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committee, and, if I am in order, I shall move that the nanie of Mr. Groom be omitted with t h e view of inserting the name of Mr. FiteTerald.
T h e S P E A K E R : I would point out t h a t a n amendment has already been made i n the mution in words which nccur later than those the hon.
member proposes toomit. H i s amendment there- ore is not in order.
Mr. F I S H E R (Gympie) : I should like t o say a word or two in reply t o w h a t t h e Premier has stated. I think there are sixty officers who have the cnstody of papers similar to these, and in t h e only one instance i n which the papers have been asked for they cannot be found. If that is so, how are we t o know t h a t papers are not missing i n other cases.
T h e PREXIER: This inquiry will deal with only one of those officers.
Xr. F I S H E R : I was going to say t h a t I think the inquiry should cover a wider scope.
At any rate it may reasonably be argued t h a t if i n one place out of sixty the papers cannot be got when required, they may not be forthcoming i n other cases when required. T h e representa- tion of the country is based on the genuineness of t h w e papers, and if they disappear then all confidence i n the Government, or t h e Opposi- tion, or Parliament will go with them. F o r t h a t reason I consider t h e matter is one of importance, -and t h a t a committee should be appointed to endeavour to clear up the mystery which appears to be troubling the people of the colony.
Mr. S T O R Y (Balonne): If it comes to a division I will vote with the leader of t h e Opposition, first of all as a matter of justice and fair play ; secondly, because I think t h e hon.
gentleman deserves a. great deal of encourage- ment. Hitherto he has taken it for granted t h a t all the unfairness and dishonesty belongs, of right, t o this side. I n matters of elections he has taken t h a t for granted. H e has assumed that, and spoken and acted on i t ; but in this caye there is a slight doubt. H e Rays
“alleged theft.” T h a t shows that, in this case, a t any rate, he is inclined to inquire before he condemns. T h a t is a decided advance on t h e part of the hon. gentleman, and I think the Ministry would be altogether want- ing if i t did not encourage such a feeling. H e has shown a tendency towards some sort of fair play. Therefore he should not be blocked by any means a t all. I do not know what i t may come t o a t last. It may be t h a t he will have a perfectly open mind; that, he will consider accusations before he acts. I think that if he is encouraged i n this particular matter it will be t o t h e advantage of the House and his own educa- tion.
T h e HOME SECRETARY: Where’s the hon.
member for Cairns ? W h a t about the political t h e f t ?
Mr. GIVENS : You cannot draw me this time.
Motion, as amended, p u t ; and the House divided :-
Nessrs. Damson. Glassey, Maxwell, Lesina, Fisher, Kerr, Givens, W. Ihmilton, Browne, Dihley, Jackson, Bell, Turley, Story, Groom. Stephens, Eardacre, Fitz- gerald, Dunslord, YcDonnell, McDonald, Stewart, and Ryland.
NOES. 29.
Messrs. Dickson, Rutledge, Ddrymple, Foxton, Philp, Chatnwa?, Murray Finnej Tooth, Stephenson, Newell, Hood, Armatrong, IT. B. kribh, Leahy. J. Hamilton, Petrie, Kates, Campbell. Lord, Porsyth, Bridges, Grimes, Stodart, J. C. Cribb, Hanran, Cowley, Bartholomew, Annear.
A Y ~ , 23.
Question resolved in the negative.
A t 7 o’clock, the Hozcse, in accordance 6 t h Sessional Order, proceeded with Government business.
O R D E R O F BUSINESS.
T h e P R E M I E R moved t h a t the Orders of t h e Day, NOR. 1 t o 5, inclusive, be postponed until after theconsideration of Order No. 6 asfollows :- Consideration i n Committee of t h e desirableness of i n h d u c i n g a Bill to incorporate and endow t h e University of Queensland.
Mr. DAWSON : I think the hon. gentleman a t the head of the Government might give t h e House some reason for this postponement. I have no very particular objection to i t myself, b u t I may say that I was reminded very sharply this afternoon by an hon. gentleman sitting on the Treasnry bench t h a t it was unusual even to adjourn a debe.te ; and now the Premier wants t o adjourn five Orders of the Day, in order to introduce one other order.
T h e PREXIER : I t is a purely formal matter.
Mr. DAWSON : I t may be, but why does the hon. gentleman not take the House into his con- fidence and give his reasons for wanting this adjournment. This matter way postponed yes- terday, and no reamn was then given why it was postponed. I think the hon. gentleman might be a little more candid a.bout the matter. W a s not t h e Rill ready yesterday ?
T h e PREMIER: This is a purely formal rnatt,er, as the hon. gentleman, from his long experience, must be very well aware. It is usual for the Government t o take the business i n the order which i s most convenient. The intro- duction of this Bill was set down for yesterday, but owing to some error, or some slight modifica- tion being necessary, it was delayed until to-day.
T h e object is to introduce the Hill PO t h a t it may be circulated ax soon as possible. This has been done before without a n y explanation being required.
U N I V E R S I T Y O F Q U E E N S L A N D B I L L . FIRST READING.
T h e House in committee having afirmed the desirableness of introdncing this Bill, it was introduced, read a first time, and t h e second reading made an Order of t h e D a y for Tuesday next.
C i ~ I M I N A L CODE B I L L . SECOND REACING.
T h e A T T O R N E Y - G E N E R A L (Hon. A.
Rutledge, Marunon): I n rising t o move the second r e d i n g of this Bill, I must ask hon.
members not to be alarmed a t its voluminous character. T h e work of paseing i t through this House, I can assure hon. gentlemen, need not be a work of such formidable difficulty as a t first sight appears. If it were a Bill proposing t o enact a set of new laws, or a Bill involving ex- tensive amendments of the existing law, it might very probably be objected by hon. members t h a t the time at t h e disposal of the H o w e during t h e present session is so short that i t is insufficient to deal with i t ; but I hope to be able to convince hon. member8 before I sit down, t h a t by reason of t h e extreme care t h a t has been bestowed upon its preparation, and the shaping of i t in t h e form we now haveit, by theunrivalled draftsman who originally framed it, and t h e prolonged and serioud consideration and revision t o which it has been suhjected by a body of selected experts-some of whom I make bold to say may claim t o rank amongst the ablest lawyers t h a t Australia has yet producid-it will be both a safe and a proper thing to take t h e Bill very largely upon trust. Now, the Bill is what i t professes to be-that is, a codification of the exintirig criminal law i n force in the colony of Queensland, and advantage bas been taken of t h e opportunity afforded by bringing i n this Bill of rectifying certain incongruities and of em- bodying a few suggeated amendments, to which
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I shall draw t h e attention of the House as Iproceed. Those amendments are, in the opinion of the Government-and I think will prore t o be also in the opinion of hon. members of this House - very desirable improvements upon the law as i t now stands. B u t whether they are t o be accepted or not will be a matter for t h e House itself t o decide when those amend- ments come t o be conaidered after t h e Bill has gone into committee. I do not think anyone will dispute the truth of the proposition t h a t I submit when I say t h a t no criminal code will he satisfactory t h a t does not accurately contain provisions declaratory of the common law, which forms so large a proportion Of t h e criminal law of the land. Such provihions are all contained i n this Bill. I n addition to this there are t o he found definitions of t h e nature of certain classes of criminal offences t h a t will be invaluable to judges for t h e purpose of correctly charging juries, and t h a t will enable every intelli- gent person t o understand what are the Ingredients, so to speak, necessary to constitiite certain clasjes of offences punishable by law.
