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Certain provi. sions of 23 Geo. II., c. 11, extended

Criminal Law

such allegation so far as regards the description of the property shall be sustained by proof of any amount of coin or of any bank note, although the particular species of coin of which such amount was composed or the particular nature of the bank note shall not be proved, and in cases of embezzlement and obtaining money or bank notes by false pretences, by proof that the offender embezzled or obtained any piece of coin or any bank note or any portion of the value thereof, although such piece of coin or bank note may have been delivered to him in order that some part of the value thereof should be returned to the party delivering the same or to any other person, and such part shall have been returned accordingly.

18. Whereas by an Act of the Imperial Parliament, passed in England in the twenty-third year of the reign of His late Majesty King George the Second, intituled 'An Act to render Prosecutions for Perjury and Subornation of Perjury more easy and effectual,' certain provisions were made to prevent persons guilty of perjury and subornation of perjury from escaping punishment by reason of the difficulties attending such prosecutions; and whereas it is expedient to amend and extend the same: Be it enacted, that it shall be lawful for the Commissioner of the Civil Court or for any Justice of the Peace, Chairman of any Court of General or Quarter Sessions of the Peace, or for any Judge of any Court of Record, or for any Justices of the Peace in any evidence, in Special or Petty Sessions, or for any Sheriff or his lawful Deputy,

The Commissioner of the Civil Court or any Justice may direct a person

&c., to be prosecuted

And commit the

party unless he

enter into recog

nizance to ap

pear and take his

trial; and bind person to give evidence

before whom any writ of inquiry or writ of trial from any superior Court shall be executed, in case it shall appear to him or them that any person has been guilty of wilful and corrupt perjury in any evidence. given or in any affidavit, deposition, examination, answer or other proceeding made or taken before him or them, to direct such person to be prosecuted for such perjury in case they shall appear to him or them a reasonable cause for such prosecution, and to commit such person so directed to be prosecuted until the next General or Quarter Sessions of the Peace for the district within which such perjury was committed, unless such person shall enter into a recognizance with one or more sufficient surety or sureties, conditioned for the appearance of such person at such next General or Quarter Sessions of the Peace, and that he will there surrender and take his trial, and not leave the Court without permission, and to require any person he or they may think fit to enter into a recognizance conditioned to prosecute or give evidence against such person so directed to be prosecuted as aforesaid, and to give to the party so bound to prosecute a certificate of the same being directed, which certificate shall be given without any fee or charge, and shall be deemed sufficient proof of such prosecution having been directed as aforesaid, and upon the production thereof the costs of such proseAnd give certifi cution shall and are hereby required to be allowed by the Court before which any person shall be prosecuted or tried in pursuance of such direction as aforesaid, unless such last-mentioned Court shall specially otherwise direct: Provided always that no such direction or certificate shall be given in evidence upon any trial to be had against any person upon a prosecution so directed as aforesaid.

cate of prosecution being directed, which shall be sufficient evidence of the

same

Extending the 23 of Geo. II.

c. 11, s. 1, to other officers,

19. And be it enacted, that in every indictment for perjury, or for unlawfully, wilfully, falsely, fraudulently, deceitfully, maliciously, or corruptly taking, making, signing, or subscribing any oath, affirmation,

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Criminal Law

declaration, affidavit, deposition, bill, answer, notice, certificate, or other writing, it shall be sufficient to set forth the substance of the offence charged upon the defendant, and by what Court or before whom the oath, affirmation, declaration, affidavit, deposition, bill, answer, notice, certificate, or other writing was taken, made, signed, or subscribed, without setting forth the bill, answer, information, indictment, declaration, or any part of any proceeding, either in law or in equity, and without setting forth the commission or authority of the Court or person before whom such offence was committed.

20. And be it enacted, that in every indictment for subornation of perjury or for corrupt bargaining, or contracting with any person to commit wilful and corrupt perjury, or for inciting, causing, or procuring any person unlawfully, wilfully, falsely, fraudulently, deceitfully, maliciously or corruptly to take, make, sign, or subscribe any oath, affirmation, declaration, affidavit, deposition, bill, answer, notice, certificate, or other writing, it shall be sufficient wherever such perjury or other offence aforesaid shall have been actually committed, to allege the offence of the person who actually committed such perjury or other offence in the manner hereinbefore mentioned, and then to allege that the defendant unlawfully, wilfully, and corruptly did cause and procure the said person, the said offence in the manner and form aforesaid, to do.and commit; and wherever such perjury or other offence aforesaid shall not have been actually committed, it shall be sufficient to set forth the substance of the offence charged upon the defendant, without setting forth or averring any of the matters or things hereinbefore rendered unnecessary to be set forth or averred in the case of wilful corrupt perjury.

