THE CRIMINAL CODE ACT, 1899

Transcription

1 193 THE CRIMINAL CODE ACT, Vic. No.9 Amended by CrbninaI Code Correction of Errors Act of 1900, 64 Vic. No. 7 Statute Law Remon Act of 1908, 8 Ed". 7 No. 18 Criminal Code Amendment Act of 1913, 4 Geo. 5 No. 23 Criminal Code Amendment Act of 1913, (No.2), 4 Geo. 5 No. 25 Criminal Code Amendment Act of 1914,5 Geo. 5 No. 22 Criminal Code Amendment Act of 1922, 13 Geo. 5 No.2 Criminal Code Amendment Act of 1922 (No.2), 13 Geo. 5 No. 26 State Children Acts Amendment Act of 1928, 19 Geo. 5 No. 19, Section 3 Art Union Regulation Act of 1930, 21 Geo. 5 No. 11, Section 3 Criminal Code (Prohibition of Secret Commissions) and Further Amendment Act of 1931, 22 Geo. 5 No. 40 Industrial Conciliation and Arbitration Act of 1932, 23 Geo. 5 No. 36, Section 85 Dairy Produce Acts and Other Acts Amendment Act of 1934, 25 Geo. 5 No. 11, Section 11 Criminal Code Act Amendment Act of 1939, 3 Geo. 6 No. 28 Criminal Code Amendment Act of 1943, 7 Geo. 6 No. 14 Criminal Law Amendment Act of 1945, 9 Geo. 6 No. 11 Criminal Code Amendment Act of 1946, 10 Geo. 6 No. 22 Criminal Law Amendment Act of 1946, 11 Geo. 6 No.6 Criminal Law Amendment Act of 1948, 12 Geo. 6 No. 48 Traffic Act of 1949, 13 Geo. 6 No. 26, Section 24 Elections Acts and the Criminal Code Amendment Act of 1952, 1 Eliz. 2 No.4 Part In Criminal Code and Justices Acts Amendment Act of 1956, 5 Eliz. 2 No.5 Criminal Code Amendment Act of 1957, 6 Eliz. 2 No.1 Criminal Code and Other Acts Amendment Act of 1961, 10 Eliz. 2 No. 11 7

2 194 CRIMINAL LAW Vol. 3 An Act to Establish a Code of Criminal Law Preamble [Assented to 28 November 1899] WHEREAS it is desirable to Declare, Consolidate, and Amend the Criminal Law: Be it enacted and declared by the Queen's Most Excellent Majesty, by and with the advice and consent of the Legislative Council and Legislative Assembly of Queensland in Parliament assembled, and by the authority of the same, as follows:- 1. Short title. This Act may be cited as "The Criminal Code Act, 1899." 2. Establishment of Code. [Schedule I.] On and from the first day of January, one thousand nine hundred and one, the provisions contained in the Code of Criminal Law set forth in the First Schedule to this Act, and hereinafter called "the Code," shall be the law of Queensland with respect to the several matters therein dealt with. The said Code may be cited as "The Criminal Code." For the principles of construction peculiar to codifying statutes, see Bank of England v. Vagliano Brothers, [1891] A.C. 107, per Lord Halsbury L.C., at p. 120, and per Lord Herschell, at pp. 144, 145; Robinson v. Canadian Pacific Railway Co., [1892] A.C. 481, at p. 487, where the Judicial Committee said: "The language used by Lord Herschell in Bank of England v. Vagliano Broth~rs, with reference to the Bills of Exchange Act, 1882, (45 and 46 Vic. c. 61) has equal application to the Code of Lower Canada: 'The purpose of such a statute surely was that on any point specifically dealt with by it, the law should be ascertained by interpreting the language used instead of, as before, by roaming over a vast number of authorities.' Their Lordships do not doubt that, as the noble and learned Lord in the same case indicates, resort must be had to the pre-existing law in all instances where the Code contains provisions of doubtful import, or uses language which had previously acquired a technical meaning. But an appeal to earlier law and decisions for the purpose of interpreting a statutory Code can only be justified upon some such special ground." But see per Palles C.B. in Wallis v. Russell, [1902] 2 I.R. 585, at pp. 590, 591. The principles enunciated above were applied in Brennan v. R. (1936), 55 C.L.R. 253, at p. 263, and with respect to the New Zealand Criminal Code in R. v. Hare (1910), 29 N.Z.L.R See also per Stout, C.,I., in R. v. Cox [1932] N.Z.L.R. 596, at p In Wren v. Holt, [1903] 1 K.B. 610, at pp , Vaughan Williams, L.J., used these words: "The difficulty arises which must always exist when an attempt is made to enact an exhaustive Code of any branch of our law. However able the codifier may be, when the Code comes to be applied to some of the innumerable cases that must arise, there is found every now and then some case which it is impossible to suppose was in fact intended to be governed by the Code. At the same time the Code purports to be exhaustive, and, therefore, it is necessary to try to treat every case as falling within it". In this connexion it is interesting to note the following passage in the Report of the Commissioners appointed in England in 1878 to report on a draft criminal code which had recently been prepared: "It must be observed that codification merely means the reduction to the existing law to an orderly written system freed from the needless technicalities, obscurities, and other effects, which the experience of its administration has disclosed." It should be noted however that this section makes the Code law only "with respect to the several matters therein dealt with". Cf. also s. 3, proviso (4). That the common law relating to offences punishable on indictment has been completely superseded is shown by s. 5 of this Act. The use of the word "declared" in the enacting words of this Act i.5 worthy of note. Its employment is not, however, an indication that the Code is to be regarded as re-enacting the pre-existing law without modification, since the use of the word to introduce new rules of law is neither incorrect nor uncommon.