All these declaratory proviqions and definitions, wherever they occur, are set out in t h e clearest terms, and have been subjected t o t h e severest scrutiny, and the language employed is as simple and as free from technicidity as it is possible for language t o he, consistently with clearness and sutficiency of statement. Before proceeding to refer to various provisions of t h e Bill, i t is due to hon. members t h a t I should say a few words explanatory of its history. I n t h e year 1893, after the distincuished lawyer who now occupies t h e position of Chief Justice was raised t o the bench, Sir Thomas McIlwraith, who wap then Premier, was so impressed with the value of the work of consolidation and amendment of the laws relating to justices of the peace effected by the Rtatute known as t h e Juctices Act of 1886, requested the Chisf Justice to nndertake the task of draftin a Criminal Code for t h e colony of Queensland. &hat wae R task which hon. mem- hers will acknowledge, I think, was one of great magnitude, requiring for its e t k i e n t fulfilment t h e possession of natural and acquired qualifica- tions of a very high order. R u t difficult and exacting as the task was, I am happ t o say that, i n the interests of Queensland, Sir
2
W. Griffith fearlessly undertook it. I n the course of his untiring labour the learned draftsman found it necessary, in order to perform hia work efficiently, t o begin with t h e reparation of a digest of the statutory criminal paw in force in Queensland.Mr. DAWSON: Did he call in expert evidence?
T h e A T T O R N E Y - G E N E R A L : H e did not call in expert evidence. I Ray he framed a digest of the whole of the existing statutory law in force i n Queensland-such statutory law as i t is within the competence of this legislature t o either repeal or amend. Now, this statutory law comprises-I ask hon. gentlemen t o give their attention t o the various provisions of it-first, the criminal statute law of England in force in 1828, and extended to t h e colonies by the Act of Geo. I V . c. 83, t o the extent left unrepealed by the Queensland Parliament. I may state t h a t several of those statutes have been i n whole or in part repealed by the legislature of New South Wales before separation, or by this legislature since. T h e whole of those statutes unrepealed
UR to the present time, so far as they are applicable to this colony, are comprised in t h e existing criminal law of Queensland. Secondly, there is comprised i n this statutory law t h e seven cnminal law consolidation Acts passed by this Parliament in 1865. And then we have the numerous statutes containing penal provisions t h a t are scattered over the pages of our statute-book, and scattered in a great many curious ways and i n many different directions.
When t h e digest I have spoken of was prepared in this way, i t was forwarded t o the Attorney- General-my lamented predecessor, the late Hon.
T. J. Byrnes-on the 1st J u n e , 1896, Logether with an explanatory letter. T h e digest was followed by t h e draft of the Code of criminal law, which, accompanied by a lucid explanatory letter, was forwarded to the Attorney-General on the 29th October, 1807. Thiv Draft Code waa printed in double columns. I hope hon. members have seen it. They had an oppurtunityof aeeing i t during t h e past year ; hut i f they have not seen i t 1 shall be very happy to show it toanyone who desires to have it. T h a t Draft Code, as I have Raid, was printed in double columng, each article contained in the Code having set opposite to it the statement of t h e existing law, as contained in the statutes of Queensland, or some other note indicating the source whence that statement of t h e law in the Code was derived. 1)uring the session of last year my hon. colleague, the Postmavter-General, who was then the Minister of Judtice, introduced t h e Draft Code in the form of a Bill into the Legislative Council. B u t as the time a t t h e disposal of the Council was so short, i t was conqidered advisable not to proceed with i t last session. It was, however, resolved to recom- mend t h a t the Bill should be submitted for full consideration and report t o a Royal Commission, for the purposc of deciding upon several matters to which I shall draw the attention of the House.
I n accordance with t h a t recommendation a Royal Commission was appointed, consisting of t h e following :-All t h e judges of the Supreme Courl, with the exception of Rfr. Justice Cooper, who was absent from the colony, all t h e judges of the District Court, t h e Crown Prosecutors of the Supreme Court, a n d t h e Crown Solicitor.
To this Royal Commiusion, Mr. J. L. Wo,lcock, barrister-at-law-now Parliamentar Draftsman -was appointed Fecretary. The e o d e was ex- amined carefully by t h e Commission, who did so under the circumstances of which I shall now in- form lion. members. T h e Commission were in- formed t h a t they were appointed “for thepurpose of examining t h e Code and t h e Bill for its enact- ment, and toreport uponthe following matters’’:- lst, t h e expediency of enactin such a Code: 2nd, the completeneEs of the.Draft
Jade,
having regard t o the existing criminal law of Queensland ; 3rd, the changes proposed by the Draft Code t o be made in t h e existing law ; 4th, any additions, omissions, or alterations which might be thought expedient to be made in the Draft Code, or in the Bill, or either of them.” T h e Commission held twenty-six meetings, and furnished their report to H i s Excellency on t h e 23rd of May last.Mr. DAWSON : How long did each meeting last ?
The A T T O R N E Y - G E N E R A L : Someof them lasted nearly all day. I was present a t a good many of them, and can speak therefore from experience as t o the length of time that was occupied by some of those meetings.
Mr. DAWSON : You can speak feelingly.
T h e A T T O R N E Y - G E N E R A L : I should like t o say a few words in order twinform hon. mem- t e r s of the ideas of the Commission with respect t u t he necessity for a code. The members of t h e Commission, I may say, were unanimously of opinion t h a t it i s expedient t o enact a code of criminal law for Queensland, and, indeed, as was pointed out by Sir Samuel Griffith i n his letter forwarding t h e Draft Code t o t h e Attorney-General-
The desirability of R collected and explicit statement 01’ the cnminal law seems l o require no argument.
