WHE [Assented to 20th December, 1852. HEREAS it is expedient to make further provision for the pre- Preamble vention of burglary and other offences in the night: Be it 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 1. [Repealed by 23 Vic., No. 8.] 2. [Repealed by 29 Vic., No. 5, sch. B.] 3. [Repealed by 29 Vic., No. 5, sch. B.] 4. [Repealed by 29 Vic., No. 5, sch. B.] 5. And be it enacted, that if upon the trial of any indictment for any felony, except murder or manslaughter, when the indictment shall allege that the defendant did cut, stab, or wound any person, the jury shall be satisfied that the defendant is guilty of the cutting, stabbing, or wounding charged in such indictment, but are not satisfied that the defendant is guilty of the felony charged in such indictment, then and in every such case the jury may acquit the defendant of such felony, and find him guilty of unlawfully cutting, stabbing or wounding, and thereupon such defendant shall be liable to be punished in the same manner as if he had been convicted upon an indictment for the misdemeanour of cutting, stabbing or wounding. 6. [Repealed by 29 Vic., No. 5, sch. B.] 7. And be it enacted that it shall be lawful for any person whomsoever to apprehend any person who shall be found committing any offence against the provisions of this Ordinance, and to convey him or deliver him to some constable or other peace officer in order to his being Any person may apprehend persons committing indictable offences in the night Any person assaulting a person entitled to apprehend 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 him to be guilty 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. of a mis demeanour Night to be the same as in cases of burglary Costs of prosecutions Nothing in this 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 Ordinance. CHARLES FITZGERALD, GOVERNOR AND COMMANDER-IN-CHIEF. Preamble An Ordinance for further improving the Administration of Criminal Justice. [Assented to 22nd December, 1852. WHEREAS offendetchnical THEREAS offenders frequently escape conviction on their trial 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 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 misdemeanour, 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 per sons, 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 Verdict and judgments valid 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 after amendment 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. 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 and convicted of 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. 4. [Repealed by 29 Vic., No. 5.] 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 name or designation by which the same may be usually known, or by the purport thereof, without setting out any copy or fac simile 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 fac simile of the whole or any part thereof. 8. [Repealed by 29 Vic., No. 5.] 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 Criminal Law as herein lastly mentioned shall be liable to be afterwards prosecuted for an attempt to commit the felony or misdemeanour for which he was tried. tried to be after wards prosecuted for the same 10. And whereas it is enacted by a certain Act of the Imperial No person so 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 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. 13. [Repealed by 29 Vic., No. 5.] be had 14. [Repealed by 29 Vic., No. 5.] 15. [Repealed by 29 Vic., No. 5.] 16. [Repealed by 29 Vic., No. 5.] necessary 17. And be it enacted, that in every indictment in which it shall be to make any averment as to any money or any note of any bank it shall be sufficient to describe such money or bank note simply as money, without specifying any particular coin or bank note, and Person indicted for embezzlement not to be acquitted if offence turn out larceny, and vice versa Upon indictment for jointly receiving, persons guilty of separately receiving may be convicted Three larcenies from same preson within six months may be included in the same indictment Where a single taking is charged, the pro secutor not re quired to elect, &c. Coin or bank notes may be described simply as money |
