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PUBLIC RECORD OFFICE

Reference:

TLC.O.885

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PUBLIC RECORD OFFICE, LONDON

ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC- COPYRIGHT PHOTOGRAPH-—NOT TO

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Under these circumstances the general plan I have followed is simple. The general arrangement of my draft follows that of the English Code, with only a few unimportant exceptions. As a rule I have collated every section of the English Code with the corresponding section of the Queensland Code, and find that I have borrowed a good deal of the actual language of the latter work. · ¶ have also referred constantly to the Consolidation Acts, so as to see how much of the English Code rests on the authority of the Commissioners, and how much was ordinary consolidation. In the cases of definitions and the more general enactments, I have compared the Criminal Code Bill with the English Code; and when I have had to deal with actions which are regarded very differently by ourselves and our fellow subjects in the African bush, I have looked for assistance to the Indian Penal Code and various Colonial Codes.

There remain to be noticed one very important, and a few minor matters of a miscellaneous kind.

The draft is concerned only with the substantive law, and inakes no reference to procedure. It is therefore incomplete, because practically no Colony would codify the one without dealing at the same time with the other. I have attempted to remedy this omission to a very small extent by the insertion of Appendix B, which contains a few provisions necessary to the understanding of the

purpose of my draft.

I am not in a position to form an opinion as to the advisability of framing a Model Code of Procedure. The judicial organiza- tion of different Crown Colonies vary a good deal according to local circumstances, and a knowledge of the variations which I do not possess would be needed to say how far one model would be useful for most of them. Also several criminal and procedure codes are already in existence in different Colonies, and any one of the latter might very well serve as a model for others. I must leave the matter as it is, but I hope it meet with the consideration it deserves.

may

I have said that I have followed the arrangement of the English Code, but this applies only to the sequence of the chapters. I have sometimes used a pretty free hand in the arrangement of the sections in the chapters. As to this, I have considered one matter only, namely, to make reference to any section as easy as possible. Generally speaking, one section should deal with one offence only, and should' deal with that completely, and every offence should be found in the same place as other offences of the same kind. What constitutes one offence, and what offences are of the same kind, are questions to be decided by practical considerations as to which it is impossible to lay down any rules. So Chapter XI. (Offences against Morality) is necessarily of a very miscellaneous kind; Chapter XIII. (Duties tending to the Preservation of Life) is closely connected with Chapter XIX. (Offences of Neglect, &c.) but is wanted for Chapter XIX. (Homicide); procuring mis carriage (s. 167) and concealment of birth (s. 171) are not murder or manslaughter (Chapter XV.), but practically are closely connected with homicide; the sequence of sections in Chapter XVI. (Bodily Injuries, fc.) and Chapter XXII. (Punishment for Stealing) is not framed on scientific terms.

may, I hope, be found convenient.

but

Without wishing to appear paradoxical, I do wish to say that I consider that punishments are a matter of minor im-

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portance in a criminal code. Certain writers of the present day are apt to assume that because a person convicted of a certain offence under certain circumstances receives a certain punishment, it is unfair that another person convicted. of the same offence under similar circumstances should receive the same punishment. This view seems to me not to attach sufficient importance to the consideration that what is wanted in relation to every punishment inflicted by law is that it should be approved of by the opinion of the more reasonable part of the community, and that as this opinion may, and often does, vary considerably from time to time, it is well to allow for a corresponding variation in the punishment. I have therefore adopted the simple course of making nearly all felonies, by which I mean serious offences, punishable with seven years' penal servitude, and very nearly all misdemeanours, that is, other indictable offences, punishable with two years' imprison- ment. The immense convenience of this, from the view both of the judge and the draftsman, is obvious.

I must notice one other matter which has been of great importance to myself. When the draft was already in print, Mr. F. W. Pennefather, Professor of Law in the University of Brisbane, arrived in England, charged with the duty of drafting a criminal code for South Australia. He has care- fully and elaborately considered every section of my draft, and I have enjoyed the full advantage of his work, and have also been assisted by his experience as an acting judge in New Zealand and in other important Colonial appointinents. My best thanks are therefore due to him, as they are also to

the officials of the Colonial Office Library, whose knowledge of the collection of legislation in their custody has been of great

use to me.

:

In conclusion, I may, perhaps, be allowed to repeat tha

I wish to avoid discussion of any of the details of the draft; not because I have nothing to say on that head, but because I have so much. The draft itself is, after all, the matter in hand, and must be judged of on its own merits, and independently of any explanation I have to offer.

London, 9th October, 1901.

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H. L. STEPHEN.