All t h e civilised tiations of the world, except some English-speaking peoples, have reduced their criminal law t o the form of a code. T h e
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exceptions include t h e United Kingdom itself and the Aurtralasian colonies, with the exception of New Zealand, which, fortunately, has preceded us in this respect in the work of reform, and has a code. Most if not all of the United States of America have enacted such codes. I think hon.
uembers will agree with me t h a t the need for siich a code has long been felt in this colony.
HONOURABLE MEMBERS : Hear, hear ! T h e A T T O R N E Y - G E N E R A L : Certainly i t has long been felt in Great Britain, and for the p x p o s e nf making the necessary provision for tlie establishment of a code a Royal Commission, consisting of eminent judges, was appointed in England about the year 1878, and the resnlt of tlieir labours was embodied in a Bill, which was fillly considered, and largely availed of, by the learned draftsman who framed the measure now ir the hands of hon. members. Italy has a code enacted in 1888, which is considered to he in many respects the mutit complete and perfect penal code in existence. From this measure, as well as from the penal code of the State of New York, Sir Samuel Gritfith frankly acknowledges he derived in the course of his great labours very valuable assistance. I n order to properly appreciate t h e nature of the work which this Bill represents, i t is necessary for hon. members to hear in mind what codification really means.
I n defining “codification,” I do not t.hink I can employ better terms than those t h a t were emplnyed by t h e members of the Royal Cnminis- sion, consisting of t h e eminent judges t o whom I have already referred, in the report which they made upon t h e subject. As defined by them, codification means “ t h e reduction of the existing law t o a n orderly written system, free from the needless technicalities, obscurities, and other defects which t h e experience of its administra- tion has disclosed.” I do not think clearer nords than those could he employed for t h e .purpose of conveying to ordinary minds t h e idea
of what is implied in a code of this character.
Mr. DAWSON: W e have got extraordinary ones.
T h e A T T O R N E Y - G E N E R A L : Thenecessity for the Code proposed to be enacted by this Bill may be gathered from the fact-and I would like hon. members’ attention t o be drawn to this -that quite apart from the numerous offences a t common low, t h e number of statutory offences mentioned in the digest to which I have already alluded as having been prepared by the Chief Justice, is iipwards of 1,000, and these 1,000 and more offences-and this is the worst part of it- are scattered about the pages of nearly 250 statutes, the consideration and examination of which certainly disclosed to Sir Samnel Griffith the most conspicuons and glaring inconsietencies and incongruities.
HONOUI~ABLE MEMBERS : Hear, hear ! T h e A T T O R N E Y - G E N E R A L : Some of these are to be found particularly in connection with the law relating t o forgery. T h e enact- ments in reference to this offence are contained i n noless than fifty-four different statutes, sixteen of which are Imperial statutes of a date anterior to 1828. T h e variety of penal provisions on other subjects was found t o be very little less embar- rassing. All these have been stripped of their technicalities and useless repetitiona, and not only reduced within reasonable limits as to space, but set forth in clear and unambiguous langunge, the meaning of which it is hcarcely possible t o mistake. Besides all this complex statutory law relating t o crime, thereie in existence a vast body of what is known as “common law”--that is, unwritten law-law which has never been p u t i n statntory form a t all, and t h a t is t o be found only in statements t hat are contained for the most part in the text books of very many
eminent writers on the subject of criminal law, or t h a t are t o be deduced from the decisions of t h e judges who have presided in the criminal courts from time to time. T h a t is what we under- stand by the common law. When it is remem- bered t h a t ignorance of t h e law does not excuse anyone who commits a breach of the law, i t becomes, I say, instantly apparent t h a t such an extensive hody of law ought, in all fairness to the community t h a t is bound under more or less serious penalties to obey it, to be reduced t o writing in such a form t h a t every intelligent person who is able to read should have an opportunity of knowing for himself what the law really is.
HOKOUKABLE MEMBERS : Hear, hear ! Mr. UAWSON: I s it t o be translated into Chinese ?
T h e A T T O R N E Y - G E N E R A L : W e will leave them to follow in our reforming footsteps.
As hon. members will see, the Bill is a very short measure indeed, biit the Code itself is contained i n t h e 1st schedule. Hon. niembere will see t h a t the Bill repeals the several statutes set out i n the 2nd, 3rd, and 4th schedules to the extent mentioned iii those schedules. The repealed statuteti included in the 2nd schedule are Impe- rial statutes which, so far as their provisions extend t u Queensland, t h e Queensland Parlia- ment is competent t o amend or repeal. T h e repealed statutes, or parts of statutes, included in the 3rd schedule are proviaiuns of statutes relating to criminal law, passed by t h e legislature of New South Wales hefore Queens- land was erected into a separate colony, and also the provisions of etatutes passed by t h e Parliament of Queensland since separatinn.
The 4th schedule contains the par- [7’30 p.m.1 ticulars of amendments other than repeals of certain statutes of New Sonth Wales and Queensland. If hon. members will kindly refer t o section 6of the Bill they will see what a most important provision is enacted there--that is, t h a t from and after thecoming into operation of the Code no person Rhall be liable to be tried or punkhed in Queensland as for an in- dictable offence except under t h e proviaions of the Code or some other statute law of Queensland, or under the express provisions of some Imperial statute which is in force in Queensland. Sec- tion 6 relates to civil remedies, aiid enacts that when any Act is declared by t h e Code t o be lawful, no civil remedy lies for it, but t h a t in other cases civil remedies are not t o be affected. L e t me draw the atten- tion of hon. members briefly-became I am not going into very minute particulars of detail a t this stage-to what the Code actually contains.
I may state, speaking generally, t h a t the Code is an at.tempt to cover t h e whole ground of what may be called the living criminal law, including procedure. T h a t will be all found set out i n detail, and I shall have much pleasure in draw- ing attention of hon. members to the particular points as t h e Bill passes through committee.
This includes, as I have already intimated, all t h e rules of t h e unwritten law which are rele- vant to the question of criminal responsi- bilities and the administration in courts of criminal jurisdiction, together with all offences a t conimnn law which are not such as ought manifestly to be abolished. The intention i n the enactment of a Code is such t h a t no prosecii- tion thereafter shall be commenced as for an in- dictable offence except under t h e provisions of t h e Code or some other statute in force in Queens- land. T h a t is to say, we have now in this Code embodied all the existing statute law of Queens- land, with the exception of a few matters of a minor character to which I shall refer later on, b u t it will be competent for this House as t h e
years go on to pass other statutes upon other snb- jects, which statutes will impose penalties of vari- ous kinds for breaches of their provisions. These statutes of course, being passed subsequently to t h e date of this Code, will not have aplace in the Code, so t h a t it is right and proper for the Code to establish t h a t there shall be no prosecution or punishment as for the offences against t h e criminal law of Queensland t h a t is not imposed under the provisions of this Code or some other statute law which has heen passed by this Parliament.
