Criminal Code Act 1893
Criminal Code Act 1893
Criminal Code Act 1893
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Criminal Code Act 1893
Public Act |
1893 No 56 |
|
Date of assent |
6 October 1893 |
|
Contents
An Act to establish a Criminal Code.
BE IT ENACTED by the General Assembly of New Zealand in Parliament assembled, and by the authority of the same, as follows:—
TITLE I INTRODUCTORY PROVISIONS
Part I Preliminary
1 Short Title.
The Short Title of this Act is “The Criminal Code Act, 1893.”
2 Interpretation of terms.
In this Act, if not inconsistent with the context,—
“Convicted of a crime involving dishonesty” means—
(a.)
“Convicted after the coming into operation of this Act, once on indictment or twice summarily, of any of the crimes hereinafter described as crimes involving dishonesty”; or
(b.)
“Convicted before the coming into operation of this Act, once on indictment or twice summarily, of any offence which, if committed in New Zealand after the coming into operation of this Act, would be a crime involving dishonesty”:
“Crime” means an offence for which the offender may be proceeded against by indictment:
When it is provided herein that any person is liable to any punishment for any act or omission, such person shall be deemed to be guilty of a crime:
“Criminally responsible” means “liable to punishment”:
“Is liable” means “is liable on conviction on indictment”:
“Justified” means “not guilty of an offence or liable to an action”:
“Night” or “night-time” means the interval between nine o’clock at night and six o’clock in the morning.
“Offence” includes any act or omission for which any one can be punished, either on indictment or summary process:
“Peace officer” includes all constables:
“Protected from criminal responsibility” means “not liable to information, indictment, or proceeding other than a civil action or proceeding”:
The words “person,” “owner,” and other words and expressions of the kind include Her Majesty and all public bodies, bodies corporate, boards, societies, companies, and inhabitants of counties or other districts, in relation to such acts and things as they are capable of doing and owning respectively:
“Valuable security” includes every document forming the title or evidence of the title to any property of any kind whatever.
3 Commencement of Act.
(1.)
This Act shall come into force on such specific day as the Governor shall by Proclamation appoint, not being earlier than three months after the gazetting of such Proclamation.
The provisions of the Act (except such as relate to procedure) shall, unless hereinafter otherwise provided, apply to all offences committed on or after that day; but shall not apply to any offence the commission of which was begun before that day, although such offence may have become complete on or after that day.
(2.)
The provisions of the Act which relate to procedure shall apply to all prosecutions commenced on or after the said day in relation to any crime, whensoever committed.
(3.)
The proceedings in respect of any prosecution commenced before the said day shall, up to the time of committal for trial, be continued as if this Act had not passed, but the proceedings after committal for trial shall be subject to all the provisions of Title VII. of this Act so far as the same are applicable thereto.
4 Application of Act.
This Act shall apply to all offences for which the offender is liable to be proceeded against and tried within the colony.
5 Place of commission of offences.
Every offence shall, for all the purposes of trial and punishment, be deemed to be committed at any place where any act is done or omitted the doing or omission of which forms a part of the offence, or where any event happens necessary to the completion of the offence, whether the person accused was at such place or not at the time of such act, omission or event.
6 Offenders to be tried under this Act.
Every one who is a party to any crime or misdemeanour shall be proceeded against under some provision of this Act, or under some provision of some statute not inconsistent therewith and not repealed, and shall not be proceeded against at common law:
When any offender is punishable both under this Act and under any other statute, every such offender may be tried and punished either under this Act or such other statute; and when any offender is punishable under two or more sections of this Act he may be tried and punished under any one of such sections.
But no offender shall be punished twice in respect of the same offence.
7 Penal servitude abolished; imprisonment with bard labour substituted.
No one, after the commencement of this Act, shall be sentenced to penal servitude.
Any person who, if this Act had not been passed, might have been so sentenced under any unrepealed Act or part of an Act other than this Act, shall, after the commencement of this Act, be liable to be sentenced to imprisonment with hard labour for a term of the same duration as the term of penal servitude to which he would have been liable under such unrepealed Act or part of Act; and any person who might, at the discretion of the Court, have been sentenced either to penal servitude for any term or to any period of imprisonment shall be liable, at the discretion of the Court, to be sentenced either to imprisonment with hard labour for the same term, or to imprisonment with or without hard labour for the same period.
8 Punishment for felony or misdemeanour under other Acts when not stated therein.
Subject to the provisions of this Act, where any offender is tried under any unrepealed Act or part of an Act not inconsistent with this Act for any offence which by such Act or part of such Act is constituted a felony or misdemeanour, but no punishment is therein specially provided for such offences respectively, then and in any such case the punishment shall be, for a felony, imprisonment with hard labour for any term not exceeding five years; and for a misdemeanour, imprisonment with or without hard labour for any term not exceeding two years, or a penalty not exceeding fifty pounds.
9 Conviction for felony under this Act to entail same consequences as before passing of Act.
Subject to the provisions of this Act, an accusation of or a conviction for any crime for which the punishment is death or imprisonment with hard labour for any term of three years or upwards shall hereafter have the same effect and entail the same consequences as an accusation of felony or a conviction for felony would have had or entailed immediately before this Act came into force.
For all purposes of “The Prisons Act, 1882,”
or any Act to be passed for the like purposes, every person who shall be sentenced to imprisonment with hard labour for a term of three years or upwards shall be deemed to have been or to be sentenced to penal servitude for the same term.
10 Saving of summary jurisdiction.
Nothing in this Act contained shall be construed to annul or limit any provisions made by any unrepealed Act other than this Act for the trial and punishment of indictable offences in a summary way.
Part II Punishments
11 Punishments.
The following punishments may under this Act be inflicted: Death, imprisonment with hard labour, imprisonment without hard labour, flogging, whipping, and fine.
12 Death.
The punishment of death shall be carried into effect in the manner prescribed by “The Criminals Execution Act, 1883.”
13 Imprisonment.
(1.)
Imprisonment shall be with or without hard labour. If it is to be without hard labour the sentence shall so direct.
(2.)
No prisoner shall be sentenced to solitary confinement.
But this provision shall not prevent the making and enforcing of regulations authorising periods of solitary confinement for breaches of rules of discipline under the provisions of any statute in force.
14 Flogging and whipping.
(1.)
Flogging is the infliction on a person of a number of strokes, not exceeding at any one time fifty, with a cat-o’-nine-tails of the description prescribed by the Minister of Justice.
(2.)
Whipping is the infliction on a person of a number of strokes, not exceeding at any one time twenty-five, with a rod of the description prescribed by the Minister of Justice.
(3.)
In each case the Court shall in its sentence specify the number of strokes to be inflicted.
(4.)
Neither flogging nor whipping shall be inflicted on any female.
(5.)
Flogging shall not be inflicted on a person whose age does not exceed sixteen years.
(6.)
Whipping shall not be inflicted on a person whose age exceeds sixteen years.
(7.)
No flogging or whipping shall take place after the expiration of six months from the passing of the sentence.
(8.)
In all cases where flogging is inflicted, the surgeon or medical officer of the prison in which the offender is confined shall be present when the said punishment is inflicted; and, if he be of opinion that the prisoner is not at any time able to bear the whole or any part of the punishment awarded, may from time to time order the infliction of the whole or any part of the said punishment to be postponed.
And the said surgeon or medical officer shall, within seven days after the making of any such order, send a report in writing to the Minister of Justice, stating his reasons for making such order.
(9.)
No sentence of flogging or whipping passed under this or any other Act shall be carried out, except as provided by this section.
15 Fine.
(1.)
Every one sentenced on conviction upon an indictment to pay a fine shall, if the Court directs, be imprisoned for non-payment thereof until such fine be paid, but not for any period exceeding two years, in addition to any other imprisonment to which he may be sentenced.
(2.)
The Court may at any time in its discretion suspend such first-mentioned imprisonment on such terms as it thinks fit, or may limit the period of such imprisonment.
16 Discretion of Court as to punishment.
(1.)
Every one liable to imprisonment with hard labour for life or for any term of years may be sentenced to any shorter term of imprisonment with hard labour.
(2.)
Every one liable to imprisonment for any term may be sentenced to imprisonment for any shorter term.
(3.)
Every one liable to imprisonment with hard labour may be sentenced to imprisonment without hard labour.
(4.)
Every one liable to imprisonment, with or without hard labour, may be sentenced to pay a fine in addition to, or instead of, such imprisonment.
17 Discharge without verdict.
(1.)
When the Court, on perusal of the depositions returned in any case, considers that the offence charged deserves no more than a nominal punishment, and that it is unnecessary that a conviction should be obtained, it may in its discretion direct that no bill shall be preferred by the person, if any, who is bound by recognisances to prosecute; or, if a bill has been found before the Grand Jury, it may direct that the accused shall not be arraigned thereon; and in either case it may direct the discharge of the accused if in custody:
(2.)
Or if the Court at any stage of the trial should consider as aforesaid, it may direct the discharge of the accused without any verdict.
(3.)
Such discharge shall have all the effect of an acquittal of the accused in respect of the offence for which he was committed for trial, held to bail, or indicted.
18 Putting under recognisances.
(1.)
Every one who is convicted of any crime for which he is liable to imprisonment with hard labour for three years or upwards, or imprisonment with or without hard labour, may, instead of any punishment hereby authorised, or in addition to any term of imprisonment or any fine, be required to enter into his own recognisances or to find sureties, or both, to such amount and for such time as the Court by which he is tried considers reasonable, that he shall keep the peace and be of good behaviour.
(2.)
Every one required to find sureties as aforesaid shall be liable, if the Court thinks fit, to be imprisoned till be finds such sureties.
(3.)
The Court may in its discretion suspend such last-mentioned imprisonment on such terms as it thinks fit, or may limit the period of such imprisonment.
(4.)
No one shall be imprisoned for not finding sureties for more than one year, exclusive of any other period for which he may be imprisoned by the sentence of the Court.
19 Police supervision.
When any one who has been convicted in the colony of any crime involving dishonesty, or of any of the crimes specified in the first five sections of Part XVIII., or of the crime of aggravated assault as defined in Part XIX., or who has been convicted in any of Her Majesty’s dominions of that which if committed in this colony would be any such crime as aforesaid, is afterwards convicted of any such crime as aforesaid, and the fact of his having been so previously convicted is confessed by the offender in open court, or proved to the satisfaction of the Court, the Court may, whether such previous conviction be charged in the indictment or not, in addition to any other punishment, direct that he shall be subject to the supervision of the police for any period not exceeding three months, commencing immediately after the completion of such punishment.
20 Cumulative sentences.
(1.)
When an offender is convicted of more crimes than one before the same Court at the same sitting, or when any offender undergoing punishment for one crime is convicted of any other crime, the Court may on the last conviction direct that the sentences passed upon him for his several crimes shall take effect one after the other or concurrently.
(2.)
If such person is undergoing penal servitude or imprisonment with hard labour for three years or upwards, and the punishment for the crime of which he is last convicted is imprisonment only, the Court may sentence him to an additional term of imprisonment with hard labour not exceeding the term of imprisonment prescribed.
Part III Matters of Justification or Excuse
21 General rule.
(1.)
All rules and principles of the common law which render any circumstances a justification or excuse for any act or omission, or a defence to any charge, shall remain in force and be applicable to any defence to a charge under this Act, except in so far as they are thereby altered or are inconsistent therewith.
(2.)
The matters provided for in this Part are hereby declared and enacted to be justifications or excuses in the case of all charges to which they apply.
22 Children under seven.
No person shall be convicted of an offence by reason of any act or omission of such person when under the age of seven years.
Children between seven and fourteen.
No person shall be convicted of an offence by reason of an act or omission of such person when of the age of seven but under the age of fourteen years, unless the jury by whom be is tried, or the Court or Justices before whom be is charged, having jurisdiction to deal with such charge summarily, are of opinion that he knew that such act or omission was wrong.
23 Insanity.
(1.)
Every one shall be presumed to be sane at the time of doing or omitting any act until the contrary is proved.
(2.)
No person shall be convicted of an offence by reason of an act done or omitted by him when labouring under natural imbecility or disease of the mind to such an extent as to render such person incapable of understanding the nature and quality of the act or omission, and of knowing that such act or omission was wrong.
(3.)
Any person labouring under specific delusions, but in other respects sane, shall not be acquitted on the ground of insanity under the provisions hereinafter contained, unless the delusions caused him to believe in the existence of some state of things which, if it existed, would justify or excuse his act or omission.
(4.)
Insanity before or after the time when be committed or omitted the act, and insane delusions, though only partial, may be evidence that the offender was, at the time when be committed or omitted the act, in such a condition of mind as to render him irresponsible for such act or omission.
24 Compulsion.
(1.)
Except as hereinafter provided, compulsion by threats of immediate death or grievous bodily harm, from a person actually present at the commission of the offence, shall be an excuse for the commission, by a person subject to such threats, and who believes such threats will be executed, and who is not a, party to any association or conspiracy the being a party to which rendered him subject to compulsion, of any offence other than treason, murder, piracy, offences deemed to be piracy, attempting to murder, assisting in rape, forcible abduction, robbery, causing grievous bodily harm, and arson.
(2.)
No presumption shall be made that a married woman committing an offence does so under compulsion only because she commits it in the presence of her husband.
25 Ignorance of law.
The fact that an offender is ignorant of the law is not an excuse for any offence committed by him.
26 Execution of sentence.
Every ministerial officer of any Court authorised to execute a lawful sentence, and every gaoler, and every person lawfully assisting such ministerial officer or gaoler, is justified in executing such sentence.
27 Execution of process.
Every ministerial officer of any Court duly authorised to execute any lawful process of such Court, whether of a civil or a criminal nature, and every person lawfully assisting him, is justified in executing the same; and every gaoler who is required under such process to receive and detain any person is justified in receiving and detaining him.
28 Execution of warrants.
Every one duly authorised to execute a lawful warrant issued by any Court or Justice of the Peace or other person having jurisdiction to issue such warrant, and every person lawfully assisting him, is justified in executing such warrant; and every gaoler who is required under such warrant to receive and detain any person is justified in receiving and detaining him.
29 Execution of erroneous sentence or process.
If a sentence is passed or process issued by a Court having jurisdiction under any circumstances to pass such a sentence or issue such process, or if a warrant is issued by a Court or person having jurisdiction under any circumstances to issue such a warrant, the sentence passed or process or warrant issued shall be sufficient to justify the officer or person authorised to execute such warrant, and every gaoler and person lawfully assisting in executing or carrying out such sentence, process, or warrant, although the Court passing the sentence or issuing the process had not, in the particular case, authority to pass the sentence or to issue the process, or although the Court, Justice, or other person in the particular case had no jurisdiction to issue or exceeded its or his jurisdiction in issuing the warrant, or was, at the time when such sentence was passed or process or warrant issued, out of the district in or for which such Court, Justice, or person was entitled to act.
30 Sentence or process without jurisdiction.
Every officer, gaoler, or person executing any sentence, process, or warrant, and every person lawfully assisting such officer, gaoler, or person, shall be protected from criminal responsibility if he acts in good faith, under the belief that the sentence or process was that of a Court having jurisdiction, or that the warrant was that of a Court, Justice of the Peace, or other person having authority to issue warrants, and if it be proved that the person passing the sentence or issuing the process acted as such a Court, under colour of having some appointment or commission lawfully authorising him to act as such a Court, or that the person issuing the warrant acted as a Justice of the Peace or other person having such authority, although in fact such appointment or commission did not exist or had expired, or although in fact the Court or the person passing the sentence or issuing the process was not the Court or the person authorised by the commission to act, or the person issuing the warrant was not duly authorised so to act.
31 Arresting the wrong person.
(1.)
Every one duly authorised to execute a warrant to arrest who thereupon arrests a person, believing in good faith and on reasonable and probable grounds that he is the person named in the warrant, shall be protected from criminal responsibility to the same extent and subject to the same provisions as if the person arrested had been the person named in the warrant.
(2.)
Every one called on to assist the person making such arrest, and believing that the person in whose arrest be is called on to assist is the person for whose arrest the warrant is issued, and every gaoler who is required to receive and detain such person, shall be protected to the same extent and subject to the same provisions as if the arrested person had been the person named in the warrant.
32 Irregular warrant or process.
(1.)
Every one acting under a warrant or process which is bad in law on account of some defect in substance or in form, apparent on the face of it, if he in good faith and without culpable ignorance or negligence believed that the warrant or process was good in law, shall be protected from criminal responsibility to the same extent and subject to the same provisions as if the warrant or process was good in law; and ignorance of the law shall in this case be an excuse.
(2.)
It shall be a question of law whether the facts of which there is evidence may or may not constitute culpable ignorance or negligence in his so believing the warrant or process to be good in law.
33 Arrest by peace officer in case of certain offences.
Every peace officer who, on reasonable and probable grounds, believes that one of the offences as to which it is provided in this Act that the offender may be arrested without warrant has been committed, whether it has been committed or not, and who, on reasonable and probable grounds, believes that any person has committed that offence, is justified in arresting such person without warrant, whether such person is guilty or not.
34 Persons assisting peace officer.
Every one called upon by a peace officer to assist him in the arrest of a person suspected of having committed any such offence as last aforesaid is justified in assisting, if he knows that the person calling on him to assist him is a peace officer, and does not know that there is no reasonable ground for the suspicion.
35 Arrest of person found committing certain offences.
Every one is justified in arresting without warrant any person whom be finds committing any offence as to which it is provided by this Act that offenders may be arrested without warrant, or as to which it is specially provided by this Act that the offender may be arrested when found committing it.
36 Arrest after commission of certain offences.
If any offence as to which it is provided in this Act that the offender may be arrested without warrant has been committed, any one who, on reasonable and probable grounds, believes that any person is guilty of that offence is justified in arresting him without warrant, whether such person is guilty or not.
37 Arrest of persons believed to be committing certain offences by night.
Every one is protected from criminal responsibility for arresting without warrant any person whom be finds by night under circumstances which afford reasonable and probable grounds for believing that such person is committing any offence as to which it is provided by this Act that offenders may be arrested without warrant.
38 Arrest by peace officer of person found committing any offence.
Every peace officer is justified in arresting without warrant any person whom be finds committing any offence against this Act.
39 Arrest of person found committing any offence at night.
(1.)
Every one is justified in arresting without warrant any person whom be finds by night committing any offence against this Act.
(2.)
Every peace officer is justified in arresting without warrant any person whom be finds lying or loitering in any highway, yard, or other place by night, and whom he has good cause to suspect of having committed or being about to commit any offence for which an offender may be arrested without warrant.
40 Arrest during flight.
Every one is protected from criminal responsibility for arresting without warrant any person whom be believes, on reasonable and probable grounds, to have committed an offence against this Act, and to be escaping from and to be freshly pursued by any one whom be believes, on reasonable and probable grounds, to have lawful authority to arrest that person for such offence.
41 Statutory power of arrest.
Nothing in this Act shall take away or diminish any authority given by any other Act in force for the time being to arrest, detain, or put any restraint on any person.
42 Force used in executing process or in arrest.
Every one who is justified, or protected from criminal responsibility, in executing any sentence, warrant, or process, or in making an arrest, and every one lawfully assisting him, is justified, or protected from criminal responsibility, as the case may be, in using such force as may be necessary to overcome any force used in resisting such execution or arrest, unless the sentence, process, or warrant can be executed, or the arrest effected, by reasonable means in a less violent manner.
43 Duty of persons arresting.
(1.)
It is the duty of every one when executing any process or warrant to have it with him, and to produce it if required.
(2.)
It is the duty of every one arresting another, whether with or without warrant, to give notice, where practicable, of the process or warrant under which he acts, or of the cause of the arrest.
(3.)
A failure to fulfil either of the two duties last mentioned shall not of itself deprive the person executing the process or warrant, or his assistants, or the person arresting, of protection from criminal responsibility, but shall be relevant to the inquiry whether the process or warrant might not have been executed, or the arrest effected, by reasonable means in a less violent manner
44 Peace officer preventing escape from arrest for certain offences.
Every peace officer proceeding lawfully to arrest, with or without warrant, any person for any offence as to which it is provided in this Act that the offender may be arrested without warrant, and every one lawfully assisting in such arrest, is justified, if the person to be arrested takes to flight in order to avoid arrest, in using such force as may be necessary to prevent his escape by such flight, unless such escape can be prevented by reasonable means in a less violent manner.
45 Private person preventing escape from arrest for certain offences.
Every private person proceeding lawfully to arrest without warrant any person for any offence as to which it is provided in this Act that the offender may be arrested without warrant is justified, if the person to be arrested takes to flight in order to avoid arrest, in using such force as may be necessary to prevent his escape by flight, unless such escape can be prevented by reasonable means in a less violent manner:
Provided that such force is neither intended nor likely to cause death or grievous bodily harm.
46 Preventing escape from arrest in other cases.
Every one proceeding lawfully to arrest any person for any cause other than such offence as in the last-preceding section mentioned is justified, if the person to be arrested takes to flight in order to avoid arrest, in using such force as may be necessary to prevent his escape by flight, unless such escape can be prevented by reasonable means in a less violent manner:
Provided such force is neither intended nor likely to cause death or grievous bodily harm.
47 Preventing escape or rescue after arrest for certain offences.
Every one who has lawfully arrested any person for any offence as to which it is provided in this Act that the offender may be arrested without warrant, is protected from criminal responsibility in using such force in order to prevent the rescue or escape of the person arrested as he believes, on reasonable grounds, to be necessary for that purpose.
48 Preventing escape or rescue after arrest in other cases.
Every one who has lawfully arrested any person for any cause other than one of the offences as to which it is provided in this Act that the offender may be arrested without warrant, is protected from criminal responsibility in using such force in order to prevent his escape or rescue as he believes, on reasonable grounds, to be necessary for that purpose:
Provided that such force is neither intended nor likely to cause death or grievous bodily harm.
49 Preventing breach of the peace.
(1.)
Every one who witnesses a breach of the peace is justified in interfering to prevent the continuance or renewal of such breach of the peace, and may detain any person committing or about to join in or renew such breach of the peace, in order to give him into the custody of a peace officer:
Provided that the person interfering uses no more force than is reasonably necessary for preventing the continuance or renewal of such breach of the peace, or than is reasonably proportioned to the danger to be apprehended from the continuance or renewal of such breach of the peace.
(2.)
Every peace officer who witnesses a breach of the peace, and every person lawfully assisting him, is justified in arresting any one whom be finds committing such breach of the peace, or whom be believes, on reasonable and probable grounds, to be about to join in or renew such breach of the peace.
(3.)
Every peace officer is justified in receiving into custody any person given into his charge as having been a party to a breach of the peace, by one who has, or whom such peace officer believes upon reasonable and probable grounds to have, witnessed such breach of the peace.
50 Suppression of riot.
Every one is justified in using force necessary to suppress a riot, provided the force used is not disproportioned to the danger to be apprehended from the continuance of the riot.
51 Suppression of riot by Magistrates.
Every Sheriff and Justice of the Peace is justified in using and ordering to be used, and every peace officer is justified in using, such force as he believes, in good faith and on reasonable and probable grounds, to be necessary to suppress a riot, not being disproportioned to the danger which he believes, on reasonable and probable grounds, is to be apprehended from the continuance of the riot.
52 Suppression of riot by persons acting under lawful orders.
(1.)
Every one, whether subject to military law or not, acting in good faith in obedience to orders given by any Sheriff or Justice of the Peace for the suppression of a riot, is justified in obeying the orders so given, unless such orders are manifestly unlawful; and be is protected from criminal responsibility in using such force as he believes, on reasonable and probable grounds, to be necessary for carrying into effect such orders.
(2.)
It shall be a question of law whether any particular order is manifestly unlawful or not.
53 Suppression of riot by persons without orders.
Every one, whether subject to military law or not, who believes, in good faith and on reasonable and probable grounds, that serious mischief will arise from a riot before there is time to procure the intervention of any of the authorities aforesaid, is justified in using such force as he believes, in good faith and on reasonable and probable grounds, to be necessary for the suppression of such riot, not being disproportioned to the danger which he believes, on reasonable grounds, is to be apprehended from the continuance of the riot.
54 Protection of persons subject to military law.
(1.)
Every one who is bound by military law to obey the lawful command of his superior officer is justified in obeying any command given him by his superior officer for the suppression of a riot, unless such order is manifestly unlawful.
(2.)
It shall be a question of law whether any particular order is manifestly unlawful or not.
55 Prevention of certain offences.
Every one is justified in using such force as may be reasonably necessary in order to prevent the commission of any offence for which if committed the offender might be arrested without warrant, and the commission of which would be likely to cause immediate and serious injury to the person or property of any one, or in order to prevent any act being done which he believes, on reasonable grounds, would, if committed, amount to any of such offences.
56 Self-defence against unprovoked assault.
Every one unlawfully assaulted, not having provoked such assault, is justified in repelling force by force, if the force be uses is not meant to cause death or grievous bodily harm, and is no more than is necessary for the purpose of self-defence; and every one so assaulted is justified though be causes death or grievous bodily harm, if he causes it under reasonable apprehension of death or grievous bodily harm from the violence with which the assault was originally made, or with which the assailant pursues his purpose, and if he believes, on reasonable grounds, that he cannot otherwise preserve himself from death or grievous bodily harm.
57 Self-defence against provoked assault.
Every one who has without justification assaulted another, or has provoked an assault from that other, may nevertheless justify force subsequent to such assault, if he uses such force under reasonable apprehension of death or grievous bodily harm from the violence of the party first assaulted or provoked, and in the belief on reasonable grounds that it is necessary for his own preservation from death or grievous bodily harm:
Provided that he did not commence the assault with intent to kill or do grievous bodily harm, and did not endeavour, at any time before the necessity for preserving himself arose, to kill or do grievous bodily harm:
Provided also that before such necessity arose be declined further conflict, and quitted or retreated from it as far as was practicable.
58 Definition of provocation.
Provocation within the meaning of the last two preceding sections may be given by blows, words, or gestures.
59 Prevention of assault with insult.
Every one is justified in using force in defence of his own person, or that of any one under his protection, from an assault accompanied with insult:
Provided that he uses no more force than is necessary to prevent such assault, or the repetition of it:
Provided also that this section shall not justify the wilful infliction of any hurt or mischief disproportionate to the insult which it was intended to prevent.
60 Defence of movable property against trespasser.
Every one who is in peaceable possession of any movable thing, and every one lawfully assisting him, is justified in resisting the taking of any such thing by any trespasser, or in retaking it from such trespasser, if in either case be does not strike or do bodily harm to such trespasser; and if, after any one having peaceable possession as aforesaid has laid hands upon any such thing, such trespasser persists in attempting to keep it, or to take it from the possessor, or from any one lawfully assisting him, the trespasser shall be deemed to commit an assault without justification or provocation.
61 Defence of movable property with claim of right.
Every one who is in peaceable possession of any movable thing under a claim of right, and every one acting under his authority, is protected from criminal responsibility for defending such possession, even against a person entitled by law to the possession of such thing, if he does not strike or do bodily harm to such person; and if the person entitled by law to the possession thereupon attempts to take it from or otherwise assaults the possessor or any one acting under his authority, such assault shall be deemed to be without justification or provocation.
62 Defence of movable property without claim of right.
Every one who is in peaceable possession of any movable thing, but neither claims right thereto nor acts under the authority of a person claiming right thereto, is neither justified nor protected from criminal responsibility for defending his possession against a person entitled by law to the possession of such thing; and if the person so entitled attempts to retake any such thing, and the possessor resists, and the person entitled thereto thereupon assaults the possessor, such assault shall be deemed to have been provoked, although the possessor may not have assaulted the person entitled by law to the possession.
63 Defence of dwelling-house.
Every one who is in peaceable possession of a dwelling-house, and every one lawfully assisting him or acting by his authority, is justified in using such force as is necessary to prevent the forcible breaking and entering of that dwelling-house either by night or day by any person with the intent to commit any indictable offence therein.
64 Defence of dwelling-house at night.
Every one who is in peaceable possession of a dwelling-house, and every one lawfully assisting him or acting by his authority, is justified in using such force as is necessary to prevent the forcible breaking and entering of that dwelling-house by night by any person, if he believes on reasonable and probable grounds that such breaking and entering is attempted with the intent to commit any indictable offence therein.
65 Defence of real property.
Every one who is in peaceable possession of any house or land or other real property, and every one lawfully assisting him or acting by his authority, is justified in using force to prevent any person from trespassing on such property or to remove him therefrom, if he does not strike or do bodily harm to such person; and if such person resists such attempt to prevent his entry or to remove him, he shall be deemed to commit an assault without justification or provocation.
66 Assertion of right to house or land.
(1.)
Every one is justified in peaceably entering in the daytime any house or land to the possession of which he, or some person under whose authority be acts, is lawfully entitled, for the purpose of taking possession thereof.
(2.)
If any person, not having, or acting under the authority of one having, peaceable possession of any such house or land with a claim of right, assaults any one peaceably entering as aforesaid for the purpose of making him desist from such entry, such assault shall be deemed to be without justification or provocation.
(3.)
If any person having peaceable possession of such house or land with a claim of right, or any person acting by his authority, assaults any one entering as aforesaid for the purpose of making him desist from such entry, such assault shall be deemed to be provoked by the person entering.
67 Exercise of right of way, &c.
Every one lawfully entitled to enter upon any land for the exercise of any right of way or other easement or profit, is justified in peaceably entering on such land for the purpose of exercising such right of way, easement, or profit:
Provided that if any one so entering has notice that his right to use such way or easement, or to take such profit, is disputed by the person in possession of such, land, an assault committed by such person or by any person acting under his authority, for the purpose of making the person entering desist from such entry, shall be deemed to be provoked by the person entering.
68 Domestic discipline.
(1.)
It is lawful for every parent or person in the place of a parent, or schoolmaster, to use force by way of correction towards any child or pupil under his care:
Provided that such force is reasonable under the circumstances.
(2.)
It is lawful for the master or officer in command of a ship on a voyage to use force for the purpose of maintaining good order and discipline on board of his ship:
Provided that he believes on reasonable grounds that such force is necessary:
Provided also that the force used is reasonable in degree.
(3.)
The reasonableness of the force used, or of the grounds on which such force was believed to be necessary, shall be a question of fact and not of law.
69 Surgical operations.
Every one is protected from criminal responsibility for performing with reasonable care and skill any surgical operation upon any person for his benefit:
Provided that performing the operation was reasonable, having regard to the patient’s state at the time, and to all the circumstances of the case.
70 Excess.
Every one authorised by law to use force is criminally responsible for any excess, according to the nature and quality of the act which constitutes the excess.
71 Consent to death.
No one has a right to consent to the infliction of death upon himself; and, if such consent is given, it shall have no effect upon the criminal responsibility of any person by whom such death may be caused.
