Administration of Justice Act 1845 (SA)

No. 2.

By His Excellency GEoRGE GRBY, Esquire, Governor and Commander-in-

Chief if Her MaJesty's Province o/ South Australia and its Dependencies,

and Vice-Admiral o/ the same, by and with the advice and consent o/ the /

Legislatz"re Council.

AN ORDINANCE for adopting certain Acts passed in the Imperial Parliament which was held in the Si,rth and Seventh Years qf the Reign of Her Mqjesty Queen Victoria, in the administration

be

qf Justice in South Australia, in like manner as other Laws qf

England are applied therein.

WHEREAS certain Acts were passed in the Imperial Parliament Preamble

which was held in the Sixth and Seventh Years of the Reign of ·

Her present Majesty Queen Victoria, intituled respectively "An 6 & 7 Viet., c. 85. "Act for improving the Law of Evidence," and "An Act to amend 6 & 7 Viet., c. 96.

"the Law respecting defamatory words and libeJ": And whereas it is expedient to adopt and apply the said recited Acts of Parlia- ment in the administration of justice in South Australia:

BE IT THEREFORE ENACTED BY His ExcELLENCY THE GovERNOR

of South Australia, with the advice and consent of the Legislative

'I h f Th h 'd · d A f p l' h 11 Adopted and applied

C ounc1 t ereo: at t e sa1 recite cts o ar mment s a in south Australia.

'

i

b

e

and

the

same

are

here

by

adopted

and

sha\1

be

applied

in

the

administration

of

justi

c

e

in

the

said

Province

and

its

De-

of

England

are

therein

pendencies

in

like

manner

as

other

Laws

applied.

1

1

.

And

be

it

enacted,

th

at

this

Ordinance

shall

comm<mce

and

Commencement

of

O

r

d

i

nance.

take

effect

from

and

after

th

e

passing

hereof

except

as

to

offences

and

other

matters

heretofor

e

committed

or

done

which

shall

be

dealt

with

and

punished

as

if

this

Ordinance

had

not

been

passed.

G.

GREY,

Governor

and

Commander-in-Chief.

Passed

the

Legislative

Counc

i

l

this

First

d

a

y

of

July,

One

Thou

sand

Eight

H

u

n

dred

and

Forty-jive.

w.

L .

o~'HALLORAN,

Clerk

of

Council.

ANNO

~

:

.

:

.

li

___:--~~

·

-

--

~~-~~~ "~.--o~-~·? ':-

ANNO SEXTO ET SEPTIMO VICTORIJE REG IN lE.

CAP. 5.

AN ACT for improving the Law qf Evidence

WHEREAS the inquiry after truth inCourts of Justice is often

obstructed by incapacities created by the present Law and it is de- sirable that full information as to the facts in issue both in criminal and civil cases should be laid before the persons who are appointed to decide upon them and that such persons should exercise their judgment on the credit of the witnesses adduced and on the truth

• of their testimony: •

Now, therefore, be it enacted, by the Queen's Most Excellent

Majesty, by and with the advice and conse~t of the Lords Spiri-

tual and Temporal and G'ommons in this present Parliament as-

sembled, and by the authority of the same: That no person of- Witneises not to be

" d 't h 11 h f b 1 d db · f · excluded from giving

1~re as a WI. ness s .a erea ter ~ ~xc u .e y m~ans ~ mcapa- eyidence by incapa- City from cnine or mterest from g1vmg evidence either m person ~1ty from crime or or by deposition according to the practice of the Court on the trial mterest.

of any issue joined or of any matter or question, or on any inquiry arising on any civil action or proceeding, civil or criminal, in any Court, or before any Judge, Jury, Sheriff, Coroner, Magistrate, Officer, or person having by Law, or by consent of parties au- thority to hear, receive, and examine evidence, but, that every person so offered may and shall be admitted to give evidence on

oath or solemn affirmation in those cases wherein affirmation is by	Law receivable, notwithstanding that such person may or shall
have an interest in the matter in question, or in the event' of the trial of any issue, matter, question, or inquiry, or of the suit, action, or proceeding in which he is offered as a witness, and not- withstanding that such person. offered as a witness may have been
previously convicted of any crime or offencs: Provided that this Prov!so as to pllrties . . to smts,
A ct s a h 11 not ren er competent any party to any smt, actwn, or d ·
proceeding individually named in the record, or any lessor of the Plaintiff or tenant of premises sought to be recovered in ejectment, or the landlord or other person in whose right any Defendant in replevin may make cognizance, or any person in whose immediate or individual behalf .any action may be brought or defended, either wholly or in part, or the husband or wife of such person re- N t 1 1