Mr. HARDACRE : W h y not some other suhse- quent statute l a w ?
The A T T O R N E Y - G E N E R A L : Of course, It may include e w n that if the House thought it desirable t o make alterations in regard t o offences and punishment for offences t h a t are set out in the Code itself. It would be quite within the competency of t h e House to do that, and t o make t h e punishment such as providad by the statutes, makin the alterations or leaving it just a s i t w o u l d t e for t h e purpose of making fresh laws upon fresh subjects. To recapitulate: T h e Code practically includes t h e criminal statute law in force in 1828, and then applicable to the colony, which has not since been repealed, and it also includes t h e seven criminal consolidat.ion Acts passed in 1865, included in which you have the Offences against t h e Pernon Act, the Offences against Property Act, the Coinage Act, and other Acts of t h a t s o r t ; and then you have the numerous provisions of t h e st'atute law and t h e prnvisions declaratory of the common law t h a t I have already referred t o together with defini- tions, and many useful provisions as to criminal procedure. T h a t is i n brief what the Code m+y be said to contain. Now, I may point o u t t o hon.
members, for the purpose of drawing a sharp distinction, what the Code does not contain.
first, it does not include the
e","~?;?
in Imperial statues which are in force throughout H e r Majesty's dominions, irrespective of local legislation, such, for example, as t h e laws relating f o piracy, the laws relating tu the slave trade, the lsws relating to foreign enlistment, the laws relating to kidnap- ping, and the laws relating t o merchant shipping.These are laws that have heen pasaed by t h e Imperial Legislature, and that have been made applicable t o all parts of t h e British dominions.
And there have been Imperial statutes passed by which the courts in Queensland have had jurisdiction conferred npon them. For example, bhough Queensland itself has no jnrisdiction whatever over offenders who commit offences outside the territorialwatersof Queensland, yet by certain Imperial enactments men who are guilty of comm7tting offences on t h e high sea8 may, if they are found afterwards within Queensland nr any other part of t he British dominions, Le tried in t h e particular part of the British dnminions where they are found in all respects and to the same extent as if they had been con- veyed t o England and tried mid punished in t h e courts there. Such laws aa those are not t o be found repeated in this Code. It only deals with laws, aw I said before, and as I cannot too emphatical!y state again -laws passed pre- viously t o Queensland becoming a colony either u p to 1828 by t he Imperial Parliament or by New Sout,h Wales up to the time of Reparation, or passed since separation by this Parliament. These are t h e xtatute laws which are embodied in this Code in simple language which will commend itself t o t h e judgment of all hon. members. Those statutes which have been passed by t h e Imperial Parlia- ment which have universal application to all parts of t h e world upon subjects npon which Queensland is not competent t o legislate, are
not found in t h e Code. Not only so, b u t there a r e certain provisions of the English criminal law that were in force in 1828, whether statutory or by virtue of the couimnn law, t h a t are mani- festlyobsolete or inapplicable t o this colony. This Ci)de takes no notice of them. €Ion. gentlemen will concur with me t h a t in a criminal code prepared for the colony of Queensland we have n o right to take into consideration la.ws relating to euch obsolete matters as the statutes of prce- mwniw or statutes relating-
Mr. D a ~ v s o x : W e had cases brought under a statute of George 111. not so long ago.
The A T T O R N E Y - G E N E R A L : O r statutes relating to various denominationR or to blasphemy and offences called forestalling and regrating. If hon. members are curious to knnw-
Mr. UAWSON : W e know what forestalling is.
T h e A T T O R N E Y - G E N E R A L : If hon. niem- bers are curious t o know more about these, I shall be happy to give special information ; b u t I think it would he pedantic on my part if I were to unnecessarily describe a t any length t h e nature of the offences comprehendrd under these various designations. B u t , though these things, or some of them, exist on t h e statute-book of the old country, where they are reluctant to wipe out some of the ancient law, we have not intro- duced these in any shape or form into this Code- in fact, the Code remains, if I may say so, unblem- ished by t h e declaration of any law upon any such unnecessary subjects as these. Then, again, t h e Code dors not contain any refer- ence to offences which may be regarded as in the nature of police regulations, such, for example, a s certain clanses in the Vagrancy Act, and some in the Towns' Police Acts. Then, again, procedure before justices, whether for the purpose of Rum- mary conviction or for t h e purpose of deciding whether a prink& facie case has been made out against a nian charged with an indictableoffence, is not dealt with in the Code. These are not +eluded, hecawe thpy are already included in t h a t admirable summary of the law which is contained in the Justices' Act, which was passed in 18S6, and which has been found w useful by the large body of magistrates who administer t h e law in various parts of t h e colony, by legal practitioners, and by t h e general public as well. And then there are some indictable offences that may be regarded as being i n contravention of laws of a temporary or specla1 nature, and are therefore not proper t o be embodied in a permanent Code. For instance, t h e offence relating to the export of cedar without paying duty, certain offences with reference to the reconstruction of banks, and afew offences against t h e law relating t o t h e construction of land grant railways, and thelike.
Hon. gentlemen will see a t once that provisions of statutes dealing with the reconstruction of banks and with the construction of land grant railways which never were constructed i t would hardly be pruper to place in a Code of this character as they a r e only temporary laws which mag be repealed a t any time. Now with regard t o the cumpletenoss of the Code itself, I have this to s a y ; that t h e Commission were perfectly unanimous in their opinion t h a t the proposed Code comprised all t h e provisions which in t h e actual circamstitnces of t h e cnlony it is necessary or desirable to include in a Code of criminal law.
It consists then, as I have already intimated, of statutory law which, with' t h e exception of the malters referred to in the report of t h e Commission, is all t h e existing statntory law and provisions declaratory of t h e common law. I t is not necessary for me to refer in detail t o such declaratory provisions, as they are all set out in t h e double column Draft Code which was laid on t h e table of this House and t h e
Council in 3.897. I may, however, for example, refer to chapter 5. If hon. menihers turn t o section 22 they will pee t h a t it relates t o a very difficult branch of the law-criminal responsi- bility. It reads-
Ignorance of the law does not afford any excuse for an act or omission which wonld otherwise constitute an offence, unless knowledge of the law by the offender is expressly declared to be an element of the offence.
