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Any person may apprehend persons committing indictable offences in the night

Any persoll assaulting a person entitled to apprehend him to be guilty of a misdemeanour

Night to be the same as in cases of burglary

Costs of prosecutions

Nothing in this

Act to repeal

Preamble

Criminal Law

conveyed as soon as conveniently may be before a Justice of the Peace, to be dealt with according to law.

8. And whereas doubts have been entertained as to the authority to apprehend persons found committing indictable offences in the night, for remedy thereof, be it enacted, that it shall be lawful for any person whomsoever, to apprehend any person who shall be found committing any indictable offence in the night, and to convey him or deliver him to some constable or other peace officer, in order to his being conveyed, as soon as conveniently may be, before a Justice of the Peace, to be dealt with according to law.

9. And be it enacted that if any person liable to be apprehended under the provisions of this Ordinance shall assault or offer any violence to any person by law authorised to apprehend or detain him, or to any person acting in his aid or assistance, every such offender shall be guilty of a misdemeanour, and being convicted thereof, shall be liable to be imprisoned, with or without hard labour, for any term not exceeding three years.

10. And be it enacted that the time at which the night shall commence and conclude, in any offence against the provisions of this Ordinance, shall be the same as in cases of burglary.

11. And be it enacted that in all prosecutions for any offence against the provisions of this Ordinance, it shall be lawful for the Court before which any such offence shall be prosecuted or tried, to allow the expense of the prosecution in all respects as in cases of felony.

12. And be it enacted that nothing in this Ordinance contained shall be deemed to repeal wholly or in part, the 12th Victoria, No. 20, intituled “An Ordinance for regulating the Police in Western Australia, but no person shall be liable to be punished for the same offence both under the said last-mentioned Ordinance and this

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An Ordinance for further improving the Administration
of Criminal Justice.
[Assented to 22nd December, 1852.

HEREAS offenders frequently escape conviction on their trial

V V by reason of the technical strictness of criminal proceedings in matters not material to the merits of the case; and whereas such technical strictness may safely be relaxed in many instances, so as to .

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Criminal Law

ensure the punishment of the guilty, without depriving the accused of any just means of defence, and whereas a failure of justice often

takes place on the trial of persons charged with felony and misde

meanour, by reason of variance between the statement in the indictment on which the trial is had, and the proof of names, dates, matters and circumstances therein mentioned not material to the merits of the case, and by the misstatement whereof the person on trial cannot have been prejudiced in his defence: 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 from and after the passing of this Ordinance, whenever on the trial of any indictment for any felony or misdemeanour, there shall appear to be any variance between the statement in such indictment and evidence offered in proof thereof, in the name of any district, town, or place mentioned or described in any such indictment, or in the name or description of any person or persons, or body politic or corporate, therein stated or alleged to be the owner or owners of any property, real or personal, which shall form the subject of any offence charged therein, or in the name or description of any person or perSons, body politic or corporate, therein stated or alleged to be injured or damaged, or intended to be injured or damaged by the commission of such offence, or in the Christian name or surname, or both Christian and surname, or other description whatsoever, of any person or persons whomsoever therein named or described, or in the name or description of any matter or thing whatsoever therein named or described, or in the ownership of any property named or described therein, it shall and may be lawful for the Court before which the trial shall be had, and if it shall consider such variance not material to the merits of the case, and that the defendant cannot be prejudiced thereby in his defence on such merits, to order such indictment to be amended, according to the proof, by some officer of the Court or other person, both in that part of the indictment in which such variance occurs and in every other part of the indictment which it may become necessary to amend, on such terms as to postponing the trial to be had before the same or another jury as such Court shall think reasonable; and after any such amendment the trial shall proceed, whenever the same shall be proceeded with, in the same manner in all respects and with the Same consequences, both in respect to the liability of witnesses to be indicted for perjury and otherwise, as if no such variance had occurred, and the order for the amendment shall either be endorsed on the indictment or shall be engrossed and filed, together with the indictment, among the records of the Court : Provided that in all such cases where the trial shall be so postponed as aforesaid, it shall be lawful for such Court to respite the recognizances of the prosecutor and witnesses, and of the defendant and his surety or sureties, if any, accordingly; in which case the prosecutor and witnesses shall be bound to attend to prosecute and give evidence respectively, and the defendant shall be bound to attend to be tried at the time and place to which such trial shall be so postponed, without entering into any fresh recognizances for that purpose, in such and the same manner as if they were originally bound by their recognizances to appear and prosecute or give evidence at the time and place to which such trial shall have been so postponed; provided also that where any such trial shall be to be had

The Court may amend certain variances not material to the merits of the case, and by which the defendant cannot be prejudiced in his defence, and may either proceed with, or postpone the trial, to be had

before the same

or another jury

Werdict ansl judgments valid after amendment

Records to be drawn up in amended form without noticing the amendment

The means by which the injury was inflicted need not be specified in indictments for murder and manslaughter

Forms of indictment in cases of stealing and embezzling, or obtaining by false pretence

In engraving plates, &c.

