Aboriginal offenders, summary trial of (1849) (WA)
WESTERN AUSTRALIA.
ANNO DUODECIMO
VICTORIA. REGIME.
No. XVIII.
An Ordinance to provide for the Summary Trial and Punishment of Aboriginal Na- tive Offenders in certain cases.
HEREAS in the present condition of the colony of Western Preamble.
Wand punishment of Aboriginal offenders in certain cases ;—Be itAustralia, it is expedient to provide for the summary trial
therefore enacted, by His Excellency the Governor of Western Australia, by and with the advice and consent of the Legis-
lative
| 12th Viet. No. 18. | 1849. |
lative Council thereof, that from and after the passing of this
| Felonies and misdemean- | Ordinance it shall be lawful for any two or more Justices of the |
| ors, with certain excep- | |
| tions, committed by Abo- | Peace not interested in the subject matter of the complaint, one of |
| rigines to be summarily | such Justices being in every case a guardian or sub-guardian of |
| triable by two Justices. | Natives, or the Resident Magistrate of the district, to inquire into and try, in a summary manner, any felony or misdemeanour (except as hereinafter excepted) which, before the passing of this Ordinance was exclusively triable by a jury, and with which any of the Abori- ginal Race shall be charged before them : and if the person or per- sons so charged shall be proved to the satisfaction of such Justices |
And punishable byto have committed such offence, or shall voluntarily confess the same,
prisonment not exceeding to sentence such person or persons to lie imprisoned, with or without
six calendar months. hard labour in any common gaol or other place lawfully appointed
for the confinement of such offenders, for any term not exceeding six
calendar' months.
| ping in addition to, or in before whom any male offended shall be convicted under this Ordi-substitution for imprison- | Power to award whip- H. AND be it enacted, that it shall be lawful for the Justices | |
|
a guardian or subguardian of Natives.
Exception of certain fel-III. PROVIDED always and be it enacted, that no person or
°niu from summary Jo- persons shall be tried under the summary jurisdiction hereby created
risdiction. for any of the offences next hereinafter named ;—(that is to sa y) wilful
murder, assault with intent to murder accompanied by some bodily
injury dangerous to the life of the assailed, arson, where the life of
any human being has been thereby endangered, and rape.
| nary jurisdiction, and receiving any information of any offence hereby made summarilyremit for trial in ordinary | Justices may decline sum- 1V. AND be it enacted that it shall be lawful for any Justice |
| course or law. triable, or for the Justices inquiring into the matter of any such infor- |
mation if the circumstances of the case shall seem to him or them to require a more formal trial, or a more exemplary punishment, than can be had or imposed under this Ordinance, to decline to exercise the summary jurisdiction hereby created, and to remit the case for trial in ordinary course of Law.
V. AND be it enacted, that as soon as possible after every convie-
conviction
1849. 12th Viet. No. 18.
| tion under this Ordinance, one of the convicting justices shall trans- | Record of conviction to | ||||
| mit a record of such conviction, in the form hereinafter mentioned, | be transmitted to Clerkof the Peace. | ||||
| to the Clerk of the Peace for the said colony, to be filed and kept by | |||||
| that officer among the records of his office, and shall likewise trans- | And abstract of case to | ||||
| mit to the Colonial Secretary a report of such conviction containing | be transmitted to ColonialSecretary. | ||||
| a brief abstract of the information, and of the evidence for and against the accused. | |||||
| VI. AND be it enacted, that a record of conviction in the form, or to the effect of the form in the Shedule to this Ordinance annexed, | Prescribed form of record | ||||
| of conviction. | |||||
| shall be good and effectual to all intents and purposes without setting forth the name of any witness, or the place where the offence was committed, and without setting forth any part of the evidence, or stating the facts or the offence in any more particular manner than | |||||
| shall be necessary to spew that the offence was one triable under |
| ||||
| this Ordinance, and no such conviction shall be quashed for mere | of form, technical error | ||||
| not affecting the merits | |||||
| matter of form or technical error in any name, date or title, or matter | of the case. | ||||
| of description only, but in all cases regard shall be had alone to the substantial merits and justice of the case. |
| tice to receive the original information upon oath of any credible original information, | VII. | AND be it enacted, that it shall be lawful for any one Jus- One Justice may receive |
person charging any Aboriginal Native or Natives with any offence
hereby made summarily triable, and thereupon to issue a warrant signature or one Yasuo° for bringing the accused before any two or more Justices ; and that to commitment, sufficient'
the signature of any one of the convicting Justices to a warrant of commitment under this Ordinance shall be sufficient ; and that no
such warrant shall be held void by reason of any defect therein, Commitment not to be
provided it be therein alleged that the party committed has been void for format error.
convicted, and there be a good and valid conviction to sustain the
same.