But a person is not criminally responsible, as for an offence relating to property, lor an act done or omilted to be done by him with respect to m y property in t h e exercise of an honest claim of right aud without ifiten- tion to desrmd.
A n d then in t h e succeeding section you find a n exposition of the law i n the clearest and most concise language with regard to motive, which often figures LO very largely as a n element i n criminal offences. This portion of the Code, I may say, received t h e most careful and anxious consideration, not only of the learned drafts- man who is chiefly responsible for the work, but also of t h e several members of the Com- mission who were associated with him in the work of reconsideration a n d revision. I may sap also in regard to this part of the work t h a t in the judgment of the Commission i t has been so admirably done t h a t ic has been very. little interfered with in the process of revision. Chapter 26 deals with the definition of assault, and the law of justification and excuse.
These are very important things in t h e j u d g ment of the Commission, and it seems t o nie t h a t no Code would he perfect that did not deal with such subjects as thuse which are mentioned in the chapter. Then from section 291 onwards we find some very important provisions set out, stating what constitutes the crime of murder. I shall have occasion a little later on to refer t o some of these sections for the purpose of pointing out tq hon. members how they will operate if they pass into law. Then you have in P a r t VII. a very important branch of the law relating t o preparations t o commit offences, which is set out for the first time, as far as I know, in language clear and concise and easily understood. There are also some very useful provibions with reference to the law as t o accessories after the fact; and here we find declaratory provisions which, in t h e opinion of th e Chief Justice and other members of t h e Commiesion, are accurate statements of t h e existing unwritten law. There is one exception with regard to the existing law to which I wish t o draw t h e attention of hon.
members, a n d it is to be found on page 152, sec- tion 513. It is a proviaion with reference t o conspiracy, a n d it is a statement of the existing law, with the exception of t h e provisions con- tained in subsection 5, which is not the existing law, h u t which has been ineerted i n accordance with a very recent law passed i n Great Britain.
Instead of permitting the law in regard to conspirac t o be as it was, it provides t h a t a n y person w i n conspires with another to “ prevent or obstruct by means of any a c t or acts, which if done by an individual person would constitute a n offence on his part, the free and lawful exercise by any person of his trade, profession, or occupation,” will be guilty of a misdemeanour.
T h a t limits the niisdemaanour i n t h e matter of the conspiracy mentioned in t h a t paragraph t o acts done by a number which would he offences if they had been done by one man. I think hon. memberswillagree that thisis in accor- dance with t h e more modern idea which prevails in England and prevents t h e making of a, body of men guilty of acts done as a body which would not be wrong if done by only one man. I propose t o draw t h e attention of hon. members t o certain changes proposed by the Code in the existing law.
T h e codification of the law necessarily involves a number of changes of a minur a n d consequential
cbaracter. It is not necessar for m e to advert to all the changes proposed, but {shall call attention t o some of the mare important of them. Take t h e cage of the word “felony.” The word
“ felony” will not he found throughout this Code from beginning t o end. It has been pro- posed t o discontinue the use of the term which has really ceased to hsve a n y definite or useful meaning, and t o divide offences cog- nisable by the law of Queensland into two classes-“crime” and “misdemeanour,” “crime”
heing offences such as were comprised under t h e old system under the heading of “ felony,” a n , l
“mivdemeanours ” being otfences of a lesser character than a “felony.” I think hon. meni- hers will agree t h a t the abolition of t h e term
“ felony,” and the snbstitution for i t of the term
“ crime,” and the repetition of the term “ misde- meanour ” formerly i n use, will have a beneficial effect; t h a t it will save a very great deal of confuaion in t h e minds of all interested in t h e subject of criminal law. I may say this was a recornmendation of the draftsman of t h e measure which was heartily approved by the nieinhers of the Commission. N o one raised any objection at all t o the substitution of t h e w:Fd “ c r i y e ” throughout this Code for t h e word felony. Now there is a very important change proposed t o be introduced into this Code t o which I wish t o ask hon. members’ particular attention, and which I may say, the Comrnission unanimously agreed’ in recommending. It is t h a t the criminal law should extend to cases i n which a n offence is begun in Queensland and completed elsewhere, or begun elsewhere and completed in Queensland. Now, for example, I draw hon. members’ attention to this fact, for they may not be aware of i t : At the present time, suppose a n1a.n is standing in Queensland, near the border line at Wallangarra, and fires from a revolver a t a m a n standing in New South Wales, and kills him. T h a t man cannot be punished b y t h e courts of Queensland; i t would be a n offence which was not committed in Queensland, a n d our courts would therefore have no jurisdic- tion. On the ‘other hand the offender being in Queensland would not he amenable to the jurid- diction of the courts in New South Wales. T h e result would be just t h e same the otherway about.
Or suppose a man in Queensland wants to poison a man in New South Wales. He may prepare his poison, carry out his plan, and procure some- one in New South Wales t o administer the poison. T h e man with whom the crime origin- ated would not be liable to he punished by the law of Queensland as it is a t the present time. I n this respect i t is proposed by the Code t o make what I consider a very necessary and a very salutary alteration. Hon. members will find the subject in section 12 at page 23, which provides :-
This Code applies l o every person who is in Queens- laud at the time of his doing any act or making any omission which constitutes an offence.
With regard to offences which are of such a nature that they comprise several elements, if any acts or.
omissions or events actually occur which, if they all occurred in Queensland, would constitute an offence, and any of such acts or omissions or events occur in Queensland, although all or some of the other acts or omissions or events which, if they occurred in Queens- land, would he elements of the offence, oec?x elsewhere than in Queensland; then-
(1) If the act or omission which, in the case of an offence wholly committed in Queensland, would be the initial element of the offence, occurs in Queensland, the person who does that act or mnkes that omission is gnilty of an offence of the same kind, and is liable to the same punishment, as if all the subsequent elements of the offence had occurred in Queensland; and
(2) If that act or omission occurs elsewhere than In Queensland, and the person who does that act or makes t h a t oniission afterwards comes into Queensland, he is b y such coming into Queenslancl guilty of an offence of
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the same kind, and is liable to the same punishment, as ii that nct or omission ha4 occurred in Queensland, and he had heen in Queensland when it occurred:
But in any such case it is a defence to the ohorge to prove that the accused person did not intend that the act or omission should have effect i n Qusensland.
This section does not extend to a case in which the only material event that occurs in Queensland is the death inQueensland of a person whose death is caused by an act done or omitted to be done a t a place not in Queensland, and at a time when he was not in gueens- land.
