. 3, c. 70, s. 1 (?); Official Secrets Act, 1889, offences against, 52 and 53 Vict., c. 52, s. 6 ; oppression by Governors, &c., 11 and 12 Will. 3, c. 12; pirates aiding, 11 Will. 3, c. 7; public officials, offences by, out of Great Britain, 42 Geo. 3, c. 85, s. 1; Sea Fishery Act, 1883, certain offences against, 46 and 47 Vict., c. 22, B. 16; 54 and 55 Vict., c. 37, s. 4; Slave trading, 5 Geo. 4; c. 113; 6 and 7 Vict., e. 98; 36 and 37 Vict., c. 88, 88. 25, 26; treason, 35 Hen. 8, c. 2; 5 and 6 Edw. 6, c. 11, s. 4; 36 Geo. 3, c. 7, s. 1; treason-felony, 11 Viet., c. 12. s. 2; Unlawful Oaths Acts, 1797, 1812, offences against, 37 Geo. 3, c. 123, s. 6; 52 Geo. 3, c. 104, s. 7.
A question arises how a colonial code should deal with these enact- ments. They cannot of course be repealed or modified in any way by the colonial legislature, and I have therefore made the offences they create offences under this code by the general enactment contained in this section. The only practical alternative seems to be to re-enact their substance in the language of the English Code. This course has been followed in Queensland and elsewhere, but it is open to the objection that in so far as the colonial law differs from that obtaining in England two sets of law apply to one offence. Considering that prosecutions for most of the offences will be very rare, and that in the case of the most serious of them, treason and treason-felony, prosecutions are not likely to be undertaken in a Crown Colony without reference to the Colonial Office, I think it is simpler to omit any particular mention of them from the code, merely making them triable in the Colony according to English law. Exceptions to this rule occur however in three cases. Firstly, the code must contain provisions as to murder, manslaughter, and bigamy, the theoretical inconvenience of having two sets of law applying to one offence being outweighed by the advantage of having what I hope will be found complete and intelligible provisions on these subjects. Secondly, in the case of the Official Secrets Act, the English law is to my mind excessively complicated and incomplete; I have therefore introduced a section (s. 80) dealing with the subject; the clause at the end of this section, saving the operation of the English law, is like a good many others to be found throughout the code, being of course operative only as a reminder to the reader that there is an English enactment dealing with the subject. Thirdly, in several cases, 6.g., those provided for by es, 66, 67, 68, and 69, colonial legislation is needed to fill up gaps in the English law as it exists.
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SECTION 7-PUNISHMENTS.
I have used the terms "penal servitude," and "imprisonment with or without hard labour," because they are used in England. In most colonies I believe penal servitude and, possibly, hard labour are unknown, but there is generally a distinction between imprisonment for a long and for a short period. If such a distinction does not exist, it will be necessary for the purposes of this code to make it, as it corresponds with the distinction between Felony and Misdemeanour. Major and minor imprisonment might be suitable terms for this purpose if none exist already. The distinction between imprisonment with and imprison. ment without hard labour it is not in the least worth making if there is nothing in the laws of the Colony to correspond to it. There is no further reference to it in the code except in 88. 8 and 9.
The code as drafted makes no use of police supervision, and I doubt whether it would be worth while to change the law of the Colony in order to introduce it. It is designed in England for use in the case of offenders of bad character, and for infliction after punishment. Apart from the ticket-of-leave system not much use is made of it. The English law on the subject is to be found 34 and 35 Vict., c. 112, s. 87 42 and 43 Vict., c. 55, s. 2 ; 54 and 55 Viet., c. 69, s. 4.
SECTION 9.-DISCRETION OF THE COURT AS TO THE AMOUNT OF PUNISHMENT,
The figures in the scale and the provisions as to flogging are un- important but a universally applicable scale, and certain general regulations as to corporal punishment, apart from the Governor's regula tions, are obviously desirable.
SECTION 15.-REFORMATORIES.
This section assumes the existence of a reformatory or some similar institution, otherwise it is of course not needed.
SECTION 21.—INSANITY,
Į
Observe that this section does not follow the Trial of Lunatice Act, 1883 (46 and 47 Vict., c. 38, s. 4), which enacts that in case of insanity the verdict of the jury shall be that the prisoner is guilty of the charge, but was insane at the time of the act or omission charged. The circumstances which led to the passing of this Act were curious and exceptional, and it must not be relied on as establishing any principle as to the legal effect of insanity.
SECTION 25.-NECESSITY.
Sir James Stephen in a note to Article 33 of his Digest of the Criminal Law, which is practically the foundation of this section, commenting on the case of R. v. Dudley and Stephens, 1884, 14 Q. B. D. 273, says “In this case the Court commented on the passage in the text (of the Digest), and Lord Coleridge in delivering judgment said (p. 286), *We have the best authority for saying that 'my language' was not meant to cover the case then under consideration.' I authorised this statement, and on consideration I feel that my language was not vague enough, vague as it was, to represent fully the vagueness of the law. I have slightly altered it so as to make it more vague." The matter has not been discussed in an English Court since the date of R. v. Dudley.
**
The final paragraph of this section is open to objection. It is taken froin the Code Bill of 1878 and should not be adopted without considera- tion. There is nothing to correspond to it in the English Code, which, however, omits a reference to necessity as an excuse for an offence. As to killing an unborn child to preserve the mother's life, see Section 60.
SECTION 28.-MISTAKE OF FACT.
The passage referred to in the report of the Criminal Code Commis- sion of 1879 is as follows "The Bill (i.e., the Code Bill of 1878) also contained a provision as to the effects of mistakes of fact upon the criminality of acts done in consequence of such mistakes, which if
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