3 CRIMINAL CODE ACT, 1899 ss See Harding v. Commissioner of Stamps for Queensland, [18981 A.C. 769, at p. 775; Q.L.l. 134, at p See also the Preamble, where it is recited that it is desirable "to amend" the criminal law, and the Preliminary Note, p By-laws which are in conflict with provisions of the Criminal Code are invalid. See Burrowes v. Balderston (1934), 28 Q.l.P.R. 79. As to the principles of construction of the Code, see also R. v. Scarth [1945] St. R. Qd. 38 at pp. 43-4, 47-9; R. v. Smith, [1949] St. R. Qd. 126 at pp As to the weight to be attached to the marginal notes to the Draft Code in the interpretation of the Code, see R. v. Martyr, [1962] Qd. R. 398 at p On and from the coming into operation of the Code- (1) Repeal. Schedule II. The several Statutes of the Realm mentioned in the Second Schedule to this Act shall be repealed so far as they are in force in Queensland to the extent in the said Schedule indicated; (2) Schedule III. The several Statutes of New South Wales and Queensland mentioned in the Third Schedule to this Act shall be repealed to the extent in the said Schedule indicated; (3) Schedule IV. The several Statutes of New South Wales and Queensland mentioned in the Fourth Schedule to this Act shall be amended in the manner in the said Schedule indicated, and shall be read and construed as being so amended accordingly. Saving. Provided as follows:- ( 1) The repeal of any Statute or part of a Statute set forth in the said Schedules shall not affect the construction of any other Statute, or of any other part of the same Statute, whether as regards the past or the future: (2) When any enactment not mentioned in the said Schedules has been repealed, confirmed, revived, or perpetuated, by any enactment hereby repealed, such repeal, confirmation, revivor, or perpetuation, shall not be affected by the repeal effected by this Act: (3) This Act shall not affect the validity, invalidity, effect, or consequences, of anything already done or suffered, or any existing status or capacity, or any right, title, obligation, or liability, civil or criminal, already acquired, accrued, or incurred, or any remedy or proceeding in respect thereof, or any release or discharge of or from any debt, penalty, obligation, liability, claim, or demand, or any indemnity, or the proof of any past act or thing; and any action, prosecution, or other proceeding, begun before the coming into operation of the Code, may, subject to the provisions of the Code, be continued as if this Act had not been passed; and any ac~ion, prosecution, or other proceeding, in respect of anythmg done or omitted to be done before the coming into operation of the Code, may, subject to the provisions of the Code, be brought, taken, and prosecuted, in the same manner as if this Act had not been passed: ( 4) This Act shall not, except as expressly therein declared, affect any principle or rule of law or equity, or established