Although t h a t language, t o read it over casually, may seem a little involved, when you come to examine i t very carefully i t resolves itself into t h e simplest elements, and is capable of being most earily understood. I n oth’er words, it makes a man amenable t o the law of Queensland.
If he does a n a c t i n Queensland which is t h e initial element of a n offence t h a t would make him amenable t o the law of Queensland if com- pleted in Queensland, notwithstanding t h a t t h e offence was completed elsewhere-just t o the same extent as if the offence was wholly committed in Qneenaland. If a man who, outside of Queensland, procures the corhmiesion of a n offence a n d afterwards comes into Queensland, h e is dealt with i n t h e same way as if his crime originated a n d was completed in Queeus- land. A n amendment of this sort, which is one of t h e few amendments proposed by the Commission, is of such a salutary nature, and is so great a n improvement upon anything we have a t present, t h % t I feel sure it will not meet with flny objection in the mind of a n y hon. member.
l’here is another alteration which I will $raw attention to. T h e term “penal servitude has heen abolished in this Code. Our existing statutes are full of punishments t o this effect : T h a t a mauguiltyof so-and-soshall beliable “ t o so manyyears’penalservitude.” T h e term has ceased t o serve any useful pnrpose, because as a matter of fact we know t h a t men sentenced in this colony to short or long terms of imprisonment are really dealt with in pretty much t h e same way, except t h a t those who are sentenced for Rerious offences get a little more hard labour than those sentenced for minor offences. There is another very important provision in respect t o which there was not absolute unanimity amoFg the members of t h e Com- [8 p.m.1 mission. It will be found in section
265, which reads as follows :- The term “provocation,” used with reference to an offence of which an assault is an element, means and includt;~, except as hereinafter stated, any wrongful act or insult OP such a nat.ure as t o be likely, when done to an ordinmy person, or in the presence of an ordinary person to another person who is under his immediate care, or t o whom he stands in aconjugal. parental, filial, or fraternal, relation, or in rhe relation of rnaster or servant, to deprive him of the power of seli-control, and to induce him t o assault the person by whom the act or insult is done or otfered.
T h a t is to say, supposing a man is walking along with his daughter, or a n y other female relative-or person to whom he s)ands in close relation-and some blackguard were to come along a n d offer her a gross insult by some observation, or in some other way, if the man under whose immediate care t h a t relation was were t o strike t h e person offering the insult, or to w e some form of assault which was propor- tionate to t h e insult, h e could plead provocation as a defence.
Mr. GIVENS: Wonlditnot beesutficientdefence for any respectable man walking with a l a d y ?
T h e A T T O R N E Y . G E N E R A L : No, unless t h e lady wa3 under his immediate care; t h e section limits i t to persona i n certain relationship.
I f t h e insult were offered to the man himself, of course’it would be the same thing. For instance, supposing one man expectorated i n t h e face of another man, or committed some other outrage of t h a t kind-which is more an outrage on on&
fediogs thananything else-if themanso insulted
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were t o strike the other man, or usesome force to him, it would be adefence to plead provocation- t h a t he was insulted in such a way as a n ordinary person would be likely to resent. And if such a n insult were offered t o a person under the immediate care of any person he would he justi- fied, on behalf of that relation or person in his immediate care, i n resenting it by assaulting the person who employed t h e insult. A s to the defence of provocation, section 269 says-
A person is not criminally responsible for an assault committed upon a person who gives him provocation for t h e assault, i f he is in fact deprived by the provoca- tion of the power of sell-control. and acts upon it on the sudden and before there is time lor his passion to cool ; provided t h a t the force used is not disproportionate t o the provocation, nnd is not intended, and is riot such as is likely, t o cause death or grievous bodily harm.
Whether any particular act or insult is such as to be likely to deprive a n ordinary person of the power of self-control and to induce him to assnuit the pcrson by whom the act or insult is done or offered, and whether, in any particular case, the person provoked was actually deprived by the provocation of the power of self- control, and whether any force used is or is not disproportionate to the provocdtion, are questions of fact.
T h a t is to say, if a man is charged with assault- ing another, and the person who is SO accused rests his defence on t h e fact t h a t the assanlt was committed under provocation, then it will be for t h e jury t o decide, in the first place, whether t h e offence which provoked the assault was of such a nature as was likely t o make a n ordinary person angry, a n d take him off his guard, so t h a t with- out reflection he would strike a blow. I n t h e next place it would be for the jury t o say whether t h e force used in resenting the insult was disproportionate to the nature of t h e insult itself. For ifistance, if one man were t o use abusive, vituperative epithets towards another, and stigmatise him in the foulest, language, a n d t h a t other man struck him a blow with his fist, the jury would probably come to t h e con- clusion t h a t the punishment was not dispro- portionate to t h e provocation. B u t if a man iiisulted by another using such epithets towards him, were to pick u p a n axe or a hammer a n d strike him a blow, it would be for t h e j u r y t o say whether the mea,ns used for t h e punishment of t h e insult were disproportionate t o the provo- cation, and they would probably so find. But a t the present time there is no provision in our law under which a nian can justify a n assault on the ground of provocation. T h e judges and magis- trates take provocation into consideration, b u t it cannnt be pleaded as a defence for an assault. All t h e judges and magistrates can do is to say. “ You have been convicted and found guilty of the offence, but in consideration of t h e provocation you received we will mitigate the punishmeot.”
It is considered t h a t this matter should be clearly defined, so t h a t there should be no rot8m whatever left for misdirection on the subject. I a m bound, however, to inform the House t h a t in the recom- mendation of this alteration i n t h e law t h e Commission were not unanimous. T h e majority, consisting of Sir Samuel Grittith, Mr. Justice Chubb, Mr. Justice Paul, t h e Attorney-General, J u d g e Miller, J u d g e Noel, and Messrs. Jamieson.
and Gill, favoured the proposed change. T h e nther members of the Commission, Mr. JuRtice K e d , Mr. Justice Power, a n d J u d g e Mans- field, did not concur in it. Some of t h e Cnm- mission thought it was necessary to p u t this alteration in the Code ; others thought that, inas much as these rules are as a matter of fact so far as regards the actual result, carried into effect now, there was no need to embody them in the Code. There is another alteration to which I wish to draw t h e attention of hon.
members, and t h a t is in relation to t h e law of murder. It consists in t h e distinction drawn between wilful murder a n d murder. Hon. mem- bers will find o n page 89, a definition of wilful
110
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Criminal Code Bill.murder as the unlawful killing of one person by another, who intends to cause his death ; then in section 302, a definition-a most important defini- tion-of what Constitutes murder other t h a n wilfnl murder. I t says-
Except as hereinafter set forth, a person who unlaw fully kills another under any of the following circnm- stances that is to say-
(1) If‘the offender intends to do t o the person killed or t o some other person some grievous bodily harm ;
(2) If death is caused by means of an act dnne in the prosectttion ot an nnlawful purp )€e, whicb act is Of Such a nature as to be likely to endanger human life.