In other cases

Intent to defraud articular perF. need not be alleged or proved in cases of forgery, uttering, or false pretences

A person indicted for felony or misdemeanour may be so

ilty of all so to colmmit the Same, and shall be liable to the same conse. quences as if charged with: and convicted of the attempt only

Criminal Law

before another jury, the Crown and the defendant shall respectively be entitled to the same challenges as they were respectively entitled to before the first jury was sworn.

2. And be it enacted that every such verdict and judgment which shall be given after the making of any amendment under the provisions of this Ordinance, shall be of the same force and effect in all respects as if the indictment had originally been in the same form in which it was after such amendment was made.

3. And be it enacted that if it shall become necessary at any time for any purpose whatsoever to draw up a formal record in any case where any amendment shall have been made under the provisions of this Ordinance, such record shall be drawn up in the form in which the indictment was after such amendment was made, without taking any notice of the fact of such amendment having been made.

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5. And be it enacted that in any indictment for stealing, embezzling, destroying, or concealing, or for obtaining by false pretences any instrument, it shall be sufficient to describe such instrument by any mame or designation by which the same may be usually known, or by the purport thereof, without setting out any copy or facsimile thereof, or otherwise describing the same or the value thereof.

6. (Repealed by 29 Vic., No. 5.]

7. And be it enacted that in all other cases, wherever it shall be necessary to make any averment in any indictment, as to any instrument, whether the same consists wholly or in part of writing, print, or figures, it shall be sufficient to describe such instrument by any name or designation by which the same may be usually known or by the purport thereof, without setting out any copy or facsimile of the whole or any part thereof.

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9. And whereas offenders often escape conviction by reason that such persons ought to have been charged with attempting to commit offences, and not with the actual commission thereof; for remedy thereof, be it enacted that if on the trial of any person charged with any felony or misdemeanour it shall appear to the jury upon the evidence that the defendant did not complete the offence charged, but that he was guilty of an attempt only to commit the same, such person shall not by reason thereof be entitled to be acquitted, but the jury shall be at liberty to return as their verdict that the defendant is not guilty of the felony or misdemeanour charged, but is guilty of an attempt to commit the same, and thereupon such person shall be liable to be punished in the same manner as if he had been convicted upon an indictment for attempting to commit the particular felony or misdemeanour charged in the said indictment, and no person so tried

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10. And whereas it is enacted by a certain Act of the Imperial Parliament, passed in the first year of the reign of Her present Majesty, intituled “An Act to amend the laws relating to Offences against the Person’ (and which said Act has been adopted in this Colony), that, “on the trial of any person for any of the offences therein before mentioned, or for any felony whatever when the crime charged shall include an assault against the person, it shall be lawful for the jury to acquit of the felony, and to find a verdict of guilty of assault against the person indicted, if the evidence shall warrant such finding;' and whereas great difficulties have arisen in the construction of such enactment, for remedy thereof, be it enacted that the said enactment shall no longer be applicable to the administration of justice in this Colony.

11. [Repealed by 29 Vic., No. 5.]

12. And be it enacted that if upon the trial of any person for any misdemeanour it shall appear that the facts given in evidence amount in law to a felony, such person shall not be entitled by reason thereof to be acquitted of such misdemeanour, and no person tried for such misdemeanour shall be liable to be afterwards prosecuted for felony on the same facts, unless the Court before which such trial may be had shall think fit in its discretion to discharge the jury from giving any verdict upon such trial, and to direct such person to be indicted for felony, in which case such person may be dealt with in all respects as if he had not been put upon his trial for such misdemeanour.

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No person so tried to be afterwards prosecuted for the same

On the trial for
an indictment for
robbery, the
jury may com-
mit of an assault
with intent to
rob

Person tried for misdemeanour not to be acquitted if the offence turn out to be a felony, unless the Court so direct

Person indicted for embezzlement Inot to be acquitted if offence turn out larceny, and vice vers&

Upon indictment for jointly receiving, perSons guilty of separately receiving may be convicted

Three larcellies from same preSon within six months o: included in the same indictment

Where a single taking is charged, the prosecutor not required to elect, &C.

Coin or bank
notes may be
described
simply as money

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Certain provisions of 23 Geo. II., c. 11, extended

The Commissioner of the Civil Court or any Justice may direct a person guilty of perjury in any evidence, &c., to be prosecuted

And commit the party unless he enter into recogmizance to uppear and take his trial; and bind person to give evidence

And give certificate of prosecur tion being directed, which shall be sufficient evidence of the Salmø

Extending the 23 of Geo. II. c. 11, s. 1, to other officers,

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 Special or Petty Sessions, or for any Sheriff or his lawful Deputy, 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 prosecution 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.

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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