72 Obedience to de facto law.
Every one is protected from criminal responsibility for any act done in obedience to the laws for the time being made and enforced by those in possession de facto of the sovereign power in and over the place where the act is done.
Part IV Parties to the Commission of Offences
73 Parties to offences.
(1.)
Every one is a party to and guilty of an offence who—
(a.)
Actually commits it;
(b.)
Does or omits an act for the purpose of aiding any person to commit the offence;
(c.)
Abets any person in the commission of the offence;
(d.)
Counsels or procures any person to commit the offence.
(2.)
If several persons form a common intention to prosecute any unlawful purpose, and to assist each other therein, each of them is a party to every offence committed by any one of them in the prosecution of such common purpose, the commission of which offence was or ought to have been known to be a probable consequence of the prosecution of such common purpose.
74 Offence committed other than offence intended.
(1.)
Every one who counsels or procures another to be a party to an offence of which that other is afterwards guilty is a party to that offence, although it may be committed in a way different from that which was counselled or suggested.
(2.)
Every one who counsels or procures another to be a party to an offence is a party to every offence which that other commits in consequence of such counselling or procuring, and which the person counselling or procuring knew or ought to have known to be likely to be committed in consequence of such counselling or procuring.
75 Accessory after the fact.
(1.)
An accessory after the fact to an offence is one who receives, comforts, or assists any one who has been a party to such offence, in order to enable him to escape, knowing him to have been a party thereto.
(2.)
No married woman whose husband has been a party to an offence shall become an accessory after the fact thereto by receiving, comforting, or assisting her husband, or by receiving, comforting, or assisting in his presence and by his authority any other person who has been a party to such offence, in order to enable her husband or such other person to escape.
76 Attempts.
(1.)
Every one who, having an intent to commit an offence, does or omits an act for the purpose of accomplishing his object is guilty of an attempt to commit the offence intended, whether under the circumstances it was possible to commit such offence or not.
(2.)
The question whether an act done or omitted with intent to commit an offence is or is not only preparation for the commission of that offence, and too remote to constitute an attempt to commit it, is a question of law.
TITLE II CRIMES AGAINST PUBLIC ORDER, INTERNAL AND EXTERNAL
Part V Treason and other Crimes against the Queen’s Authority and Person
77 Treason defined.
Treason is—
(1.)
The act of killing Her Majesty, or doing her any bodily harm tending to death or destruction, maim or wounding, and the act of imprisoning or restraining her; or
(2.)
The forming and manifesting, by an overt act, an intention to kill Her Majesty, or to do her any bodily harm tending to death or destruction, maim or wounding, or to imprison or to restrain her; or
(3.)
The act of killing the eldest son and heir-apparent of Her Majesty, or the Queen Consort of any King of the United Kingdom of Great Britain and Ireland; or
(4.)
The forming and manifesting, by an overt act, an intention to kill the eldest son and heir-apparent of Her Majesty, or the Queen Consort of any King of the United Kingdom of Great Britain and Ireland; or
(5.)
Conspiring with any person to kill Her Majesty, or to do her any bodily harm tending to death or destruction, maim or wounding, or conspiring with any person to imprison or restrain her; or
(6.)
Levying war against Her Majesty, either—
(a.)
With intent to depose Her Majesty from the style, honour, and royal name of the Imperial Crown of the United Kingdom of Great Britain and Ireland, or of any other of Her Majesty’s dominions or countries; or
(b.)
In order by force or constraint to compel Her Majesty to change her measures or counsels, or in order to intimidate or overawe both Houses or either House of Parliament; or
(7.)
Conspiring to levy war against Her Majesty with any such intent or for any such purpose as aforesaid; or
(8.)
Instigating any foreigner with force to invade the realm, or any other of the dominions of Her Majesty; or
(9.)
Assisting any public enemy at war with Her Majesty in such war by any means whatsoever; or
(10.)
Violating, whether with her consent or not, a Queen Consort, or the wife of the eldest son and heir-apparent for the time being of the King or Queen regnant.
Every one who commits treason is liable to suffer death as in other cases.
78 Rule of evidence.
(1.)
No one shall be convicted of treason (unless be pleads guilty) except upon the evidence of two witnesses to one overt act of the kind of treason with which he is charged, or upon the evidence of one witness to one such act and one other witness to another such act.
(2.)
No one shall be liable to be indicted or tried for treason unless the indictment be found within three years next after the offence committed.
(3.)
Provided that nothing in this section shall apply to treason by killing Her Majesty, or to cases where the overt act alleged is any attempt to injure her person in any manner whatever, but every such offence may be proved by the same evidence as any other offence.
79 Conspiracy.
In every case in which it is treason to conspire with any person for any purpose, the act of so conspiring, and every overt act of any such conspiracy, is an overt act of treason.
80 Accessories after the fact.
Every one is liable to imprisonment with hard labour for life who—
(1.)
Becomes an accessory after the fact to treason; or,
(2.)
Knowing that any person is about to commit treason, does not with all reasonable despatch give information thereof to a Justice of the Peace, or use other reasonable endeavours to prevent the commission of the same.
81 Treasonable crimes.
(1.)
Every one is liable to imprisonment with hard labour for life who, within the colony, forms any of the intentions hereinafter mentioned, and manifests any such intention by conspiring with any person to carry it into effect, or by any other overt act, or by publishing any printing or writing: that is to say,—
(a.)
An intention to depose Her Majesty from the style, honour, and royal name of the Imperial Crown of the United Kingdom of Great Britain and Ireland, or of any other of Her Majesty’s dominions or countries:
(b.)
An intention to levy war against Her Majesty within any part of the said United Kingdom or the colony, in order by force or constraint to compel her to change her measures or counsels, or in order to put any force or constraint upon, or in order to intimidate or overawe, both Houses or either House of Parliament, or the Parliament of this colony:
(c.)
An intention to move or stir any foreigner or stranger with force to invade the said United Kingdom, or any other of Her Majesty’s dominions, or countries under the obeisance of Her Majesty.
(2.)
No one charged with any crime punishable under this section shall be entitled to be acquitted on the ground that any act proved against him amounts to treason; but no person acquitted or convicted for any such crime shall afterwards be prosecuted for treason on the same facts.
82 Inciting to mutiny.
Every one is liable to imprisonment with hard labour for life who for any traitorous or mutinous purpose endeavours to seduce any person serving in Her Majesty’s forces by sea or land from his duty and allegiance to Her Majesty, or to incite or stir up any such person to commit any traitorous or mutinous practice whatever.
Part VI Unlawful Assemblies, Riots, Breaches of the Peace
83 Definition of unlawful assembly.
(1.)
An unlawful assembly is an assembly of three or more persons who, with intent to carry out any common purpose, assemble in such a manner, or so conduct themselves when assembled, as to cause persons in the neighbourhood of such assembly to fear, on reasonable grounds, that the persons so assembled will disturb the peace tumultuously, or will, by such assembly, needlessly and without any reasonable occasion provoke other persons to disturb the peace tumultuously.
(2.)
Persons lawfully assembled may become an unlawful assembly if they conduct themselves, with a common purpose, in such a manner as would have made their assembling unlawful if they had assembled in that manner for that purpose.
(3.)
An assembly of three or more persons for the purpose of protecting the house of any one of their number against persons threatening to break and enter such house in order to commit any indictable offence therein is not unlawful.
84 Definition of riot.
A riot is an unlawful assembly which has begun to disturb the peace tumultuously.
85 Punishment of unlawful assembly.
Every member of an unlawful assembly is liable to one year’s imprisonment.
86 Punishment of riot.
Every rioter is liable to two years’ imprisonment with hard labour.
87 Reading the Riot Act.
(1.)
It is the duty of every Sheriff and Justice of the Peace who has notice that there are within his jurisdiction persons to the number of twelve or more unlawfully, riotously, and tumultuously assembled together to the disturbance of the public peace, to resort to the place where such unlawful, riotous, and tumultuous assembly is, and among the rioters, or as near to them as he can safely come, with a loud voice to command or cause to be commanded silence, and after that, openly and with a loud voice, to make or cause to be made a proclamation in these words, or to a like effect:—
“Our Sovereign Lady the Queen chargeth and commandeth all persons being assembled immediately to disperse and peaceably to depart to their habitations or to their lawful business, upon the pain of being guilty of an offence on conviction of which they may be sentenced to imprisonment with hard labour for life.
“God save the Queen.”
(2.)
All persons are liable to imprisonment with hard labour for life who—
(a.)
With force and arms wilfully oppose, hinder, or hurt any person who begins or who is about to make the said proclamation, whereby such proclamation is not made; or
(b.)
Continue together to the number of twelve for one hour after such proclamation has been made, or, if they know that its making was hindered as aforesaid, within one hour after such hindrance.
(3.)
No person shall be prosecuted for any offence under this section unless such prosecution be commenced within twelve months after the offence committed.
88 Duty of Justice if rioters do not disperse.
(1.)
If the persons so unlawfully, riotously, and tumultuously assembled together as aforesaid, or twelve or more of them, continue together and do not disperse themselves for the space of one hour after proclamation made, or after such hindrance as aforesaid, it is the duty of every such Sheriff and Justice as aforesaid, and of all persons required by them to assist, to cause such persons to be apprehended and carried before a Justice of the Peace.
(2.)
If any person so assembled is killed or hurt in the apprehension of such persons, or in the endeavour to apprehend or disperse them, by reason of their resistance, every person ordering them to be apprehended or dispersed and every person executing such orders shall be indemnified against all proceedings of every kind in respect thereof.
(3.)
Nothing herein contained shall in any way limit or affect any duties or powers imposed or given by this Act as to the suppression of riots before or after the making of the said proclamation.
89 Riotous destruction of buildings.
All persons are liable to imprisonment with hard labour for life who, being riotously and tumultuously assembled together to the disturbance of the public peace, unlawfully and with force demolish or pull down or begin to demolish or pull down any building whatever or any machinery whatever, whether fixed or movable, or any erection used in farming land or carrying on any trade or manufacture, or any erection or structure used in conducting the business of any mine, or any bridge, wagon-way, or trunk for conveying minerals from any mine.
90 Riotous damage to buildings.
(1.)
All persons are liable to seven years’ imprisonment with hard labour who, being riotously and tumultuously assembled together to the disturbance of the public peace, unlawfully and with force injure or damage any of the things mentioned in the last-preceding section.
(2.)
It shall not be a defence to a charge of an offence against this or the last-preceding section that the offender believed be had a right to act as he did, unless be actually had such a right.
91 Unlawful drilling.
Whereas assemblies of persons for the purpose of training or drilling themselves, or of being trained or drilled to the use of arms, or for the purpose of practising military exercises, movements, or evolutions, without lawful authority, are dangerous to the peace and security of Her Majesty’s subjects and government:
Every one is liable to seven years’ imprisonment with hard labour who, without lawful authority,—
(1.)
Is present at or attends any such assembly for the purpose of training or drilling any other person to the use of arms, or the practice of military exercise or evolutions; or
(2.)
At any such assembly trains or drills any other person to the use of arms, or the practice of military exercise or evolutions.
92 Being unlawfully drilled.
Every one is liable to two years’ imprisonment who, without lawful authority, attends or is present at any such assembly as in the last-preceding section mentioned, for the purpose of being, or who at any such assembly is, without lawful authority trained or drilled to the use of arms or the practice of military exercise or evolutions.
93 Limitation of prosecution.
No one shall be prosecuted for any crime under the last two preceding sections unless such prosecution is commenced within twelve months after the crime is committed.
94 Forcible entry and detainer.
(1.)
Forcible entry is where a person, whether entitled or not, enters by force, or in a manner which causes or is likely to cause a breach of the peace or reasonable apprehension thereof, on land then in the actual and peaceable possession of another, for the purpose of taking possession thereof.
(2.)
Forcible detainer is where a person in actual possession, without colour of right, of land, detains it in a manner which causes or is likely to cause a breach of the peace, or reasonable apprehension thereof, against a person entitled by law to the possession thereof.
(3.)
What amounts to actual possession, or colour of right, is a question of law.
(4.)
Every one who forcibly enters or forcibly detains land is liable to one year’s imprisonment.
95 Affray defined.
(1.)
An affray is the act of fighting in any public street or highway, or fighting to the alarm of the public in any other place to which the public have access.
(2.)
Every one who takes part in an affray is liable to one year’s imprisonment with hard labour.
96 Challenge to fight a duel.
Every one is liable to one year’s imprisonment with hard labour who challenges, or endeavours by any means to provoke, any person to fight a duel, or endeavours to provoke any person to challenge any other person to fight a duel.
97 Prize-fight.
Every one is liable to one year’s imprisonment with hard labour who fights in a prize-fight, or subscribes to or otherwise promotes a prize-fight.
Part VII Seditious Offences
98 Oaths to commit certain crimes.
(1.)
Every one is liable to imprisonment with hard labour for life who, within the colony,—
(a.)
Administers, or is present at and consenting to the administration of, any oath or any engagement purporting to bind the person taking the same to commit treason, murder, or any crime for which the punishment is imprisonment with hard labour for three years or upwards; or
(b.)
Attempts to induce or compel any person to take any such oath or engagement; or
(c.)
Takes any such oath or engagement.
(2.)
No one who has been acquitted or convicted of any crime under this section shall be liable to be afterwards tried for treason, or being accessory after the fact to any treason, in respect of the same matter.
99 Other unlawful oaths.
Every one is liable to seven years’ imprisonment with hard labour who, within the colony,—
(1.)
Administers, or is present at and consenting to the administration of, any oath or engagement purporting to bind the person taking the same—
(a.)
To engage in any mutinous or seditious purpose; or
(b.)
To disturb the public peace, or commit or endeavour to commit any offence; or
(c.)
Not to inform or give evidence against any associate, confederate, or other person; or
(d.)
Not to reveal or discover any unlawful combination or confederacy, or any illegal act done or to be done, or any illegal oath or obligation or engagement which may have been administered or tendered to or taken by any person, or the import of any such oath or obligation or engagement; or
(2.)
Attempts to induce or compel any person to take any such oath or engagement; or
(3.)
Takes any such oath or engagement.
100 Compulsion in administering and taking oath.
(1.)
Provided that any one who, under such compulsion as would otherwise excuse him, offends against either of the last two preceding sections shall not be excused thereby unless be within the period hereinafter mentioned declares the same, and what he knows touching the same, and the persons by whom and in whose presence, and when and where, such oath or obligation or engagement was administered or taken, by information on oath before a Justice of the Peace.
(2.)
Such declaration may be made by him within fourteen days after the taking of the oath, or, if he is hindered from making it by actual force or sickness, then within four days of the cessation of such hindrance, or on his trial if it happens before the expiration of either of those periods.
101 Seditious offences defined.
(1.)
A seditious intention is an intention—
(a.)
To bring into hatred or contempt, or to excite disaffection against, the person of Her Majesty, or the Government and Constitution of the United Kingdom or of any part of it, or either House of the Imperial Parliament or the Government and Constitution of the colony, or the Parliament of the colony, or the administration of justice; or
(b.)
To excite Her Majesty’s subjects to attempt to procure otherwise than by lawful means the alteration of any matter affecting the Constitution, laws, or government of the United Kingdom or the colony; or
(c.)
To raise discontent or disaffection amongst Her Majesty’s subjects; or
(d.)
To promote feelings of ill-will and hostility between different classes of such subjects:
(2.)
Provided that no one shall be deemed to have a seditious intention only because be intends in good faith—
(a.)
To show that Her Majesty has been misled or mistaken in her measures; or
(b.)
To point out errors or defects in the Government or Constitution of the United Kingdom or of any part of it, or of the colony, or in the administration of justice; or to excite Her Majesty’s subjects to attempt to procure by lawful means the alteration of any matter affecting the Constitution, laws, or government of the United Kingdom or the colony; or
(c.)
To point out, in order to their removal, matters which are producing or have a tendency to produce feelings of hatred and ill-will between different classes of Her Majesty’s subjects.
(3.)
Seditious words are words expressive of a seditious intention.
(4.)
A seditious libel is a libel expressive of a seditious intention.
(5.)
A seditious conspiracy is an agreement between two or more persons to carry into execution a seditious intention.
102 Punishment of seditious offences.
Every one is liable to two years’ imprisonment who speaks any seditious words, or publishes any seditious libel, or is a party to any seditious conspiracy.
103 Libels on sovereigns of foreign States.
Every one is liable to one year’s imprisonment who, without lawful justification, publishes any libel tending to degrade, revile, or expose to hatred and contempt in the estimation of the people of any foreign State any prince or person exercising sovereign authority over any such State.
Part VIII Piracy
104 Piracy.
Every one who does any act which amounts to piracy by the law of nations is liable to the following punishment:—
(1.)
To death if, in committing or attempting to commit such crime, the offender murders, attempts to murder, or wounds any person, or does any act by which the life of any person is likely to be endangered:
(2.)
To imprisonment with hard labour for life in other cases.
105 Piratical acts.
Every one is liable to imprisonment with hard labour for life who does any of the following piratical acts:—
(1.)
Being a British subject on the sea, or in any place where the Admiral has jurisdiction, under colour of any commission from any foreign prince or State, whether such prince or State is at war with Her Majesty or not, or under pretence of authority from any person whatever, commits any act of hostility or robbery against other British subjects, or during any war is in any way adherent to or gives aid to Her Majesty’s enemies:
(2.)
Whether a British subject or not, on the sea or in any place where the Admiral has jurisdiction, enters into any British ship, and throws overboard or destroys any part of the goods belonging to such ship, or laden on board the same:
(3.)
Being on board any British ship on the sea or in any place where the Admiral has jurisdiction,
(a.)
Turns enemy or rebel, and piratically runs away with the ship, or any boat, ordnance, ammunition, or goods; or
(b.)
Yields them up voluntarily to any pirate; or
(c.)
Brings any seducing message from any pirate, enemy, or rebel; or
(d.)
Counsels or procures any person to yield up or run away with any ship, goods, or merchandise, or to turn pirate, or to go over to pirates; or
(e.)
Lays violent hands on the commander of any ship in order to prevent him from fighting in defence of his ship and goods; or
(f.)
Confines the master or commander of any such ship; or
(g.)
Makes or endeavours to make a revolt in the ship; or
(4.)
Being a British subject in any part of the world, or (whether a British subject or not) being in any part of Her Majesty’s dominions, or on board a British ship, knowingly—
(a.)
Furnishes any pirate with any ammunition or stores of any kind; or
(b.)
Fits out any ship or vessel with a design to trade with, or supply, or correspond with any pirate; or
(c.)
Conspires or corresponds with any pirate.
106 Piracy with violence.
Every one is liable to suffer death who, in committing or attempting to commit any piratical act, assaults with intent to murder or wounds any person, or does any act likely to endanger the life of any person.
107 Not fighting pirates.
Every one is liable to six months’ imprisonment, and shall forfeit to the owner of the ship all wages then due to such offender,—
(1.)
Who, being a master, officer, or seaman of any merchant ship which carries guns and arms, does not, when attacked by any pirate, fight and endeavour to defend himself and his vessel from being taken by such pirate; or
(2.)
Who discourages others from defending the ship, if by reason thereof the ship falls into the hands of such pirate.
TITLE III CRIMES AFFECTING THE ADMINISTRATION OF LAW AND JUSTICE
Part IX Corruption and Disobedience
108 Judicial corruption.
Every one is liable to fourteen years’ imprisonment with hard labour who,—
(1.)
Holding any judicial office, corruptly accepts or obtains, or agrees to accept or attempts to obtain, for himself or any other person, any bribe, that is to say, any money or valuable consideration, office, place, or employment whatever, on account of anything already done or omitted, or to be afterwards done or omitted, by him in his judicial capacity; or
(2.)
Corruptly gives or offers to any person holding any judicial office, or to any other person, any such bribe as aforesaid on account of any such act or omission.
109 Official corruption.
Every one is liable to fourteen years’ imprisonment with hard labour who,—
(1.)
Being a Justice of the Peace, peace officer, or public officer employed in any capacity for the prosecution or detection or punishment of offenders, corruptly accepts or obtains, or agrees to accept or attempts to obtain, for himself or any other person, any bribe, that is to say, any money or valuable consideration, office, place, or employment whatever, with the intent to interfere corruptly with the due administration of justice, or to procure or facilitate the commission of any crime, or to protect from detection or punishment any person having committed or intending to commit any crime; or
(2.)
Corruptly gives or offers to any such officer as aforesaid any such bribe as aforesaid with any such intent.
110 Selling offices.
Every one is liable to seven years’ imprisonment with hard labour who—
(1.)
Corruptly accepts or obtains, or agrees to accept or attempts to obtain, for himself or any other person, any money or valuable consideration whatever on account of his having appointed to, or having procured or attempted to procure for, or in consideration that he will appoint to, or procure or attempt to procure for, any person, any public office or employment; or
(2.)
Corruptly gives or offers to give to any person any money or valuable consideration whatever on any such account or consideration.
111 Disobedience to a statute.
Every one is liable to one year’s imprisonment who, without lawful excuse, disobeys any statute of the Imperial Parliament in force in the colony, or any Act of the General Assembly of New Zealand, or of any former General or Provincial Legislature thereof, by wilfully doing any act which it forbids, or omitting to do any act which it requires to be done, unless some penalty or other mode of proceeding is expressly provided by law and is intended to be exclusive of all other punishment for such disobedience.
112 Neglect of peace officer to suppress riot.
Every one is liable to two years’ imprisonment who, being a Sheriff, Justice of the Peace, or peace officer, having notice that there is a riot within his jurisdiction, without reasonable excuse omits to do his duty in suppressing such riot.
Part X Misleading Justice
113 Perjury defined.
(1.)
Perjury is an assertion as to a matter of fact, opinion, belief, or knowledge made by a witness in a judicial proceeding as part of his evidence upon oath or affirmation, whether such evidence is given in open Court or by affidavit or otherwise, such assertion being known to such witness to be false, and being intended by him to mislead the Court, jury, or person holding the proceeding.
(2.)
Evidence in this section includes evidence given before a Grand Jury.
(3.)
Every person is a witness within the meaning of this section who actually gives his evidence, whether be was competent to be a witness or not, and whether his evidence was admissible or not.
(4.)
Every proceeding is judicial within the meaning of this section which is held in or under the authority of any Court of justice, or before a Grand Jury, or before the Legislative Council or the House of Representatives, or any Committee of either the Legislative Council or the House of Representatives, or any Joint Committee of the Legislative Council and House of Representatives empowered by law to administer an oath, or before any Justice of the Peace or any arbitrator or umpire, or any person or body of persons authorised by law or by any statute in force for the time being to make an inquiry and take evidence therein upon oath, or before any legal tribunal by which any legal right or liability can be established, or before any person acting as a Court, Justice, or tribunal having power to hold such judicial proceeding, whether duly constituted or not, and whether the proceeding was duly instituted or not before such Court or person so as to authorise it or him to hold the proceeding, and although such proceeding was held in a wrong place or was otherwise invalid.
(5.)
Subornation of perjury is counselling or procuring a person to commit any perjury which is actually committed.
114 Punishment of perjury.
(1.)
Every one is liable to seven years’ imprisonment with hard labour who commits perjury or subornation of perjury.
(2.)
If the crime is committed in order to procure the conviction of a person for any crime of which the punishment is death or imprisonment with hard labour for three years or upwards, the punishment may be imprisonment with hard labour for life.
115 False oaths.
Every one is liable to seven years’ imprisonment with hard labour who, being required or authorised by law to make any statement on oath or affirmation, thereupon makes a statement which would amount to perjury if made in a judicial proceeding.
116 False statements or declarations.
Every one is liable to two years’ imprisonment with hard labour who makes a statement or declaration which would amount to perjury if made on oath or affirmation in a judicial proceeding, upon any occasion on which he is permitted by law to make any statement or declaration before any officer authorised by law to permit it to be made before him, or before any notary public to be certified by him as such notary.
117 Rule of evidence.
(1.)
No one shall be convicted of any crime specified in the last three sections on the uncorroborated testimony of one witness only:
(2.)
Provided that the testimony of one witness may be sufficient if material facts sufficient to corroborate that testimony are established independently of the evidence of that witness.
118 Fabricating evidence.
Every one is liable to seven years’ imprisonment with hard labour who, with intent to mislead any Court of justice or person holding any such judicial proceeding as in section one hundred and thirteen aforesaid, fabricates evidence by any means other than perjury or subornation of perjury.
119 Conspiring to bring false accusations.
Every one who conspires to prosecute any person for any alleged offence knowing such person to be innocent thereof is liable to the following punishment:—
(1.)
To imprisonment with hard labour for life if such person might, upon conviction for the alleged offence, be sentenced to death or imprisonment with hard labour for life:
(2.)
To imprisonment with hard labour for fourteen years if such person might, upon conviction for the alleged offence, be sentenced to imprisonment with hard labour for any term less than life:
(3.)
To imprisonment with hard labour for seven years if such person might, upon conviction for the alleged offence, be sentenced to imprisonment with or without hard labour for a term less than three years.
120 Conspiring to defeat justice.
Every one is liable to seven years’ imprisonment with hard labour who conspires to obstruct, prevent, pervert, or defeat the course of justice.
121 Corrupting juries and witnesses.
Every one is liable to two years’ imprisonment with hard labour who—
(1.)
Dissuades or attempts to dissuade any person, by threats, bribes, or other corrupt means, from giving evidence in any cause or matter, civil or criminal; or
(2.)
Influences or attempts to influence, by threats or bribes or other corrupt means, any juryman in his conduct as such, whether such person has been sworn as a juryman or not; or
(3.)
Accepts any such bribe or other corrupt consideration to abstain from giving evidence, or on account of his conduct as a juryman; or
(4.)
Wilfully attempts in any other way to obstruct, pervert, or defeat the course of justice.
Part XI Escapes and Rescues
122 Being at large while under sentence of transportation or penal servitude.
Every one is liable to imprisonment with hard labour for life who, having been sentenced or ordered to be transported or kept in penal servitude by any Court of competent jurisdiction in any part of Her Majesty’s dominions, or having agreed to transport himself on certain conditions, is afterwards at large within the colony without some lawful cause (the proof whereof shall lie on him) before the expiration of the term for which he was ordered to be transported or kept in penal servitude, or for which he agreed to transport himself.
123 Assisting escape of prisoners of war.
Every one is liable to fourteen years’ imprisonment with hard labour who knowingly and wilfully—
(1.)
Assists any alien enemy of Her Majesty, being a prisoner of war in the colony, to escape from any place in which he may be detained; or
(2.)
Assists any prisoner as aforesaid, suffered to be at large on his parole in the colony, to escape from the place where be is at large on his parole.
124 Breaking prison.
Every one is liable to imprisonment with hard labour for life who by force or violence breaks any prison, with intent to set at liberty himself or any other person confined therein on any charge of a punishable offence.
125 Escape from prison.
Every one is liable to seven years’ imprisonment with hard labour who,—
(1.)
Having been convicted of any offence, escapes from any lawful custody in which he may be under such conviction; or,
(2.)
Whether convicted or not, escapes from any prison in which he is lawfully confined on any charge of a punishable offence.
126 Escape from lawful custody.
Every one is liable to two years’ imprisonment with hard labour who, being in lawful custody other than aforesaid on any charge of a punishable offence, escapes from such custody.
127 Assisting escape in certain cases.
Every one is liable to imprisonment with hard labour for life who—
(1.)
Rescues any person, or assists any person in escaping or attempting to escape, from lawful custody, whether in prison or not, under sentence of death or penal servitude for life, or imprisonment with hard labour for life, or after conviction of and before sentence for or whilst in such custody upon a charge of any crime punishable with death or penal servitude for life or imprisonment with hard labour for life; or
(2.)
Being a peace officer and having any such person in his lawful custody, or being an officer of any prison in which any such person is lawfully confined, voluntarily and intentionally permits him to escape therefrom.
128 Assisting escape in other cases.
Every one is liable to seven years’ imprisonment with hard labour who—
(1.)
Rescues any person, or assists any person in escaping or attempting to escape from lawful custody, whether in prison or not, under a sentence of penal servitude for any term less than life, or imprisonment with hard labour for any term less than life but not less than three years, or after conviction of and before sentence for or whilst in such custody upon a charge of any crime punishable with penal servitude for a term less than life, or imprisonment with hard labour for any term less than life but not less than three years; or
(2.)
Being a peace officer having any such person in his lawful custody, or being an officer of any prison in which such person is lawfully confined, voluntarily and intentionally permits him to escape therefrom.
129 Aiding escape from prison.
Every one is liable to two years’ imprisonment with hard labour who—
(1.)
Rescues any prisoner lawfully imprisoned, or aids such prisoner in escaping or in attempting to escape from prison; or,
(2.)
With intent to facilitate the escape of any prisoner lawfully imprisoned, conveys or causes to be conveyed anything whatever into any prison.
130 Officer aiding escape.
(1.)
Every one is liable to five years’ imprisonment with hard labour who—
(a.)
Being a peace officer having any person in his lawful custody otherwise than upon a charge, conviction, or sentence of or for a crime punishable with death or penal servitude, or imprisonment with hard labour for any term not less than three years, voluntarily and intentionally permits such person to escape from such custody; or,
(b.)
Being an officer of a prison in which any person as aforesaid is lawfully confined for any cause, civil or criminal, otherwise than upon such charge as aforesaid, voluntarily and intentionally permits him to escape from such prison.
(2.)
For the purposes of this and the five last-preceding sections, custody under an irregular warrant or other irregular process shall be deemed to be lawful.
131 Assisting escape of criminal lunatics.
Every one is liable to five years’ imprisonment with hard labour who—
(a.)
Rescues any person lawfully ordered to be conveyed as a criminal lunatic to any asylum, hospital, or house, either during the time of his conveyance thereto or of his confinement therein; or,
(b.)
Being an officer or servant in any asylum or hospital, or keeper of or servant in any house, voluntarily and intentionally permits any such person as aforesaid to escape from such asylum, hospital, or house.
132 Permitting escape.
Every one is liable to one year’s imprisonment who, by failing to perform any legal duty, permits a person in his lawful custody on a charge of a punishable offence to escape therefrom.
TITLE IV. CRIMES AGAINST RELIGION, MORALS, AND PUBLIC CONVENIENCE
Part XII Crimes against Religion
133 Blasphemous libel.
(1.)
Every one is liable to one year’s imprisonment who publishes any blasphemous libel.
(2.)
Whether any particular published matter is or is not a blasphemous libel is a question of fact.
(3.)
But no one is guilty of publishing a blasphemous libel for expressing in good faith and in decent language, or attempting to establish by arguments used in good faith and conveyed in decent language, any opinion whatever upon any religious subject.
(4.)
No one shall be indicted under this section unless with the sanction in writing of the Attorney-General for the time being first had and obtained.