As a n illustratiori of the first condition I may mention where a man actually brings about the death of another by t h e use of a revolver.
Although he does riot intend t o take t h e other man’s life, if death ensues then, according to this definition, it is murder. Take No. 2 : if death is caused by means of a n act done in the prosecution of a n unlawful purpose, it is murder.
Take the case of two men on, say, Saturday night. They say, “ W e will go and have a race downQueen street.” Their horses are harnessed to vehicles, or are being ridden by them, and down t h e streot they go a t a gallop through throngs of people. T h a t being a n unlawful act likely to destroy human life, if somebody is killed as a result of it-even though there may be no inten- tion t o h u r t anybody-it would be murder.
Subsection 3 reads-
If the offender intends t o do grievous bodily harm to some person for the purpose of facilitating the commis- sion of a crime which is such thtt the offender may he arrested without warrant. or for the purpose offacilits- t i n g the flight of an offender who has committed or attempted t o commit aiiy such crime.
T h a t is so plain that there is no necestiity for m e t o give a n illuslration of it.
If death is caused by administering any stupefying or overpowering thing for either of the purposes Pdst afore- said.
Say a person breaks into a hnuse, and in order t o carry out t h e crime of stealing puts chloroform under the door, o r by other means causes the deep- ing occupants of the room to be deprived of their conxiousness, and, in doing that, causes death- although he had no intention of dning anything beyond robbing t h e house-he is guilty of murder.
Subsection 5 reads-
If death is caused b1 wilfully stopping the breath of any person for either of such purposes.
Say, catching a person round the throat to pre- vent him from crying out, and it results in their death, it is murder.
In the first case it is immaterial that the offender did not intend to hurt the particular person who is killed.
In the second case it is immarerial that the offender dirl n o t intend to hurl any person.
In the three last cases it is immaterial t h a t the offender did not intend to cause death or did not kntiw that deat,h was likely to result.
bh. HARDACRE : Is that a definition or a restatement of the law ?
T h e A T T O R N E Y - G E N E R A L : It is a restatement of the law. I may say briefly t h a t judges are in the hahit of telling juries -which is really the law-that murder is .unlawfully causing t h e death of a person with malice aforethought, a n d that, in t h e absence of malice aforethought, they may find nianslaughter.
T h e history of the interpretation of the term
‘‘malice aforethought” is a very lengthy one, and I will not trouble the House with it.
Briefly the result is t h a t it does not neces- sarily imply ill-will, premeditation, or the intention t o cause death. It is manifest there- fore t h a t it is a thing which, i n its legal significance, means something different from the common language of the day, a n d i t is unnecptr- sary t o perpetuate the anomaly. Therefore murder haa been divided into two clasaes-wilfnl murder, when death is intended t o he caused ; a n d murder, when death is not intended to be
Si, with No. 4-
caused. Then there is a provision to this effect : T h a t , i n the case of a man charged with a n d found guilty of wilful murder-that is, where he goes t o work with t h e intention of taking a man’s life and succeeds in that ohjmt-it will be t h e duty of the judge t o paps sentence of death. B u t in t h e case of a person found guilty of murder, b u t not wilful murder, i t will he lawful for the,j,udge to cause sentence of death to be recorded. 1 he result will probably be that where a man is found guilty of murder, but where thereare circiunstances which make itacase of murder other than wilful murder, the Execu- tive would probably take i t as a very strong indication that, in the opinion of the judge, the capital penalty ought not to be inflicted.
Mr. GLASSEY : Would i t not be much better t o define t h e offences aiid make a. different set of punishment for each.
T h e A T T O R N E Y - G E N E R A L : It would hardly be safe t o institute two sets of punish- ment. You will find t h a t the definition I have read embodies the existing law. I n t h a t case t h e judge can, by directing sentence to he recorded, in effect say that h e does not think t h e offence is sufficient to warrant the execution of the offender ; and the Exe-utive would take t h a t as a n indication that the capital penalty should not be carried out.
Mr. GLASSEY : T h e Executive is not hound to do so.
Mr. HARDACRE: W h y not say “murder of the first degree,” and “murder of the second degree ” ?
T h e A T T O R N E Y - G E N E R A L : The same thing is virtually understood without using those words. W e have principals in the first degree a n d principals in the second degree; these in the second degree are accessories. To be a n accessory t o a murder is an offence under t h e Bill. W e have the murderer himself- who is the principal offender-and then we have accessories before and after t h e fact, who will be offenders in the second degree. N o alteration is proposed t o be made with regard t o the law of murder or as t o its punishment. T h e only alteration is in the form of procedure, for the,purpose of doing away with the confusing of juries. Juries are confused when they have a judge summing u p for an hour or more ex- pounding the meaning of malice aforethought.
T h e judge usually begins thus: “Gentlemen, the prisoner is charged with the offence of killing a man with malice aforethought.” H e then goes on to say there are two ways of explaining malice aforethought. A man may come u p to his victim with t h e deliberate intention of taking his life,and doesso; another way is that, without a n y deliberate intention to take the man’s life, he does a n act, the natural and probable result of which is to muse death. Then he goes on to give a. series of elahorate illustrationsshowing what constitutes malice aforethought. I say i t should be for t h e law to make Blear the distinction between whab
1s malice aforethought and what is not.
HONOURABLE MEMBERS : Hear, hear ! T h e ATTOlCPU’EY-GENERAL : W i t h regard t o this matter, I may state t h a t the Commission weie absolutely unanimous. There in another offence, to he found on page 91, section 313, which involves a slight change in the existing law, b u t one which does away with t h e taking of a great deal of unnecessary medical evidence in certain cases, and which involves very much contradic- tion and very unsatisfactory results. T h e section will commend itself, I a m sure, t o the good sense of hon. members. Then take t h e cases of
8 ;ealing referred to on page 107. There is a slight alteration in the existing law there, but it is not a very violent alteration. T h e definition of stealing ia found in section 391, page 107, in which there are changes t o this extent : Under the Iaw its it stands at present, the essential
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element of t h e offence of larceny is the taking of the thing, b u t under this Code t h e essential element will be the fraudulent conversion of the property. T h e alteration is one of a very minor character, but a t the same time of a very useful character, which makes a man’s liability to punishment depend upon what he does with the property after he takes it rather than the taking of i t itself. There a r e also pro- visions dealing with injuries to property.