4 196 CRIMINAL LAW Vol. 3 jurisdiction, or form or course of pleading, practice, or procedure, notwithstanding that the same respectively may have been in any manner affirmed, recognised or derived, by, in, or from, any enactment hereby repealed: (5) This Act shall not revive or restore any jurisdiction, duty, liability, right, title, privilege, restriction, exemption, usage, practice, procedure, form of punishment, or other matter or thing, not now existing or in force. Statutes of the Realm originally became law in the territory of Queensland by virtue of settlement of the British colony of New South Wales (5 HaJ-sbury's Laws of England, 3rd ed., p. 697), and subsequently by operation of the Australian Courts Act, 1828, s. 24 (Imperial) (title CONSTITUTION), the Supreme Court Act of 1867, s. 20 (title SUPREME COURT), and the Constitution Act of 1867, s. 33 (title CONSTITUTION). New South Wales statutes were continued in force upon the separation of Queensland by the lastmentioned provision. As to the effect of repeals, see the Acts Interpretation Acts, 1954 to 1962, ss. 9, 19, 20, 21, title ACTS OF PARLIAMENT, Vol. 1 p. 82, R. v. Francis; Ex parte Griffin, [1907] St. R. Qd. 194; 1 Q.J.P.R. 130 (sub nom. R. v. Esplin; Ex parte Griffin). As to the jurisdiction of State Courts in respect of offences against the laws of the Commonwealth, see the Commonwealth Judiciary Act , ss. 68 et s.eq., title HIGH COURT. As to service of criminal process in other States of the Commonwealth, see the Commonwealth Service and Execution of Process Act , ss. 15 et seq. title PRACTICE. Provisions relating to criminal jurisdiction will be found in the Supreme Court Act of 1867, ss. 24 et seq. The Local Government Acts, 1936 to 1963, title LOCAL AUTHORITIES, do not affect the Criminal Code Act, 1899, except as therein expressly provided. See s. 2 (3) and Schedule II. of those Acts. 4. Construction of Statutes, Statutory Rules, and other instruments. From and after the coming into operation of the Code, the following rules shall, unless the context otherwise indicates, apply with respect to the construction of Statutes, Statutory Rules, By-laws, and other instruments, that is to say,- (1) When in any Statute, Statutory Rule, By-law, or other instrument, public or private, the term "felony" is used, or reference is made to an offence by the name of felony, it shall be taken that reference is intended to an offence which is a crime under the provisions of the Code: (2) When in any Statute, Statutory Rule, By-law, or other instrument, public or private, the term "murder" is used, it shall be taken that reference is intended to the crimes of wilful murder and murder and each of them: (3) When in any Statute, Statutory Rule, By-law, or other instrument, public or private, the term "larceny" is used, it shall be taken that reference is intended to the crime of stealing: (4) When in any Statute, Statutory Rule, By-law, or other instrument, public or private, reference is made to any offence by any specific name, it shall be intended that reference is intended to the offence which, under the provisions of the Code, is constituted by the act or omission that would heretofore have constituted the offence referred to:

5 CRIMINAL CODE ACf, 1899 ss (5) When in any Statute, Statutory Rule, By-law, or other instrument, public or private, reference is made to any of the statutory provisions hereby repealed, it shall be taken that reference is intended to the corresponding provisions or substituted provisions of the Code. For the distinction between crimes and other offences and as to the abolition of the division of crimes into felonies and misdemeanours, see ss. 3, 5 of the Code, and notes thereto. Wilful murder and murder are defined by ss. 301, 302 of the Code. Stealing is defined by s. 391 of the Code. With paragrah (5), cf. the Acts Interpretation Acts, 1954 to 1962, s. 9, title ACTS OF PARLIAMENT, Vol. 1, p. S.c.. S. Provisions of Code exclusive with certain exceptions. From and after the coming into operation of the Code, no person shall be liable to be tried or punished in Queensland as for an indictable offence except under the express provisions of the Code or some other Statute Law of Queensland, or under the express provisions of some Statute of the United Kingdom which is expressly applied to Queensland, or which is in force in all parts of Her Majesty's Dominions not expressly excepted from its operation, or which authorises the trial and punishment in Queensland of offenders who have at places not in Queensland committed offences against the laws of the United Kingdom. Cf. the effect of s. 2, and the repeal of certain Statutes of the Realm by s. 3 (1). As to the effect of this provision on common law offences, see Re Blomfield (1913), 33 N.Z.L.R. 545; Nash v. Nash, [1924] N.Z.L.R The provision there considered was, however, different in important respects. Disobedience to statute law is punishable as a misdemeanour unless some other exclusive method of enforcement is provided. See s. 204 of the Code. As to offences under the Code which are also offences under Commonwealth Act~, see R. v. Thomson, [1913] St. R. Qd. 246; [1913] Q.W.N. 54; 7 Q.I.P.R. 15.c., noted to s. 398 of the Code; R. v. McDonald (1906), 8 W.A.L.R With respect to the powers of the Commonwealth to enact criminal legislation, see R. Y. Kidma1l (1915), 20 C.L.R Civil remedies. When by the Code any act is declared to be lawful, no action can be brought in respect thereof. Saving. Except as aforesaid, the provisions of this Act shall not affect any right of action which any person would have had against another if this Act had not been passed; nor shall the omission from the Code of any penal provision in respect of any act or omission which before the time of the coming into operation of the Code constituted an actionable wrong affect any right of action in respect thereof. Prosecution or conviction does not affect a civil remedy against the offender except where otherwise provided, s. 702 of the Code. By virtue of this section a civil action for assault will not lie where the act is justifiable under ss. 277, 278 of the Code, relating to defence of possession of land or premises, Lotz v. Bullock, [1912] St. R. Qd. 36; [1912] Q.W.N. 10; or under s. 269 of the Code, by reason of provocation, White v. Connolly [1927] St. R. Qd. 75; [1927] Q.W.N. 19. A practice constituting a breach of the duty imposed by s. 289 of the Code, with respect to dangerous things, was held incapable of affording a defence to an action for negligence, Hoffman v. Nielsen, [1928] St. R. Qd. 364; 22 Q.J.P.R See Telegraph Newspaper Company Limited v. Bedford (1934), 50 C.L.R. 632, where it has held that the defences available under the Code apply to a civil action for defamation. This case was followed in Antonovitch v. West Australian Newlipapers Ltd., [1960] W.A.R. 176.