21. And be it enacted, that a certificate containing the substance and effect only (omitting the formal part) of the indictment and trial for any felony or misdemeanour, purporting to be signed by the clerk of the Court, or other officer having the custody of the records of the Court where such indictment was tried, or by the deputy of such clerk or other officer (for which certificate a fee of six shillings and eightpence, and no more, shall be demanded or taken), shall upon the trial of any indictment for perjury or subornation of perjury, be sufficient evidence of the trial of such indictment for felony or misdemeanour without proof of the signature or official character of the person appearing to have signed the same.

22. And be it enacted, that it shall not be necessary to state any venue in the body of any indictment, but the Colony or other jurisdiction named in the margin thereof shall be taken to be the venue of all the facts stated in the body of such indictment: Provided that in cases where local description is or hereafter shall be required, such local description shall be given in the body of the indictment.

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23. And be it enacted, that no indictment for any offence shall be held insufficient for want of the averment of any matter unnecessary to be proved, nor for the omission of the words as appears by the record,' or of the words with force and arms,' or of the words against the peace,' nor for the insertion of the words 'against the form of the statute,' inserted against the form of the statutes,' or vice versa, nor for that any person mentioned in the indictment is

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Formal objections to indict

ment shall be taken before jury are sworn. Court may amend any formal defect

Provision as to traversing indictment

Provision as to

convict

Criminal Law

designated by a name of office or other descriptive appellation instead of his proper name, nor for omitting to state the time at which the offence was committed in any case where time is not of the essence of the offence, nor for stating the time imperfectly, nor for stating the offence to have been committed on a day subsequent to the finding of the indictment, or on an impossible day, or on a day that never happened, nor for want of a proper or perfect venue, nor for want of a proper or formal conclusion, nor for want of or imperfection in the addition of any defendant, nor for want of the statement of the value or price of any matter or thing, or the amount of damage, injury, or spoil, in any case where the value or price or the amount of damage, injury, or spoil, is not the essence of the offence.

24. And be it enacted, that every objection to an indictment for any formal defect apparent on the face thereof shall be taken by demurrer or motion to quash such indictment before the jury shall be sworn and not afterwards; and every Court before which any such objection shall be taken for any formal defect may, if it be thought necessary, cause the indictment to be forthwith amended in such particular by some officer of the Court or other person, and thereupon the trial shall proceed as if no such defect had appeared.

25. And be it enacted that no person prosecuted shall be entitled to traverse or postpone the trial of any indictment found against him at any General or Quarter Sessions of the Peace: Provided always that if the Court, upon the application of the person so indicted or otherwise, shall be of opinion that he ought to be allowed a further time, either to prepare for his defence or otherwise, such Court may adjourn the trial of such person to the next subsequent General or Quarter Sessions of the Peace, upon such terms, as to bail or otherwise, as to such Court shall seem meet, and may respite the recognizances of the prosecutor and witnesses accordingly; in which case the prosecutor and witnesses shall be bound to attend to prosecute and give evidence at such subsequent General or Quarter Sessions of the Peace, without entering into any fresh recognizances for that purpose.

26. And be it enacted that in any plea of autrefois convict or plen of autrefois autrefois acquit, it shall be sufficient for any defendant to state he has been lawfully convicted or acquitted (as the case may be) of the said offence charged in the indictment.

autrefois acquit

Punishment for certain indictable misdemeanours

29 Vic., No. 5

Interpretation of terms

27. And be it enacted that whenever any person shall be convicted of any one of the offences following, as an indictable misdemeanour, that is to say, any cheat or fraud, punishable at common law; any conspiracy to cheat or defraud, or to extort money or goods, or falsely to accuse of any crime, or to obstruct, prevent, pervert, or defeat the course of public justice; any escape or rescue from lawful custody on a criminal charge; any public and indecent exposure of the person; any public selling or exposing for public sale, or to public view, of any obscene book, print, picture, or other indecent exhibition; it shall be lawful for the Court to sentence the offender to be imprisoned for any term now warranted by law, and also to be kept to hard labour during the whole or any part of such term of imprisonment.

28. And be it enacted that in the construction of this Ordinance the word indictment' shall be understood to include information,'

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1

Criminal Law

inquisition,' and 'presentment,' as well as indictment; and also any 'plea,' 'replication' or other pleading, and any criminal record; and the terms finding of the indictment' shall be understood to include the taking of an inquisition,' and 'the exhibiting of an information,' and the making a presentment;' and whenever in this Ordinance in describing or referring to any person or party, matter or thing, any word importing the singular number or masculine gender is used, the same shall be understood to include and shall be applied to several persons and parties, as well as one person or party, and females as well as males, and bodies corporate as well as individuals, and several matters and things as well as one matter or thing; and the word 'property' shall be understood to include goods, chattels, money, valuable securities, and every other matter or thing, whether real or personal, upon or with respect to which any offence may be committed.

