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Preamble

6 & 7 Vie., c. 85, s.1 (Imperial)

No incapacity from crime or interest

ANNO DECIMO

VICTORIÆ REGINE

No. 14

An Ordinance for improving the Law of Evidence.

W

[Assented to 2nd September, 1847.

THEREAS it is expedient to remove the legal incapacities which at present prevent the admission of the testimony of certain classes of persons as witnesses, and to leave the question of the credibility of witnesses to be decided by the persons appointed to decide on the case; and whereas it is also expedient to admit certain public documents to be receivable in evidence without the necessity of proving that the said documents are genuine: 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 no person offered as a witness shall hereafter be excluded by reason of incapacity from crime or interest from giving evidence either in person or by deposition, according to the practice of the Court, on the trial of any issue joined, or of any matter or question, or on any inquiry arising in any suit, action or proceeding, civil or criminal, in any Court or before any Judge, Commissioner, Jury, Sheriff, Coroner, Magistrate, Officer or person having by law or consent of parties, authority to hear, receive and examine evidence, but that every person so offered may and shall be admitted to give evidence on oath or solemn affirmation, in those cases wherein affirmation is by law receivable, notwithstanding that such person may or shall have an interest in the matter in question or in the event of the trial of any issue, matter, question or inquiry, suit, action or proceeding, in which he is offered as a witness, and notwithstanding that such person offered as a witness may have been previously convicted of any crime or offence Provided also that this Ordinance shall not be held to affect the admissibility as a witness of a mere agent, though a party as aforesaid named in the record, nor to repeal any provision in a certain Act passed in the session of Parliament holden in the seventh year of the reign of His late Majesty and in the first year of the reign of Her present Majesty, and 1 Vic., No. 26 and intituled An Act for the Amendment of the Laws with respect to Wills: Provided also, that in Courts of Equity any defendant to any cause pending in any such Court may be examined as a witness on the behalf of the plaintiff or of any co-defendant in any such cause, saving just exceptions, and that any interest which such defendant so to be examined may have in the matters or any of the matters in question in the case shall not be deemed a just exception to the testimony of such defendant, but shall only be considered as affecting or tending to affect the credit of such defendant as a witness.

Proviso, not a party to the record, &c., &c.

Proviso repealed: by 16 Vic., No. 9 Proviso, not to repeal Statute of Wills, 7 Wil. IV,

Proviso as to parties in Equity

Not necessary to

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2. And be it enacted that wherever in any legal proceedings whatstate when jury ever, legal proceeding may be set out, it shall not be necessary to

men made affir

Evidence

of oath

specify that any particular persons who acted as jurors had made mation instead affirmation instead of oath, but it may be stated that they served as jurymen in the same manner as if no Act had passed for enabling persons to serve as jurymen without oath.

stamp, &c., &c., not required

3. And be it enacted that whenever by any Act now in force, or Proof of seal, hereafter to be in force, any certificate, official or public document or proceeding of any corporation, or joint stock or other company, or any certified copy of any document, by-law, entry in any register or other book, or of any other proceeding, shall be receivable in evidence of any particular in any Court of Justice, or before any legal tribunal, or in any judicial proceeding, the same shall be respectively admitted in evidence, provided they respectively purport to be sealed or impressed with a stamp, or sealed and signed, or signed alone, as required, or impressed with a stamp and signed, as directed by the respective Acts made or to be hereafter made, without any proof of the seal or stamp, where a seal or stamp is necessary, or of the signature, or of the official character of the person appearing to have signed the same, and without any further proof thereof in every case in which the original record could have been received in evidence.

4. And be it enacted that all Courts, Judges, Justices, Masters of Courts, Commissioners judicially acting, and other judicial officers, shall henceforth take judicial notice of the signature of any equity or common law Judge of the Civil Court, or Chairman of Quarter Sessions, of this Colony respectively, provided such signature be attached or appended to any decree, order, certificate or other judicial or official document.

5. And be it enacted that all copies of private and local and personal Acts or Ordinances of the Legislature of this Colony, purporting to be printed by the Government Printer, and of Proclamation by His Excellency the Governor, purporting to be printed by the Government Printer, or by any person authorised to act as such for the time, shall be admitted as evidence thereof by all Courts, Judges, Justices and others, without any proof being given that such copies were so printed.