134 Assaulting ministers of religion.
Every one is liable to two years’ imprisonment with hard labour who—
(1.)
By threats or force obstructs or prevents or endeavours to obstruct or prevent any clergyman or other minister of religion in or from lawfully officiating in any church, chapel, meeting-house, place of religious worship, or in or from the performance of his duty in the lawful burial of the dead in any churchyard or other burial-place; or
(2.)
Strikes or offers any violence to, or arrests upon or under the pretence of executing any civil process, any clergyman or other minister of religion who is engaged in, or to the knowledge of the offender is about to engage in, any of the rites or duties mentioned in the last subsection, or is going to perform the same or returning from the performance thereof.
135 Disturbing public worship.
Every one is liable to be fined forty shillings who wilfully and without lawful justification, or excuse
Disquiets or disturbs any meeting of persons lawfully assembled for religious purposes, or in any way disturbs, molests, or misuses any preacher, teacher, or person lawfully officiating at such meeting, or any person or persons there assembled.
Part XIII Crimes against Morality
136 Unnatural offence.
(1.)
Every one is liable to imprisonment with hard labour for life, and, according to his age, to be flogged or whipped once, twice, or thrice, who commits buggery either with a human being or with any other living creature.
(2.)
This offence is complete upon penetration.
137 Attempt to commit unnatural offence.
Every one is liable to ten years’ imprisonment with hard labour, and, according to his age, to be flogged or whipped once, twice, or thrice, who—
(1.)
Attempts to commit buggery; or
(2.)
Assaults any person with intent to commit buggery; or
(3.)
Who being a male indecently assaults any other male.
It shall be no defence to an indictment for an indecent, assault on a male of any age that he consented to the act of indecency.
138 Indecent acts.
Every one is liable to two years’ imprisonment with hard labour who wilfully—
(1.)
Does any indecent act in any place to which the public have or are permitted to have access; or
(2.)
Does any indecent act in any place, intending thereby to insult or offend any person.
139 Publishing obscene matter.
(1.)
Every one is liable to two years’ imprisonment with hard labour who knowingly, without lawful justification or excuse,—
(a.)
Publicly sells or exposes for public sale or to public view or distributes for public sale or to public view any obscene book or other printed or written matter, or any picture, photograph, model, or other object tending to corrupt morals; or
(b.)
Publicly exhibits any disgusting object or any indecent show.
(2.)
No one shall be convicted of the crimes above mentioned if he proves that the public good was served by the acts alleged to have been done.
(3.)
It shall be a question of law whether the occasion of the sale, publishing, or exhibition is such as might be for the public good, and whether there is evidence of excess beyond what the public good requires in the manner, extent, or circumstances in, to, or under which the sale, publishing, or exhibition is made, so as to afford a justification or excuse therefor; but it shall be a question for the jury whether there is or is not such excess.
(4.)
The motives of the seller, publisher, or exhibitor shall in all cases be irrelevant.
Part XIV Nuisances
140 Common nuisance defined.
A common nuisance is an unlawful act or an omission to discharge a legal duty which act or omission endangers the lives, safety, health, property, or comfort of the public, or by which the public are obstructed in the exercise or enjoyment of any right common to all Her Majesty’s subjects.
141 Common nuisances which are criminal.
Every one is liable to one year’s imprisonment who commits any common nuisance which endangers the lives, safety, or health of the public, or which occasions injury to the person of any individual.
142 Common nuisances which are not criminal.
Any one convicted upon any indictment or information for any common nuisance other than those mentioned in the preceding section shall not be deemed to have committed a criminal offence, but all such proceedings or judgments may be taken and had as heretofore to abate or remedy the mischief done by such nuisance to the public right.
143 Disorderly houses.
(1.)
Every one is liable to two years’ imprisonment with hard labour who keeps any disorderly house, that is to say, any common bawdy-house, common gaming-house, or common betting-house, as hereinafter defined.
(2.)
Any one who appears, acts, or behaves as master or mistress, or as the person having the care, government, or management, of any such disorderly house shall be deemed to be the keeper thereof, and shall be liable to be prosecuted and punished as such, although in fact be or she is not the real owner or keeper thereof.
(3.)
The owner of any house, or any tenant, lessee, or occupier thereof, or of any part thereof, who knowingly permits such house, or any part thereof, to be kept or used as a disorderly house shall be liable to be prosecuted and punished as if he were the real keeper of such house.
144 Common bawdy-houses.
A common bawdy-house is a house, room, set of rooms, or place of any kind whatever kept for purposes of prostitution.
145 Common gaming-houses.
A common gaming-house is—
(1.)
A house, room, or place kept by any person for gain, to which persons resort for the purpose of playing at any game of chance; or
(2.)
A house, room, or place kept or used for playing therein at any game of chance, or any mixed game of chance and skill, in which
(a.)
A bank is kept by one or more of the players, exclusively of the others; or
(b.)
In which any game is played the chances of which are not alike favourable to all the players, including among the players the banker or other person by whom the game is managed, or against whom the other players stake, play, or bet.
146 Common betting-houses.
A common betting-house is a house, office, room, or other place—
(1.)
Opened, kept, or used for the purpose of betting between persons resorting and
The owner, occupier, or keeper thereof; or
Any person using the same; or
Any person procured or employed by, or acting for or on behalf of, any such person; or
Any person having the care or management or in any manner conducting the business thereof; or
(2.)
Opened, kept, or used for the purpose of any money or valuable thing being received by or on behalf of any such person as aforesaid, as or for the consideration
(a.)
For any assurance or undertaking, express or implied, to pay or give thereafter any money or valuable thing on any event or contingency of or relating to any horse-race or other race, fight, game or sport; or
(b.)
For securing the paying or giving by some other person of any money or valuable thing on any such event or contingency.
147 Misconduct in respect of human remains.
Every one is liable to two years’ imprisonment with hard labour who—
(1.)
Neglects to perform any duty either imposed upon him by law or undertaken by him with reference to the burial of any dead human body or human remains; or
(2.)
Improperly or indecently interferes with or offers any indignity to any dead human body or human remains, whether buried or not.
TITLE V. CRIMES AGAINST THE PERSON AND REPUTATION
Part XV Duties tending to the Preservation of Life
148 Duty to provide the necessaries of life.
Every one who has charge of any other person, unable, by reason either of detention, age, sickness, insanity, or any other cause, to withdraw himself from such a charge, and unable to provide himself with the necessaries of life, is (whether such charge is undertaken by him under any contract, or is imposed upon him by law, or by reason of his unlawful act) under a legal duty to supply that person with the necessaries of life, and is criminally responsible for omitting without lawful excuse to perform such duty if the death of such person is caused, or if his life is endangered, or his health is permanently injured by such omission.
149 Duty of head of family to provide necessaries.
Every one who as head of a family is under a legal duty to provide necessaries for any child under the age of sixteen years is criminally responsible for omitting without lawful excuse to do so whilst such child remains a member of his household, whether such child is helpless or not, if the death of such child is caused, or if his life is endangered, or his health permanently injured by such omission.
150 Duty of masters to provide necessaries.
Every one who as master or mistress has contracted to provide necessary food, clothing, or lodging for any servant or apprentice under the age of sixteen years is under a legal duty to provide the same, and is criminally responsible for omitting without lawful excuse to perform such duty if the death of such servant or apprentice is caused, or if his life is endangered, or his health is permanently injured by such omission.
151 Duty of persons doing dangerous acts.
Every one who undertakes (except in case of necessity) to administer surgical or medical treatment, or to do any other lawful act the doing of which is or may be dangerous to life, is under a legal duty to have and to use reasonable knowledge, skill, and care in doing any such act, and is criminally responsible for omitting without lawful excuse to discharge that duty if death is caused by such omission.
152 Duty of persons in charge of dangerous things.
Every one who has in his charge or under his control anything whatever, whether animate or inanimate, or who erects, makes, or maintains anything whatever which, in the absence of precaution or care, may endanger human life is under a legal duty to take reasonable precautions against and use reasonable care to avoid such danger, and is criminally responsible for the consequences of omitting without lawful excuse to perform such duty.
153 Duty to avoid omissions dangerous to life.
Every one who undertakes to do any act the omission to do which is or may be dangerous to life is under a legal duty to do that act, and is criminally responsible for the consequences of omitting without lawful excuse to perform that duty.
Part XVI Homicide
154 Homicide defined.
Homicide is the killing of a human being by another directly or indirectly, by any means whatsoever.
155 When a child becomes a human being.
(1.)
A child becomes a human being within the meaning of this Act when it has completely proceeded in a living state from the body of its mother, whether it has breathed or not, whether it has an independent circulation or not, and whether the navel string is severed or not.
(2.)
The killing of such child is homicide when it dies in consequence of injuries received before, during, or after birth.
156 Culpable homicide.
Homicide may be either culpable or not culpable.
(1.)
Homicide is culpable when it consists in the killing of any person either—
(a.)
By an unlawful act, or
(b.)
By an omission without lawful excuse to perform or observe any legal duty, or
(c.)
By both combined, or
(d.)
By causing a person by threats or fear of violence, or by deception, to do an act which causes that person’s death, or
(e.)
By wilfully frightening a child or sick person.
Culpable homicide is either murder or manslaughter.
(2.)
Homicide which is not culpable is not an offence.
157 Procuring death by false evidence.
Procuring by false evidence the conviction and death of any person by the sentence of the law shall not be deemed to be homicide.
158 Death must be within a year and a day.
(1.)
No one is criminally responsible for the killing of another unless the death take place within a year and a day of the cause of death.
(2.)
The period of a year and a day shall be reckoned inclusive of the day on which the last unlawful act contributing to the cause of death took place.
(3.)
Where the cause of death is an omission to fulfil a legal duty the period shall be reckoned inclusive of the day on which such omission ceased.
(4.)
Where death is in part caused by an unlawful act and in part by an omission the period shall be reckoned inclusive of the day on which the last unlawful act took place or the omission ceased, whichever happened last.
159 Killing by influence on the mind.
No one is criminally responsible for the killing of another by any influence on the mind alone, save by wilfully frightening a child or sick person, nor for the killing of another by any disorder or disease arising from such influence, save by wilfully frightening a child or sick person.
160 Acceleration of death.
Every one who by any act or omission causes the death of another kills that person, although the effect of the bodily injury caused to such other person be merely to accelerate his death while labouring under some disorder or disease arising from some other cause.
161 Causing death which might have been prevented.
Every one who by any act or omission causes the death of another kills that person, although death from that cause might have been prevented by resorting to proper means.
162 Causing injury the treatment of which causes death.
Every one who causes a bodily injury which is of itself of a dangerous nature to any person, from which death results, kills that person, although the immediate cause of death be treatment, proper or improper, applied in good faith.
Part XVII Murder, Manslaughter, etc.
163 Definition of murder.
Culpable homicide is murder in each of the following cases:—
(1.)
If the offender means to cause the death of the person killed:
(2.)
If the offender means to cause to the person killed any bodily injury which is known to the offender to be likely to cause death, and is reckless whether death ensues or not:
(3.)
If the offender means to cause death, or, being so reckless as aforesaid, means to cause such bodily injury as aforesaid to one person, and by accident or mistake kills another person, though he does not mean to hurt the person killed:
(4.)
If the offender for any unlawful object does an act which he knows or ought to have known to be likely to cause death, and thereby kills any person, though he may have desired that his object should be effected without hurting any one.
164 Further definition of murder.
(1.)
Culpable homicide is also murder in each of the following cases, whether the offender means or does not mean death to ensue, or knows or does not know that death is likely to ensue:—
(a.)
If be means to inflict grievous bodily injury for the purpose of facilitating the commission of any of the offences in this section mentioned, or the flight of the offender upon the commission or attempted commission thereof, and death ensues from such injury:
(b.)
If be administers any stupefying or overpowering thing for either of the purposes aforesaid, and death ensues from the effects thereof:
(c.)
If be by any means wilfully stops the breath of any person for cither of the purposes aforesaid, and death ensues from such stopping of the breath.
(2.)
The following are the offences in this section referred to: Treason and the other offences mentioned in Part V. of this Act, piracy and offences deemed to be piracy, escape or rescue from prison or lawful custody, resisting lawful apprehension, murder, rape, forcible abduction, robbery, burglary, arson.
165 Provocation.
(1.)
Culpable homicide, which would otherwise be murder, may be reduced to manslaughter if the person who causes death does so in the heat of passion caused by sudden provocation.
(2.)
Any wrongful act or insult of such a nature as to be sufficient to deprive an ordinary person of the power of self-control may be provocation if the offender acts upon it on the sudden and before there has been time for his passion to cool.
(3.)
Whether any particular wrongful act or insult amounts to provocation, and whether the person provoked was actually deprived of the power of self-control by the provocation which he received, shall be questions of fact.
(4.)
No one shall be held to give provocation to another by doing that which he had a legal right to do, or by doing anything which the offender incited him to do in order to provide the offender with an excuse for killing or doing bodily harm to any person.
(5.)
An arrest shall not necessarily reduce the offence from murder to manslaughter because the arrest was illegal; but if the illegality was known to the offender it may be evidence of provocation.
166 Manslaughter.
Culpable homicide not amounting to murder is manslaughter.
167 Punishment of murder.
Every one who commits murder shall upon conviction thereof be sentenced to death.
168 Attempt to murder.
Every one who attempts to commit murder is liable to imprisonment with hard labour for life.
169 Conspiracy to murder.
Every one is liable to ten years’ imprisonment with hard labour who—
(1.)
Conspires or agrees with any person to murder, or to cause to be murdered, any other person, whether the person intended to be murdered is a subject of Her Majesty or not, or is within Her Majesty’s dominions or not; or
(2.)
Counsels or attempts to procure any person to murder such other person anywhere, although such person is not murdered in consequence of such counselling or attempted procurement.
170 Accessory after the fact to murder.
Every one is liable to imprisonment with hard labour for life who is an accessory after the fact to murder.
171 Punishment of manslaughter.
Every one who commits manslaughter is liable to imprisonment with hard labour for life.
172 Aiding and abetting suicide.
Every one is liable to imprisonment with hard labour for life who counsels or procures any person to commit suicide actually committed in consequence of such counselling or procurement, or who aids or abets any person in the commission of suicide.
173 Attempt to commit suicide.
Every one who attempts to commit suicide is liable to two years’ imprisonment with hard labour.
174 Concealing dead body of child.
Every one is liable to two years’ imprisonment with hard labour who disposes of the dead body of any child in any manner with intent to conceal the fact that its mother was delivered of it, whether the child died before, or during, or after birth.
Part XVIII Bodily Injuries and Acts causing Danger to the Person
175 Disabling in order to commit a crime.
Every one is liable to imprisonment with hard labour for life, and according to his age to be flogged or whipped once, twice, or thrice, who, with intent to commit or to facilitate the commission of any crime, or the flight of the offender upon the commission or attempted commission thereof, by any violent means whatever renders or attempts to render any person incapable of resistance.
176 Stupefying in order to commit a crime.
Every one is liable to imprisonment with hard labour for life who, with intent to commit or to facilitate the commission of any crime, or the flight of the offender upon the commission or attempted commission thereof, causes or attempts to cause any person to be affected by chloroform, laudanum, or any other stupefying or overpowering thing.
177 Wounding with intent to do bodily harm.
Every one is liable to imprisonment with hard labour for life, and if under sixteen years to be once whipped, who, with intent to maim, disfigure, disable, or do any grievous bodily harm to any one, or to resist or prevent the lawful apprehension or detainer of any one,—
(1.)
Wounds or does actual bodily harm to any person; or
(2.)
Discharges or attempts to discharge at any person any arms loaded with destructive materials, whether otherwise properly prepared for being discharged or not; or
(3.)
Causes any explosive substance to explode, or sends or delivers to or causes to be received by any person any explosive substance, or any other dangerous or noxious thing; or
(4.)
Puts or lays at any place, or casts or throws at or applies to any person, any corrosive or destructive substance.
178 Attempting to injure by explosive substances.
Every one is liable to fourteen years’ imprisonment with hard labour, and if under sixteen years to be once whipped, who, with intent to do any bodily harm to any person, puts any explosive substance whatever in any place whatever.
179 Intentionally endangering persons on railways, tramways, &c.
Every one is liable to imprisonment with hard labour for life, and if under sixteen years to be once whipped, who, with intent to injure or endanger the safety of any person on any railway or tramway,—
(1.)
Places anything upon or across any railway or tramway; or
(2.)
Does any act likely to interfere with, injure, endanger, or obstruct any engine, carriage, or other vehicle on any railway or tramway; or
(3.)
Shoots or throws anything at, into, or upon, or causes anything to come in contact with, any such engine, carriage, or other vehicle, or any person; or
(4.)
Does anything whatever to any part of any railway or tramway, or to any points, machinery, or signal belonging to or near to such railway or tramway, or to any engine, carriage, or other vehicle thereon; or
(5.)
Deals in any way with any signal or light on or near to any railway or tramway, or makes or shows any false signal or light, or makes any sign whatever on or near to any railway or tramway; or
(6.)
Wilfully omits to do any act which it is his duty to do.
180 Wantonly endangering persons on railways, tramways, &c.
Every one is liable to two years’ imprisonment with hard labour, and if under sixteen years to be once whipped, who unlawfully and wilfully, in a manner likely to injure or endanger the safety of any person on any railway or tramway,—
(1.)
By any act, omission, or neglect endangers or obstructs any engine, carriage, or other vehicle on any railway or tramway; or
(2.)
Does any act likely to interfere with or to cause injury to any engine, carriage, or other vehicle on any railway or tramway; or
(3.)
Shoots or throws anything at, into, or upon, or causes anything to come in contact with, any engine, carriage, or other vehicle, or any person; or
(4.)
Does anything whatever to any part of any railway or tramway, or to any points, machinery, or signal belonging to or near to any railway or tramway, or to any engine, carriage, or other vehicle thereon; or
(5.)
Deals in any way with any signal or light on or near to any railway or tramway, or makes or shows any false signal or light, or makes any sign whatever on or near to any railway or tramway; or
(6.)
By any culpable neglect of duty endangers the safety of any person conveyed or being upon any railway or tramway.
181 Preventing escape from wreck.
Every one is liable to imprisonment with hard labour for life who intentionally and without lawful excuse,—
(1.)
Impedes any person on board of any vessel in distress or wrecked, or escaping therefrom, in endeavouring to save his life; or
(2.)
Impedes any person endeavouring to save the life of any person so situated aforesaid.
182 Striking persons protecting wreck.
Every one is liable to seven years’ imprisonment with hard labour who assaults any Magistrate, officer, or other person lawfully acting in the execution of his duty in or about the preservation of any vessel in distress, or of any vessel or goods wrecked lying under water, or cast away, or cast on shore.
183 Administering poison.
Every one who, with intent to injure or annoy any person, administers to or causes to be taken by such person any poison or other noxious thing is liable to the following punishment:—
(1.)
If the life of any person is endangered, or grievous bodily harm is caused to any person thereby, to ten years’ imprisonment with hard labour:
(2.)
In other cases, although no injury is caused thereby, to three years’ imprisonment with hard labour.
184 Causing actual bodily harm.
Every one is liable to three years’ imprisonment with hard labour who assaults any person so as to cause him actual bodily harm.
185 Setting man-traps.
(1.)
Every one is liable to three years’ imprisonment with hard labour who—
(a.)
Sets or places any man-trap, spring-gun, or other engine likely to inflict grievous bodily harm, with intent that the same may inflict grievous bodily harm upon any person coming in contact therewith; or,
(b.)
When any such engine has been with or without such intent set or placed by any other person, knowingly permits it to continue so set or placed with such intent:
(2.)
Provided that this enactment shall not extend to any engine set at night in a dwelling-house for the protection thereof.
186 Negligent acts.
(1.)
Every one is liable to two years’ imprisonment with hard labour who causes actual bodily harm to any person under such circumstances that if death had been caused be would have been guilty of manslaughter:
(2.)
Provided that this section shall not apply to any of the offences by parents, guardians, and masters specified in Part XXII.
Part XIX Assaults
187 Assault defined.
An assault is the act of intentionally applying force to the person of another, directly or indirectly, or attempting or threatening by any act or gesture to apply such force to the person of another, if the person making the threat has, or causes the other to believe upon reasonable grounds that he has, present ability to effect his purpose.
188 Indecent assault.
Every one is liable to seven years’ imprisonment with hard labour, and, according to his age, to be flogged or whipped once, twice, or thrice, who—
(1.)
Indecently assaults any female; or
(2.)
Does anything to any female by her consent which but for such consent would be an indecent assault, such consent being obtained by false and fraudulent representations as to the nature and quality of the act.
It shall be no defence to an indictment for an indecent assault on a female under the age of fourteen that she consented to the act of indecency: Provided, however, that it shall be a sufficient defence to any charge under this section if it shall be made to appear to the jury before whom the charge shall be brought that the person so charged had reasonable cause to believe that the female was of or above the age of fourteen years.
189 Aggravated assault.
Every one is liable to two years’ imprisonment with hard labour who—
(1.)
Assaults any person with intent to commit a crime, or to resist or prevent the lawful apprehension or detainer of himself or of any other person; or
(2.)
Assaults, resists, or obstructs any peace officer in the execution of his duty, or any person acting in aid of such officer; or
(3.)
Assaults, resists, or wilfully obstructs any person in the lawful execution of any process against any lands or goods, or in the making of any lawful distress, or with intent to rescue any goods taken under such process or distress.
190 Common assault.
Every person who commits an assault is liable to one year’s imprisonment with hard labour.
Part XX Rape, and procuring Abortion
191 Rape defined.
(1.)
Rape is the act of a male person, not under the age of fourteen years, having carnal knowledge of a woman who is not his wife—
(a.)
Without her consent; or
(b.)
With consent which has been extorted by threats or fear of bodily harm; or
(c.)
With consent obtained by personating the woman’s husband; or
(d.)
With consent obtained by false and fraudulent representations as to the nature and quality of the act.
(2.)
This offence shall be complete upon penetration.
192 Punishment of rape.
Every one who commits rape is liable to imprisonment with hard labour for life, and, according to his age, to be flogged or whipped once, twice, or thrice.
193 Attempt to commit rape.
Every one is liable to ten years’ imprisonment with hard labour, and, according to his age, to be flogged or whipped once, twice, or thrice, who attempts to commit rape, or assaults any person with intent to commit rape.
194 Defiling children under twelve.
Every one is liable—
(1.)
To imprisonment with hard labour for life, and, according to his age, to be flogged or whipped once, twice, or thrice, who carnally knows any girl under the age of ten years; and
(2.)
To ten years’ imprisonment with hard labour, and, according to his age, to be flogged or whipped once, twice, or thrice, who carnally knows any girl being of or above the age of ten years and under the age of twelve years, whether be believes her to be of or above that age or not.
195 Attempting to defile children under twelve.
Every one is liable to seven years’ imprisonment with hard labour, and, according to his age, to be flogged or whipped once, twice, or thrice, who attempts carnally to know any girl under the age of twelve years, whether be believes her to be of or above that age or not.
196 Defiling girls between twelve and fourteen.
Every one is liable to five years’ imprisonment with hard labour who unlawfully carnally knows or attempts to unlawfully carnally know any girl being of or above the age of twelve years and under the age of fourteen years.
It shall be no defence to an indictment for an offence under this section committed upon a girl under the age of fourteen that she consented to such offence:
Provided, however, that it shall be a sufficient defence to any charge under this section if it shall be made to appear to the jury before whom the charge shall be brought that the person so charged had reasonable cause to believe that the girl was of or above the age of fourteen years.
No prosecution for an offence under this section shall be commenced more than one month after the commission of the offence.
197 Defiling idiot or imbecile women.
Every one is liable to two years’ imprisonment with hard labour, and, according to his age, to be flogged or whipped once, twice, or thrice, who carnally knows or attempts to have unlawful carnal knowledge of any female idiot or imbecile woman or girl, under circumstances which do not amount to rape, but which prove that the offender knew at the time of the commission of the offence that the woman or girl was an idiot or imbecile.
198 Procuring defilement of girls.
Everyone is liable to two years’ imprisonment with hard labour who, from motives of lucre, by false pretences or false representations or other fraudulent means procures any female under the age of twenty-one years to have illicit carnal connection with any man.
199 Conspiracy to defile.
Every one is liable to two years’ imprisonment with hard labour who conspires with any other person by false pretences, or false representations, or other fraudulent means to induce any woman to commit adultery or fornication.
200 Killing unborn child.
(1.)
Every one is liable to imprisonment with hard labour for life who causes the death of any child which has not become a human being in such a manner that he would have been guilty of murder if such child had been born.
(2.)
No one is guilty of any crime who, by means employed in good faith for the preservation of the life of the mother of the child, causes the death of any such child before or during its birth.
201 Procuring abortion.
(1.)
Every one is liable to imprisonment with hard labour for life who, with intent to procure the miscarriage of any woman, whether she be or be not with child, unlawfully administers to or causes to be taken by her any poison or other noxious thing, or unlawfully uses any instrument or other means whatsoever with the like intent:
(2.)
Provided that such woman herself shall not be indictable under this section.
202 Woman procuring her own miscarriage.
Every woman is liable to seven years’ imprisonment with hard labour who, whether with child or not, unlawfully administers to herself, or permits to be administered to her, any poison or other noxious thing, or unlawfully uses on herself, or permits to be used on her, any instrument or other means whatsoever with intent to procure miscarriage.
203 Supplying the means of procuring abortion.
(1.)
Every one is liable to three years’ imprisonment with hard labour who unlawfully supplies or procures any poison or other noxious thing, or any instrument or thing whatsoever, knowing that the same is intended to be unlawfully used or employed with intent to procure the miscarriage of any woman, whether she is or is not with child.
(2.)
Every one who commits this offence after a previous conviction for a like offence shall be liable to imprisonment with hard labour for life.
Part XXI Crimes affecting Conjugal and Parental Rights: Bigamy. Abduction
204 Bigamy defined.
(1.)
Bigamy is—
(a.)
The act of a person who, being married, goes through a form of marriage with any other person in any part of the world; or
(b.)
The act of a person who goes through a form of marriage in any part of the world with any person whom be or she knows to be married.
(2.)
A “form of marriage”
is any form either recognised as a valid form by the law of the place where it is gone through, or, though not so recognised, is such that a marriage celebrated there in that form is recognised as binding by the law of the place where the offender is tried.
(3.)
Every form shall, for the purposes of this section, be valid notwithstanding any act or default of the person charged with bigamy if it is otherwise a valid form.
(4.)
The fact that the parties would if unmarried have been incompetent to contract marriage shall be no defence upon a prosecution for bigamy.
(5.)
No one commits bigamy by going through a form of marriage if he or she has been continually absent from his or her wife or husband for seven years then last past, and is not proved to have known that his wife or her husband was alive at any time during those seven years.
(6.)
A person not being a British subject shall not be liable to be convicted of bigamy in the Colony of New Zealand in respect of having gone through a form of marriage in any place not in the colony.
205 Punishment of bigamy.
(1.)
Every one who commits bigamy is liable to seven years’ imprisonment with hard labour.
(2.)
Every one who commits this offence after a previous conviction for a like offence is liable to imprisonment with hard labour for fourteen years.
206 Abduction of a woman.
Every one is liable to fourteen years’ imprisonment with hard labour who, with intent to marry or carnally know any woman, whether married or not, or with intent to cause any woman to be married to or carnally known by any other person, takes away or detains any woman of any age against her will.
207 Abduction of an heiress.
Every one is liable to fourteen years’ imprisonment with hard labour who, from motives of lucre, takes away or detains any woman under the age of twenty-one years who has any such interest in property as is hereinafter mentioned, against the will of her father or mother, or of any other person having the lawful charge of her, with intent to marry or carnally know her, or with intent to cause her to be married to or to be carnally known by any other person.
208 Provision as to property of such women.
(1.)
A woman who has any interest, legal or equitable, present or future, absolute, conditional, or contingent, in any real or personal estate, or is a presumptive heiress or co-heiress, or presumptive next-of-kin or one of the presumptive next-of-kin to any one having such interest, has such an interest in property as is referred to in the last-preceding section.
(2.)
Every one convicted of an offence under the last two preceding sections in respect of any woman having any such interest as aforesaid shall be incapable of taking any estate or interest, legal or equitable, in any real or personal property of such woman, or in which she has any interest, or which comes to her as such heiress, co-heiress, or next-of-kin; and, if any such marriage takes place, such property shall upon such conviction be settled in such manner as the Supreme Court, upon any information at the instance of the Attorney-General, may appoint.
(3.)
When any one is prosecuted for any offence under either of the last two sections, a woman who after having been taken away is married to the offender shall, notwithstanding such marriage, be competent to be a witness against him.
209 Abduction of girl under sixteen.
(1.)
Every one is liable to two years’ imprisonment with or without hard labour, and if under sixteen years to be once whipped, who takes or causes to be taken an unmarried girl under the age of sixteen years who was and whom be had reason to believe to be under the lawful charge of her father or mother, or any other person, without the consent of any such person, to any place where such person cannot exercise control over her, with intent to carnally know her or to cause her to be carnally known by any man, whether such carnal knowledge is intended to be with any particular man, or generally.
(2.)
It is immaterial whether the girl is taken with her own consent or at her own suggestion or not.
(3.)
It is immaterial whether or not the offender believed the girl to be of or above the age of sixteen.
210 Stealing children under fourteen.
(1.)
Every one is liable to seven years’ imprisonment with hard labour, and if under sixteen years to be once whipped, who, with intent to deprive any parent or guardian or other person having the lawful charge of any child under the age of fourteen years of the possession of such child, unlawfully—
(a.)
Takes or entices away or detains any such child; or
(b.)
Receives any such child, knowing it to have been dealt with as aforesaid.
(2.)
Nothing in this section shall extend to any one who gets possession of any child, claiming in good faith a right to the possession of the child.
Part XXII Crimes by Parents, Guardians, and Masters
211 Neglecting duty to provide the necessaries of life.
Every one is liable to seven years’ imprisonment with hard labour who, without lawful excuse, neglects the duty to provide the necessaries of life specified in Part XV., so that the life of the person under his charge is endangered or his health is permanently injured by such neglect.
212 Neglect of head of family to provide necessaries.
Everyone is liable to two years’ imprisonment with hard labour who, without lawful excuse, neglects the duty of the head of a family to provide necessaries for a child specified in Part XV., so that the life of any child is endangered or his health is permanently injured by such neglect.
213 Neglect of masters to provide necessaries.
Every one is liable to three years’ imprisonment with hard labour who, without lawful excuse, neglects the duty of a master or mistress to provide necessaries for a servant or apprentice specified in Part XV., so that the life of any such servant or apprentice is endangered or his health permanently injured by such neglect.
214 Abandoning children under two.
Every one is liable to three years’ imprisonment with hard labour who unlawfully abandons or exposes any child under the age of two years.