. 1 p 'd d 1 h h' A h II 1 o o repea any

spectlve y: rov1 e a so, t at t IS ct s a not repea any provision in 1 w. 4,

provisions & 1 Viet., c. 26.

prov1s1ons

in

a

certain

Act

passed

in

the

Session

of

Parliament,

holden

on

the

Ninth

Year

of

the

Reign

of

His

late

Majesty,

and

on

the

First

year

of

the

R

e

ign

of

Her

present

Majesty,

intituled

"An

Act

for

the

Amendm

ent

of

the

Law

with

respect

to

Wills:"

I

n

Courts

of

Equity

Provided

that

in

Courts

o

f

Equity

any

Defendant

to

any

cause,

D

efendant

may

be

d"

-·

h

C

b

·

d

·

h

e

xamined

on

behalf

pen

mg

m

any

sue

ou

r

t

may

e

examme

as

a

Wi

tness

on

t

e

o

f

t4e

Plaintiff

or

behalf

of

the

Plaintiff,

or

o

f

any

co-Defendant

in

any

such

cause,

a

ny

co-Defendant

·

•

·

d

h

·

h

"

l

h

D

&

c

.

'

savmg

JUSt

exceptiOns,

a

n

t

at

any

mterest

w

1c

1

sue

e

-

m

a

y

have

in

the

matter

in

question

in

the

fendant

to

be

examined

cause

shall

not

be

deeme

d

a

just

exception

to

the

testimony

of

such

Defendant,

but

shall

only

be

considered

as

affecting

or

tend-

ing

to

affect

the

credit

of

s

u

ch

Defendant

as

a

witness.

~otnec_essarytostate

II.

And

be

it

enacted,

t

hat

wherever

in

any

leg·al

proceedings,

lll

seth~lg

out

legal

whatsoever

legal

proceedi

ngs

may

be

set

out

it

shall

not

be

ne-

p

r

oceedmgs

that

Ju.

'

r

o

r

s

_had

made

affir.

cessary

to

specify

that

any

particular

persons

who

acted

as

Jurors

•

m

atwn.

had

made

affirmation

ins

t

ead

of,oath,

but

it

may

be

stated

that

they

served

as

Jurymen

in

the

same

manner

as

if

no

Act

had

passed

for

enabling

person

s

to

serve

as

Jurymen

without

oath.

III.

And

be

it

enacted

,

that

nothing

in

this

Act

shall

apply

to

A

s

to

previous

suits.

any

suit,

action

,

or

proceeding,

brought

or

commenced

or

affect

before

the

passing

of

this

A

ct.

I

V

.

And

be

it

enacted,

that

nothing

in

this

Act

shall

extend

to

N

o

t

to

extend

to

S

c

o

t

land.

Scotland.

ANNO.

,

~~'"

.

__,.._co,_-'···--'

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ANNO SEXTO ET SEPTIMO VICTORIJE'REGlNJE.

,CAP. 96.

AN ACT to amend the Law respecting Difamatory Words and Libel.

FOR the better protection of private character and for effectually

securing the liberty of the press, and for better preventing abuses in exercising the said liberty: Be it enacted by the Queen's Most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal and Commons, in this present Par- liament assembled, and by .the authority of the same: That in Offer of an apology

any action for Defamation it shall be lawful for the Defendant admiss~ble .i!l evi- . . .. f h'. . d d . dence m m1tlga.t10n

a ter notice m wr1tmg o. IS mtentiOn so to o, f: uly g1ven to the of damages.

Plaintiff at the time of filing or delivering the plea in such action, to give in evidence that he made or offered an apology to the Plaintiff for such defamation before the commencement of the action, or so soon afterwards as he had an opportunity of doing so, in case the action shall have been commenced before there was an opportunity of making or offering such apology.