6 198 CRIMINAL LAW Vol Offender may be prosecnted nnder Code or other Statnte. When an offender is punishable under the provisions of the Code, and also under the provisions of some other Statute, he may be prosecuted and convicted under the provisions either of the Code or of such other Statute; so that he is not twice punished for the same offence. Cf. ss. 16, 17,598 (3), (4) of the Code, and the Crimes Act , s. 11 (Commonwealth). See also the Acts Interpretation Acts, 1954 to 1962, s. 45, title ACTS OF PARLIAMENT, Vol. 1, p Contempt of Court. Nothing in this Act or in the Code shall affect the authority of Courts of Record to punish a person summarily for the offence commonly known as "Contempt of Court"; but so that a person cannot be so punished and also punished under the provisions of the Code for the same act or omission. See ss. 205, 621 of the Code. The summary power of punishing for contempt of court should be used liparingly and only in serious cases. It Wall never intended to use it to suppress methods of advocacy which are merely offensive, Parashuram Detaram Shamdasani v. R., [1945] A.c. 264 at p Not every act of discourtesy to the Court by counsel amounts to contempt of court, nor is conduct which involves a breach by counsel of his duty to his client necessarily in that category, Joseph Orakwue lzuora v. R., [1953] A.C A person committed for contempt of court and sentenced therefor, has no right of appeal against such sentence to the Court of Criminal Appeal. Any right of appeal that such a person may have must be exercised by the Full Court in its civil jurisdiction, R. v. Ballinger, [1961] Q.W.N. 24. See also the District Courts Acts 1958 to 1963, s. 193, title DISTRICT COURTS. As to contempt of court by publication of matter likely to interfere with a fair trial, see R. v. McKay, [1927] St. R. Qd. 230; [1927] Q.W.N. 40; 21 Q.J.P.R. 99; Packer v. Peacock (1912), 13 c.l.r. 577; R. v. White, [1925] St. R. Qd. 85; [1925] Q.W.N. 11; 19 Q.J.P.R. 20; R. v. Queensland Newspapers Pty. Ltd.; Ex parte Shannon, [1962] Q.W.N. 50. Generally with respect to contempt of court, see 8 Halsbury's Laws of England 3rd ed., p (Repealed.) Repealed by the Statute Law Revision Act of 1908, 8 Edw. 7 No. 18, s General Rules. At any time after the passing of this Act the Judges of the Supreme Court may make General Rules, to take effect on the coming into operation of the Code, with respect to the several matters specified in the Code as matters with respect to which they may make General Rules. See s. 707 of the Code; the Supreme Court Act of 1921, s. 11, title SUPREME COURT; the Acts Interpretation Acts, 1954 to 1962, s. 51, title ACTS OF PARLIAMENT, Vol. 1, p. 104.