TITLE VI. CRIMES AGAINST RIGHTS OF PROPERTY
215 Crimes involving dishonesty defined.
The crimes mentioned in this Title are crimes involving dishonesty, except—
“Concealing deeds and incumbrances,” in Part XXV.;
“Imitating authorised marks,” and “imitating customary marks,” in Part XXX.;
And all crimes mentioned in Parts XXXIII. and XXXIV.
Part XXIII Theft defined
216 Things capable of being stolen.
(1.)
Every inanimate thing whatever which is the property of any person, and which either is or may be made movable, shall henceforth be capable of being stolen as soon as it becomes movable, although it is made movable in order to steal it:
Provided that nothing growing out of the earth of a value not exceeding one shilling shall (except in the cases hereinafter provided) be deemed capable of being stolen.
(2.)
Nothing herein contained shall affect the provisions of any statute in force at any time as to summary convictions for stealing things growing out of the earth.
217 Animals capable of being stolen.
(1.)
All tame living creatures, whether tame by nature or wild by nature and tamed, shall be capable of being stolen; but tame pigeons shall be capable of being stolen so long only as they are in a dovecote or on their owner’s land.
(2.)
All living creatures wild by nature, such as are not commonly found in a condition of natural liberty in the colony, shall, if kept in a state of confinement, be capable of being stolen, not only whilst they are so confined, but after they have escaped from confinement.
(3.)
All other living creatures wild by nature shall, if kept in a state of confinement, be capable of being stolen so long as they remain in confinement, or are being actually pursued after escaping therefrom, but no longer.
(4.)
A wild living creature shall be deemed to be in a state of confinement so long as it is in a den, cage, or small enclosure, sty, or tank, or is otherwise so situated that it cannot escape, and that its owner can take possession of it at pleasure.
(5.)
Oysters and oyster-brood shall be capable of being stolen when in oyster-beds, layings, and fisheries which are the property of any person, and sufficiently marked out or known as such property.
(6.)
Wild creatures in the enjoyment of their natural liberty shall not be capable of being stolen, nor shall the taking of their dead bodies by or by the orders of the person who killed them, before they are reduced into actual possession by the owner of the land on which they died, be deemed to be theft.
(7.)
Everything produced by or forming part of any living creature capable of being stolen shall be capable of being stolen.
218 Theft defined.
(1.)
Theft or stealing is the act of fraudulently and without colour of right taking, or fraudulently and without colour of right converting to the use of any person, anything capable of being stolen, with intent—
(a.)
To deprive the owner, or any person having any special property or interest therein, permanently of such thing or of such property or interest; or
(b.)
To pledge the same or deposit it as security; or
(c.)
To part with it under a condition as to its return which the person parting with it may be unable to perform; or
(d.)
To deal with it in such a manner that it cannot be restored in the condition in which it was at the time of such taking and conversion.
(2.)
The taking or conversion may be fraudulent although effected without secrecy or attempt at concealment.
(3.)
It is immaterial whether the thing converted was taken for the purpose of conversion or whether it was at the time of the conversion in the lawful possession of the person converting.
(4.)
Theft is committed when the offender moves the thing, or causes it to move or to be moved, or begins to cause it to become movable, with intent to steal it:
(5.)
Provided that no factor or agent shah be guilty of theft by pledging or giving a lien on any goods or document of title to goods intrusted to him for the purpose of sale or otherwise for any sum of money not greater than the amount due to him from his principal at the time of pledging or giving a lien on the same, together with the amount of any bill of exchange accepted by him for or on account of his principal:
(6.)
Provided that if any servant, contrary to the orders of his master, takes from his possession any food for the purpose of giving the same or having the same given to any horse or other animal belonging to or in the possession of his master, the servant so offending shall not by reason thereof be guilty of theft.
219 Theft of animals.
Every one commits theft and steals the creature killed who kills any living creature capable of being stolen with intent to steal the carcase, skin, plumage, or any part of such creature.
220 Theft by person receiving anything on account of another.
(1.)
Every one commits theft who, having received any money or valuable security or other thing whatsoever on terms requiring him to account for or pay the same, or the proceeds thereof, or any part of such proceeds, to any other person, though not requiring him to deliver over in specie the identical money, valuable security, or other thing received, fraudulently converts to his own use, or fraudulently omits to account for or pay the same, or any part thereof, or to account for or pay such proceeds, or any part thereof, which he was required to account for or pay as aforesaid:
(2.)
Provided that if it be part of the said terms that the money or other thing received, or the proceeds thereof, shall form an item in a debtor and creditor account between the person receiving the same and the person to whom be is to account for or pay the same, and that such last-mentioned person shall rely only on the personal liability of the other as his debtor in respect thereof, the proper entry of such money or proceeds, or any part thereof, in such account shall be a sufficient accounting for the money or proceeds or part thereof so entered, and in such case no fraudulent conversion of the amount accounted for shall be deemed to have taken place.
221 Theft by person holding a power of attorney.
Every one commits theft who, being intrusted, either solely or jointly with any other person, with any power of attorney for the sale, mortgage, pledge, or other disposition of any property, real or personal, whether capable of being stolen or not, fraudulently sells, mortgages, pledges, or otherwise disposes of the same or any part thereof, or fraudulently converts the proceeds of any sale, mortgage, pledge, or other disposition of such property, or any part of such proceeds, to some purpose other than that for which he was intrusted with such power of attorney.
222 Theft by misappropriating proceeds held under direction.
(1.)
Every one commits theft who, having received, either solely or jointly with any other person, any money or valuable security, or any power of attorney for the sale of any property, real or personal, with a direction that such money or any part thereof, or the proceeds or any part of the proceeds of such security or such property, shall be applied to any purpose or paid to any person specified in such direction, in violation of good faith and contrary to such direction, fraudulently applies to any other purposes or pays to any other person such money or proceeds, or any part thereof:
(2.)
Provided that where the person receiving such money, security, or power of attorney, and the person from whom be receives it, deal with each other on such terms that all money paid to the former would, in the absence of any such direction, be properly treated as an item in a debtor and creditor account between them, this section shall not apply unless such direction is in writing.
223 Theft by co-owner.
Theft may be committed by the owner of anything capable of being stolen against a person having a special property or interest therein, or by a person having a special property or interest therein against the owner thereof, or by a lessee against his reversioner, or by one of several joint-owners, tenants in common, or partners of or in any such thing against the other persons interested therein, or by the directors, public officers, or members of a public company or body corporate against such public company or body corporate.
224 Husband and wife.
(1.)
No husband shall be convicted of stealing during cohabitation the property of his wife, and no wife shall be convicted of stealing during cohabitation the property of her husband; but whilst they are living apart from each other either shall be guilty of theft if he or she fraudulently takes or converts anything which is by law the property of the other in a manner which in any other person would amount to theft.
(2.)
Every one commits theft who, whilst a husband and wife are living together, knowingly—
(a.)
Assists either of them in dealing with anything which is the property of the other in a manner which would amount to theft if they were not married; or
(b.)
Receives from either of them anything the property of the other obtained from that other by such dealing as aforesaid.
Part XXIV Punishment of Theft
225 Punishment of theft.
Every one is liable to the following punishment for theft:—
(1.)
To imprisonment with hard labour for life if the object stolen be—
(a.)
A testamentary instrument, whether stolen during the testator’s life or after his death:
(2.)
To fourteen years’ imprisonment with hard labour if the object stolen be—
(b.)
Anything stolen by a clerk or servant which belongs to or is in the possession of his employer;
(c.)
Anything in the possession of the offender as a clerk or servant, or as an officer of the Government, or of any local authority or public body, or as a police officer;
(d.)
Anything stolen from the person of another;
(e.)
Anything stolen from a dwelling-house;
(f.)
A horse, mare, or gelding, ass, mule, bull, cow, ox, or heifer, ram, ewe, or other sheep, boar, sow, or other pig, or goat, or the young of any such animal;
(g.)
Woven goods, or materials for making such goods, exposed during any process of manufacture;
(h.)
Any part of a ship in distress or wrecked, or of the cargo thereof, or anything belonging thereto;
(i.)
Anything from any vessel which lies in any port or harbour, or in any inland water;
(k.)
Anything which is in any dock, or upon any wharf or quay adjacent to any such port, harbour, or inland water aforesaid;
(l.)
Anything in any railway-station, or upon any carriage upon a railway;
(m.)
Anything in a separate receptacle, locked or otherwise secured, stolen by means of a picklock, false key, or other instrument:
(3.)
To seven years’ imprisonment with hard labour if the object stolen be—
(n.)
Anything stolen in contravention of sections two hundred and twenty, two hundred and twenty-one, and two hundred and twenty-two:
(4.)
To two years’ imprisonment with hard labour if the object stolen be—
(o.)
Any deer kept or being in any enclosed land;
(p.)
Any deer kept or being in any unenclosed land and being the private property of any person, or the property of or under the control of any society of persons, if the offender has been previously convicted summarily of a like offence;
(q.)
Anything for stealing which no punishment is previously provided;
(r.)
Any vegetable product growing in any garden or greenhouse, though the value thereof does not exceed one shilling, if the offender has been previously convicted once on indictment, or twice summarily, of stealing anything growing out of the earth, under any statute at any time in force.
Every one who destroys, cancels, conceals, or obliterates any document for any fraudulent purpose is liable to the same punishment as if he had stolen that document.
226 Concealing goods.
Every one is liable to two years’ imprisonment with hard labour who moves, takes, or conceals anything capable of being stolen with the fraudulent intention of thereby depriving some person other than the owner of any pecuniary benefit arising from the possession thereof.
227 Bringing into the colony things stolen.
Every one is liable to five years’ imprisonment with hard labour who, having obtained elsewhere than in the Colony of New Zealand any property by any act which if done in New Zealand would have amounted to theft, brings such property into or has the same in the colony.
228 Definition of false pretence.
(1.)
A false pretence is a representation either by words or otherwise of a matter of fact either present or past, which representation is known to the person making it to be false, and which is made with a fraudulent intent to induce the person to whom it is made to act upon it.
(2.)
Exaggerated commendation or depreciation of the quality of anything is not a false pretence unless it is carried to such an extent as to amount to a fraudulent misrepresentation of fact.
(3.)
It is a question of fact whether such commendation or depreciation does or does not amount to a fraudulent misrepresentation of fact.
229 Obtaining by false pretence.
Every one is liable to three years’ imprisonment with hard labour who, with intent to defraud by any false pretence, either directly or through the medium of any contract obtained by such false pretence, obtains anything capable of being stolen, or procures anything capable of being stolen to be delivered to any other person than himself.
230 Obtaining execution of valuable securities by false pretence.
Every one is liable to three years’ imprisonment with hard labour who, with intent to defraud or injure any person by any false pretence, causes or induces any person to execute, make, accept, indorse, or destroy the whole or any part of any valuable security, or to write, impress, or affix any name or seal on any paper or parchment in order that it may afterwards be made or converted into or used or dealt with as a valuable security.
231 Obtaining credit fraudulently.
Everyone is liable to one year’s imprisonment with hard labour who, in incurring any debt or liability, obtains credit by means of any fraud.
232 Criminal breach of trust.
(1.)
Every one is liable to seven years’ imprisonment with hard labour who, being a trustee, with intent to defraud and in violation of his trust, converts anything of which he is trustee to any use not authorised by the trust.
(2.)
The following persons and no others are trustees within the meaning of this section, that is to say,—
(a.)
Trustees upon express trusts created by any deed, will, or instrument in writing, whether for any public or private or charitable object;
(b.)
Every person upon whom the duty of any such trust devolves or comes;
(c.)
Executors and administrators;
(d.)
Official managers, assignees, liquidators, trustees in bankruptcy or liquidation; and
(e.)
Other like officers officiating under any Act in force at any time in the colony relating to incorporated companies or associations, or to bankruptcy or insolvency.
233 Punishment after previous conviction.
Every one who, after a previous conviction for any offence under section two hundred and twenty-five, subsection four (q), or under sections two hundred and twenty-nine, two hundred and thirty, and two hundred and thirty-two, is convicted of theft, or of obtaining by false pretences any thing or the execution of any valuable security, or of criminal breach of trust as defined in this Part, is liable to fourteen years’ imprisonment with hard labour.
Part XXV Fraud
234 False accounting by official.
Every one is liable to seven years’ imprisonment with hard labour who, being a director, manager, public officer, or member of any body corporate or public company, with intent to defraud,—
(1.)
Destroys, alters, mutilates, or falsifies any book, paper writing, or valuable security belonging to the body corporate or public company; or
(2.)
Makes or concurs in making any false entry, or omits or concurs in omitting to enter any material particular, in any book of account or other document.
235 False statement by official.
Every one is liable to seven years’ imprisonment with hard labour who, being a promoter, director, public officer, or manager of any body corporate or public company either existing or intended to be formed, makes, circulates, or publishes, or concurs in making, circulating, or publishing, any prospectus, statement, or account which he knows to be false in any material particular—
(1.)
With intent to induce persons (whether ascertained or not) to become shareholders or partners; or,
(2.)
With intent to deceive or defraud the members, shareholders, or creditors, or any of them (whether ascertained or not), of such body corporate or public company; or,
(3.)
With intent to induce any person to intrust or advance any property to such body corporate or public company, or to enter into any security for the benefit thereof.
236 Falsifying accounts by clerk.
Every one is liable to seven years’ imprisonment with hard labour who, being or acting in the capacity of an officer, clerk, or servant, with intent to defraud,—
(1.)
Destroys, alters, mutilates, or falsifies any book, valuable security, or document which belongs to or is in the possession of his employer, or has been received by him for or on behalf of his employer, or concurs in so doing;
(2.)
Makes, or concurs in making, any false entry in, or omits or alters, or concurs in omitting or altering, any material particular from or in any such book, valuable security, or document.
237 False statement by public officer.
Every one is liable to two years’ imprisonment with hard labour who, being an officer, collector, or receiver intrusted with the receipt, custody, or management of any part of the public revenues, knowingly furnishes any false statement or return of any sum of money collected by him, or intrusted to his care, or of any balance of money in his hands or under his control.
238 Conspiracy to defraud.
(1.)
Every one is liable to five years’ imprisonment with hard labour who conspires with any other person by deceit or falsehood or other fraudulent means to defraud the public, or any person ascertained or unascertained, or to affect the public market-price of stocks, funds, shares, merchandise, or anything else publicly sold, whether such deceit or falsehood or other fraudulent means would or would not amount to a false pretence as hereinbefore defined.
(2.)
Every one who, after a previous conviction for any offence involving dishonesty, commits an offence under this section shall be liable upon conviction thereof to fourteen years’ imprisonment with hard labour.
239 Cheating at play.
Every one is liable to five years’ imprisonment with hard labour who, with intent to defraud any person, cheats in playing at any game, or in holding the stakes, or in betting on any game or sport.
240 Pretending to practise witchcraft.
Every one is liable to one year’s imprisonment with hard labour who pretends to exercise or use any kind of witchcraft, sorcery, enchantment, or conjuration, or undertakes to tell fortunes, or pretends from his skill or knowledge in any occult or crafty science to discover where or in what manner any goods or chattels supposed to have been stolen or lost may be found.
241 Concealing deeds and incumbrances.
Every one is liable to two years’ imprisonment with hard labour who, being a seller or mortgagor of land, chattels real or personal, or choses-in-action, or being the solicitor or agent of any such seller or mortgagor, in order to induce the purchaser or mortgagee to accept the title offered or produced to him, and with intent to defraud, conceals from the purchaser or mortgagee any instrument material to the title, or any incumbrance, or falsifies any pedigree on which the title does or may depend.
Part XXVI Robbery and Extortion
242 Robbery defined.
Robbery is theft accompanied with violence or threats of violence to any person or property used to extort the property stolen, or to prevent or overcome resistance to its being stolen.
243 Punishment of aggravated robbery.
Every one is liable to imprisonment with hard labour for life, and, according to his age, to be flogged or whipped once, twice, or thrice, who—
(1.)
Robs any person, and at the time of, or immediately before, or immediately after such robbery wounds, beats, strikes, or uses any personal violence to any person; or,
(2.)
Being together with any other person or persons, robs, or assaults with intent to rob, any person; or,
(3.)
Being armed with any offensive weapon or instrument, robs, or assaults with intent to rob, any person.
244 Compelling execution of documents by force.
Every one is liable to imprisonment with hard labour for life who, with intent to defraud, by unlawful violence to or restraint of the person of another, or by the threat that either the offender or any other person will employ such violence or restraint, unlawfully compels any person to execute, make, accept, indorse, alter, or destroy the whole or any part of any valuable security, or to write, impress, or affix any name or seal upon any paper or parchment, in order that it may be afterwards made or converted into or used or dealt with as a valuable security.
245 Punishment of robbery.
Every one who commits robbery is liable to fourteen years’ imprisonment with hard labour.
246 Assault with intent to rob.
Every one who assaults any person with intent to rob him is liable to three years’ imprisonment with hard labour, and, according to his age, to be flogged or whipped once, twice, or thrice; or, if convicted after a previous conviction for any offence involving dishonesty, to fourteen years’ imprisonment with hard labour.
247 Demanding with intent to steal.
(1.)
Every one is liable to three years’ imprisonment with hard labour who with menaces demands from any person, either for himself or for any other person, anything capable of being stolen, with intent to steal it.
(2.)
Every one who commits this offence after a previous conviction for any offence involving dishonesty is liable upon conviction thereof to fourteen years’ imprisonment with hard labour.
248 Extortion by certain threats.
Every one is liable to imprisonment with hard labour for life, and if under sixteen years of age to be once whipped, who, with intent to extort or gain anything from any person,—
(1.)
Accuses or threatens to accuse either that person or any other person, whether the person accused or threatened with accusation is guilty or not, of—
Any felony punishable by law with death or penal servitude for five years or upwards, or imprisonment with hard labour for five years or upwards, or the crime of “indecent assault”
in Part XIX.;
(2.)
Threatens that any person shall be so accused by any other person; or
(3.)
Causes any person to receive a document containing such accusation or threat, knowing the contents thereof; or
(4.)
By any of the means aforesaid compels or attempts to compel any person to execute, make, accept, indorse, alter, or destroy the whole or any part of any valuable security, or to write, impress, or affix any name or seal upon or to any paper or parchment, in order that it may be afterwards made or converted into or used or dealt with as a valuable security.
249 Extortion by other threats.
Every one is liable to imprisonment with hard labour for seven years who,—
(1.)
With intent to extort or gain anything from any person, accuses or threatens to accuse either that person or any other person of any offence other than those specified in the last section, whether the person accused or threatened with accusation is guilty or not of that offence; or,
(2.)
With such intent as aforesaid, threatens that any person shall be so accused by any person; or,
(3.)
Causes any person to receive a document containing such accusation or threat, knowing the contents thereof; or,
(4.)
By any of the means aforesaid, compels or attempts to compel any person to execute, make, accept, indorse, alter, or destroy the whole or any part of any valuable security, or to write, impress, or affix any name or seal upon or to any paper or parchment, in order that it may be afterwards made or converted into or used or dealt with as a valuable security.
Part XXVII Burglary and Housebreaking
250 Definition of dwelling-house, &c.
In this Part the following words are used in the following senses:—
(1.)
“Dwelling-house” means a permanent building the whole or any part of which is kept by the owner or occupier for the residence therein of himself, his family or servants, or any of them, although it may at intervals be unoccupied.
“Dwelling-house” also includes any temporary building, erection, or structure whatever, or tent, fixed to the soil or attached thereto, and which is kept by the owner or occupier for the residence therein of himself or his family or any of them.
(2.)
A building occupied with and within the same curtilage with any dwelling-house shall be deemed to be part of the said dwelling-house if there is between such building and dwelling-house a communication, either immediate or by means of a covered and enclosed passage, leading from the one to the other, but, not otherwise.
(3.)
To “break” means to break any part, internal or external, of a building, or to open by any means whatever (including lifting, in the case of things kept in their places by their own weight) any door, window, shutter, cellar-flap, or other thing intended to cover openings to the building, or to give passage from one part of it to another.
(4.)
An entrance into a building is made as soon as any part of the body of the person making the entrance, or any part of any instrument used by him, is within the building.
(5.)
Every one who obtains entrance into any building by any threat or artifice used for that purpose, or by collusion with any person in the building, or who enters any chimney or other aperture of the building permanently left open for any necessary purpose, shall be deemed to have broken and entered that building.
251 Breaking place of worship and committing crime.
Every one is liable to fourteen years’ imprisonment with hard labour who breaks and enters any place of public worship and commits any crime therein, or who, having committed any crime therein, breaks out of such place.
252 Breaking place of worship with intent to commit crime.
Every one is liable to seven years’ imprisonment with hard labour who breaks and enters any place of public worship with intent to commit any crime therein.
253 Burglary defined.
Every one is guilty of the crime called burglary, and liable to imprisonment with hard labour for life, who—
(1.)
Breaks and enters a dwelling-house by night, with intent to commit any crime therein; or
(2.)
Breaks out of any dwelling-house by night either after committing a crime therein, or after having entered such dwelling-house either by day or by night with intent to commit a crime therein.
254 Housebreaking and committing a crime.
Every one is guilty of the crime called housebreaking, and liable to imprisonment with hard labour for fourteen years, who—
(1.)
Breaks and enters any dwelling-house by day and commits any crime therein; or
(2.)
Breaks out of any dwelling-house by day after having committed any crime therein.
255 Housebreaking with intent to commit a crime.
Every one is liable to seven years’ imprisonment with hard labour who, by day, breaks and enters any dwelling-house with intent to commit any crime therein.
256 Breaking shop and committing crime.
Every one is liable to fourteen years’ imprisonment with hard labour who, either by day or night, breaks and enters and commits any crime in any schoolhouse, shop, warehouse, or counting-house, or any building within the curtilage of a dwelling-house, but not so connected therewith as to form part of it under the provisions hereinbefore contained.
257 Breaking shop with intent to commit crime.
Every one is liable to seven years’ imprisonment with hard labour who, either by day or night, breaks and enters any of the buildings mentioned in the last-preceding section with intent to commit any crime therein.
258 Being found in dwelling-house by night.
Every one is liable to five years’ imprisonment with hard labour who unlawfully enters or is in any dwelling-house by night with intent to commit any crime therein.
259 Being armed with intent to break a dwelling-house.
Every one is liable to three years’ imprisonment with hard labour who is found—
(1.)
Armed with any dangerous or offensive weapon or instrument whatever by day, with intent to break or enter into any dwelling-house, and to commit any crime therein; or
(2.)
Armed as aforesaid by night, with intent to break into any building whatsoever, and to commit any crime therein.
260 Being disguised or in possession of housebreaking instruments.
Every one is liable to three years’ imprisonment with hard labour who is found—
(1.)
Having in his possession by night, without lawful excuse (the proof of which shall lie upon him), any instrument of housebreaking; or
(2.)
Having in his possession by day any such instrument with intent to commit any crime; or
(3.)
Having his face masked or blackened or being otherwise disguised by night without lawful excuse (the proof whereof shall lie on him); or
(4.)
Having his face masked or blackened or being otherwise disguised by day with intent to commit any crime.
261 Punishment after previous conviction.
Every one who, after a previous conviction of any crime involving dishonesty, is convicted of a crime specified in this Part for which the punishment on a first conviction is less than fourteen but not less than three years’ imprisonment with hard labour shall be liable to fourteen years’ imprisonment with hard labour.
Part XXVIII Receiving Stolen Goods
262 Receiving property dishonestly obtained.
(1.)
Every one is liable to seven years’ imprisonment with hard labour who receives anything obtained by any crime, or by any acts wheresoever committed which if committed in the colony after the commencement of this Act would have constituted a crime, knowing such thing to have been dishonestly obtained.
Rule of evidence.
(2.)
Whenever any person is being proceeded against for a crime under this section the following matters may be given in evidence to prove guilty knowledge, that is to say,—
(a.)
The fact that other property obtained by means of any such crime or acts as aforesaid was found in the defendant’s possession within twelve months of the time when the alleged offender was first charged with the crime for which he is being tried:
(b.)
The fact that within five years of the time when the alleged offender was first charged with the crime for which he is being tried be was convicted of any offence of a fraudulent or dishonest nature.
The last-mentioned fact may not be proved unless seven days’ notice in writing has been given, either before or after the indictment is found, to the alleged offender that proof of such previous conviction is intended to be given, nor until evidence has been given that the property in respect of which the alleged offender is being tried was found in his possession.
(3.)
Every one shall be liable upon conviction to imprisonment with hard labour for life who commits any crime under this section after a previous conviction of any offence involving dishonesty.
263 When receiving is complete.
The act of receiving anything unlawfully obtained is complete as soon as the offender has, either exclusively or jointly with the thief or any other person, possession of or control over such thing, or aids in concealing or disposing of it.
264 Receiving after restoration to owner.
When the thing unlawfully obtained has been restored to the owner, or when a legal title to the thing so obtained has been acquired by any person, a subsequent receiving thereof shall not be an offence, although the receiver may know that the thing had previously been dishonestly obtained.
265 Taking reward for recovery of stolen goods.
Every one is liable to seven years’ imprisonment with hard labour who corruptly takes or bargains for any reward, directly or indirectly, in consideration that he will help any person to recover anything obtained by any crime, unless he shall have used all due diligence to cause the offender to be brought to trial for the same.
Part XXIX Forgery
266 Document defined.
A document means in this Part any paper, parchment, or other material used for writing or printing marked with matter capable of being read, but does not include trade-marks on articles of commerce or inscriptions on stone or metal or other like material.
267 “Bank-note”
and “debenture”
defined.
“Bank-note”
includes all negotiable instruments issued by or on behalf of any person, body corporate, or company carrying on the business of banking in any part of the world, or issued by the authority of any foreign prince, or State, or Government, or any Governor or other authority lawfully authorised thereto in any of Her Majesty’s dominions, and intended to be used as equivalent to money, either immediately upon their issue or at some time subsequent thereto, and all bank bills and bank post bills.
(2.)
“Debenture”
includes bills, bonds, and debentures issued on behalf of Her Majesty’s Government in the United Kingdom or any part thereof, or of any dominion, possession, or colony of Her Majesty, or on behalf of any foreign State or country, or issued under due authority on behalf of any public body, corporation, or incorporated company, or associated within the colony, and any coupon attached thereto.
268 False document defined.
(1.)
The expression “false document”
means—
(a.)
A document the whole or some material part of which purports to be made by or on behalf of any person who did not make or authorise the making thereof, or which, though made by or by the authority of the person who purports to make it, is falsely dated as to time or place of making where either is material;
(b.)
A document the whole or some material part of which purports to be made by or on behalf of some person who did not in fact exist; or
(c.)
A document which is made in the name of an existing person, either by that person or by his authority, with the fraudulent intention that the document should pass as being made by some person, real or fictitious, other than the person who makes or authorises it.
(2.)
It is not necessary that the fraudulent intention should appear on the face of the document, but it may be proved by external evidence.
269 Forgery defined.
(1.)
Forgery is the making of a false document, knowing it to be false, with the intention that it shall in any way be used or acted upon as genuine, whether within Her Majesty’s dominions or not, or that some person should be induced by the belief that it is genuine to do or refrain from doing anything, whether within Her Majesty’s dominions or not.
(2.)
Making a false document includes altering a genuine document in any material part, and making any material addition to it, or adding to it any false date, attestation, seal, or other thing which is material, or by making any material alteration in it either by erasure, obliteration, removal, or otherwise.
(3.)
Forgery is complete as soon as the document is made with such knowledge and intent as aforesaid, though the offender may not have intended that any particular person should use or act upon it as genuine, or be induced by the belief that it is genuine to do or refrain from doing anything.
(4.)
Forgery is complete although the false document may be incomplete, or may not purport to be such a document as would be binding in law, if it be so made and is such as to indicate that it was intended to be acted on as genuine.
270 Punishment of forgery.
Every one who commits forgery of the documents herein-after mentioned is liable to the following punishment:—
(1.)
To imprisonment with hard labour for life if the document forged purports to be, or was intended by the offender to be understood to be or to be used as,—
(a.)
Any document containing evidence of or forming the title or any part of the title to any land or hereditament, or to any interest in or to any charge upon any land or hereditament, or evidence of the creation, transfer, or extinction of any such interest or charge;
(b.)
Any entry in any register or book or any memorial or other document kept or lodged under any Act for the registering of deeds, or the recording or declaring of titles to land, or declaring lands chargeable with debentures, as a record that any deed has been registered, or any title recorded or declared, or that any lands are declared chargeable or are charged with any debenture;
(c.)
Any register of births, baptisms, marriages, deaths, or burials authorised or required by law to be kept;
(d.)
Any copy of any such register required by law to be transmitted by or to any Registrar or other officer;
(e.)
Any will, codicil, or other testamentary document, either of a dead or living person, or any probate or letters of administration, whether with or without the will annexed;
(f.)
Any transfer or assignment of any share or interest in any stock, annuity, or public fund of the United Kingdom or any part thereof, or of any dominion, possession, or colony of Her Majesty, or of any public body in this colony, or of any foreign State or country, or receipt or certificate for interest accruing thereon;
(g.)
Any transfer or assignment of any share or interest in the debt of any public body, company, or society, British or foreign, or of any share or interest in the capital stock of any such company or society, or receipt of certificate for interest accruing thereon;
(h.)
Any power of attorney or other authority to transfer any interest or share hereinbefore mentioned;
(i.)
Any entry in any book or register, or any certificate, coupon, share warrant, or other document which by any law or any recognised practice is evidence of the title of any person to any such stock, interest, or share, or to any dividend or interest payable in respect thereof;
(j.)
Any debenture or indorsement thereof, or receipt or certificate of interest accruing thereon;
(k.)
Any bank-note or bill of exchange, promissory note, or cheque, or any acceptance, indorsement, or assignment thereof;
(l.)
Any document which is evidence of title to any portion of the debt of the United Kingdom, or of any dominion, colony, or possession of Her Majesty, or of any public body in this colony, or of any foreign State or country, or any transfer or assignment thereof;
(m.)
Any deed, bond, or writing obligatory, or any warrant, order, or other security for money or payment of money, whether negotiable or not, or indorsement or assignment thereof;
(n.)
Any accountable receipt or acknowledgment of the deposit, receipt, or delivery of money or goods;
(o.)
Any bill of lading, charter-party, policy of insurance, or any shipping document accompanying a bill of lading, or any indorsement or assignment thereof;
(p.)
Any India warrant, dock-warrant, dock-keeper’s certificate, delivery order, or warrant for the delivery of goods, or of any valuable thing, or any indorsement or assignment thereof;
(q.)
Any authority or request for the payment of money, or for the delivery of goods, or of any note, bill, or valuable security;
(r.)