6. Provided always and be it enacted that if any person shall forge the seal, stamp or signature of any such certificate, official or public document, or document or proceeding of any corporation, or joint stock or other company, or of any certified copy of any document, bylaw, entry in any register or other book, or other proceeding as aforesaid, or shall tender in evidence any such certificate, official or public document, or document or proceeding of any corporation, or joint stock or other company, or any certified copy of any document, by-law, entry in any register or other book, or of any other proceeding, with a false or counterfeit seal, stamp or signature thereto, knowing the same to be false or counterfeit, whether such seal, stamp or signature be those of or relating to any corporation or company already established, or of or relating to any corporation or company to be hereafter established, or if any person shall forge the signature of any Judge, Commissioner or other officer as aforesaid to any order, decree, certificate or other judicial or official document, or shall tender in evidence any order, decree, certificate or other judicial document with

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G

Courts, &c., to signature of Judge, &c.

take notice of

Private Acts,

Proclamations,

&c., admissible without proof

Forgery of seal, felony

stamp, signature

Proviso, document may be impounded

Evidence

a false or counterfeit signature of any such Judge, Commissioner or other officer as aforesaid thereto, knowing the same to be false or counterfeit, or if any person shall print any copy of any private Act or Ordinance as aforesaid, which copy shall falsely purport to have been printed by the Government Printer, or by any other person so authorised as aforesaid, or shall tender in evidence any such copy, knowing that the same was not printed by the person or persons by whom it so purports to have been printed, every such person shall be guilty of felony, and shall upon conviction be liable to transportation for seven years, or to imprisonment for any term not more than three nor less than one year with hard labour: Provided also that whenever any such document as before mentioned shall have been received in evidence by virtue of this Ordinance, the said Court, Judge, Commissioner or other person officiating judicially who shall have admitted the same shall, at the request of any party against whom the same is so received, be authorised at its or his own discretion to direct that the same shall be impounded and be kept in the custody of some officer of the Court or other proper person until further order touching the same shall be given either by such Court or the Court to which such master or other officer belonged, or by the person or persons who constituted such Court, or by such Judge, Commissioner or other officer as aforesaid, on application being made for that purpose.

FREDERICK CHIDLEY IRWIN,

GOVERNOR AND COMMANDER-IN-CHIEF.

Preamble

6 Vic. to be ex

contracts

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An Ordinance to provide a Summary Remedy for Breach
of Contracts connected with the Fisheries of the
Colony.
[Assented to 2nd September, 1847.

WE

HEREAS certain doubts have arisen concerning the decision of disputes between parties concerned in the bay whaling and other fisheries in this Colony, and whereas it is expedient to provide a summary remedy for such disputes: Be it therefore enacted by His Excellency the Governor of Western Australia and its Dependencies, tended to Fishery by and with the advice and consent of the Legislative Council thereof, that the provisions of an Act passed in the sixth year of the reign of Her present Majesty, entitled An Act to provide a Summary Remedy in certain cases of Breach of Contract,' shall (except as hereinafter modified) apply and extend to all owners or persons fitting out or providing for the whale or other fisheries of or belonging to this Colony and all whalers and persons employed or engaged in any of the said

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Master and Servant

diction in one Justice

services subject to the jurisdiction of the Colony: Provided that all the Proviso, juris. powers and authority which by the aforesaid Act are given to any two Justices may for the purposes of this Ordinance be exercised by one Justice Provided also that no Justice who is beneficially or as agent for another interested in any particular fishery shall act or adjudicate in any matter concerning the same under this Ordinance.

2. And be it enacted that articles of agreement between any owner or employer in the fisheries and the several whalers or persons engaged by him in such service shall be in writing and signed by the parties to be charged therewith, and all such articles entered into after the passing hereof shall be signed only in the presence of some Justice of the Peace, being distinctly read over to every party before he shall be required to sign the same, and such owner or employer shall within twenty-one days from the passing hereof and on or before the twentieth day of April in every year thereafter or as soon thereafter as may be practicable deposit the original articles so signed as aforesaid at the office of the Government Resident, who shall on payment of the sum of five shillings receive and retain the same in secure custody and permit from time to time on the payment of one shilling for each signature additional signatures to be made thereto, and allow inspection thereof to any party paying sixpence; and shall on payment of ten shillings and on proof to his satisfaction of the signature of the parties sought to be charged or of the Justice or Justices attesting the same, grant to any person interested therein office copies of such articles certified as true copies under his hand and seal, which office copies so certified shall be sufficient evidence of the agreement the same as if the original articles were produced and proved according to law; and whosoever shall wilfully neglect to deposit such articles in manner aforesaid shall on conviction forfeit and pay a sum not exceeding twenty pounds.