29. And be it enacted that all sums of money payable under this Ordinance shall be paid over to the Colonial Treasurer of the said Colony, for the public uses thereof.

CHARLES FITZGERALD,

GOVERNOR AND COMMANDER-IN-CHIEF.

WESTERN AUSTRALIA

ANNO SEXTO DECIMO

VICTORIÆ REGINE

No. 9

An Ordinance to amend the Law of Evidence.

WHER

[Assented to 22nd December, 1852.

Recited provision in s. 1 of repealed

10 Vic., No. 14,

THEREAS it is expedient to amend the Law of Evidence in Preamble divers particulars: Be it therefore enacted by His Excellency the Governor of Western Australia and its Dependencies, by and with the advice and consent of the Legislative Council thereof, that so much of section one of the Ordinance of the 10th year of the reign of Her present Majesty, No. 14, as provides that the said Ordinance 'shall not render competent any party to any suit, action or proceeding, who shall be individually named in the record, or shall be virtually included as a co-defendant on the record in any proceeding against a co-partnership, under the authority of any local Ordinance, or any lessor of the plantiff, or tenant of premises sought to be recovered in ejectment, or the landlord or other person in whose right any defendant in replevin may make cognizance, or any person in whose immediate and individual behalf any action may be brought or defended, either wholly or in part, or the husband or wife of such persons respectively,' is hereby repealed.

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missible witnes les

2. And be it enacted that on the trial of any issue joined, or of Parties to be adany matter or question, or on any inquiry arising in any suit, action or other proceeding, in any Court of Justice, or before any person having

Nothing herein to compel person charged with

criminal offences tending to criminate himself, &c.

to give evidence

Not to apply to proceedings in consequence of adultery, or to action for breach of promise of marriage

Nothing to repeal

any provisions of

Vic., c. 26

Evidence

by law, or by consent of parties, authority to hear, receive, and examine evidence, the parties thereto, and the persons in whose behalf any such suit, action or other proceeding may be brought or defended, shall (except as hereinafter excepted) be competent and compellable to give evidence, either viva voce, or by deposition, according to the practice of the Court, on behalf of either or any of the parties to the said suit, action or proceeding.

3. And be it enacted, that nothing herein contained shall render any person who in any criminal proceeding is charged with the commission of any indictable offence, or any offence punishable on summary conviction, competent or compellable to give evidence, for or against himself or herself; or shall render any person compellable to answer any question tending to criminate himself or herself, or shall in any criminal proceeding render any husband competent or compellable to give evidence for or against his wife, or any wife competent or compellable to give evidence for or against her husband.

4. [Repealed by 34 Vic., No. 10, s. 1.]

5. Nothing herein contained shall be deemed to repeal or restrict 7 Wil. IV., and 6 the applicability in the administration of justice in this Colony of any provision contained in chapter twenty-six of the Statute passed in the session of the Imperial Parliament, holden in the seventh year of the reign of King William IV., and the first year of the reign of Her present Majesty, intituled 'An Act for the amendment of the Laws with respect to Wills.'

Common Law Court authorised to compel in

ments wherever

Equity would

6. Whenever any action or other legal proceeding at law shall henceforth be pending in the Civil Court of the said Colony, the Comspection of docu- missioner of such Court may, on application made for such purpose by either of the litigants, compel the opposite party to allow the party making the application to inspect all documents in the custody or under the control of such opposite party, relating to such action or other legal proceeding, and, if necessary, to take examined copies of the same or to procure the same to be duly stamped in all cases in which, previous to the passing of this Ordinance, a discovery might have been obtained by filing a bill, or by any other proceeding in a Court of Equity at the instance of the party so making application as aforesaid to the said Commissioner.

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7. All proclamations, treaties and other acts of State of any foreign State or of any British Colony, and all judgments, decrees, orders and other judicial proceedings of any Court of Justice in any foreign State or in any British Colony, and all affidavits, pleadings and other legal documents filed or deposited in any such Court, may be proved in any Court of Justice, or before any person having by law or by consent of parties authority to hear, receive and examine evidence, either by examined copies or by copies authenticated as hereinafter mentioned; that is to say, if the document sought to be proved be a proclamation, treaty or other act of State, the authenticated copy to be admissible in evidence must purport to be sealed with the seal of

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