Under the Justices Act, magistrates have power to deal with trivial cases of atealiug, a n d under this Code thzy are given t h e same power with regard to trivial offences with regard to injuries to property. This appears in section 480, page 131. These are very useful provisions, as they assimilate the law in these respects. These provisio:is are andagous to those contained i n t h e Justices Act, under which justices very properly deal with trivial matters, rather than go through the formality of sending a man u p for trial by jury, which means a great waste of time and considerable cost to the country.
Mr. STEWART : A n ordinary J.P. ?
T h e A T T O R N E Y - G E N E R A L : Yes. Their ppwers are clearly defined. A number of pro- visions regarding fishing in private waters, killing or taking pigeons, and so on, have been omitted from this Code, because in t h e opinion of the Commission, they are sufficiently dealt with elsewhere. A lot of other provisions re- lating to poaching-stealing game a t night-and a lot of ancient law of t h a t sort has also been omitted, because i t was considered that, however applicable they may have been thoughb t o be to t h e condition of things in England, they are not applicable t o the condition of things in Queensland.
HONOURABLI~: MEMBERS : Hear, hear ! T h e A T T O R N E Y
-
G E N E R A L : Conse- quently, they have been left out bodily. I may draw attention to another slight alteration, which gives more uniforinity in the law with regard to the maximum punishment inflicted on prisoners.I next draw t h e attention of hon. members t o two new sections dealing with offenzes against the legislature-sections 56 and 58, on page 35. They are provisions taken from Codes i n force elsewhere, and t h e Government included both of them in accordance with t h e suggestion of the Comrnission. Of course it is for hon.
members t o say what their views are with regard to them in committee.
Diaturbing the Legislature.
Section 56 provides- Any person who advisedly-
(1) Disturbs either House of Parliament while in session ; or
(2) Commitsany disorderly conduct in the immediate view and presence of either House of Parliament while in session, tending to interrupt its pro- ceedings or to impair the respect due to its authority ;
is guilty of a misdemeanour, and is liable to imprison- ment for three years.
T h e n section 58 reads-
A itnesses Ruuusing to Attend or Give Eiiideflee before Parlianwnt or Parliammtary Comnziltee.
Any person who-
(1) Being duly summoned to attend as a witness or to produce any hook, document, or other thing, in hi8 possession. before either House of Parlia- ment, or before a committee of either Honse, or before a joint committee of both Houses, authorised to summon witnesses or to call for the production of such thing, refuses or neglects without lawful excuse to attend pursuant to the summons or to produce anvthing which he is summoned t o produce, and which is relevant and proper to be produced ; or
(2) Being present before either House of Parliament, or before a committee of either Houseauthorised to summon witnesses, refuses to answer any lawful and relevant question ;
is guilty of a misdemeanour, and is liable to imprison- ment for two years.
Mr. MAXWELL : Could a man, under this last clause, incriminate himself 9
T h e A T T O R N E Y - G E N E R A L : Any lawful question may be p u t t o him, and if he refuses to answer he will be liable t o pnnishment a8 for misdemeanour. I may say t h a t various other provisions have beon omitted ; for instance, t h e laws relating to the stealing of fishinq-tackle.
Mr. GLASSEY : W h a t about section 59?
The A T T O R N E Y - G E N E R A L : T h a t is part of the existing law. T h e proposed [8’30 p.m.1 new laws are i n sectinns 56 and 58.
Then there i s a new provision which I think will commend i h l f to hon. members, to he found i n section 311. That section provides that-
Any person who-
(1) Procures another to kill himself: or I (2) Counsels another to kill tiiniself and thereby
( 3 ) Aids another in killing himself ;
is guilt,y of a crime, and is liable to imprisonment with hard labour for life.
Of course, a man who kills himself-commits suicide-is beyond t h e reach of the tribunals of Queensland; but under the exiating law a man who procntes, advises, or helps him t o do so would he an accessory before the fact, and would be liable t o he hanged. It is common law, not statute law anywhere. It in propoved in this Code to include t h a t section which makes a statutory provision, to the effect that a man who induces or counsels or procures another man t o commit suicide shall be guilty, not of the offence of murder, h u t shall be guilty of aiding to commit suicide.
Mr. GLASSEY: That is, if a man wishes to shoot himself, and another person buys a pistol or hands it to him, would be guilty.
The A T T O R N E Y - G E N E R A L : I f he bought the pistol with t h e knowledge t h a t it would be used in a certain way, and for the purpose of enabhngsuicide to be committed, he would b e a n accessory before t h e fact, and woyld be liable t o punishment as a principal in t h e second degree, the penalty being imprisonnient for life.
Mr. LESINA : W h a t about exercising mental influence ?
The A T T O R N E Y - G E N E R A L : Thathapbeen left out. It was contained in the Code in the first instance, but it was thought undesirable by the Commissiou to recommend such au alceration c,f the law as that. I t was open t o a great deal of doubt and objection. Then special attention wa.s given by the Commission t o certain pro- visions in t h e existing law as to whether they are really applicable t u t h e circumstances of t h e colony. Thtrserelating t o game and the defacing of t h e coin are mentioned. I may inform hon.
members that there are offences a t common law which are known as maintenance and champerty.
If a man, not being interested in any way in a ny subject matter of litigation, finds money to enable t h e litigation to be carried on, he is guilty of t h e offence of maintenance; and it is also t h e law t h a t if any person, not being interested in the subject matter of any litigation, finds money for the carrying on of t h e litigation on the terms t h a t he is to share i n the proceeds of the litigation, he is guilty of t h e offence of champerty. I do not know whbther hon. niembers approve of t h a t or not, but the Government have thought fit t o k i n g in a Bill with those two provisions omitted.
T h e members of the Commission were not very sbrong in their ideas as t o t h e desirableness of retaining them either one way or t h e other.
Mr. FISHER : They a r e waste-paper anyway.
T h e A T T O R N E Y - G E N E R A L : I think so.
I see no good reason why a m m s h o u l d not find money to help another man if he is poor t o carry on his litigation, and it i8 often very hard t o prove whether a man did so on the condition t h a t he was to get a share in the proceeds. A t all events i t seems to me to be multiplying the law t o very little useful purpose.
induces hiin to do so : or