Proviso, Justice

interested not to

t

Articles of agreeposited, &c.

ment to be de

3. And be it enacted that every owner or employer as aforesaid Names of parties to be gazetted desirous to avail himself of the provisions hereof shall within two calendar months from the date of signing any such articles or from the passing of this Ordinance, insert a notice in the 'Government Gazette' setting forth the name of every whaler or other person engaged by him in any fishery as aforesaid, and the capacity in which such person is employed, paying to the Printers of the Government Gazette a fee of five shillings for the insertion; and no such whaler or person engaged as aforesaid whose name is not published in manner as aforesaid shall be bound by any such agreement.

6

4. And be it enacted that whosoever shall during the continuance of the term of service contracted for by any such articles knowingly or after two calendar months from the publication of the 'Gazette' notice as aforesaid, employ and retain or assist in employing or retaining contrary to the true intent and meaning of such articles any whaler or person who shall have so bound himself to any service still unperformed, shall on conviction for every such offence forfeit and pay a penalty not exceeding fifty pounds.

5. And be it enacted that every such whaler or person bound under articles as aforesaid who shall engage or hire himself in the service of any other owner or employer against the consent of his master, and contrary to the intent and meaning of his articles, shall on conviction for every such offence be adjudged to forfeit to such

Penalty for emarticled, not exceeding £50.

ploying parties

Articled whalers, elsewhere forfeit &c., engaging wages, &c., and prisonment, &c.

to suffer im

Ordinance not to interfere with Merchant Seamen's Act

Justice may retain fees, &c.

Limitation of prosecutions three months

Master and Servant

owner or employer any wages or lays then or thereafter payable or deliverable under the said articles or any part thereof, and in case any such whaler or person so breaking his agreement shall have received any advance against his lays or wages on faith of such agreement, such whaler or person shall on conviction forfeit and pay a sum equal to double such advance, and out of the moneys received the amount of such advance shall be paid to the employer or party who disbursed the same, and the residue thereof shall be paid to the use of Her Majesty, her heirs and successors, for the public uses of the Colony, and the offender may further be committed to prison for a period not exceeding three calendar months, and during that period to be kept to hard labour, as to the convicting Justice may seem reasonable.

6. Provided always and be it enacted that nothing herein contained shall prevent any whaler or other person being engaged by his employer to serve as a seaman in accordance with the provisions of an Act of the Imperial Parliament of the fifth and sixth years of the reign of His late Majesty King William the Fourth, intituled An Act to amend and consolidate the Laws relating to the Merchant Seamen of the United Kingdom and for Forming and Maintaining a Register of all the Men engaged in that Service.'

6

7. And be it enacted that all sums of money received by any Justice of the Peace under this Ordinance for the reception, inspection. or certified copy of any such articles as aforesaid, shall or may be retained by such Justice for his own use and benefit.

8. And be it enacted that all informations and proceedings for offences against this Ordinance shall be commenced within three calendar months after the offences thereby respectively charged shall have been committed.

FREDERICK CHIDLEY IRWIN,

GOVERNOR AND COMMANDER-IN-CHIEF.

9 Vic., No. 4, made perpetual

1

WESTERN AUSTRALIA

ANNO DUODECIMO

VICTORIÆ REGINA

No. 2

An Ordinance to make perpetual an Ordinance intituled 'An Ordinance to make provision for the Trial of Criminal Offences at Albany and other remote Districts of the Colony of Western Australia.'

[Assented to 20th July, 1848.

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WHEREAS an Ordinance was passed in the ninth year of the reign of Her present Majesty, intituled An Ordinance to make provision for the Trial of Criminal Offences at Albany and other remote

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