Any acquittance or discharge, or any voucher of having received any goods, money, note, bill, or valuable security, or any instrument which is evidence of any such receipt;
(s.)
Any other document used in the ordinary course of business as proof of the possession or control of goods, or as authorising, either on indorsement or delivery, the possessor of such document to transfer or receive any goods:
(2.)
To fourteen years’ imprisonment with hard labour if the document forged purports to be, or was intended by the offender to be understood to be or to be used as,—
(a.)
Any document required for the purpose of procuring the registering of any deed, or the recording or declaring of any such title, or the declaring that any lands are so chargeable or charged;
(b.)
Any document which is made under any Act evidence of the registering or recording or declaring of any such deed or title, or chargeability, or charge;
(c.)
Any document which is made by any Act evidence affecting the title to land:
(3.)
To seven years’ imprisonment with hard labour if the document forged purports to be, or was intended by the offender to be understood to be or to be used as,—
(a.)
Any record of any Court of justice, or any document whatever issuing from any Court of justice;
(b.)
Any certificate, office copy, or certified copy or other document which by any statute in force for the time being is made admissible in evidence;
(c.)
Any document made or issued by any officer of State, or law officer of the Crown, or any document upon which, by the law or usage at the time in force, any Court of justice or any officer might act;
(d.)
Any document which any Magistrate is required by law to make or issue;
(e.)
Any entry in any register or book kept under the provisions of any law in or under the authority of any Court of justice or Magistrate acting as such;
(f.)
Any certified copy of any entry in or extract from any register of births, baptisms, marriages, deaths, or burials authorised or required by law to be kept;
(g.)
Any certificate required by any Act for the celebration of marriage;
(h.)
Any license for the celebration of marriage which may be given under law;
(i.)
Any contract or document which with others amounts to a contract, or is evidence of a contract;
(j.)
Any power or letter of attorney or mandate;
(k.)
Any document forged with intent that the same shall be given in evidence as a genuine document in any judicial proceeding:
(4.)
To two years’ imprisonment with hard labour if the document forged be other than those above mentioned.
271 Uttering forged documents.
(1.)
Every one who, knowing a document to be forged, uses, deals with, or acts upon it, or attempts to use, deal with, or act upon it, or causes or attempts to cause any person to use, deal with, or act upon it as if it were genuine is liable upon conviction to the same punishment as if he had forged the document.
(2.)
It is immaterial where the document was forged.
272 Counterfeiting public or corporate seals.
Every one is liable to imprisonment with hard labour for life who unlawfully makes or counterfeits any public seal in use for the, time being for the United Kingdom or any part thereof, or the public seal of this colony, or of any dominion, possession, or colony of Her Majesty, or the seal or stamp authorised under any law at any time in force within the colony to be used by any Court, public office, public body, public officer, body corporate, or any person whomsoever, or the impression of any such seal or stamp, or uses any such seal, stamp, or impression knowing the same to be counterfeited.
273 Sending false telegram.
Every one who, knowingly and with intent to defraud, causes or procures any telegram to be sent or delivered as being sent by the authority of any person, knowing that it is not sent by such authority, with intent that such telegram should be acted on as being sent by that person’s authority, shall be liable to the same punishment as if he had forged a document to the same effect as that of the telegram.
274 Procuring execution of document by false pretence.
Every one who procures the execution of any document by any person by falsely and fraudulently pretending that the contents thereof are different from what they really are is liable to the same punishment as if he had forged that document.
275 Possessing forged bank-notes.
Every one is liable to fourteen years’ imprisonment with hard labour who, without lawful authority or excuse (the proof whereof shall lie on him), purchases or receives from any person, or has in his custody or possession, any forged bank-note, whether complete or not, knowing it to be forged.
276 Drawing document without authority.
Every one who, without colour of lawful authority, makes or executes, draws, signs, accepts, or indorses, in the name or on the account of another person, by procuration or otherwise, any document, or makes use of or utters any such document knowing it to be so made, executed, signed, accepted, or indorsed, is liable to the same punishment as if he had forged such document.
277 Using probate obtained by forgery or perjury.
Every one is liable to fourteen years’ imprisonment with hard labour who—
(1.)
Demands, receives, obtains, or causes or procures to be delivered or paid to any person, anything whatever under, upon, or by virtue of any probate or letters of administration, knowing the will, codicil, or testamentary writing on which such probate or letters of administration were obtained to be forged, or knowing the probate or letters of administration to have been obtained by any false oath, affirmation, or affidavit; or
(2.)
Attempts to do any such thing as aforesaid.
Part XXX Preparation for Forgery
278 Interpretation of terms.
In this Part the following expressions are used in the following senses:—
“Revenue paper” means any paper provided by the proper authority in the United Kingdom, or the colony, or any other part of Her Majesty’s dominions, for the purpose of being used for stamps, licenses, or permits, or any purpose whatever connected with the public revenue:
“Bank of England paper” means any paper so prepared as to resemble any paper used for bank-notes issued by the Governor and Company of the Bank of England, whether such resemblance is produced in the manufacture of such paper or by some subsequent and independent process.
279 Instruments for forgery.
Every one is liable to fourteen years’ imprisonment with hard labour who, without lawful authority or excuse (the proof whereof shall lie on him),—
(1.)
Makes, begins to make, uses, or knowingly has in his possession any machinery or instrument or material for making revenue paper, Bank of England paper, or paper intended to resemble the bill paper of any firm, or body corporate, or person carrying on the business of banking:
(2.)
Engraves or makes upon any plate or material anything purporting to be or apparently intended to resemble the whole or any part of any debenture or bank-note:
(3.)
Uses any such plate or material for printing any part of any such debenture or bank-note:
(4.)
Knowingly has in his possession any such plate or material as aforesaid:
(5.)
Makes, uses, or knowingly has in his possession any revenue paper, Bank of England paper, or paper intended to resemble any bill paper of any firm, body corporate, company, or person carrying on the business of banking, or any paper upon which is written or printed the whole or any part of any debenture or of any bank-note:
(6.)
Engraves or makes upon any plate or material anything intended to resemble the whole or any distinguishing part of any bond or undertaking for the payment of money used by any dominion, colony, or possession of Her Majesty, or by any foreign prince or State, or by any public body, or by any body corporate, or other body of the like nature, whether within Her Majesty’s dominions or without:
(7.)
Uses any such plate or other material for printing the whole or any part of such bond or undertaking:
(8.)
Knowingly offers, disposes of, or has in his possession any paper upon which such bond or undertaking or any part thereof has been printed.
280 Counterfeiting stamps.
Every one is liable to seven years’ imprisonment with hard labour who—
(1.)
Counterfeits any stamp, whether impressed or adhesive, used for the purposes of revenue by the Government of the United Kingdom, or by the Government of this colony or any possession or colony of Her Majesty, or by any foreign prince or State:
(2.)
Knowingly sells or exposes for sale or utters or uses any such counterfeit stamp:
(3.)
Without lawful excuse (the proof whereof shall lie on him) makes or has knowingly in his possession any die or instrument capable of making the impression of any such stamp as aforesaid:
(4.)
Fraudulently cuts, tears, or in any way removes from any material any such stamp with intent that any use should be made of such stamp or of any part thereof:
(5.)
Fraudulently mutilates any such stamp with intent that any use should be made of any part of any such stamp:
(6.)
Fraudulently fixes or places upon any material, or upon any such stamp as aforesaid, any stamp or part of a stamp which, whether fraudulently or not, has been cut, torn, or in any way removed from any other material, or out of or from any other stamp:
(7.)
Fraudulently erases or otherwise, either really or apparently, removes from any stamped material any name, sum, date, or other matter or thing whatsoever thereon written, with the intent that any use should be made of the stamp upon such material:
(8.)
Knowingly and without lawful excuse (the proof whereof shall lie upon him) has in his possession any stamp or part of a stamp which has been fraudulently cut, torn, or otherwise removed from any material, or any stamp which has been fraudulently mutilated, or any stamped material out of which any name, sum, date, or other matter or thing has been fraudulently erased or otherwise, either really or apparently, removed.
281 Falsifying registers.
Every one is liable to imprisonment with hard labour for life who—
(1.)
Unlawfully destroys, defaces, or injures any register of births, baptisms, marriages, deaths, or burials required or authorised by law to be kept in the United Kingdom or the colony, or any other part of Her Majesty’s dominions, or any copy of such register, or any part thereof, required by law to be transmitted to any Registrar or other officer; or
(2.)
Unlawfully inserts in any such register, or any such copy thereof, any entry, known by him to be false, of any matter relating to any birth, baptism, marriage, death, or burial.
282 Falsifying extracts from registers.
Every one is liable to fourteen years’ imprisonment with hard labour who,—
(1.)
Being a person authorised or required by law to give any certified copy of any entry in any such register as in the last-preceding section mentioned, certifies any writing to be a true copy or extract knowing it to be false, or knowingly utters any such certificate:
(2.)
Unlawfully and for any fraudulent purpose takes any such register or certified copy from its place of deposit, or conceals it:
(3.)
Being a person having the custody of any such register or certified copy, permits it to be so taken or concealed as aforesaid.
283 Uttering false certificates.
Every one is liable to seven years’ imprisonment with hard labour who,—
(1.)
Being by law required to certify that any entry has been made in any such register as in the two last-preceding sections mentioned, makes such certificate knowing that such entry has not been made:
(2.)
Being by law required to make any statement, or a certificate or declaration concerning any particular required for the purpose of making entries in such register, knowingly makes such statement falsely, or such certificate or declaration containing a falsehood:
(3.)
Being an officer having custody of the records of any Court, or being the deputy of any such officer, wilfully utters a false copy or certificate of any record:
(4.)
Not being such officer or deputy, fraudulently signs or certifies any copy or certificate of any record, or any copy of any certificate, as if he were such officer or deputy.
284 Forging certificates.
Every one is liable to two years’ imprisonment with hard labour who,—
(1.)
Being an officer required or authorised by law to make or issue any certified copy of any document or of any extract from any document, wilfully certifies as a true copy of any document or of any extract from any such document any writing which he knows to be untrue in any material particular:
(2.)
Not being such officer as aforesaid, fraudulently signs or certifies any copy of any document or of any extract from any document as if he were such officer.
285 Making false entries in books relating to public funds.
Every one is liable to imprisonment with hard labour for life who, with intent to defraud,—
(1.)
Makes any untrue entry or any alteration in any book of account kept by any bank or by any public body, or by any body corporate, company, or society established or incorporated by charter, or by virtue of an Act of the Imperial Parliament, or of the General Assembly of New Zealand, in which book are kept accounts of the owners of any stock, annuity, or other public fund, or of any share or interest of or in the debt of any public body, or of or in the debt or capital stock of any such body corporate, company, or society transferable for the time being at the office of such bank, public body, body corporate, company, or society, or who in any manner wilfully falsifies any of the accounts of any such owners in any of the said books; or
(2.)
Makes any transfer of any share or interest of or in any stock, annuity, or public fund or debt or capital stock transferable for the time being at any bank or office, in the name of any person other than the owner of such share or interest.
286 Clerks issuing false dividend warrants.
Every one is liable to seven years’ imprisonment with hard labour who, being in the employment of any bank, public body, body corporate, company, or society as mentioned in the last-preceding section, with intent to defraud, makes out or delivers any dividend warrant, or any warrant for the payment of any annuity, interest, or money payable at the office of such bank, public body, body corporate, company, or society, for an amount greater or less than that to which the person on whose account such warrant is made out is entitled.
287 Imitating authorised marks.
Every one is liable to seven years’ imprisonment with hard labour who fraudulently counterfeits or imitates in a manner calculated to deceive any mark which under law is impressed upon or otherwise made upon or affixed to any chattel, or upon or to anything containing or connected with such chattel, for the purpose of denoting the quality of such chattel, or the fact that it has been tested or examined and approved by or under the authority of any public body, or by any public officer.
288 Imitating customary marks.
Every one is liable to two years’ imprisonment with hard labour who fraudulently counterfeits, or imitates in a manner calculated to deceive, any mark impressed or otherwise made upon or affixed to any chattel, or upon or to anything containing or connected with such chattel, which mark is by recognised practice understood to denote that the thing marked has been examined and certified to be of a particular quality by any particular officer or person, whether such officer or person be authorised by law or not to so certify.
Part XXXI Personation
289 Personation.
Every one is liable to imprisonment with hard labour for life who personates any person, living or dead, or administrator, wife, widow, next of kin, or relation of any person, with intent fraudulently to obtain any property.
290 Personation of certain persons.
Every one is liable to imprisonment with hard labour for life who falsely and deceitfully personates—
(1.)
Any owner of any share or interest of or in any stock, annuity, or other public fund transferable at any bank or office; or
(2.)
Any owner of any share or interest of or in the debt of any public body, or of or in the debt or capital stock of any body corporate, company, or society established or incorporated by charter or by virtue of an Act of the Imperial Parliament or of the General Assembly of the colony; or
(3.)
Any owner of any dividend, coupon, certificate, or money payable in respect of any such share or interest as aforesaid; or
(4.)
Any person duly authorised by any power of attorney to transfer any such share or interest, or to receive any dividend, coupon, certificate, or money on behalf of the person entitled thereto;
and thereby transfers or endeavours to transfer any share or interest belonging to such owner, or thereby obtains or endeavours to obtain, as if he were the true and lawful owner, or were the person so authorised by such power of attorney, any money due to any such owner or payable to the person so authorised, or any certificate, coupon, or share-warrant, or other document, which by any law in force, or any usage existing at the time, is deliverable to the owner of any such stock or fund, or to the person authorised by any such power of attorney.
291 Acknowledging instrument in false name.
Every one is liable to seven years’ imprisonment with hard labour who, without lawful authority or excuse (the proof of which shall lie on him), acknowledges in the name of any other person before any Court, Judge, or other person lawfully authorised in that behalf any recognisance or bail, or any cognovit actionem, or consent for judgment, or judgment, or any deed or other instrument.
Part XXXII Crimes relating to the Coin
292 Interpretation of terms.
In this Part the following words and expressions are used in the following senses:—
(1.)
“Current,” applied to coin, means coin coined in any of Her Majesty’s mints, or lawfully current by virtue of any Proclamation or otherwise in any part of Her Majesty’s dominions, whether within the United Kingdom or without:
(2.)
“Copper,” applied to coin, includes every kind of coin inferior in value to silver:
(3.)
“Counterfeit coin” includes genuine coin prepared or altered so as to resemble or pass for coin of a higher denomination, and genuine coin clipped, filed, or otherwise diminished in size or weight, and altered or prepared so as to conceal such clipping, filing, or diminution, and counterfeit coin in an unfinished state:
(4.)
“Gild” and “silver,” as applied to coin, include producing the appearance of gold and silver respectively:
(5.)
“Having in possession,” when used in reference to any person, includes not only having in his personal possession, but also
(a.)
Having in the actual possession or custody of any other person; and
(b.)
Having in any place (whether occupied by himself or not) for the use or benefit of himself or of any other person.
293 Counterfeiting gold and silver coin.
Every one is liable to imprisonment with hard labour for life who makes or begins to make any counterfeit coin—
(1.)
With intent to make it resemble or pass for current gold or silver coin respectively:
(2.)
Without lawful authority or excuse (the proof whereof shall lie on him),
(a.)
Buys, sells, receives, or puts off any counterfeit gold or silver current coin at a lower rate than it imports, or was apparently intended to import, or offers to do any such thing; or
(b.)
Imports or receives from beyond the seas any counterfeit current coin knowing it to be counterfeit:
(3.)
Without lawful authority or excuse (the proof of which shall lie upon him), makes or mends, or begins or proceeds to make or mend, or buys or sells, or has in his possession or custody—
(a.)
Any stamp or mould intended to make the resemblance of both or either of the sides of any current coin, or of any coin of any foreign prince or State, or any part of either of such sides, knowing the same to be such, or to be so adapted and intended as aforesaid; or
(b.)
Any tool or instrument intended for marking coin round the edges with marks or figures apparently resembling those on the edges of any such coin as aforesaid, knowing the same to be so adapted and intended as aforesaid; or
(c.)
Any press for coinage, or any machine or tool for cutting round blanks out of gold, silver, or other metal, or mixture of metals, knowing such press, machine, or tool to be intended to be used for or in order to counterfeit any such coin as aforesaid;
(d.)
Knowingly conveys out of any of Her Majesty’s mints any such thing above mentioned or any useful part thereof, or any coin, bullion, metal, or mixture of metals.
294 Preparation for coining.
Every one is liable to imprisonment with hard labour for life who—
(1.)
Gilds or silvers any piece of metal or mixture of metal whatever of a fit size or figure to be coined, with intent that it shall be coined into counterfeit current gold or silver coin; or
(2.)
Makes any piece of metal or mixture of metals whatever into a fit size or figure to facilitate the coinage therefrom of any counterfeit gold or silver current coin, with intent that thereby counterfeit gold or silver current coin should be made.
295 Clipping current coin.
Every one is liable to fourteen years’ imprisonment with hard labour who diminishes or lightens any current gold or silver coin, with intent that when so dealt with it may pass as current gold or silver coin.
296 Possessing clippings of current coin.
Every one is liable to seven years’ imprisonment with hard labour who unlawfully has in his custody or possession any filings or clippings, or silver in dust or solution or other state, obtained by impairing current gold or silver coin, knowing the same to have been so obtained.
297 Counterfeiting foreign gold and silver coin.
Every one is liable to seven years’ imprisonment with hard labour who—
(1.)
Makes or begins to make counterfeit gold or silver coin of any foreign prince, State, or country; or
(2.)
Gilds or silvers any counterfeit coin of any foreign prince, State, or country; or
(3.)
Makes any piece of metal or mixture of metals whatever into a fit size or figure to facilitate the coining therefrom of any such counterfeit gold or silver coin, with intent that thereby counterfeit gold or silver coin should be made; or
(4.)
Gilds or silvers any piece of metal or mixture of metals whatever of a fit size or figure to facilitate the coining therefrom of any such counterfeit gold or silver coin, with intent that thereby counterfeit gold or silver coin should be made; or
(5.)
Brings or receives into the colony, without lawful authority or excuse (the proof whereof shall lie on him), counterfeit gold or silver coin of any foreign prince, State, or country, knowing the same to be counterfeit.
298 Counterfeiting copper coin.
Every one is liable to seven years’ imprisonment with hard labour who—
(1.)
Makes or begins to make any counterfeit current copper coin; or
(2.)
Without lawful authority or excuse (the proof whereof shall lie upon him), knowingly makes or mends, or begins to make or mend, or buys or sells, or has in his custody or possession, any instrument adapted and intended for counterfeiting any current copper coin; or buys, sells, receives, or puts off any counterfeit copper coin at a lower rate or value than the same imports or was apparently intended to import.
299 Counterfeiting foreign copper coin.
Every one is liable to one year’s imprisonment with hard labour who makes any counterfeit copper coin of any foreign prince, State, or country.
300 Possessing counterfeit coin.
Every one is liable to one year’s imprisonment with hard labour who has in his possession any counterfeit current gold or silver coin knowing such coin to be counterfeit, and with intent to utter it.
301 Possessing three pieces of counterfeit coin.
Every one is liable to three years’ imprisonment with hard labour who has in his possession three or more pieces of counterfeit current gold or silver coin knowing such coin to be counterfeit, and with intent to utter it.
302 Uttering counterfeit coin.
Every one is liable to one year’s imprisonment with hard labour who utters any counterfeit current gold or silver coin knowing it to be counterfeit.
303 Uttering after previous uttering.
Every one is liable to two years’ imprisonment with hard labour who utters any counterfeit current gold or silver coin knowing it to be counterfeit, and
(1.)
Has at the time of such uttering in his custody or possession any other piece of counterfeit gold or silver current coin; or
(2.)
Has on the day of such uttering as aforesaid, or within ten days preceding exclusive of the day of uttering such coin, uttered any other counterfeit gold or silver coin.
304 Exporting counterfeit coin.
Every one is liable to two years’ imprisonment with hard labour who, without lawful authority or excuse (the proof whereof shall lie on him), exports, or puts on board any vessel or boat for the purpose of being exported, any counterfeit current coin whatever knowing the same to be counterfeit.
305 Uttering or possessing counterfeit coin.
Every one is liable to one year’s imprisonment with hard labour who—
(1.)
Utters any counterfeit current copper coin knowing it to be counterfeit; or
(2.)
Has in his possession three or more counterfeit current copper coins knowing them to be counterfeit, and with intent to utter them; or
(3.)
With intent to defraud, utters as current gold or silver coin any coin which is not current coin, or any medal or piece of metal or mixed metal being of less value than the current coin as and for which it is uttered; or
(4.)
Defaces any current coin whatever by stamping thereon any word, whether such coin is or is not thereby diminished or lightened; or
(5.)
Utters any counterfeit gold or silver coin of any foreign prince, State, or country knowing it to be counterfeit.
306 Punishment after previous conviction.
Every one who, after a previous conviction of any offence relating to the coin under this or any other Act, is convicted of any offence specified in this Part is liable to imprisonment with hard labour for life if he would otherwise have been liable to fourteen years’ imprisonment with hard labour only; or to fourteen years’ imprisonment with hard labour if he would otherwise have been liable to imprisonment with hard labour for less than fourteen but not less than three years; or to five years’ imprisonment with hard labour if he would otherwise have been liable to imprisonment with or without hard labour for less than three years.
Part XXXIII Mischief
307 Preliminary.
(1.)
Every one who causes any event by an act which he knew would probably cause it, being reckless whether such event happens or not, shall be deemed to have caused it wilfully for the purposes of this Part of this Act.
(2.)
Nothing shall be a crime under any provision contained in this Part unless it is done without legal justification or excuse, and without colour of right.
(3.)
Where the crime consists in an injury to anything in which the offender has an interest, the existence of such interest, if partial, shall not prevent his act being a crime, and, if total, shall not prevent his act being a crime if done with intent to defraud.
308 Arson.
Every one is liable to imprisonment with hard labour for life who wilfully sets fire to any building, erection, or structure whatever fixed to the soil, whether such building, erection, or structure is completed or not, or to any stack of vegetable produce, or of mineral or vegetable fuel, or to any mine, or to any ship or vessel whether completed or not.
309 Attempt to commit arson.
Every one is liable to fourteen years’ imprisonment with hard labour who wilfully attempts to set fire to anything mentioned in the last-preceding section, or who wilfully sets fire to any substance so situated that he knows that anything mentioned in the last-preceding section is likely to catch fire therefrom.
310 Setting fire to crops.
Every one is guilty of the crime of arson, and is liable to fourteen years’ imprisonment with hard labour, who wilfully sets fire to any crop, whether standing or cut down, or to any wood, coppice, or plantation, or to any indigenous or tussock grass, heath, gorse, furze, or fern.
311 Attempting to set fire to crops.
Every one is liable to seven years’ imprisonment with hard labour who wilfully attempts to set fire to anything mentioned in the last-preceding section, or who wilfully sets fire to any substance so situated that he knows that anything mentioned in the last-preceding section is likely to catch fire therefrom.
312 Attempt to damage by explosives.
Every one is liable to fourteen years’ imprisonment with hard labour who wilfully places or throws any explosive substance into or near any building or ship with intent to destroy or damage the same, or any machinery, working-tools, or chattels whatever, whether any explosion takes place or not.
313 Mischief on railways and tramways, &c.
(1.)
Every one is liable to two years’ imprisonment with hard labour who, in a manner likely to cause danger to valuable property,—
(a.)
Places any obstruction upon any railway or tramway:
(b.)
Shoots or throws anything at an engine or other vehicle:
(c.)
Interferes without authority with the points or signals upon any railway or tramway:
(d.)
Makes any false signal on or near any railway or tramway:
(e.)
Wilfully omits to do any act which it is his duty to do:
(f.)
Does any other unlawful act:
(2.)
Every one who does any of the acts above mentioned with intent to cause such danger is liable to imprisonment with hard labour for life.
314 Wrecking.
Every one is liable to imprisonment with hard labour for life who—
(1.)
Casts away or destroys any ship, whether complete or unfinished:
(2.)
Does any act tending to the immediate loss or destruction of any ship in distress:
(3.)
Interferes with any marine signal, or exhibits any false signal, with intent to bring a ship or boat into danger.
315 Attempting to wreck.
Every one is liable to fourteen years’ imprisonment with hard labour who attempts to cast away or destroy any ship, whether complete or unfinished.
316 Interfering with marine signals.
Every one is liable to seven years’ imprisonment with hard labour who alters, removes, or conceals, or attempts to alter, remove, or conceal, any signal or mark used for the purposes of navigation.
317 Mischief to mines.
Every one is liable to seven years’ imprisonment with hard labour who, with intent to injure a mine or obstruct the working thereof,—
(1.)
Causes water to run into the mine or any subterranean channel communicating therewith:
(2.)
Damages any shaft or any passage of the mine:
(3.)
Damages, with intent to render useless, any apparatus, building, bridge, or road belonging to the mine, whether the object damaged be complete or not:
(4.)
Hinders the working of any such apparatus:
(5.)
Damages or unfastens, with intent to render useless, any rope, chain, or tackle used in any mine, or upon any way or work connected therewith.
318 Mischief.
Every one who wilfully destroys or damages any of the property hereinafter mentioned is guilty of the crime of mischief, and is liable to the punishments hereinafter specified:—
(1.)
To imprisonment with hard labour for life if the object damaged be—
(a.)
A dwelling-house, ship, or boat, and the damage be caused by an explosion, and if—
(a.)
Any person be in such dwelling-house, ship, or boat, or
(b.)
The damage cause actual danger to life;
(b.)
A bank or wall of the sea, or of any inland water, or any work belonging to any port, harbour, dock, or inland water, and the damage cause actual danger of inundation;
(c.)
A bridge over which a highway passes, damaged with the intent of rendering, and so as to render, such highway dangerous or impassable;
(d.)
A railway damaged with the intent of rendering, and so as to render, such railway dangerous or impassable; 25
(e.)
Manufacturing machines, or manufacturing implements, or goods in process of manufacture, damaged with intent to render them useless:
(2.)
To fourteen years’ imprisonment with hard labour if the object damaged be—
(f.)
A ship in distress or wrecked, or any goods, merchandise, or articles belonging thereto;
(g.)
A horse, mare, or gelding, ass, mule, bull, cow, ox, or heifer, ram, ewe, or other sheep, boar, sow, or other pig, or goat, or the young of any such animal, and the damage be caused by killing, maiming, or wounding:
(3.)
To seven years’ imprisonment with hard labour if the object damaged be—
(h.)
A ship damaged with intent to destroy or render useless such ship;
(i.)
A signal or mark used for the purposes of navigation;
k.
A bank or wall of the sea, or of any inland water, or any materials fixed in the ground for securing the same, or any work belonging to any port, harbour, dock, or inland water;
l.
A navigable river or canal damaged by interference with the flood-gates or sluices thereof, or otherwise, with intent and so as to obstruct the navigation thereof;
m.
The flood-gate or sluice of any private water, with intent to take or destroy, or so as to cause the loss or destruction of, the fish therein;
n.
A private fishery or salmon river damaged by lime or other noxious material put into the water with intent to destroy fish then being or to be put therein;
o.
The flood-gate of any millpond, reservoir, or pool cut through or destroyed;
p.
Agricultural machines or agricultural implements damaged with intent to render them useless;
q.
A hop-bind growing in a plantation of hops:
(4.)
To five years’ imprisonment with hard labour if the object damaged be—
r.
Any property, real or personal, for damage to which no special punishment is by law prescribed, damaged to the value of five pounds by night:
(5.)
To three years’ imprisonment with hard labour if the object damaged be—
s.
A tree, shrub, or underwood injured to an extent exceeding in value five pounds;
t.
A tree, shrub, or underwood growing in a park, pleasure-ground, or garden, or in any land adjoining or belonging to a dwelling-house, injured to an extent exceeding in value one pound;
u.
A vegetable production growing in a garden, orchard, or greenhouse, the offender having been already convicted summarily of a like offence:
(6.)
To two years’ imprisonment with hard labour if the object damaged be—
v.
A turnpike gate, or toll-bar, or any fence belonging thereto, or any house or weighing-machine used for the collection of toll;
w.
Anything which forms part of or is used about an electric or magnetic telegraph or telephone, with intent to obstruct the transmission or delivery of any message;
x.
A book, manuscript, or work of art, an article kept for the purposes of art, science, or literature, any painted glass, any statue or monument, or any fence surrounding the same;
y.
Any tree, shrub, or underwood injured to the extent of one shilling in value, the offender having been twice summarily convicted of a like offence;
z.
Any property, real or personal, for damage to which no special punishment is by law prescribed, damaged to the value of five pounds.
319 Providing gunpowder to commit crime.
Every one is liable to two years’ imprisonment with hard labour who knowingly has in his possession or makes any gunpowder or any explosive substance, or any dangerous engine, instrument, or thing, with intent thereby to commit, or for the purpose of enabling any other person to commit, a crime.
320 Whipping.
Every one convicted of crime under this Part of the Act other than that specified in the last-preceding section may, if under sixteen years, be sentenced to be once whipped in addition to any other punishment.
Part XXXIV Threatening and attempting to commit Crimes
321 Threatening to kill.
Every one is liable to ten years’ imprisonment with hard labour, and if under sixteen to be once whipped, who sends, or causes to be received, knowing the contents thereof, any letter or writing containing threats to kill or do grievous bodily harm to any person.
322 Threatening to burn.
Every one is liable to ten years’ imprisonment with hard labour, and if under sixteen to be once whipped, who, knowing the contents thereof, sends or causes to be received any letter or writing threatening—
(1.)
To burn or destroy any building, or any stack or standing crop of grain, or other vegetable produce, or any ship or vessel; or
(2.)
To kill, maim, or wound any horse, mare, or gelding, ass, mule, bull, cow, ox, or heifer, ram, ewe, or other sheep, boar, sow, or other pig, or goat, or the young of any such animal.
323 Threatening by night.
Every one is liable to five years’ imprisonment with hard labour, and if under sixteen years to be once whipped, who, with intent to intimidate or annoy any person,—
(1.)
By night, breaks or injures or threatens to break or injure any dwelling-house; or
(2.)
By the discharge of firearms or otherwise alarms or attempts to alarm any person in any dwelling-house.
324 Threatening acts.
Every one is liable to two years’ imprisonment with hard labour who, with intent to intimidate or annoy any person,—
(1.)
Breaks or injures or threatens to break or injure any dwelling-house; or
(2.)
By the discharge of firearms or otherwise alarms or attempts to alarm any person in any dwelling-house.
325 Conspiring to prevent collection of rates or taxes.
Every one is liable to two years’ imprisonment with hard labour who conspires with any other person by force and intimidation to prevent the collection of any rates or taxes the levying and collection of which is authorised by law.
