Convicted Felons Act 1864 (SA)

ANNO VICESIMO SEPTIMO ET VICESIR10 OCTAVO

No. 24.

All Act to repeal Act No. l 8 of 1857-8, illtituled " A?z Act to prevent the ifitt.odaction into tile Prouince of South Australia of Con- victed Felons mzd other persons selztenced to Transportation .for ofe~es nymhst the Laws," m d to make otlzer provision i l r

lieu thereof:

[Reserved, 9th December, 1864.1

HEREAS the Colony of Western Australia has been constituted Preamble.

W a penal settlcrnent for the safe keeping of convicted felons	and othcr persons undergoing transportation for offences against the
laws: And whereas many of tbc said convicted felons have been and are frequently permitted to pass from the said Colony to other Aus- tralian Colonies: And whereas it, is essential for the preservation of peacc and. good order that a stop should bc put to the landing or being in the Province of South Australia of convicted felons or other persons undergoing sentence of transportation for offences against the Laws, or whose sentence shall not have expired for a period of at least thrce years-Be it therefore Enacted, by the Governor-in-Chief
of the Province of South Australia, with the advice and consent of
the Legislative Council and Housc of Assembly of the said Province,

I vided

, in this present Parliament assembled, as follo.cvs:

i I 1. Act No. 18 of 1857-8, intituled "A11 Act to prevent the in- J $ ~ ~; ~ A ~ t l8

E	troduction into the Province of South Australia of Convicted Felons
l	I
and other persons sentenced to tmnsportatioa for offences against the Laws," is hereby repealed, except so far as may bc necessary for the recovery and application of any penalty under, or the punishment of m y offence heretofore committed against the said Act; and pro-

27" & 28" VICTORIAE, No. 24.

Convicts Prevention A c t. 1 8 6 4.

vided that no procecdings taken before this Act comes into operation

shall be aiTected hereby.

lmprbonment of

felons who enter the	2. No convicted felon or other person uudergoing sentence of transportation for any offence against the laws, nor any person who is or shall be under sentence in any British Colony or Possession, other than the said Province, for any capital or transportable offence, nor any person not at liberty, by reason of any conviction or sen- tence, to reside in any part of the United Kingdom of Great Britain and Ireland, shall land in any of the ports of the said Province, or come or be in any place within the limits of the said Province, under
Provime.
the penalty, on conviction thereof, before any two Justices of the
Peace, or before any Local Court, if tt malc, of being imprisoned
and kept to hard labor in one or other of the public gaols of the
said Province for a period not exceeding three years, and, if a female, of being irnprisoncd, and kept to hard labor, in onc or othcr of the public gaols of the said Province, for a period not exceeding two years, nor exceeding the unexpired term of his or her original sentence, after serving here, in addition, the above terms of thrcc
and two years respectively, or being conveyed as a prisoner, by the
most safe and expeditious mode of conveyance, to the Colony or Fosscssion to which he or she was transported, or in which he or. she was convicted (as the case may be), there to be dealt with according to law.
Persons suspeoted of
having been convic-	3, Any Justice of the Peace, or any constable, at any time after transportable felony by a Court of competent jurisdiction in the United Kingdom of Great Britain and Ireland, or any British Pos- session other than the said Province, and llas at any time after this
o a ofMony may	this Act shall come into operation, having reasonable causc to suspect
arrested.	that any person has at any time been found guilty of any capital or
Act shall have come into operation, come into thc said Province, may,
fbrthwitli and without any warrant for such purpose, causc such
of the Peace, to be dealt with as hcrciilafter rncntioned, such person snspectcd person to be appreheqded and taken before any two Justices not having been lawfully resident in the said Province at the timc of,
ar previous to, the coming into operation of this Act: Provided
that any Justice of the Peace may talrc bail for thc appearance of
such suspected person, before such Justices, in such sum and with
or without such sureties as such Justice may deem expedient: Pro- v?dded also that nothing in this Act coi~tained shall apply or be rleemed to apply to any person whose sentence or sentences, if more than one, shall have expired for a greater period thau three years previous to his arrival in the said Province.

Puni~lment on 4.

Any two Justices of the Peace, before whom any such suspected into the said Province contrary to the provisions of this Act, may coil- vict him thereof, and at their discretion, either take bail that such person shall leave the Province within seven days after his convic- tion, or may cause such P~l'SQn to be conveyed in custody to the

suspected peraon

being committed, person shall have been brought, on proof that such person has come

Colony

27" & 28" VICTORIB, No. 24,

Convicts Prevention Act.-1864.

Colony or possession from whence he came, or may sentence such person, if a male, to be imprisoned, with hard labor, for any period not exceeding three years, or if a female, for any period not exceeding two ycars.