II. And be it enacted, that in an action for libel, contained in In an action for n

bl. h · d' 1 bl' · · h 11 b libel in a newspaper

any pu 1c newspaper or ot er peno tea pu rcabon, It s a e the Defendant may competent to the Defendant to plead that such libel was inserted plead that it was in-

. h h · d · 1 bl' · · h l serted without malice

m sue newspaper or ot er peno 1ca pu ICatlon, Wit out actua and without gross malice and without gross negligence, and that before the com- negligence,, and may . . . paymoneymtoCourt,

mencement of the action or at the earhest opportumty afterwards a.s amends.

he inserted in next paper or other periodical publication, a full	apology for the said libel, or if the newspaper or periodical publi-	cation in which the said libel appeared should be ordinarily pub-
lished at intervals exceeding one week, and offered to publish the said apology in any newspaper or periodical publication to be selected by the Plaintiff in such action, and that every such Defen- dant shall upon filing such plea be at liberty to pay into Court a sum of money by way of amends for the injury sustained by the pub- lication of such libel, and such payment into Court shall be of the same effect and be available in the same manner,and to the same ex-
tent and be subject to the same rules and regulations as to payment
of costs, and the form of pleading, except so far as regards the pleading. of such additional facts hereinbefore required to be pleaded by such defendant as if actions of libel had not been ac- cepted from the personal actions in which it is lawful to pay

money

m

o

n

e

y

into

Court

under

an

act

passed

in

the

Session

of

Parliament

held

in

the

Fourth

year

of

H

is

late

Majesty,

entitled

"An

Act

for

"the

further

amendment

o

f

the

Law,

and

the

better

advancement

"of

justice,"

and

that

to

such

plea

to

such

action

it

shall

be.

competent

to

the

plaintiff

t

o

reply

generally

denying

the

whole

of

such·plea.

P~blishingortl~reat-

III.

.And

be

it

enacted,

that

if

any

person

shall

pi.1blish

or

li~cig ~c. P~A~hin~

t

hreaten

to

publish

any

li

bel

upon

any

other

person,

or

shall

~ent'~oext~rtmoney,

directly

or

indirectly

threat

en

to

print,

or

publish,

or

shall

directly

~~~~s~~~r~~t

f

or

or

indirectly

propose

to

abs

tain

from

printing

or

publishing,

or

shall

prevent

the

printing

or

publishing

of

directly

or

indirectly

offer

t

o

any

matter

or

thing

touchin

g

any

other

person

with

intent

to

extort

security

for

m

oney

or

anY.

valuable

thing

from

such

any

money

or

or

any

other

person,

or

wit

h

intent

to

induce

any

person

to

confer

any

person

any

appointment

or

office

of

profit

or

or

procure

for

trust,

any

such

offender

on

being

convicted

thereof,

shall

be

liable

be

imprisoned

with

or

w

ithout

hard

labor

in

the

Common

Gaol

to

or

House

of

Correction

fo

r

any

time

not

exceeding

three

years

:

Provided

always,

that

noth

i

ng

herein

contained

shall

in

any

man-

ner

alter

or

affect

the

Law

now

in

force

in

respect

of

the

sending

of

threatening

l

etters.

or

delivery

P

u

n

i

s

h

ment

for

pub-IV.

And

be

it

.enacted,

that

if

any

person

shall

maliciously

l

i

s

hing

any

defama.

bl'

h

d

i'

t

l'b

1

k

·

t

h

•

t

b

i'.

]

t

o

r

y

libel

k

nowing

pu

IS

any

e1ama

ory

I

e

,

nowmg

e

same

o

e

1a

se,

every

t

he

same

to

be

false,

s

uch

person

being

convict

ed

thereof,

shall

be

liable

to

be

im-

i

m

prisonmentnotex-·

d

·

h

C

G

1

H

f

C

·

f

i

c

e

e

ding

two

years,

pnsone

In

t

e

ommon

ao

or

ouse

o

o

r

rectwn

or

any

a

n

d

fine.

time

not

exceeding

two

y

e

ars,

and

to

pay

such

fine

as

the

Court

shall

award.

P

u

n

i

s

hment

for

pub-V.

And

be

it

enacted,

th

at

if

any

person

shall

maliciously

pub-

l

i

s

hing

any

defama-l'

h

d

f:

}'

b

1

h

b

·

·

t.

d

t

o

ry libel, fine orim-IS any _ e amator_y 1 e, every s~c _person emg conv1c e

pris~:mm~nt,

or

both,

thereof,

shall

be

hable

to

fine

or

1mpnsonment,

or

both,

as

the

t

h

e

1mpnsonmentnot

C

d

h

·

·

d

h

f

t

o

exceed

one

year.

ourt

may

a

war

'

sue

I

m

pnsonment

not

to

excee

t

e

term

0

one

year.

P

r

o

c

eedingsuponthe

VI.

And

be

it

enacted,

that

on

the

trial

of

any

indictment

or

trialofanin~ictment,

i

nformation

for

a

defamato

ry

libel,

the

Defendant

having

pleaded

&

c.,

for

llbel,

the

h

.

.

i

'

.

w

•

}

h

f

t

ruth

of

the

matt~rs

s

uch

plea

as

erem

IS

be1

oremenboned,

t

1e

trut

o

the

matters