326 Conspiring to commit a crime punishable with imprisonment with hard labour for three years or upwards.
Every one is liable to five years’ imprisonment with hard labour who, in any case not hereinbefore provided for, conspires with any person to commit any crime punishable with imprisonment with hard labour for three years or upwards, or to do anything in any part of the world which if done in the colony would be a crime punishable as last aforesaid.
327 Conspiring to commit other crimes.
Every one is liable to two years’ imprisonment with hard labour who conspires with any person to commit any crime for which the punishment is of less severity than imprisonment with hard labour for three years or upwards, or to do anything in any part of the world which if done in the colony would be a crime punishable as last aforesaid.
328 Attempting to commit certain crimes.
Every one is liable to two years’ imprisonment with hard labour who attempts, in any case not hereinbefore by this Act provided for, to commit any crime for which the punishment is imprisonment with hard labour for three years or upwards.
329 Attempting to commit other crimes.
Every one who attempts to commit any crime for which the punishment is of less severity than imprisonment with hard labour for three years or upwards, in any case where no express provision is made by law for the punishment of such attempt, is liable to imprisonment for a term equal to one-half of the longest term to which a person committing the crime attempted to be committed may be sentenced (with or without hard labour, as the case may be).
330 Attempting to commit statutory offences.
Every one is liable to two years’ imprisonment who attempts to commit any crime under any statute for the time being in force and not inconsistent with this Act, or incites or attempts to incite any person to commit any such crime.
331 Accessories after the fact to certain crimes.
Every one is liable to two years’ imprisonment with hard labour who, in any case where no express provision is made by this Act for the punishment of an accessory, is accessory after the fact to any crime for which the punishment is on a first conviction imprisonment with hard labour for three years or upwards.
332 Accessories after the fact to other crimes.
Every one who is accessory after the fact to any crime punishable with less severity than imprisonment with hard labour for three years or upwards, in any case where no express provision is made for the punishment of such accessory, is liable to imprisonment for a term equal to one-half of the longest term to which a person committing the crime to which he is accessory may be sentenced (with or without hard labour, as the case may be).
TITLE VII. PROCEDURE
Part XXXV General Provisions
333 Power to make rules.
(1.)
The Judges of the Supreme Court, or any three of them, may at any time and from time to time make such rules for regulating practice, pleading, and procedure under this Act as may be found necessary, and may from time to time alter or annul any rules so made.
(2.)
Such rules shall come into force upon their publication in the Gazette, or on such day subsequent to such publication as by the said rules may be appointed in that behalf, and shall be laid before the General Assembly within twenty days of such publication, if the General Assembly is then sitting, and, if not, within twenty days after the then next ensuing session. If an address is presented to the Governor by either House of the General Assembly within the said session praying that any rule so made may be annulled the Governor may thereupon by Order in Council annul the same.
(3.)
Until such rules are made, and so far as they do not extend, the existing practice, pleading, and procedure in the colony shall remain and be in force so far as they are not altered by or inconsistent with the provisions of this Act.
334 Civil remedy not suspended.
After the commencement of this Act no civil remedy for any act or omission shall be suspended by reason that such act or omission amounts to a criminal offence.
335 Procedure to be uniform.
(1.)
The procedure, from information up to commitment for trial or holding to bail, shall be that prescribed by “The Justices of the Peace Act, 1882.”
(2.)
The procedure in respect of all offences for which the offender is proceeded against by indictment, except where herein otherwise provided, shall be the same.
336 Construction of Acts.
(1.)
Every Act shall be hereafter read and construed as if any offence therein mentioned for which the offender may be prosecuted by indictment (howsoever such offence may be therein described or referred to) were described or referred to as a “crime;” and all provisions of this Act relating to crimes generally shall apply to every such offence.
(2.)
Every commission, Proclamation, warrant, or other document relating to criminal procedure in which offences which are “crimes”
as defined by this Act are described or referred to by any names whatsoever, shall be hereafter read and construed as if such offences were therein described and referred to as crimes.
337 Rule as to arrest.
(1.)
Any one charged with a crime for which the punishment is death, or imprisonment with hard labour for three years or upwards on a first conviction, may be arrested without warrant:
(2.)
Provided that no one is liable to be arrested without warrant on a charge of having committed any of the crimes following:—
“Unlawful drilling,” in Part VI.;
Any of the crimes in Part IX. for which the punishment is imprisonment with hard labour for three years or upwards;
Any of the crimes in Part X. for which the punishment is imprisonment with hard labour for three years or upwards;
“Assisting escape of prisoners of war,” “Assisting escape in certain cases,” “Assisting escape in other cases,” “Officer aiding escape,” and “Assisting escape of criminal lunatics,” in Part XI.;
“Attempt to commit unnatural offence,” in Part XIII.;
“Conspiracy to murder” and “Aiding and abetting suicide,” in Part XVII.;
“Administering poison,” “Causing actual bodily harm,” and “Setting man-traps,” in Part XVIII.;
“Killing unborn child,” “Procuring abortion,” “Woman procuring her own miscarriage,” and “Supplying the means of procuring abortion,” in Part XX.;
“Bigamy,” “Abduction of an heiress,” “Abduction of girl under sixteen,” and “Stealing children under fourteen,” in Part XXI.;
“Neglecting duty to provide the necessaries of life,” and “Abandoning children under two,” in Part XXII.;
“Criminal breach of trust,” in Part XXIV.;
Any of the crimes in Part XXV. for which the punishment is imprisonment with hard labour for three years or upwards;
“Extortion by other threats,” in Part XXVI.;
“Taking reward for recovery of stolen goods,” in Part XXVIII.;
“Uttering forged documents,” “Procuring execution of document by false pretence,” and “Drawing document without authority,” in Part XXIX. when the punishment is imprisonment with hard labour for three years or upwards;
“Falsifying extracts from registers,” “Uttering false certificates,” “Forging certificates,” “Making false entries in books relating to public funds,” “Clerks issuing false dividend warrant,” and “Imitating authorised marks,” in Part XXX.;
“Personation” and “Acknowledging instrument in false name,” in Part XXXI.;
“Threatening to kill,” “Threatening to burn,” “Threatening by night,” and “Conspiring to commit crime punishable with imprisonment with hard labour for three years or upwards,” in Part XXXIV.:
(3.)
Provided also that no one shall be arrested without warrant upon charge of having committed the crime of “False pretence,”
or “Obtaining execution of valuable securities by false pretence,”
in Part XXIV., or “Possessing three pieces of counterfeit coin,”
in Part XXXII., unless he be found committing such crime.
(4.)
Any one charged with a crime for which the punishment on a first conviction is of less severity than imprisonment with hard labour for three years or upwards shall not be arrested without warrant in respect thereof:
(5.)
Provided that any one charged with any of the following crimes may be arrested without warrant:—
“Attempt to commit suicide,” in Part XVII.;
“Wantonly endangering persons on railways or tramways,” in Part XVIII.;
“Uttering forged documents,” in Part XXIX., when the punishment is imprisonment; “Uttering counterfeit coin,” in Part XXXII., and any other crime for which the punishment is imprisonment mentioned in that Part, when the offender is found committing such crime;
“Mischief on railways or tramways,” in Part XXXIIL, and any other crime mentioned in the said Part for which the punishment is imprisonment.
(6.)
Nothing in this section contained shall be construed to annul or limit any provisions made by any Act giving express power of arrest without warrant.
Part XXXVI Procedure In Particular Cases
338 Judicial corruption.
No one holding any judicial office shall be prosecuted for the crime of “Judicial corruption,”
as defined in Part IX., without the leave of the Attorney-General. And no Judge who holds his office for life, subject only to a power of removal by Her Majesty on an address presented by both Houses of the General Assembly, shall be prosecuted for any such crime except by the Attorney-General in pursuance of a resolution of both Houses of the General Assembly.
339 Selling offices.
No one shall be prosecuted for the crime of “Selling offices,”
as defined in Part IX., or “Criminal breach of trust,”
as defined in Part XXIV., except by leave of the Attorney-General.
340 Concealing deeds and incumbrances.
No one shall be prosecuted for the crime of “Concealing deeds and incumbrances,”
as defined in Part XXV., without the sanction of the Attorney-General. Such previous notice as such Attorney-General directs of the application for leave to prosecute must in every case be given to the person intended to be prosecuted.
Part XXXVII Procedure before Appearance or Accused
341 Search-warrant.
(1.)
Any Justice who is satisfied upon oath that there is reasonable ground for believing that there is in any building, ship, carriage, box, receptacle, or place—
(a.)
Anything upon or in respect of which any crime for which under this or any other Act the offender may be arrested without warrant has been or is suspected to have been committed; or
(b.)
Anything which there is reasonable ground to believe will afford evidence as to the commission of any such crime; or
(c.)
Anything which there is reasonable ground to believe is intended to be used for the purpose of committing any crime against the person for which, under this or any other Act, the offender may be arrested without warrant—
may at any time issue a warrant under his hand authorising some peace officer named therein to search such building, ship, carriage, box, receptacle, or place for any such thing, and to seize and carry it before the Justice issuing the warrant, or some other Justice, to be by him dealt with according to law.
(2.)
Every search-warrant shall be executed by day, unless the Justice shall by the warrant authorise the peace officer to execute it at night.
(3.)
Every search-warrant may be in the Form No. 1 in the First Schedule hereto, or to the like effect.
(4.)
When any such thing is seized and brought before such Justice he may detain it, taking reasonable care to preserve it till the conclusion of the investigation; and, if any one is committed for trial, he may order it further to be detained for the purpose of evidence on the trial.
(5.)
If no one is committed the Justice shall direct such thing to be restored to the person from whom it was taken, except in the cases next hereinafter mentioned, unless be is authorised or required by law to dispose of it otherwise.
(6.)
If under any such warrant there is brought before any Justice any forged bank-note, bank-note paper, instrument, or other thing the possession whereof, in the absence of lawful excuse, is a crime under any provision of this or any other Act, the Court to which any such person is committed for trial, or, if there is no commitment for trial, such Justice, may cause such thing to be defaced or destroyed.
(7.)
If under any such warrant there is brought before any Justice any counterfeit coin or other thing the possession of which, with knowledge of its nature and without lawful excuse, is a crime, every such thing shall be delivered up to any Inspector or other superior officer of Police, or to any person authorised by him to receive the same, as soon as it has been produced in evidence, or as soon as it appears that it will not be required to be so produced.
(8.)
If the thing to be searched for is gunpowder, or any other explosive or dangerous or noxious substance or thing, the person making the search shall have the same powers and protections as are given by any Act of Parliament in force for the time being to any person lawfully authorised to search for any such thing, and the things themselves shall be disposed of in the same manner as directed by any such Act:
(9.)
Provided that the provisions of this section shall not be held to repeal the special provisions of any statute regulating searches and search-warrants in cases within such statute.
342 Coroner’s inquisition.
Every Coroner before whom an inquisition of murder or manslaughter is found, whether charging any person or not, shall, as soon as conveniently may be, send a copy of such inquisition, together with a copy of all depositions taken before him, to the Attorney-General, who may thereupon institute an inquiry and take such steps as he shall deem desirable. If the Coroner issues a warrant for the apprehension of the person against whom the inquisition is found it shall be a warrant to take such person before a Justice of the Peace, who may deal with the person so brought before him as though such warrant had been issued by such Justice upon an information duly laid before him.
343 Deodands abolished.
There shall be no forfeiture of any chattel for or in respect of the same having moved to or caused the death of man.
Part XXXVIII Procedure after Appearance of Accused
344 Deposition of witness taken after committal.
(1.)
After any one has been committed for trial for any crime, proof upon oath may be given either by the prosecutor or the accused that any person who has not been examined as a witness is able to give evidence tending to prove either the guilt or the innocence of the accused.
(2.)
Such proof shall be given before any one of the Justices by whom the accused was committed, or some other Justice acting at the same place:
Provided that if the person intended to be examined is prevented by illness, or any other such cause, from appearing, such proof may be given before a Justice at the place in which the person intended to be examined then is.
(3.)
In any case the Justice before whom such proof is given shall take it in the form of a deposition as provided in “The Justices of the Peace Act, 1882.”
The Justice, if satisfied by the proof that it is for the interests of justice that the examination should take place, shall appoint a time and place for the examination of the person intended to be examined, and, if such person is able to attend, the Justice shall have the same powers for compelling his attendance as are herein provided for compelling the attendance of witnesses at the preliminary inquiry.
(4.)
If application is made on behalf of the prosecution, the person making the application shall give notice to the accused. If application is made on behalf of the accused, the person making the application shall give notice to the prosecutor of the time and place at which the examination is to take place. The notice shall be in writing, and may be in Form No. 2 in the First Schedule hereto, or to the like effect.
(5.)
The person giving the notice must, if required, tender to the person to whom it is given reasonable travelling-expenses to the place where the evidence is to be taken:
Provided that if the application is made by the prosecutor, and if the accused is in prison, any one of the Justices by whom the prisoner was committed, or any Justice attending at the prison in which he is confined, may, by an order in writing under his hand, direct the governor of the prison having the custody of the accused person to convey him, or cause him to be conveyed, to the place where the examination is to be taken, for the purpose of being present when it is taken, and to take him back to prison afterwards. The expenses of such conveyance shall be paid out of the funds applicable to the expenses of the conveyance of any prisoner taken from that prison before a Justice for examination.
(6.)
At the time and place appointed the Justice shall take the deposition of the person to be examined, in the same way in which other depositions are taken; and all the provisions contained in “The Justices of the Peace Act, 1882,”
relating to the signing and reading-over of depositions, and to their admissibility in evidence, shall apply to every such deposition.
(7.)
If the party against whom such deposition is to be read neglects to attend at the time when it is taken, after receiving due notice thereof, such deposition shall be admissible in evidence against him, although it was taken and signed in his absence.
(8.)
The prosecution or the accused may be represented by counsel or solicitor, and such counsel or solicitor shall be entitled to cross-examine the witness.
(9.)
Depositions taken under this section may be in the Form No. 32 in the First Schedule to “The Justices of the Peace Act, 1882,”
or to the like effect; and every such deposition shall be transmitted to the proper officer of the Court before which the accused is to be tried, and shall be treated in all respects in the same way as, and shall be considered as being for all purposes, a deposition taken upon the preliminary inquiry.
345 Rule as to bail.
(1.)
Any one charged with “Treason,”
“Being accessory after the fact to treason,”
or any “Treasonable crime,”
as defined in Part V., shall not be bailed without an order from the Governor or a Judge of the Supreme Court.
(2.)
Any one charged with any other crime for which the punishment is death or imprisonment with hard labour for three years or upwards on a first conviction is bailable at discretion:
(3.)
Provided that any one is bailable as of right who is charged with any of the following crimes:—
“Unlawful drilling,” in Part VI.;
“Causing actual bodily harm” and “Setting man-traps,” in Part XVIII.;
“Woman procuring her own miscarriage” and “Supplying the means of procuring abortion,” in Part XX.;
“Neglecting duty to provide the necessaries of life” and “Abandoning children under two,” in Part XXII.;
Any of the crimes in Part XXV. for which the punishment is imprisonment with hard labour for three years or upwards;
“Extortion by other threats,” in Part XXVI.;
“Taking rewards for recovery of stolen goods,” in Part XXVIII.;
“Forging certificates,” “Making false entries in books relating to public funds,” “Clerks issuing false dividend warrants,” and “Imitating authorised marks,” in Part XXX.;
“Personation” and “Acknowledging instrument in false name,” in Part XXXI.;
“Possessing three pieces of counterfeit coin,” in Part XXXII.;
“Threatening by night” and “Conspiring to commit a crime punishable with imprisonment with hard labour for three years or upwards,” in Part XXXIV:
(4.)
Any one charged with a crime for which the punishment on a first conviction is of less severity than imprisonment with hard labour for three years or upwards is bailable as of right:
Provided that no one shall be bailable as of right who is charged with any of the following crimes:—
“Attempt to commit suicide,” in Part XVII.;
“Uttering forged documents,” Procuring execution of document by false pretence,” and “Drawing document without authority,” in Part XXIX., when the punishment is imprisonment.
(5.)
Every one bailable of right shall be released at any stage of the proceedings, whether be has been committed to prison or not, upon providing sureties sufficient in the opinion of the Justices to secure his appearance, or upon his own recognisance if they think fit. In cases where the accused is bailable at discretion, bail shall at any stage of the proceedings be allowed or refused at the discretion of the Justices.
(6.)
Whenever the preliminary inquiry is for any reason adjourned or interrupted, the Justices holding it, instead of remanding the accused to prison, shall, if the accused is bailable as of right, or may, if the accused is bailable at discretion, admit him to bail on condition of his appearing at the time to which the inquiry is adjourned, or at an earlier day if so required.
(7.)
The recognisances to be taken when an accused person is bailed or allowed to be at large on his own recognisance may be in the Form No. 1 in the First Schedule of “The Justices of the Peace Act, 1882,”
or to the like effect.
(8.)
If an accused person who has appeared and has been admitted to bail (either on the recognisance of sureties or on his own recognisance) to appear at any adjournment fails to appear according to the condition of such recognisance, the Justice before whom be ought to have appeared may issue a warrant for his apprehension, whether there has been any information in writing and on oath or not.
(9.)
Every such warrant may be in the Form No. 5 in the First Schedule hereto, or to the like effect.
Part XXXIX Place and Mode of Trial
346 Information by Attorney-General.
An information may be filed by the Attorney-General for any offence not punishable by death or imprisonment with hard labour for three years or upwards. The existing practice as to the time and mode of pleading upon information shall, till altered by rules under this Act, apply to informations under this Act.
347 Changing place of trial before or after indictment.
(1.)
Whenever any person is committed or held to bail for any crime to appear at any sitting of the Supreme Court (hereinafter “called the Court of committal”
), and it appears to a Judge of the Court that it is expedient for the ends of justice that such person should be tried for such offence at some sitting of the Court other than the Court or sitting for trial at which such person was committed or held to bail, or at which such person would in the ordinary course of law be tried for such crime, such Judge, of his own motion, or on application made by or on behalf of the prosecutor or the person charged, by any order either before or after indictment found, may order that such person shall be tried for such crime at such sitting of the Court (hereinafter called “the substituted Court”
) as he thinks fit, holden either within the same district wherein such person shall have been committed or held to bail, or in some other district.
(2.)
Any application for an order as aforesaid may be made to a Judge when sitting in Court or in Chambers; and it shall not be necessary for the person charged to be brought or appear in person before such Judge, either upon the making or the determination of such application, and it shall not be necessary for such person to plead any plea to any such indictment in the Court of committal.
The said Judge may make any such order subject to such conditions as to bail, the payment of the costs of the prosecutor and witnesses, and of the removal and transmission, or removal of the indictment, and of the removal of the person charged, and as to any other matter or thing whatsoever as such Judge may, in his discretion, impose.
After any such order has been made no indictment shall be presented to or at the Court of committal by the Attorney-General, or other person appointed to prosecute on behalf of the Crown, against such person for such offence.
(3.)
If the indictment has not been found when the order is made the Attorney-General on behalf of Her Majesty, or any person appointed to prosecute on behalf of Her Majesty, or the prosecutor, may present to the Grand Jury at the substituted Court an indictment charging such person with such crime, and the indictment shall be presented, and the person charged shall be arraigned and shall plead and be tried, and the like proceedings had in such substituted Court as if such person had been committed in the first instance to the prison which is usually delivered by or at, or had been held to bail to appear and plead at, the substituted Court at which such indictment is presented.
(4.)
If the indictment has been found when the order is made the Judge shall by such order or by a separate order direct that the Clerk of the Court of committal before or at which any indictment charging such person with such crime shall then be pending for trial, forthwith upon delivery to him of an office-copy of such order, shall transmit such indictment to the Clerk of the substituted Court; and the person charged by such indictment shall be arraigned, and shall plead and be tried in such substituted Court in the same manner in all respects as if such indictment had been originally presented at or returned to such substituted Court.
(5.)
Such Judge may by such order or by a separate order direct that the Justice or Justices before or by whom any such person so committed or held to bail or charged with any offence by such indictment was examined, the Registrar of the Court, or other person having the custody or possession thereof, shall forthwith, upon delivery to him of an office-copy of such order, transmit any recognisances, depositions, examinations, or informations relating to the offence for which such person was committed or held to bail, or charged in such indictment, which shall be in his custody or possession to the Clerk of the substituted Court.
348 Court of committal to bind over prosecutor and witnesses, and may either commit or bail defendant to appear at substituted Court.
Whenever any order made for the trial of any person in a substituted Court is delivered to any Court of committal or the Judge thereof, or to the Clerk of the Court of committal, such Court of committal—
(1.)
Shall require any person who shall be attending such Court of committal under any recognisance or subpœna to prosecute, or to prosecute and give evidence, or to give evidence upon the trial of such person to enter into a recognisance, in such sum of money as to such Court of committal seems fit, to prosecute, or to prosecute and give evidence, or to give evidence, as the case may be, upon the trial at the substituted Court whenever the same shall be held:
(2.)
May either require any person who shall be attending such Court of committal under any recognisance to take his trial to enter into such recognisance with so many sureties and in such sum or sums of money, and with such condition for his appearance and taking his trial at such substituted Court whenever the same shall be held as to such Court of committal seems fit, or may commit such person to the prison at, or, if there be not one at, then to the prison nearest to, the town or place where such Court of committal shall be holden, there to remain until he shall be removed, or otherwise delivered in due course of law.
349 Recognisances entered into before a Court of committal to be of equal obligation before a substituted Court.
(1.)
Every recognisance entered into for the prosecution of any person, and every recognisance as well of any witness to give evidence as of any person to answer for any offence, shall, in case any such order is made for the trial of such offence at a substituted Court, be obligatory on each of the parties bound by such recognisance to prosecute and give evidence, and to do all other things therein mentioned with reference to the said trial at such substituted Court, in like manner as if such recognisance had been originally entered into for prosecuting such offence, appearing or giving evidence, or doing such other things before such substituted Court.
(2.)
Notice in writing shall be given, either personally or by leaving the same at the place of residence as of which the parties bound by such recognisance are therein described, to appear before such substituted Court upon the trial of the said offence.
(3.)
The Judge of the Court may cause the party applying for such order, whether he be the prosecutor or party charged with such offence, to enter into a recognisance for such sum, and with or without sureties, as such Judge may direct, conditioned to give such notice to the parties bound by such recognisances to appear before such substituted Court.
(4.)
Where it shall appear to any Court of committal to which any order is delivered for the purpose of removing any indictment from such Court of committal that any person so bound by recognisance has been personally served with any such notice as in this section is mentioned, it shall not be necessary for such Court of committal to require such person to enter into a fresh recognisance, unless it shall appear to such Court of committal that it is expedient to the ends of justice that such person should enter into such recognisance.
350 Substituted Court may issue process for enforcing appearance of defendant or witnesses.
Whenever any indictment is transmitted or removed to, or the trial of any person committed or held to bail for any crime is ordered to be held at, any substituted Court, such substituted Court may issue process for apprehending any person charged by such indictment with any offence or held to bail for any such offence, and may compel the attendance of witnesses as well on the part of the prosecution as on the part of the defence on the trial of such indictment, or of such person so committed or held to bail, in like manner as in cases of indictments found at such substituted Court for crimes committed within the jurisdiction of such substituted Court, and every such process shall and may be lawfully executed at any place within the colony.
351 Substituted Court may require new recognisances for further appearance of prosecutor and witnesses.
Whenever any prosecutor or witnesses in any case where any indictment is transmitted or removed to or presented and found at any substituted Court appears before such substituted Court, such substituted Court may from time to time, and as often as to such substituted Court seems fit, require such prosecutor and witnesses to enter into such recognisances in such sum of money and with such condition as to appearance at such substituted Court and otherwise as to such substituted Court seems fit.
352 Defendant on bail may be bailed again by substituted Court on committal.
Where any person charged with any offence by any indictment transmitted or removed to or presented and found at any substituted Court shall appear before such substituted Court in pursuance of any recognisance for that purpose or otherwise, such substituted Court may from time to time, and as often as to such substituted Court seems fit, either require such person to enter into such recognisances with so many sureties and in such sum or sums of money and with such condition for his appearance at such substituted Court and otherwise as to such substituted Court seems fit, or commit such person to the custody of the gaoler of the prison at, or, if there be no prison at, then to the prison nearest to, the place of trial as aforesaid until he shall be discharged by due course of law.
353 Prisoner may be removed to prison at or nearest place of trial.
Whenever any order is made directing that the trial of any person confined in any prison for any crime shall be held at a substituted Court, then such person shall not be discharged out of prison by the Court of committal, but whether or not any indictment is presented or found against such person for such crime at the Court of committal, the gaoler of such prison shall forthwith, upon the delivery to him of an office-copy of such order, without writ of habeas corpus or other writ for that purpose, cause such person with his commitment and detainer to be safely removed to the prison at, or, if there be not one at, then to the prison nearest to, the town or place at which the substituted Court is to be holden; and thereupon the gaoler of such last-mentioned prison shall receive such person into his custody in such prison, there to remain until he shall be delivered in due course of law.
354 Person removed may be taken to and from Court as often as necessary for trial.
Whenever any person is removed into the custody of the gaoler of the prison at or nearest to the place of trial as aforesaid under any order, or is committed to the custody of such gaoler by the substituted Court, such person shall, without writ of habeas corpus or other writ for that purpose, be removed into and from the said substituted Court when and as often as it may be necessary by the gaoler of the said last-mentioned prison with his commitment and detainer, in order that they may be tried, sentenced, or otherwise dealt with according to law, and such removal shall not be deemed an escape.
355 Every person removed to be deemed to be in legal custody.
Every prisoner so removed as in any of the preceding sections is mentioned shall, for and during the time of such removal, and for and during the time of his being removed back to the prison to which he was originally committed, and from which he has been brought, when and as often as he shall for any reason be so removed back, and also for and during such time as he may be detained in the prison at or near the place of trial, or in any other prison, or any other place to or through which he has been so removed, and until he shall be delivered by due course of law, be to all intents and purposes deemed and considered to be in proper legal custody wherever in the colony he may, in effecting such removal, have been taken or detained.
No action or other proceeding, civil or criminal, shall or may be maintained by such prisoner or any other person against the gaoler of the prison from which such prisoner is removed, or against the gaoler of the prison to which such prisoner is removed, or against any other person, by reason or in consequence of any such removal or detainer of such prisoner.
356 Powers and authorities of Judge of substituted Court.
(1.)
Whenever any indictment is transmitted or removed to any substituted Court, or any indictment is presented and found at any substituted Court, the Judge of such substituted Court shall possess the same power, jurisdiction, and whatsover as if the offence charged in any such indictment had actually been committed within the jurisdiction of such substituted Court.
(2.)
Every such offence may be dealt with, tried, and determined by and before such Judge of such substituted Court in the same manner in all respects as if the same had actually been committed within the jurisdiction of such substituted Court, and the offender had been committed or held to bail for trial at such substituted Court, and, in the case where any indictment has been removed, as if such indictment had been originally presented at or returned to such substituted Court.
357 No objection may be had to order for removal of indictment.
(1.)
It shall not be lawful for any person, by himself or by his counsel, to take any objection either in any Court of committal or in any substituted Court, or in any Court of Appeal, to any order of any Judge of the Supreme Court, or to any other proceeding under or by virtue of which any indictment is transmitted or removed to, or any trial ordered to be had at, any substituted Court, or to any matter or thing set out or appearing on the face of the record, save and except only to such indictment alone.
Proof of proper transmission of indictment not necessary.
(2.)
It shall not be necessary for any purpose whatsoever to prove that any indictment has been duly transmitted or removed into such substituted Court, but every such indictment shall be presumed to have been duly removed and transmitted upon production of the same in such substituted Court by the proper officer having the custody of the records of such substituted Court, and no evidence or proof to the contrary shall be admitted.
358 Verdicts and judgments valid.
Every verdict and judgment which shall be given upon any indictment transmitted or removed to or upon any indictment presented and found at any substituted Court, shall be of the same force and effect in all respects as if such indictment had been duly found within the jurisdiction of such substituted Court, and as if the offence charged in such indictment had been actually committed within the jurisdiction of such substituted Court, and as if the offender had been duly committed or held to bail for trial at such substituted Court.
359 Sentence may be ordered to be served either in district where trial held or offence committed.
(1.)
When any person is convicted of any offence at any substituted Court upon the trial of any indictment, the Judge of such substituted Court before whom any such conviction shall have taken place, or, in case sentence shall not then be passed, the Judge of such substituted Court at any subsequent sitting of such substituted Court, may order and adjudge such convict to be punished according to law at any place either within the district wherein such substituted Court is held or within the district where such offence was committed or supposed to have been committed.
(2.)
In cases where such Judge shall order such convict to be punished in such last-mentioned district, such Judge may, after passing sentence upon such convict, make an order commanding the gaoler of the prison at or near the place of trial to which the convict was removed under any order to cause such convict to be delivered into the custody of the gaoler of such prison as he thinks lit in any such last-mentioned district, together with such order, and commanding such gaoler to receive such convict into his custody in such prison, and him there safely to keep until such sentence is executed upon such convict according to law, or until he shall be otherwise delivered by due course of law.
(3.)
Where sentence of death is passed the Judge may make an order commanding the Sheriff of the Sheriff’s district in which the place so ordered to be the place of punishment shall be to execute such sentence upon such convict within his district according to law, in the same manner as if he had been tried and received such sentence in such Sheriff’s district.
Every such Sheriff and gaoler respectively is hereby commanded to perform and execute according to law each and every thing which he shall be commanded to perform and execute by any such order.
(4.)
The several Forms in the Second Schedule to this Act contained, or forms to the like effect, shall be deemed good, valid, and sufficient in law; and, in the case of any order directed to any Sheriff and commanding him to execute any sentence, it shall be sufficient to deliver such order either to such Sheriff or to his Deputy-Sheriff in his absence.
360 Expenses of witnesses to be advanced to defendant if indictment removed at instance of the Crown.
(1.)
Whenever any application is made on behalf of Her Majesty or of any prosecutor to any Judge of the Supreme Court for an order that any person charged with any offence shall be tried at a substituted Court, such Judge may issue a certificate, upon the production of which the Colonial Treasurer may order to be paid out of any moneys provided by the General Assembly for cost of criminal prosecutions to the person so charged a sum not exceeding thirty pounds to enable such person to defray the charges and expenses of the attendance of his witnesses.
(2.)
No such order shall be made where the substituted Court is to be holden in the same district wherein such person was committed or held to bail.
361 Governor in Council may make rules for conduct of Sheriffs and gaolers under this Part of this Act.
The Governor in Council may from time to time make regulations for the purposes of this Part of this Act respecting—
(1.)
The government and keeping of the prisons in the colony:
(2.)
The duties of Sheriffs and gaolers under this Part of this Act:
(3.)