Add~tionai plinlsh-

5. Any person sentenced as aforesaid, who shall remain in the said Province three calendar m o ~ t h s	ment for oonvicted
persons remaiumg

after the termination of such after expiration of

sentence, shall bc liable to be again similarly apprehended and sen-	sentence.
tenced, and SO on, from time to time, as often as he shall so remain.
No person coming

6. The master of any steamer, ship, or vessel arriving at any port from Western Aua-

of or place in the said Province, from any port of or place in Wcstern

tralia to land without

proof of being n free

Australia, shall detain every passenger on board his ship or vessel, until

person.

the vessel shall have been thoroughly searched by the Wctter Police, and until he shall have obtaincd from the Collector, or other chief officer of Customs,* at or nearest to the port of arrival, in respect of each passenger respectively, a certificate that the said master has proved, -to the satisfaction of the said Collector, or other chief officer of Customs, that thc passenger, in respect of whom such certificate is granted, is not a prisoner of the Crown, or runaway convict, or a convict coming under cover of any conditional pardon, ticket-of- leave, or indulgence of any kind, other than a free pardon, or re- mission of his or her sentence by Her Majesty, by reason of which he or she would be at liberty to reside in any part of the United Kingdom of Great Britain aid Ireland; and further, in such last- rnen'toned case, or in case of any convict whose sentence has expired, that the date of such pardon or remission, or expiration of such sen- tence is, at least, three years previous to the date of such certificate; and any master who shttll permit or suffer any passenger to land, previous to obtaining such certficate, shall be liable to a penalty of One Hundred Pounds for each passenger so landing.

Fine on macltcr or

7. \TThocver shall convey, or bring, or cause to be conveyed, or brought, or assist in conveying or bringing into any part of the othcr pcrsoh bringing

fclons.

said Province, any convicted felon or other person undergoing sen- tence of transportation, imprisonment, or penal servitude, for any offence against the lams, who is or shall bc undcr sentence in any British Colony or Possession, other than the said Province, or any person not at liberty, by reason of any conviction or sentence, to reside in any part of the United Kingdom of Great Brit*

and Ireland, or any person who has been convicted and whose sentence has not expired for a greater period than three years, shall be guilty of a misdemeanor and be liable to a penalty for each such offencc-as regards the master or other person com- manding, navigating, or sailing any steamer, ship, vessel, or boat-of

Five Hundred Pounds, or to imprisonment for a term not exceed- ing twelve calendar months; and as regards any steward, sailor, or other person belonging to snch etqamer, ship, vessel, or boat as aforesaid, to a penalty of One Hundred Pounds, or to imprisonment

for six calendar months, or at the discretion of the said Court, or

Justices respectively, to both fine and imprisonment, as herein pro-

vided;

2 7 O & 28" VICTORLB, No. 24.

Convicts Prevention Act.-1864.

vided: Provided that if any person charged with an offence under this clause shall prove that he did not knowingly do the act charged against him, he shall not be liable to conviction therefor.

Definition of 8. Any person who has bccn, or shall be transported for any

" offender illegally at

large."	offence against the law to any British Colony or l'ossession, or who
is under sentence for any capital or transportable offence in any
British Colony or possession, other than the said Province who shall hereafter come to the said Province, the full period of whose sentence, or the full term of whose transportation has not expired, or who has not received from Her Majesty a free pardon or remission of his or her sentence, by reason of which he or she would
be at liberty to reside in any part of thc United Kingdom of Grcat
Britain and Ireland, at least three years previous to so coming to the said Province, shall, for the purposes and in the construction of this Act, be deemed to be an offender illegally at large; and the term offender illegally at large," whcnever i t occurs in this Act, shall be taken to signify and denote such persons so trans- ported who has not served such period or term, or received such pardon or remission as aforesaid.
Penalty forconcealing
offenders.	9. Every person who shall harbor or conceal any offender illegally at large, for the purpose of evading the provisions of this Act, shall, on conviction thereof before any such Court as aforesaid, or before two Justices of the Peace, be liable to forfeit and pay for evcry such offence a sum of not exceeding One Hundred Pounds; and, in default of payment, to be imprisoned in any of Her Majesty's gaols in the said Province for any period not exceeding twclvc calendar months.
fioperty of offenders
to be forfeited, and	10. All property found upon or in the possession of thc person Justices to order the whole or a sufficient part thereof to be a?plied towards the expense of conveying such offender to the Colony or

, p* ,,lied convicted of being an offender illegally at large shall be forfeited,

away. i n c o n ~ i ~ t h e m and it shall be lawful for the said Local Court, or the convicting

Possession to which he or she was transported, or in which he or

she was convicted.

What deemed evi- 1

l. Proof on oath that any person was in anv other British Colony or Possession than the said Province, known to be, or was commonly re'puted and deemed to be a transported felon, or a convict unclcr sentence for any capital or transportable offence, or the production of any paper purporting to be a Government Gazette published in any of the Australian Colonies, and containing the nameof any person charged with offending against any of the provisions of this Act, described

dence of a person

being a convict.

in such paper as a convicted prisoner of the Crown or transported

felon shall, for the purposes of this Act, be taken as good prima

jacie evidence that such person was transported to such Colony or

Possession, or convicted therein of a capital or transportable offence, as the case may be; and proof that such person was so known, deemed, or reputed, at any period within seven years, shall be

taken

2T0 & &S0 VICTORIB, No. 24.