| VIII. | AND be it enacted, that so much of an Act passed in the Certain | nrov' n |
|
| seventh year of the Reign of Her present Majesty, intituled " an Act Viet. NO. 12 | 1 | °apply |
| to regulate summary proceedings before Justices of the Peace," as hereunto. | ||
| relates to the summoning of witnesses, and to the fining of witnesses fur nonattendance, and to the apprehension and detention of persons summoned to give evidence, and of persons keeping out of the way | ||
| to avoid being so summoned, shall be deemed to apply to this Ordi- nance as if incorporated herewith. |
| IX. | AND be it enacted, that it shall be lawful for the Governor, with |
| 12th Viet. No. 18. | 1849. |
Power to Governor to with the advice of the Executive Council, from time to time, by no-
| appoint legal Prisons for | ce |
| purposes hereof, | and ti published in the Government Gazette, to appoint fitting places, |
| proper | officers. | at his discretion, for the occasional or ordinary confinement of Natives |
| convicted under this Ordinance, and to rescind such appointments; and to appoint in like manner fitting persons to visit and inspect such Places, and other such persons to have the custody and management |
| And to direct employ- S t cti ns to he issued by the Colonial Secretary, upon what public | of such Natives; and from time to time to order and direct, by in- |
| meat of convicts senten- | ° |
| ced to hard labour. | works persons sentenced under this Ordinance to hard labour shall be employed, and for the purposes of such employment, or for sanitary purposes, to order the removal of such persons from any such place of confinement as aforesaid to any other such place or places; and, by the like instructions, from time to time, to frame |
| And | to | issue | Prison | re- |
gulations. and issue rules and orders for the internal management and general
regulation of such places of confinement, and to rescind or vary such
rules or orders.
Breaking or othe•vfise
| escaping, or rescuing, | X. AND be it enacted, that if any person imprisoned in any such |
| from place of confine- | place of confinement as aforesaid, shall break or otherwise escape |
| ment appointed under | |
| this Ordinance, how pun- | therefrom, or if any person shall remove thereout, or aid and abet in |
| ishable. | the escape therefrom of any person imprisoned therein, every person so offending, being convicted thereof, shall be subject to the like pun- ishment as if such breaking, rescue, or escape had been from and out of one of Her Majesty's common gaols. |
| Lapse of time to bar | |
| summary prosecution | XL AND be it enacted, that no lapse of time from and after the - commission of any offence hereby made summarily triable, shall be a bar to the exercise of the summary jurisdiction hereby created, further or otherwise than as such laspe of time would be a bar to the prose- cution of such offence by indictment or information in any Court of Record. |
| only when it bars prose | |
| cation by indictment. | |
| Governor empowered in | |
| • |
XII. And be it enacted, that it shall be lawful for the Governor,
| certain cases to remit or with the advice of the Executive Council, to order and direct, by | mitigate sentences. |
warrant under his hand ; the immediate release, or otherwise to vary or mitigate the sentence, of any person convicted and imprisoned professedly under this Ordinance, if it shall appear to the said Governor and Council, on consideration of the report of such con- viction, that the same is not supported by satisfactory evidnnce, or that the circumstances of the case Warrant a remission or mitigation of punishment.
XIII.
1849. 12th Vict. No. 18.
XIII. AND be it enacted, that no Justice of the Peace, or any Justices net responsible
| person acting under his authority and direction, shall be liable to In.larr for other than | wilful or corrupt acts, |
| answer at law, civilly or criminally, for any act done or professed to be done in pursuance of this Ordinance, unless it be alleged and pro- ved that the act was done from wilful and corrupt motives. |
CHARLES FITZGERALD,
GOVERNOR AND COMMANDER-IN-CHIEF.
Passed the Council
9th May, 1849. 3
THOMAS N. YULE,
Acting Clerk of the Council.
SCHEDULE
| 12th Viet. No. 18. | 1849. |
SCHEDULE REFERRED TO.
| MS■raear•IISIEIL | Zorg• |
FORM OF RECORD OF CONVICTION.
| Western Australia ) Be it remembered that on the | day of |
to wit. 18 A. B. (convict's name) an Aboriginal
Native of (place or district) in the said colony was convicted before
us C. D. and E. F. (names of convicting Justices), two of Her Ma-
jesty's Justices of the Peace in and. for the said colony, under the authority of an Ordinance to provide for the summary trial and pun- ishment of Aboriginal offenders in certain cases, upon information laid on the day of before (name of Justice receiving original information) by of (name, residence, rank or calling of informant), for that the said C. D. (convict's name) at (place or district where offence was committed), in the said colony, on the
day of (here state briefly the offence sufficiently to shew that it is a felony or misdemeanor triable under the annexed Ordinance), whereupon we do, under the authority aforesaid, award, order, and adjudge that the said (convict's name) lbe for his said offence imprisoned (and " kept to hard labour") for the term of
("and be whipped before the expiration of the said term to the extent of lashes ;" or, if whipping be the only punish- ment awarded, " be for his said offence forthwith whipped, and be thereafter immediately discharged").
| Given under our hands and seals the | day of |
Printed by authority of the Q.ovsnunonto by E. Stirling, Perth.
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