The alteration of any proceeding whatsoever for carrying into effect the purposes of this Part of this Act:
And all such regulations shall be of the like force and effect as if the same had been made by authority of the General Assembly, and shall be notified in the Gazette, or in such other manner as the Governor in Council may direct.
Part XL Indictments
362 Heading of indictment.
(1.)
It shall not be necessary to state in any indictment that the jurors present upon oath or affirmation.
(2.)
It shall be sufficient if an indictment begins in the Form No. 3 given in the First Schedule hereto, or to the like effect.
(3.)
Any mistake in the heading shall upon being discovered be forthwith amended, and whether amended or not shall be immaterial.
363 Form and contents of counts.
(1.)
Every count of an indictment shall contain and shall be sufficient if it contains in substance a statement that the accused has committed some crime therein specified.
(2.)
Such statement may be made in popular language, without any technical averments or any allegations of matter not essential to be proved.
(3.)
Such statement may be in the words of the enactment describing the crime or declaring the matter charged to be a crime, or in any words sufficient to give the accused notice of the crime with which he is charged.
(4.)
Every count shall contain so much detail of the circumstances of the alleged crime as is sufficient to give the accused reasonable information as to the act or omission to be proved against him, and to identify the transaction referred to:
Provided that the absence or insufficiency of such details shall not vitiate the count.
(5.)
A count may refer to any section or subsection of any statute creating the offence charged therein, and in estimating the sufficiency of such count the Court shall have regard to such reference.
(6.)
Every count shall in general apply only to a single transaction.
364 Crimes may be charged in the alternative.
(1.)
A count shall not be deemed objectionable on the ground that it charges in the alternative several different matters, acts, or omissions which are stated in the alternative in the enactment describing any crime, or declaring the matters, acts, or omissions charged to be a crime, or on the ground that it is double or multifarious.
(2.)
The accused may at any stage of the trial apply to the Court to amend or divide any such count on the ground that it is so framed as to embarrass him in his defence.
(3.)
The Court, if satisfied that the ends of justice require it, may order any count to be amended or divided into two or more counts, and on such order being made such count shall be so divided or amended, and thereupon a formal commencement may be inserted before each of the counts into which it is divided.
365 Certain objections not to vitiate counts.
(1.)
No count shall be deemed objectionable or insufficient on any of the following grounds, that is to say,—
(a.)
That it does not contain the name of the person injured; or
(b.)
That it does not state who is the owner of any property therein mentioned; or
(c.)
That it charges an intent to defraud without naming or describing the person whom it was intended to defraud; or
(d.)
That it does not set out any document which may be the subject of the charge; or
(e.)
That it does not set out the words used where words used are the subject of the charge; or
(f.)
That it does not specify the means by which the crime was committed; or
(g.)
That it does not name or describe with precision any person or thing:
(2.)
Provided that the Court may, if satisfied that it is necessary for a fair trial, order that further particulars in writing of such document, words, means, person, or thing be furnished by the prosecutor.
366 Indictment for perjury or fraud.
(1.)
No count charging perjury, the making of a false oath or of a false statement, or fabricating evidence, or subornation or procuring the commission of any of these crimes shall be deemed insufficient on the ground that it does not state the nature of the authority of the tribunal before which the oath or statement was taken or made, or the subject of the inquiry, or the words used, or the evidence fabricated, or on the ground that it does not expressly negative the truth of the words used. But the Court may order that the prosecutor shall furnish particulars in writing of what is relied on in support of the charge.
(2.)
No count which charges any false pretence, or any fraud, or any attempt or conspiracy by fraudulent means, shall be deemed insufficient because it does not set out in detail in what the false pretence, or the fraud, or fraudulent means consisted. But the Court may order that the prosecutor shall furnish further particulars in writing of the above matters, or any of them.
(3.)
No provision before contained in this Part as to matters which are not to render any count objectionable or insufficient shall be construed as restricting or limiting in any way the general provisions respecting the form and contents of counts contained in this Part.
367 Further particulars.
(1.)
When any such further particulars as aforesaid are delivered a copy shall be given without charge to the accused or his solicitor. And such further particulars shall be entered in or attached to the Crown Book; and the trial shall proceed in all respects as if the indictment had been originally in conformity with such further particulars.
(2.)
In determining whether particulars are required or not, and whether a defect in the indictment is material to the substantial justice of the case or not, the Court may have regard to the depositions.
368 Variance and amendment.
(1.)
If on the trial of any indictment there appears to be a variance between the proof and the charge in any count of the indictment, either as found or as amended, or as it would have been if amended in conformity with any such further particulars, the Court before which the case is tried, or the Court of Appeal, may amend the indictment, or any count in it, so as to make it conformable with the proof.
(2.)
If the Court is of opinion that the accused has not been misled or prejudiced in his defence by such variance it shall make such amendment.
(3.)
If it appears that the indictment has been preferred under some other Act instead of under this Act, or under this Act instead of under some other Act, or that there is in the indictment, or in any count in it, an omission to state or a defective statement of anything requisite to constitute the crime, or an omission to negative any exception which ought to have been negatived, but that the matter omitted is proved by the evidence, the Court before which the trial takes place, or the Court of Appeal, if of opinion that the accused has not been misled or prejudiced in his defence by such error or omission, shall amend the indictment or count as may be necessary.
(4.)
The trial in either of these cases or the appeal may then proceed in all respects as if the indictment or count had been originally framed as amended.
(5.)
If the Court is of opinion that the accused has been misled or prejudiced in his defence by any such variance, error, or omission, or defective statement as aforesaid, but that the effect of such misleading or prejudice might be removed by adjourning or postponing the trial, the Court may in its discretion make the amendment and adjourn the trial to a future day in the same sittings, or discharge the jury and postpone the trial to the next sittings of the Court, on such terms as it thinks just. And the Court of Appeal may, in making such amendment, in its discretion, cither affirm the sentence or direct a new trial.
(6.)
In determining whether the accused has been misled or prejudiced in his defence, the Court which has to determine the question shall consider the contents of the depositions, as well as the other circumstances of the case:
(7.)
Provided that the propriety of making or refusing to make any such amendment shall be deemed a question for the Court, and that the decision of the Court upon it may be reserved for the Court of Appeal, or may be brought before the Court of Appeal like any other decision on a point of law.
369 Indictment for treason.
(1.)
Every indictment for treason or for treasonable crimes, as defined in Part V., must state overt acts, and no evidence shall be admitted of any overt act not stated unless it is otherwise relevant as tending to prove some overt act stated.
(2.)
The power of amending indictments herein contained shall not extend to authorise the Court to add to the overt acts stated in the indictment.
370 Attempt proved when crime is charged.
When the complete commission of the crime charged is not proved, but the evidence establishes an attempt to commit the crime, the accused may be convicted of such attempt, and punished accordingly
371 Crime proved when attempt is charged.
(1.)
When an attempt to commit a crime is charged, but the evidence establishes the commission of the full crime, the accused shall not be entitled to be acquitted, but the jury may convict him of the attempt.
(2.)
After a conviction for such attempt the accused shall not be liable to be tried again for the crime which he was charged with attempting to commit.
372 Part of crime charged proved.
(1.)
Every count shall be deemed divisible; and if the commission of the crime charged, as described in the enactment creating the crime or as charged in the count, includes the commission of any other crime, the person accused may be convicted of any crime so included which is proved, although the whole crime charged is not proved; or he may be convicted of an attempt to commit any crime so included:
(2.)
Provided that on a count charging murder, if the evidence proves manslaughter but does not prove murder, the jury may find the accused not guilty of murder but guilty of manslaughter, but shall not on that count find the accused guilty of any other offence;
(3.)
And also that, upon a count charging rape, the accused shall not be found guilty of any charge other than rape or an attempt to commit rape.
373 Joinder of counts.
(1.)
Any number of counts for any crime whatever may be joined in the same indictment, and shall be distinguished in the manner shown in the Form No. 3 in the First Schedule hereto, or to the like effect:
Provided that to a count charging murder no count charging any offence other than murder shall be joined.
(2.)
When there are more counts than one in an indictment each count may be treated as a separate indictment.
(3.)
If the Court thinks it conducive to the ends of justice to do so it may direct that the accused shall be tried upon any one or more of such counts separately.
(a.)
Such order may be made either before or in the course of the trial, and if it is made in the course of the trial the jury shall be discharged from giving a verdict on the counts on which the trial is not to proceed.
(b.)
The counts in the indictment which are not then tried shall be proceeded upon in all respects as if they had been found in a separate indictment:
(4.)
Provided that, unless these be special reasons, no order shall be made preventing the trial at the same time of any number of crimes involving dishonesty not exceeding five, alleged to have been committed within six months from the first to the last of such crimes, whether against the same person or not.
(5.)
If one sentence is passed upon any verdict of guilty on more counts than one the sentence shall be good if any of such counts would have justified the sentence.
374 Charge of previous conviction.
(1.)
When an indictment contains a count charging the accused with having been previously convicted he shall not, at the time of his arraignment, be required to plead to it unless be pleads guilty to the rest of the indictment, nor shall such count be mentioned to the jury when the accused is given in charge to them, nor shall he be tried upon it if he is acquitted on the other counts; but if he is convicted of any other part of the indictment be shall, before he is called upon to say why sentence should not be passed upon him, be asked whether he has been previously convicted as alleged or not, and, if he says that he has not, or does not say that he has been so convicted, the jury shall be charged to inquire into the matter, as in other cases:
(2.)
Provided that, if upon the trial of any person for any such subsequent crime as aforesaid evidence is given on the part of the accused of his good character, the prosecutor may, in answer thereto, prove such previous conviction, and the jury shall be charged to inquire thereof, together with the other crime to be tried.
375 Objections to an indictment.
(1.)
After the commencement of this Act no objection to an indictment shall be taken by way of demurrer, but, if an indictment does not state in substance a crime, or states a crime not triable by the Court before which the accused is arraigned, the accused may move the Court to quash it, or in arrest of judgment, as herein provided.
(2.)
If such motion is made before the accused pleads, the Court shall either quash the indictment or amend it, if it thinks that it ought to be amended.
(3.)
If the defect in the indictment appears to the Court during the trial, and the Court does not think fit to amend it, it may in its discretion quash the indictment, or leave the objection to be taken in arrest of judgment.
376 Indictment of parties.
Every one who is a party to any crime within the meaning of this Act may be convicted either upon a count charging him with having committed that crime, where the nature of the crime charged will admit of such course, or upon a count alleging how he became a party to it.
377 Accessories after the fact, and receivers.
(1.)
Every one charged with being an accessory after the fact to any crime, or with receiving any property knowing it to have been dishonestly obtained, may be indicted, whether the principal offender or other party to the crime or person by whom such property was so obtained has or has not been indicted or convicted, or is or is not amenable to justice; and such accessory may be indicted either alone, as for a substantive crime, or jointly with such principal or other offender or person by whom such property was dishonestly obtained.
(2.)
When any property has been dishonestly obtained any number of receivers at different times of such property, or of any part or parts thereof, may be charged with substantive crimes, and may be tried together, whether the person by whom the property was so obtained is or is not indicted with them, or is or is not in custody or amenable to justice.
378 Special pleas.
(1.)
The following special pleas, and no others, may be pleaded according to the provisions hereinafter contained, that is to say, a plea of previous acquittal, a plea of previous conviction, and a plea of pardon.
(2.)
All other grounds of defence may be relied on under the plea of not guilty.
(3.)
The pleas of previous acquittal, or previous conviction, and pardon may be pleaded together, and if pleaded shall be disposed of before the accused is called on to plead further; and, if every such plea is disposed of against the accused, he shall be allowed to plead not guilty.
(4.)
In any plea of previous acquittal or previous conviction it shall be sufficient for the accused to state that he has been lawfully acquitted or convicted, as the case may be, of the offence charged in the count or counts to which such plea is pleaded.
379 Pleas of previous acquittal and conviction.
(1.)
On the trial of au issue on a plea of previous acquittal or conviction to any count or counts, if it appear that the matter on which the accused was given in charge on the former trial is the same in whole or in part as that on which it is proposed to give him in charge, and that he might on the former trial, if all proper amendments had been made which might then have been made, have been convicted of all the crimes of which he may be convicted on the count or counts to which such plea is pleaded, the Court shall give judgment that he be discharged from such count or counts.
(2.)
If it appear that the accused might on the former trial have been convicted of any crime of which he might be convicted on the count or counts to which such plea is pleaded, but that he may be convicted on any such count or counts of some crime or crimes of which he could not have been convicted on the former trial, the Court shall direct that he shall not be convicted on any such count or counts of any crime of which he might have been convicted on the former trial, but that he shall plead over as to the other crime or crimes charged.
380 Second accusation.
(1.)
When an indictment charges substantially the same crime as that charged in the indictment on which the accused was given in charge on a former trial, but adds a statement of intention or circumstances of aggravation tending if proved to increase the punishment, the previous acquittal or conviction shall be a bar to such subsequent indictment.
(2.)
A previous conviction or acquittal on an indictment for murder shall be a bar to a second indictment for the same homicide charging it as manslaughter; and a previous conviction or acquittal on an indictment for manslaughter shall be a bar to a second indictment for the same homicide charging it as murder.
(3.)
If it appears on the trial of an issue on a plea of autrefois acquit or convict to an indictment for murder or manslaughter that the former trial was for a crime against the person alleged to have been now killed, and the death of such person is now alleged to have been caused by the crime previously charged, but that the death happened after the trial on which the accused was acquitted or convicted, as the case may be, then, if it appears that on the first trial the accused might if convicted have been sentenced to penal servitude or imprisonment with hard labour for three years or upwards, the Court shall direct that the accused be discharged from the indictment before it. If it does not so appear the Court shall direct that he plead over.
381 Evidence of former trial.
On the trial of an issue on a plea of previous acquittal or conviction, the depositions transmitted to the Court on the former trial, together with a copy of the Judge’s notes, certified by an officer of the Court, if available, and the depositions transmitted to the Court on the subsequent charge, shall be admissible in evidence to prove or disprove the identity of the charges.
382 Application of this Part to criminal informations.
The provisions of this Part relating to indictments shall, so far as they are applicable thereto, apply to criminal informations.
Part XLI Preferring Indictment
383 Sending bill before Grand Jury.
(1.)
Any one who is bound over to prosecute any person, whether committed for trial or not, may prefer a bill of indictment for the charge on which the accused has been committed, or in respect of which the prosecutor is so bound over, or for any charge founded upon the facts or evidence disclosed on the depositions taken before the Justice.
(2.)
The accused may, at any time before he is given in charge to the jury, apply to the Court to quash any count in the indictment, on the ground that it is not founded on such facts or evidence, and the Court shall quash such count if satisfied that it is not so founded.
(3.)
If at any time during the trial it appears to the Court that any count is not so founded, and that injustice has been or is likely to be done to the accused in consequence of such count remaining in the indictment, the Court may then quash such count and discharge the jury from finding any verdict upon it, but the Court shall not do so unless satisfied that justice requires it.
(4.)
The Attorney-General, or any one with the written consent of a Judge of the Supreme Court or of the Attorney-General, may prefer a bill of indictment for any offence before the Grand Jury of any Court specified in such consent; and any person may prefer any bill of indictment before the Supreme Court at a sitting for the trial of criminal cases by order of such Court.
(5.)
It shall not be necessary to state such consent or order in the indictment. An objection to an indictment for want of such consent or order must be taken by motion to quash the indictment before the accused person is given in charge to a petty jury.
(6.)
Save as aforesaid no bill of indictment shall after the commencement of this Act be preferred: Provided that nothing herein contained shall affect the practice whereby the Attorney-General or any person duly appointed for such purpose, or the Crown counsel at any District Court, may prefer any bill of indictment in any case.
384 Swearing of witnesses before Grand Jury by their foreman.
(1.)
The foreman of every Grand Jury shall administer an oath to all persons who shall appear before such Grand Jury to give evidence in support of any bill of indictment; and all such persons attending before such Grand Jury to give evidence may be sworn and examined by such Grand Jury touching the matters in question.
(2.)
Every person taking any oath or affirmation in support of any bill of indictment who shall wilfully affirm or swear falsely shall be deemed guilty of perjury.
(3.)
The name of any witness so examined, or intended to be so examined, shall be indorsed on such bill of indictment, and the foreman of each Grand Jury shall write his initials against the name of each witness sworn and examined touching such bill of indictment.
(4.)
Upon the written order of the presiding Judge, but not otherwise, any other witness may be sworn and examined by and before the Grand Jury, though the name of the witness may not have been indorsed on the bill of indictment.
(5.)
It shall not be necessary for any person to take an oath in open Court to qualify such person to give evidence before any Grand Jury.
385 Presentment to be upon indictment only.
(1.)
After the commencement of this Act no Grand Jury shall present that any one has committed an offence except upon a bill of indictment duly sent before them.
(2.)
After the commencement of this Act no one shall be tried upon any Coroner’s inquisition.
386 Copy of indictment.
After the indictment is found every one charged therein shall be entitled to have a copy thereof, free of charge, from the officer of the Court.
387 Special provisions in treason.
(1.)
When any one is indicted for treason, or for being accessory after the fact to treason, the following documents shall be delivered to him after the indictment has been found, and at least ten days before his arraignment, that is to say,—
(a.)
A copy of the indictment;
(b.)
A list of the witnesses to be produced on the trial to prove the indictment; and
(c.)
A copy of the panel of the jurors who are to try him returned by the Sheriff.
(2.)
The list of the witnesses and the copy of the panel of the jurors must mention the names, occupations, and places of abode of the said witnesses and jurors.
(3.)
The documents aforesaid must all be given to the accused at the same time and in the presence of two witnesses:
(4.)
Provided that, if the trial is to be heard in the Court of Appeal, the list of jurors aforesaid may be given to the accused after his arraignment, if it is given ten days before the trial.
388 Bench warrant.
(1.)
When any one against whom an indictment has been duly preferred, and has been found, and who is then at large, does not appear to plead to such indictment, whether be is under recognisance to appear or not, the following consequences shall follow, that is to say,—
(2.)
The Court before which the accused ought to have been tried may issue a warrant for his apprehension, which may be executed in any part of the colony.
(3.)
The officer of the Court at which the said indictment is found, or, if the place of trial has been changed, the officer of the Court before which the trial is to take place, shall, at any time after the end of the sittings at which the accused ought to have appeared and pleaded, grant to the prosecutor, upon application made on his behalf and upon payment of one shilling, a certificate of such indictment having been found. The certificate may be in the Form No. 4 in the First Schedule hereto, or to the like effect.
(4.)
Upon production of such certificate to any Justice such Justice shall issue his warrant to apprehend him, and to cause him to be brought before such Justice, or before any other Justice, to be dealt with according to law. The warrant may be in the Form No. 5 in the First Schedule hereto, or to the like effect.
(5.)
If it is proved upon oath before such Justice that any one apprehended and brought before him on such warrant is the person charged and named in such indictment such Justice shall, without further inquiry or examination, either commit him to prison by a warrant which may be in the Form No. 6 in the First Schedule hereto, or to the like effect, or admit him to bail as in other cases provided; but, if it appears that the accused has, without reasonable excuse, broken his recognisance to appear, he shall not in any case be bailable as of right.
(6.)
If it is proved before the Justice upon oath that any such accused person is, at the time of such application and production of the said certificate as aforesaid, confined in any prison for any other offence than that charged in the said indictment such Justice shall issue his warrant directed to the governor of the prison in which such person is then confined as aforesaid, commanding him to detain him in his custody until by lawful authority be is removed therefrom. Such warrant may be in the Form No. 6 in the First Schedule hereto, or to the like effect.
389 Outlawry and forfeitures abolished.
Outlawry in criminal cases is abolished.
No confession, verdict, inquest, conviction, or judgment of any crime, or for felo de se, shall cause any attainder or corruption of blood, or any forfeiture or escheat, other than any fine or penalty imposed by the sentence of the Court.
Part XLII Trial
390 Record of proceedings.
(1.)
It shall not in any case be necessary to draw up any formal record of the proceedings on a trial for a crime; but the proper officer of the Court before which the trial takes place shall cause to be preserved all indictments and all depositions transmitted to him, and he shall keep a book to be called the Crown Book, which book shall be the property of the Court, and shall be deemed a record thereof, and the contents thereof provable by a certified copy or extract, without production of the original.
(2.)
In the Crown Book shall be entered the names of the Judge of the Court and of the grand jurors, and a memorandum of the substance of all proceedings at every trial and of the result of every trial.
(3.)
Such entries, or a certified copy thereof, or of so much thereof as may be material, may be referred to on any proceeding by way of appeal as herein provided.
(4.)
Any certificate of any indictment, trial, conviction, or acquittal, or of the substance thereof, made up from the memorandum in such book, shall be received in evidence for the same purpose and to the same extent as certificates of records, or the substantial parts thereof, are now receivable.
(5.)
Any erroneous or defective entry in the Crown Book may at any time be amended in accordance with the fact by the Judge or Justice who presided at the trial:
Provided always that nothing herein contained shall dispense with the taking of notes by the Judge or Justice presiding at the trial.
(6.)
If the trial takes place before a different Court from that to which the accused was committed for trial, or at a different Court from that before which the indictment was found, a statement shall be made in the Crown Book of the order under which the trial is held, and by whom or where it was so made.
(7.)
The officer of the Court shall cause to be entered in the Crown Book a statement of the following particulars:—
(a.)
The name of the committing Justice, and the charge on which the accused was committed; or,
(b.)
If the accused was not committed, and the prosecutor was bound over to prosecute under the provisions of this Act, the name of such prosecutor, and by whom be was bound over; or,
(c.)
If the indictment is preferred by leave, then the name of the Court, Judge, or Justice granting such leave;
(d.)
The names of all the witnesses whose depositions have been transmitted to the officer of the Court, and of the Justices before whom and of the places where their depositions were taken:
(8.)
Provided that the absence of such a statement, or any mistake in it, shall not be an objection to the proceedings; but the Court to which the Crown Book belongs may, and shall on the application of either the prosecutor or accused at any time, order a statement of these particulars to be entered, or amend the statement where erroneous or defective.
391 Right to be defended.
Every person accused of any offence whatever may make his full defence thereto by himself or by counsel, or by solicitor in Courts where solicitors practise as advocates.
392 Bringing prisoner up for arraignment.
If any person against whom any indictment is found is at the time confined for some other cause in prison the Court may, by order in writing, without writ of habeas corpus, direct the governor of the prison to bring up the body of such person as often as may be required for the purposes of the trial, and such governor shall obey such order.
393 Arraignment.
Every accused person shall, upon being called upon to plead, be entitled to have the indictment on which he is to be tried read over to him, if he so require.
394 Pleas in abatement abolished.
(1.)
No plea in abatement shall be allowed after the commencement of this Act.
(2.)
Any objection to the constitution of the Grand Jury may be taken by motion to the Court, and the indictment shall be quashed if the Court is of opinion both that such objection is well founded and that the accused has suffered or will suffer prejudice thereby, but not otherwise.
395 Plea.
(1.)
When the accused is called upon to plead he may plead either guilty or not guilty, or such special pleas as hereinbefore provided for.
(2.)
If the accused wilfully refuses to plead, or will not answer directly, the Court may, if it thinks fit, order the proper officer to enter a plea of not guilty.
396 Challenging the array.
(1.)
Either the accused or the prosecutor may challenge the array on the ground of partiality, fraud, or wilful misconduct on the part of the Sheriff or his deputies by whom the panel was returned, but on no other ground. The objection shall be made in writing, and shall state that the person returning the panel was partial, or was fraudulent, or wilfully misconducted himself, as the case may be. Such objection may be in the Form No. 7 in the First Schedule hereto, or to the like effect.
(2.)
If partiality, fraud, or wilful misconduct, as the case may be, is denied the Court shall appoint any two indifferent persons to try whether the alleged ground of challenge is true or not. If the triers find that the alleged ground of challenge is true in fact, or if the party who has not challenged the array admits that the ground of challenge is true in fact, the Court shall direct a new panel to be returned.
397 Challenges and directions to stand by.
(1.)
Besides the peremptory challenges provided for by “The Juries Act, 1880,”
every prosecutor and every accused person shall be entitled to any number of challenges for cause on any of the following grounds, that is to say,—
(a.)
That any juror’s name does not appear in the Jury Book: Provided that no misnomer or misdescription in the Jury Book shall be a ground of challenge if it appears to the Court that the description given in the Jury Book sufficiently designates the persons referred to; or
(b.)
That any juror is not indifferent between the Queen and the accused; or
(c.)
That any juror is disqualified under the law in force for the time being.
(2.)
No other ground of challenge for cause than those above mentioned shall be allowed.
(3.)
If any such challenge is made the Court may, in its discretion, require any party challenging to put his challenge in writing. The challenge may be in the Form No. 8 in the First Schedule hereto, or to the like effect. The other party may deny that the ground of challenge is true.
(4.)
If the ground of challenge is that the juror’s name does not appear in the Jury Book the issue shall be tried by the Court on the voir dire by the inspection of the Jury Book, and such other evidence as the Court thinks fit to receive.
(5.)
If the ground of challenge be other than as aforesaid, the two jurors last sworn, or, if no jurors have then been sworn, then two persons present whom the Court may appoint for that purpose, shall be sworn to try whether the juror objected to stands indifferent between the Queen and the accused, or is disqualified as aforesaid, as the case may be. If the Court or the triers find against the challenge the juror shall be sworn. If they find for the challenge he shall not be sworn. If, after what the Court considers a reasonable time, the triers are unable to agree, the Court may discharge them from giving a verdict and may direct other persons to be sworn in their place.
(6.)
The prosecutor shall have no power to challenge any juror peremptorily, but he may direct any number of jurors not peremptorily challenged by the accused to stand by until all the jurors have been called who are available for the purpose of trying that indictment.
(7.)
The accused may be called upon to declare whether be challenges any juror peremptorily or otherwise before the prosecutor is called upon to declare whether be requires such juror to stand by, or challenges him for cause.
398 Evidence of accused.
(1.)
Every one proceeded against by indictment for any offence, either solely or with others, shall be a competent but not compellable witness for himself or herself upon his or her trial for such offence, and the wife or husband, as the case may be, of every such accused person shall be a competent witness for him or her upon such trial:
(2.)
Provided that the wife or husband of an accused person shall not be called as a witness without the consent of such accused person, except in any case in which such wife or husband are compellable to give evidence, or the charge be one in which either husband or wife is charged with inciting or being accessory to an offence against the other:
(3.)
Provided that no such person shall be liable to be called as a witness by the prosecutor, but every such witness called and giving evidence on behalf of the accused shall be liable to be cross-examined like any other witness on any matter though not arising out of his examination in chief:
(4.)
Provided that, so far as the cross-examination relates to any previous conviction of the accused, or to the credit of the accused, the Court may limit such cross-examination to such extent as it thinks proper, although the proposed cross-examination might be permissible in the case of any other witness.
399 Evidence of accused when undefended.
If an accused person, or any one of several accused persons being tried together, is not defended by counsel, then, on the completion of the examination of the witnesses on the part of the prosecution, the following caution, or words to the like effect, shall be addressed to him by or under the direction of the Court: that is to say, “Having heard the evidence against you, do you wish to be called as a witness and give evidence in answer to the charge? You are not obliged to give evidence, and if you decide not to be examined the fact will not be allowed to be subject of comment; but, if you are called, the evidence you give may be used against you.”
400 No adverse comment allowed.
If a person charged with an offence shall refrain from giving evidence, or from calling his wife or her husband, as the case may be, as a witness, no comment adverse to the person charged shall be allowed to be made thereon.
401 Summing up.
(1.)
If an accused person, or any one of several accused persons being tried together, is defended by counsel, such counsel shall at the end of the case for the prosecution declare whether be intends to adduce evidence or not on behalf of the accused person for whom be appears, and, if no counsel for any such accused person thereupon announces his intention to adduce evidence, the counsel for the prosecution may address the jury by way of summing up.
(2.)
Upon every trial of any person for any crime, whether the accused person is defended by counsel or not, he shall be allowed, if he thinks fit, to open his case, and after the conclusion of such opening the accused person or his counsel shall be entitled to examine such witnesses as he thinks fit, and, when all the evidence is concluded, to sum up the evidence. In case evidence for the defence is adduced, the counsel for the prosecution shall have the right to reply.
402 Adjourning trial for witnesses.
(1.)
If the Court is of opinion that the accused is taken by surprise in a manner likely to be prejudicial to his defence by the production on behalf of the prosecutor of a witness who has not made any deposition, and of the intention to produce whom the accused has not had sufficient notice, the Court may, on the application of the accused, adjourn the further hearing of the case, or discharge the jury from giving a verdict, and postpone the trial.
(2.)
If the Court is of opinion that any witness who is not called for the prosecution ought to be so called it may require the prosecutor to call him, and, if the witness is not in attendance, make an order that his attendance shall be procured, and. the Court may, if it thinks proper, adjourn the further hearing of the case to some other time during the sittings until such witness attends.
(3.)
If in such case the Court is of opinion that it would be conducive to the ends of justice to do so it may, upon the application of the accused, discharge the jury and postpone the trial.
403 Admissions.
Any accused person on his trial for any crime, or his counsel or solicitor, may admit any fact alleged against the accused so as to dispense with proof thereof.
404 Jury retiring to consider verdict.
(1.)
If the jury retire to consider their verdict they shall be kept under the charge of an officer of the Court in some private place, where they shall be allowed to have the use of necessary fire and lights, and, with the consent of the Court, to have reasonable refreshment.
(2.)
No person other than the officer of the Court who has charge of them shall be permitted to speak or to communicate in any way with any of the jury without the leave of the Court.
(3.)
Disobedience to the directions of this section shall not affect the validity of the proceedings:
Provided that, if such disobedience is discovered before the verdict of the jury is returned, the Court, if it is of opinion that such disobedience has produced substantial mischief, may discharge the jury and direct a new jury to be sworn or empanelled during the sitting of the Court, or postpone the trial on such terms as justice may require.
405 Motion in arrest of judgment.
(1.)
If the jury find the accused guilty, or if the accused pleads guilty, it shall be the duty of the officer of the Court to ask him whether he has anything to say why sentence should not be passed upon him according to law; but the omission so to ask shall have no effect on the validity of the proceedings.
(2.)
The accused may, at any time before sentence, move in arrest of judgment on the ground that the indictment does not (after any amendment which the Court is willing to and has power to make) state any crime.
(3.)
The Court may in its discretion either hear and determine the matter during the same sittings, or reserve the matter for the Court of Appeal, as by “The Court of Appeal Act, 1882,”
provided. If the Court decides in favour of the accused he shall be discharged from that indictment.
(4.)