ConzGcts Prez.em5on Act.--1864.

taken as good printu jkcie evidence that the full period of his or her sentence, or the full term for which he or she was transported, had not expired for n greater period than thrce years prwious to his or her arrival in the said Provincc, and that such person had not received such pardon or remissioil as aforesaid, at a like period, unless the contrary be proved; ancl proof that any such person was apprehended in the said Provirm at any time after this Act shail have come into operation, not having a fixed and known place of residence, shall bc deelned good prima jncie evidence that such person arrived in the said Province after this Act shall have come into operation, uii1es;s the contrary be provcd,

12. Any Justice of the Peace, having credible information on oath that any offender illegally at large is harbored in any

Justices to issue

search warrants to

apprchcnd offenders.

dwelling-house, or tenement, or other place, within his jnrisdii:tion, or having reasonable cause to suspect that any snch person is on board any vesscl, inay grant a search warrant to any one or morc constables to search for and apprehcncl such offender; and any person found and apprehended by virtue of such warrant, shall by such coristsble or constables, be forthwith taken before a Justice or Justices of the Peace, for examination, and to be further dealt with a c c m h g to law.

13. Every summons, information, conviction, and warrant of com- mitment under the provisions of this Act shall be deemed valid, in

Summons to be

deemed valid.

which the offence charged or alleged in thc same respectively shdl

be set forth in the words of this Act.

14. One moiety of all fines and penalties recovered under this Act shall be pitid to the informer, i~lld the remainder of all such fines and penakies, and $1 moneys 'and property forfeited and not specially appropriated, shall be applied to and go to Her Majesty,

Disposal of pcnaltics.

Her heirs, and SUCCCSSO~S, for the public uses of the said Province,

15. All proceedings for offences against this Act, or against the Proceedings to be heard and determined

hereby repealed Act, B o. 18 of 185'5-8, whether committed before under Ordinance NO.

1850.

or after this Act shall have come into operation, shall be heard anti 6 of Legislative Council of the said Province, No. G of 1830, " To facili- tate the performance of the duties of Justices of the Peacc out of Session, with respect to summary convictions and orders," or of any Act hereafter to be in force relating to the duties of Justices of the Peace with respect to summary convictions and orders; and all convictions and orders may be enforced as in the said Ordinance

determined in a summary way by any Special Magistrate or two

is mentioned.

16. Any person may lay an information for any such offences.	tion,
FPhomay lay inforan-

17. If any suit or action be brought against any Justice of the ~rotection to ofticera

Peace, Constable, or other person, for any act or thing done in

furtherance

27" & 28O VICTORIE, No. 24.

Convicts Prcvcn tion Act.-1 8 64.

furtherance of thc provisions of this Act, the defendant in every such action may plead the general issue, and give this Act and the special matter in evidence at any trial to be had thereupon, and if

the verdict shall be for the defendant, or if the plaintiff in any such

action shall be nonsuited, or discontinue his action or suit, or if upon demurrer judgment shall be given against the plaintiff, the defendant shall have treble costs, and shall have the like remedy for thc same as any other defendi~nt hnth in any other case to rccove> costs by law; and although a verdict shall be given for the plaintiff in any such action, he sliall not be entitlcil to rccovcr any costs against the defendant, unless the Judgr: before whom sxch action shall be tricd shall ccrtify at the trial and in opcn Court, under his hand an the back of the record, his approbation of the action and the verdict thereupon.

Appeal.

18. Any person who shall feel hiinsclf ag,gricvcd by any convic- tion under this Act. or by any order fix the forfeiture or sale of any property, or for the payment of ally moncy for costs or otherwise, or any informant whose information may have been dismissed under this Act, may appeal to the Local Court of Adelaide of Full Juris- diction, and thc proceedings on such appeal shall be conducted in manner appointed by the said Ordinance, No 6 of 1850, for appeals to Local Courts; but the Local Court of Adelaide aforesaid may make such order as to payment of the costs of appeal as it shall think fit, although such costs may exceed Ten Pounds; and the execution of every such conviction, order, or adjudication so appealed from, and the forfeiture and sale of any property ss aforesaid, and the payment of any moncy as aforesaid, may, at the discretion of the convichting Justices, be suspended, in case the persqn so appealing sl~all, with one or more sufficient surety or sureties before such Justices, enter into a recognizance in such sum as to such Justices shall seem fit, which rccognizancc such Justices are hereby autho- rized to take, conditioned to prosecute such appeal with effect, and

to be forthcoming to abide the dctcrmination of such Local Court of Adelaide, and pay such costs as the said Conrt shall award, and

such Court is hereby authorized finally to hear and determine the

matter of such appeal,

Bhort ritle. 19. This Act may be cited as the Convicts Prevention Act,

1864."

X hereby reserve this Act for the signification of the Queen's

pleasure thereon.

D, DALY, Governor.

Adelaide: Printed by authority, by W. C, Cox, Government Printer, Victoria-aquare.