~~~!ddin~~~rb;~~~:

c

harged_

may

be

inquired

_

into,

but

shall

not

al?ount

to

a

defence

d

e

d

to

be

published

unless

1t

was

for

the

pubh

c

benefit

that

the

said

matters

charO'ed

~~

t

he

public

bene-should

be

published,

and

that

to

enable

the

Defendant

to

give

of

the

truth

of

suc

h

matters

charged

as

a

defence

to

such

evidence

indictment

or

information,

it

shall

be

necessary

for

the

Defendant

the

said

in

dictment

or

information,

to

allege

the

in

pleading

to

truth

of

the

said

matters

c

harged

ih

the

manner

now

required

in

and

further

to

pleading

a

justification

to

a

n

action

for

defamation,

allege

'

o

l

i

------------

allege that it was for the public benefit, that the said matters charged should be published, to which plea the prosecutor shall be at liberty to reply generally, denying the whole thereof, and that if after such plea the Defendant shall be convicted on such indictment or information, it shall be competent to the Court in pronouncing sentence to consider whether the guilt of the Defen- dant is aggravated or mitigated by such plea, and by the evidence given to prove or disprove the same: Provided always, that the truth of such matters charged in the alledged libel complained of by such indictment or information, shall in no case be inquired

into without such plea of justification: Provided also, that in Dodble plea.

plea of not guilty, which· is now competent to the Defendant to make under such plea to any action or indictment or information for defamatory words or libel.

addition to such plea, it shall be competent to the Defendant to Plea of not guilty.

plead a plea of not guilty: Provided also, that nothing in this

VII. And be it enacted, that whensoever upon the trial of any I.n case of publica-

111 1ctment or m10rmatwn or t e pu watlon o a l e un er t e fendant may 'show	. d" · l' • fi h bl" · f l"b 1 d h twn by Agent De-
plea of not guilty, evidence shall have been given which shall that t~e publi?ation

b · h · f bl" · · h D fi d was without h1s au-

esta hs a presumptive case o pu wat1on agamst t e e en ant thority, &c.

by the act of any other person by his authority, it shall be com- petent to such Defendant to prove that such publication was made without his authority, consent, or knowledge, and that the said publication did not arise from want of due care or caution on his part.

VIII. And be it enacted that in case of any indictment or in- On prosecution for

l' • b · ' n h bl" · f d private libel Defen-

lOrmatlOll y a pnvate prosecutor tor t e pu ICatlon 0 any e- dant entitled to costs

famatory libel, if judgment shall be given for the Defendant, he on acquital.

shall be entitled to recover from the prosecutor the costs sustained

by the said Defendant by reason of such indictment or informa-

tion, and that upon a special plea of justification to such indict- ~s~oco~tsoilJleaof

ment or information, if the issue be found for the prosecutor he JUstificatwn.

shall be entitled to recover from the Defendant the costs sustained

by the prosecutor, by reason of such plea, such costs so to be re··

covered by the Defendant or prosecutor respectively, to be taxed

by the proper officer of the Court, before which the said indict-

ment or information is tried.

IX. And be it enacted, that wherever throughout this Act in InterpretationofAct.

describing the Plaintiff or Defend ant, or the party affected or in- tended to be affecttid. by the offence, words are used importing the singular number or the masculine gender ·only, yet they shall be understood to incl)lde several persons as well as one person,

· and

a

n

d

females

as

well

as

m

ales,

unless

where

the

nature

of

the

pro-

visions

or

the

context

of

t

he

Act

shall

exclude

such

construction.

Commencement

and

be

it

enacted

,

that

this

Act

shall

take

effect

from

the

X.

And

e

x

t

e

nt

of

Act.

first

day

of

November

n

ext,

and

that

nothing

in

this

Act

shall

extend

to

Scotland.

•

ADELA.IDE:

Printed

by

a

uthorit

y

,

by

A.

MuRRA.Y,

Government

Printer,

Rundle-street.

.

;

_

;

i;i