If no such motion is made, or if the Court decides against the accused upon such motion, the Court may sentence the accused during the sittings of the Court, or the Court may in its discretion discharge him on his own recognisance, or on that of such sureties as the Court thinks fit, or both, to appear and receive judgment at some future sitting of the Court, or when called upon.
(5.)
If sentence is not passed during the sitting any Judge of the Court may, at a subsequent sitting, pass sentence upon him or direct him to be discharged.
(6.)
When any sentence is passed upon any person after a trial had under an order for changing the place of trial the Court may, in its discretion, either direct the sentence to be carried out at the place where the trial was had, or order the person sentenced to be removed to the place where his trial would have been had but for such order, so that the sentence may be there carried out.
406 Woman sentenced to death while pregnant.
(1.)
If sentence of death is passed upon any woman she may move in arrest of execution on the ground that she is pregnant.
(2.)
If such a motion is made the Court shall direct one or more registered medical practitioners to be sworn to examine the woman in some private place, either together or successively, and to inquire whether she is with child or not.
(3.)
If upon the report of any of them it appears to the Court that she is so with child execution shall be arrested till she is delivered of a child, or until it is no longer possible in the course of nature that she should be so delivered.
(4.)
After the commencement of this Act no jury de ventre inspiciendo shall be empanelled or sworn.
407 Adjournment.
(1.)
From the time when the accused is given in charge to the jury the trial shall proceed continuously, subject to the power of the Court to adjourn it.
(2.)
Upon every such adjournment the Court may in all cases, if it thinks fit, direct that during the adjournment the jury shall be kept together, and proper provision made for preventing the jury from holding communication with any one on the subject of the trial.
(3.)
Such direction shall be given in all cases in which the accused may upon conviction be sentenced to death.
(4.)
In other cases, if no such direction is given, the jury shall be permitted to separate.
(5.)
No formal adjournment of the Court shall hereafter be required, and no entry thereof in the Crown Book shall be necessary.
408 Discharge of jury.
(1.)
The Court may, in case of any emergency or casualty rendering it, in its opinion, highly expedient for the ends of justice so to do, in its discretion discharge the jury without giving a verdict, and direct a new jury to be empanelled during the sittings of the Court, or postpone the trial on such terms as justice may require.
(2.)
It shall not be lawful for any Court to review the exercise of this discretion.
(3.)
If the presiding Judge becomes incapable of trying the case or directing the jury to be discharged the officer of the Court shall discharge the jury.
(4.)
If one or more of the jurors, before they retire to consider their verdict, become in the opinion of the Court incapable of continuing to perform their duty, the Court may either discharge the jury and direct a new jury to be empanelled during the sittings of the Court, or postpone the trial, or, in its discretion, and with the consent of the prosecutor and the accused, proceed with the remaining jurors and take their verdict, which shall have the same effect as the verdict of the whole number.
409 Presence of the accused.
(1.)
Every accused person shall be entitled to be present in Court during the whole of his trial, unless be misconducts himself by so interrupting the proceedings as to render their continuance in his presence impracticable.
(2.)
The Court may, if it thinks proper, permit the accused to be out of Court during the whole or any part of any trial on such terms as it thinks proper.
410 Proceedings on Sunday.
The taking of the verdict of the jury or other proceeding of the Court shall not be invalid by reason of its happening on Sunday.
411 Stay of proceedings.
The Attorney-General may at any time after an indictment has been found against any person for any crime, and before judgment is given thereon, direct the officer of the Court to make in the Crown Book an entry that the proceedings are stayed by his direction, and on such entry being made all such proceedings shall be stayed accordingly.
The Attorney-General may delegate such power in any particular Court to any counsel nominated by him.
Part XLIII Appeal
412 Reserving questions of law.
(1.)
The Court before which any accused person is tried may, either during or after the trial, reserve any question of law arising either on the trial or on any of the proceedings preliminary, subsequent, or incidental thereto, or arising out of the direction of the Judge, for the opinion of the Court of Appeal in manner hereinafter provided.
(2.)
If the decision of the question may in the opinion of the Court depend on any question of fact or facts, the Court may in its discretion ask the jury questions as to such facts separately, and the Court shall make a note of such questions and the findings thereon.
(3.)
Either the prosecutor or the accused may during the trial apply to the Court to reserve any such question as aforesaid, and the Court, if it refuses so to reserve it, shall nevertheless take a note of such objection, unless it considers the application frivolous.
(4.)
If the result is acquittal the accused shall be discharged, subject to being arrested again if the Court of Appeal orders a new trial.
(5.)
If the result is a conviction the Court may in its discretion respite the execution of the sentence or postpone sentence till the question reserved has been decided, and in either case shall in its discretion commit the person convicted to prison or admit him to bail with one or two sufficient sureties, in such sums as the Court thinks fit, to surrender at such time as the Court directs.
(6.)
If the question is reserved a case shall be stated for the opinion of the Court of Appeal, to be approved and signed by the Judge who presided at the trial.
413 Appeal when no question reserved.
(1.)
If the Court refuses to reserve the question the party applying may, with the leave in writing of the Attorney-General, move the Court of Appeal as hereinafter provided. The Attorney-General may in his discretion give or refuse such leave.
(2.)
The Attorney-General, or any person to whom such leave as aforesaid is given, may, on notice of motion to be given to the accused or prosecutor, as the case may be, move the Court of Appeal for leave to appeal. The Court of Appeal may, upon the motion, and upon considering such evidence (if any) as they think fit to require, grant or refuse such leave.
(3.)
If leave to appeal is granted a case shall be stated for the opinion of the Court of Appeal as if the question had been reserved.
(4.)
If the sentence is alleged to be one which could not by law be passed either party may, with the leave in writing of the Attorney-General, upon giving notice of motion to the other side move the Court of Appeal to pass a proper sentence.
(5.)
If the Court has arrested judgment, and refused to pass any sentence, the prosecutor may without leave make such a motion.
414 Evidence for Court of Appeal.
(1.)
On any appeal or application for a new trial, the Court before which the trial was had shall, if it thinks necessary, or if the Court of Appeal so desires, send to the Court of Appeal a copy of the whole or of such part as may be material of the notes taken by the Judge or presiding Justice at the trial.
(2.)
The Court of Appeal may, if it considers such notes defective, refer to such other evidence of what took place at the trial as it may think fit. The Court of Appeal may in its discretion send back any case to the Court by which it was stated to be amended or restated.
415 Powers of Court of Appeal.
(1.)
Upon the hearing of any appeal under the powers hereinbefore contained the Court of Appeal in criminal cases may—
(a.)
Confirm the ruling appealed from; or,
(b.)
If of opinion that the ruling was erroneous, and that there has been a mistrial in consequence, direct a new trial; or,
(c.)
If it considers the sentence erroneous or the arrest of judgment erroneous, pass such a sentence as ought to have been passed, or set aside any sentence passed by the Court below, and remit the case to the Court below with a direction to pass the proper sentence; or,
(d.)
If of opinion, in a case in which the accused has been convicted, that the ruling was erroneous, and that the accused ought to have been acquitted, direct that the accused shall be discharged, which order shall have all the effects of an acquittal; or
(e.)
In any case, whether the appeal is on behalf of the prosecutor or of the accused, direct a new trial; or
(f.)
Make such other order as justice requires:
Provided that no conviction or acquittal shall be set aside, nor any new trial directed, although it appears that some evidence was improperly admitted or rejected, or that something not according to law was done at the trial, or some misdirection given, unless in the opinion of the Court of Appeal some substantial wrong or miscarriage was thereby occasioned on the trial:
Provided that if the Court of Appeal is of opinion that any challenge was improperly disallowed a new trial shall be granted.
(2.)
If it appears to the Court of Appeal that such wrong or miscarriage affected some count only of the indictment the Court may. give separate directions as to each count, and may pass sentence on any count unaffected by such wrong or miscarriage which stands good, or remit the case to the Court below with directions to pass such sentence as justice may require.
(3.)
The order or direction of the Court of Appeal shall be certified under the hand of the presiding Judge to the proper officer of the Court before which the case was tried, and such order or direction shall be carried into effect.
416 Application for a new trial.
(1.)
After the conviction of any person for any crime, the Court before which the trial takes place may, either during the sittings or afterwards, give leave to the person convicted to apply to the Court of Appeal for a new trial on the ground that the verdict was against the weight of evidence. The Court of Appeal may, upon hearing such motion, direct a new trial if it thinks fit.
(2.)
In the case of a trial before a District Court such leave may be given, during or at the end of the sitting, by the Judge who presided at the trial.
417 New trial by order of Governor in Council.
If, upon the application for the mercy of the Crown on behalf of any person convicted of a crime, the Governor in Council entertains a doubt whether such person ought to have been convicted, he may, instead of remitting or commuting the sentence, after such inquiry as he thinks proper, by an order in writing, direct a new trial at such time and before such Court as he may think proper.
418 Intermediate effects of appeal.
(1.)
The sentence of a Court shall not be suspended by reason of any appeal, unless the Court expressly so directs, except where the sentence is that the accused suffer death, flogging, or whipping.
(2.)
The production of a certificate from the officer of the Court that a question has been reserved, or that leave has been given to apply for a new trial, or of a certificate from the Attorney-General that he has given leave to move the Court of Appeal, or of a certificate from the Governor in Council that he has directed a new trial, shall be a sufficient warrant to suspend the execution of any sentence of death, flogging, or whipping.
(3.)
In all cases it shall be in the discretion of the Court of Appeal or the Governor in Council, in directing a new trial, to order the accused to be admitted to bail or kept in custody as it or he may think fit.
Part XLIV Costs. Restitution of Property
419 Accused may be ordered to pay costs and compensation.
(1.)
Whenever any accused person is convicted of any crime the Court may order him to pay the costs of the prosecution, in addition to any sentence which may be passed upon him; and may also order him to pay to any person aggrieved any sum not exceeding one hundred pounds by way of satisfaction or compensation for any loss of property suffered by such person through or by means of the crime of the offender.
(2.)
Such order, upon being filed in the Supreme Court, shall have the effect of a judgment.
(3.)
If, upon the apprehension of any such person, any money was taken from him, the Court may, in its discretion, order the whole or any part thereof to be applied to any such payment.
(4.)
No such order as aforesaid shall affect the claim of the prosecutor and the witnesses, or either of them, to be paid their costs, allowances, or expenses in the same manner as if this Act had not passed.
420 Costs of conveying persons to and from prison.
All provisions of any Act in force for the time being relating to the payment of the expenses of conveying any person to or from prison under the provisions of any such Act, shall apply to the payment of the expense of conveying any person to or from prison under the provisions of this Act.
421 Restitution of property.
(1.)
When any one is convicted of any crime any property found in his possession, or in the possession of any other person for him, may be ordered by the Court to be delivered to the person who appears to the Court to be entitled thereto.
(2.)
When any one is convicted of having stolen or dishonestly obtained any property, and it appears to the Court that the same has been pawned to a pawnbroker, the Court may order the delivery thereof to the person appearing to the Court to be the owner, either on payment or without payment to the pawnbroker of the amount of the loan or any part thereof, as to the Court under all the circumstances of the case may seem just.
(3.)
If the person in whose favour any such order is made pays the money to the pawnbroker under such order and obtains the property he shall not afterwards question the validity of the pawn, but save to that extent no order made under this section shall have any further effect than to change the possession, and no such order shall prejudice any right of property or right of action in respect to property existing or acquired in the goods either before or after the offence was committed.
Part XLV Repeals
422 Repeal.
The Acts and parts of Acts mentioned in Part I. of the Third Schedule hereto shall cease to have operation in New Zealand on the commencement of this Act, and those mentioned in Part II. of the same schedule shall be repealed to the extent stated therein.
Saving clause.
But such repeal shall not affect the validity, invalidity, effect, or consequences of any act done duly, or of any warrant or instrument duly made or granted, before the commencement of this Act, or any right or title, liability, privilege, or protection acquired or existing in respect of any matter or thing committed or done before the commencement of this Act, or any remedy, action, prosecution, or other proceeding commenced before the commencement of this Act, or thereafter commenced in respect of any such matter or thing:
Provided that, where an enactment hereby repealed has altered or abolished any rule of the common law as to procedure or otherwise, the repeal of such enactment by this Act shall not be deemed to restore such rule of the common law:
Provided also that where, in any enactment not hereby repealed, any larceny or stealing, or embezzlement, or obtaining by any false pretence, or any attempt to commit larceny or attempt to steal, or to embezzle, or to obtain by any false pretence, is made punishable on summary conviction, such enactment shall be held to apply to theft or stealing, or obtaining by a false pretence, or an attempt to commit theft or stealing, or to obtain by a false pretence as defined by this Act.
423 Trial of offences committed before commencement of Act.
Every offence committed before the commencement of this Act shall be determined and punished, and (subject to the provisions of section three hereof) shall be inquired into and tried, as if the Acts and enactments repealed by this Act had not been so repealed.
424 References to repealed Acts to apply to this Act.
Where in any unrepealed Act or enactment, Proclamation, Order in Council, or in any legal or other document, warrant, writ, process, or other instrument, reference is made to any Act or to the provisions of any Act repealed by this Act, such reference shall be construed and shall operate as if it had been made to this Act or to the provisions thereof corresponding to the Act or provisions so referred to.
SCHEDULES
FIRST SCHEDULE
Sec. 41
No. 1. Warrant to Search
Whereas it appears on the oath of C.B., of M.N., that there is reason to suspect that [Insert description of the things to be searched for, and of the offence in respect of which the search is made] are concealed in at :
This is therefore to authorise and require you to enter between the hours of [1] into the said premises, and to search for the said things, and to bring the same before me or some other Justice.
J.S., Justice.
This day of , 18 .
To [Address to the police-constable who is to execute the warrant by his proper title], of .
No. 2. Notice of Intention to take Deposition of a Witness who is Ill
Sec. 344
To A.B., of .
Take notice that, whereas it has been proved upon the oath of , before [name and residence of Justice], that [name and full description of witness]is able to give evidence tending to prove the guilt [or innocence] of the accused, the examination of the said will be taken at , on , at o’clock, on which occasion, if you think proper, you, your counsel or solicitor, may attend and cross examine the said ; and take notice that, whether you attend or not, the deposition then taken of the said may be given in evidence at the trial, notwithstanding your absence from such examination.
J.S., Justice.
No. 3. Indictment
Secs. 362, 373
[Heading.]
In the [name of Court in which the indictment is found].
The jurors for our Lady the Queen present that .
[Where there are more counts than one, add at the beginning of each count: The said jurors further present that .]
Charge
Examples of the Manner of stating Offences
(a.)
A murdered B at , on .
(b.)
A stole a sack of flour from a ship called the , at , on .
(c.)
A obtained by false pretences from B a horse, a cart, and the harness of a horse, at on .
(d.)
A committed perjury with intent to procure the conviction of B for an offence punishable with imprisonment with hard labour for three years or upwards, namely, robbery, by swearing on the trial of B for the robbery of C at the sittings of the Court for the , held at on the day of , 18 , first, that he, A, saw B at on the day of ; secondly, that B asked A to lend B money on a watch belonging to C; thirdly, &c.
Or
(e.)
The said A committed perjury on the trial of B at a sitting of the Court held at on , for an assault alleged to have been committed by the said B on C at on the day of , by swearing to the effect that the said B could not have been at at the time of the alleged assault, inasmuch as the said A had seen him at that time in
(f.)
A, with intent to maim, disfigure, disable, or do grievous bodily harm to B, or with intent to resist the lawful apprehension or detainer of A [or C], did actual bodily harm to B [or D].
(g.)
A, with intent to injure or endanger the safety of persons on the Railway, did an act calculated to interfere with an engine, a tender, and certain carriages on the said railway on at , by [Describe with so much detail as is sufficient to give the accused reasonable information as to the acts or omissions relied on against him, and to identify the transaction].
(h.)
A, without leave of Her Majesty, did at equip, furnish, fit out, or arm, or attempt or endeavour to equip, furnish, fit out, or arm [This statement in the alternative is rendered sufficient by the code; section 73 renders it unnecessary to proceed to state that they “procured, aided, or assisted”
in the equipment] a ship called the “ ,”
in order that it might be employed in the service of a certain foreign Power called against a foreign Power called , with which Her Majesty was not then at war.
No. 4. Certificate of Indictment being found
Sec. 388
[Heading.]
I hereby certify that at the [Insert name of Court] held at , in the on the day of , a bill of indictment was found by the Grand Jury against A.B., therein described as A.B., of M.N., for that on the day of at , [Insert offence, as in indictment]; and that the said A.B. has not appeared or pleaded to said indictment.
Dated this day of .
C.C., Clerk of Court.
This day of, 18.
No. 5. Warrant to arrest
Sec. 388
[Heading.]
Whereas an information has been made on oath and in writing that [Insert charge as in information]: And [If the case be so, add—for accused: whereas a summons has been issued to A.B. (the accused), or G.H. (a witness), and A.B. (or G.H.) has neglected to appear in obedience to the summons, and oath has been made of the service of the summons. For witness: whereas oath has been made that G.H. can give material evidence, but will not attend voluntarily; or whereas oath has been made that G.H. is keeping out of the way of personal service of a summons. If after indictment: whereas it has been certified to me that (State as in certificate of clerk of Crown or peace)]:
This is to command you to whom this warrant is addressed to arrest the said [person against whom warrant is issued], of , and to bring him before me or some other Justice of the Peace to answer to the said complaint.
J.S., Justice.
This day of , 18 .
To W.T., Police-constable, of [or To W.T. and all other police-constables in , or To all police-constables in ].
[Heading.]
Sec. 345
Whereas A.B., who stands charged before me at , was admitted to bail to appear at , on , and has made default therein:
This is to command you, &c. [as in the last-preceding form].
No. 6. Warrant to commit (or detain) for Trial, etc
Sec. 344
[Heading.]
Whereas a charge was made on the day of , on the oath of G.H. [or G.H. and others, as the case may be], that [Insert charge, with time and place]: And [Insert recitals: If indictment found: whereas a bill of indictment has been found against the said A.B. for the said offence]:
[If adjournments: whereas the hearing of the said complaint has been adjourned to the day of at ; (or whereas the hearing of the said charge was adjourned, &c.), and the said A.B. was admitted to appear on bail that day (or such earlier day as should be required), and whereas be was summoned to attend on the day of , but did not appear according to his recognisance:]
[Remands on arrest: whereas the said A.B. has been brought before me under a warrant of arrest, and the said charge is to be heard on the day of at :]
[Refractory witness: whereas G.H., a material witness, has, without just excuse, refused to make oath as a witness (or to answer certain questions) (or to enter into recognisance to give evidence on the trial of the said A.B.) in that behalf:]
This is to command you to whom this warrant is addressed to lodge the said [name of person to be committed], of , in the prison at , there to be imprisoned by the governor of said prison, as follows:—[Period of imprisonment: For trial—until his trial of said offence, or till he shall be discharged by due course of the law. For witness—until the trial of the said A.B., unless he shall in the meantime enter into such recognisance as required (or until the day of , unless he shall in the meantime consent to answer as required). For adjournments— until the above time of adjournment (or hearing), (or such earlier day as he may be required upon), when he shall have him at the above place.]
And for this the present warrant shall be a sufficient authority to all whom it may concern.
J. S., Justice.
This day of , 18 .
To W.T., Police-constable [by his proper title], of , and to all other police-constables in .
Challenges
No. 7. Challenge to Array
Sec. 396
The Queen v. A.B. The said C.D., who prosecutes for our Lady the Queen [or The said A.B., as the case may be], challenges the array of the panel on the ground that it was returned by X.Y., Sheriff of the Judicial District of [or E.F., deputy of X.Y., Sheriff of the Judicial District of , as the ease may be], and that the said X.Y. [or E.F., as the case may be] was guilty of partiality [or fraud, or wilful misconduct] on returning said panel.
No. 8. Challenge to Poll.
Sec. 397
The Queen v. A.B. The said C.D., who prosecutes, &c. [or The said A.B., as the case may be], challenges G.H., on the ground that his name does not appear in the Jury Book [or that he is not indifferent between the Queen and the said A.B., or that he is disqualified under the law for the time being in force].
SECOND SCHEDULE Commitment by a Substituted Court
Sec. 359
No. 1.
To the Gaoler of the prison at , and to the Gaoler of the prison at .
In the Supreme Court of New Zealand, District. To wit.)
Whereas at a sitting for the trial of criminal cases of the Supreme Court holden at , on the day of , in the year of our Lord 18 ,[prisoner’s name] was convicted of [Here state shortly the offence], and. was thereupon sentenced by the said Court to be [Here state the sentence, including the place where it is directed to be executed]:
These are therefore in Her Majesty’s name to command you, the said Gaoler of the said prison at , forthwith to cause the said [prisoner’s name] to be delivered into the custody of the said Gaoler at the said prison at , together with this order; and also to command you, the said Gaoler of the said last-mentioned prison, to receive the said [prisoner’s name] into your custody in the same prison, and there safely to keep him until the said sentence shall have been executed according to law, or until he shall be otherwise delivered by due course of law.
Given under the hand[s] and seal[s] of me [or us], the undersigned Judge [or Judges] of the said Supreme Court at .
(L.S.)
(L.S.)
A.B.
C.D.
No. 2.
Sec. 359
To the Sheriff of the Sheriff’s District of .
In the Supreme Court of New Zealand, District. To wit.
Whereas at a sitting for trial of criminal cases of the Supreme Court holden at , on the day of , in the year of our Lord 18 , [prisoner’s name] was convicted of [Here state shortly the offence], and was thereupon sentenced by the said Court to be [Here state the sentence, including the place where it is directed to be executed]: And whereas the said [prisoner’s name] has been ordered to be removed into your said district in order that the said sentence may there be executed upon him:
These are therefore in Her Majesty’s name to command you, the said Sheriff, to execute the said sentence upon the said [prisoner’s name] within your said district according to law.
Given under the hand[s] and seal[s] of the undersigned Judge [or Judges] of the said Supreme Court at .
(L.S.)
(L.S.)
A.B.
C.D.
THIRD SCHEDULE
Every description or citation of a portion of an Act is inclusive of the first and last words, section, or other portion of the Act so described or cited.
The Imperial Acts are herein cited from the revised edition of the Statutes of the Realm.
Acts and Parts of Acts repealed
Part I Acts of the Parliaments of England, Great Britain, and the United Kingdom.
| 5 and 6 Edw. VI., c. 11 | An Act for the punishment of divers treasons. |
| 5 Eliz, c. 9 | An Act for the punishment of such persons as shall procure or commit wilful perjury. |
| 8 Eliz, c. 2 | An Act whereby the defendant may recover his costs being wrongfully vexed. |
| and 8 Will. III., c. 3 | An Act for regulating trials in cases of treason and misprision of treason. |
| 9 Will. III., c. 35 | An Act for the more effectual suppressing of blasphemy and profaneness. |
| 11 Will. III., c. 7 | An Act for the more effectual suppression of piracy. The whole, except section twelve. |
| 1 Geo. I., st. 2, c 5 | An Act for preventing tumults and riotous assemblies, and for the more speedy and effectual punishing the rioters. |
| 4 Geo. I., c. 11 | An Act of which the title begins with the words “An Act for the better preventing”and ends with the words “relating to pirates.” |
| 8 Geo. I., c. 24 | An Act for the more effectual suppressing of piracy. The whole, except sections two and seven. |
| 12 Geo. I., c. 29 | An Act to prevent frivolous and vexatious arrests. |
| 2 Geo. II., c. 25 | An Act for the more effectual preventing and further punishment of forgery, perjury, and subornation of perjury, and to make it felony to steal bonds, notes, or other securities for payment of money. |
| 25 Geo. II, c. 37 | An Act for better preventing the horrid crime of murder. |
| 12 Geo. III., c. 24 | An Act for the better securing and preserving His Majesty’s dockyards, magazines, ships, ammunition, and stores. |
| 33 Geo. III., c. 67 | An Act for better preventing offences in obstructing, destroying, or damaging ships or other vessels, and in obstructing seamen, keelmen, casters, and ships’-carpenters from pursuing their lawful avocations. |
| 36 Geo. III., c. 7 | An Act for the safety and preservation of His Majesty’s person and Government against treasonable and seditious practices and attempts. |
| 37 Geo. III., c. 70 | An Act for the better prevention and punishment of attempts to seduce persons serving in His Majesty’s forces by sea or land from their duty and allegiance to His Majesty, and to excite them to mutiny or disobedience. |
| 37 Geo. III., c. 123 | An Act for more effectually preventing the administering or taking of unlawful oaths. |
| 39 Geo. III., c. 79 | An Act for the more effectual suppression of societies established for seditious and treasonable purposes, and for better preventing treasonable and seditious practices. |
| 39 and 40 Geo III., c. 93 | An Act for regulating trials for high treason and misprision of treason. |
| 52 Geo. III., c. 104 | An Act to render more effectual an Act passed in the thirty-seventh year of His present Majesty for preventing the administering or taking of unlawful oaths. |
| 54 Geo. III., c. 146 | An Act to alter the punishment in certain cases of high treason. |
| 57 Geo. III., c. 6 | An Act of which the title begins with the words “An Act to make perpetual”and ends with the words “treasonable Practices and Attempts.” |
| 57 Geo. III., c. 19 | An Act for the more effectually preventing seditious meetings and assemblies. |
| 1 and 2 Geo. IV., c. 88 | An Act for the amendment of the law of rescue. |
| 7 Geo. IV., c. 64 | An Act for improving the administration of criminal justice in England. |
| 7 and 8 Geo. IV., c. 28 | An Act for further improving the administration of justice in criminal cases in England. In part, that is to say, sections ten and eleven. |
| 4 and 5 Will. IV., c. 26. | An Act to abolish the practice of hanging the bodies of criminals in chains. |
| 7 Will. IV., and 1 Viet., c. 88 | An Act to amend certain Acts relating to the crime of piracy. |
| 7 Will. IV., and 1 Viet., c. 90 | An Act to amend the laws relative to offences punishable by transportation for life. |
| 7 and 8 Viet., c.2 | An Act for the more speedy trial of offences committed on the high seas. |
| 11 and 12 Vict., c. 46 | An Act for the removal of defects in the administration of criminal justice. |
| 14 and 15 Vict., c. 19 | An Act for the better prevention of offences. |
| 14 and 15 Vict., c. 100 | An Act for further improving the administration of criminal justice. |
Part II Acts of the General Assembly of New Zealand
| 1854, No. 1 | The English Acts Act, 1854, so far as it adopts any enactment in the First Part of this Schedule before mentioned as repealed. |
| 1854, No. 9 | The Secondary Punishment Act, 1854. The whole of the Act not yet repealed. |
| 1860, No. 20 | The Official Documents Evidence Act, 1860. In part— that is to say, subsection one of section eight. |
| 1866, No. 1 | The Criminal Law Procedure Act, 1866. In part— that is to say, sections three, ten, eleven, and twelve. |
| 1866, No. 8 | The Indictable Offences Trials Act, 1866. |
| 1867, No. 2 | The Coinage Offences Act, 1867. The whole, except as to summary proceedings—that is to say, sections seventeen, twenty-three, twenty-six, thirty-two, thirty-three, thirty-nine, and forty-one. |
| 1867, No. 3 | The Larceny Act, 1867. The whole, except as to summary proceedings—that is to say, sections one, three, fourteen, eighteen, nineteen, twenty-one, twenty-two, twenty-three, twenty-four, twenty-five, thirty-four, thirty-five, thirty-seven, sixty-five, sixty-six, ninety-six, one hundred and one, one hundred and two, one hundred and four, one hundred and five, one hundred and six, one hundred and seven, one hundred and eight, one hundred and nine, one hundred and ten, one hundred and seventeen, and one hundred and nineteen; and also sections twelve, thirty-three, and thirty-six (so far as they respectively make any offence punishable on summary conviction); and sections sixty-two, sixty-seven, sixty-eight, eighty-seven, and eighty-eight, in so far as the offences therein mentioned are made punishable on summary conviction. |
| 1867, No. 4 | The Forgery Act, 1867. |
| 1867, No. 5 | The Offences against the Person Act, 1867. The whole, except as to summary proceedings—that is to say, sections thirty-six, thirty-seven, thirty-nine, forty, forty-one, forty-two, forty-three, sixty-nine, seventy-three, and seventy-four. |
| 1867, No. 6 | The Malicious Injuries to Property Act, 1867. The whole, exceptas to summary proceedings—that is to say, sections twenty-two, twenty-three, twenty-four, twenty-five, thirty-seven, thirty-eight, forty-one, fifty-two, fifty-three, fifty-eight, fifty-nine, sixty-one, sixty-four, sixty-five, sixty-six, sixty-seven, sixty-eight, sixty-nine, seventy, seventy-four, anc1 seventy-six. |
| 1867, No. 7 | The Accessories Act, 1867. |
| 1868, No. 5 | The Treason Felony Act, 1868. |
| 1868, No. 50 | The Law Amendment Act, 1868. In part—that is to say, section five. |
| 1870, No. 7 | The Vexatious Indictments Act, 1870. |
| 1870, No. 8 | The Larceny Act Amendment Act, 1870. |
| 1871, No. 48 | The Convicts’ Forfeitures Act, 1871. In part—that is to say, sections two, three, and four. |
| 1872, No. 28 | The Criminal Law Amendment Act, 1872. |
| 1874, No. 4 | The Offences against the Person Act Amendment Act, 1874. |
| 1875, No. 23 | The Registration of Births and Deaths Act, 1875. In part—that is to say, section forty-five. |
| 1881, No. 7 | The Post Office Act, 1881. In part—that is to say, section fifty-three. |
| 1882, No. 15 | The Justices of the Peace Act, 1882. In part—that is to say, sections one hundred and fifty to one hundred and fifty-six, inclusive. |
| 1882, No. 16 | The Stamp Act, 1882. In part—that is to say, section twenty-three. |
| 1882, No. 29 | The Supreme Court Act, 1882. In part—that is to say, the Code of Civil Procedure in the Schedule, Rule 569, so far as it applies to practice and procedure relating to offences for which the offender may be proceeded against by indictment. |
| 1882, No. 31 | The Court of Appeal Act, 1882. In part—that is to say, sections twenty to twenty-three, inclusive. |
| 1882, No. 33 | The Prisons Act, 1882. In part—that is to say, sections thirty-one, thirty-two, forty, forty-one, forty-two, and sixty-two. |
| 1883, No. 31 | The Crown Grants Act, 1883. In part—that is to say, section fifty-nine. |
| 1889, No. 16 | The Criminal Evidence Act, 1889. The whole, except as to summary proceedings, and preliminary investigations on charges for indictable offences. |
| 1889, No. 17 | The Offences Against the Person Act, 1889. |
1 * The warrant may be executed between 6 a.m. and 9 p.m., unless the Justice otherwise directs.
"Related Legislation
"Related Legislation
"Related Legislation
Versions
Criminal Code Act 1893
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