Criminal Code Amendment Act 1911 [No. 52 of 1911] (WA)

WESTERN AUSTRALIA.

ANNO SECUNDO

G-EORGII QUINTI REGIS,

VIII.

No. 52 of 1911.

AN ACT to amend the Criminal Code.

[Assented to 31st December, 1911.]

E it enacted by the King's Most Excellent Majesty, by and

with the advice and consent of the Legislative Council and

Legislative Assembly of Western Australia, in this present Parlia-

ment assembled, and by the authority of the same, as follows:—

This Act may be cited as the Criminal Code Amendment Act, 1911, and shall come into operation on the first day of Janu-	Short title and
commencement.
ary, one thousand nine hundred and twelve.

1.

2. Section eighteen of the Criminal Code (hereinafter called Amendment of Section 18:

the Code) is hereby amended by the insertion of the words, "pre-	Preventive de-
ventive detention" immediately before the last sentence thereof.	tention.

3. The third paragraph inserted in section twenty of the Code Amendment of

by section two of the Criminal Code Amendment Act, 1906, is

Section 20.

hereby repealed, and the following words are inserted in the said

section in lieu thereof :—

"The time during which a convicted appellant, pending the determination of his appeal, is admitted to bail and,	7 Edw.VIL, c. 23,
s. 74 (3).
subject to any directions which the Court of Criminal

1911, No. 52.] Criminal Code-:—Amendment. [2 Gm. V.

Appeal may give to the contrary on any appeal, the time

during which the appellant if in custody is specially treated

as an unconvicted prisoner, shall not count as part of any term of imprisonment under his sentence, and in the case of an appeal under this Code any imprisonment under the sentence of the appellant, whether it is the sentence passed by the Court of trial or the sentence passed by the Court of Criminal Appeal, shall, subject to any directions which may be given by the Court as aforesaid, be deemed to be resumed or to begin to run, as the case requires, if the appellant is in custody, as from the day on which the appeal is determined, and, if he is not in custody, as from the day on which he is received into prison under the sentence."

Amendment of

Section 21. 4. The following words are added to section twenty-one of the

cf. 7 Edw. VII.,	Code :—" but the Attorney General, on the consideration of any
c. 23, s. 19.	petition for the exercise of His Majesty's mercy having reference to the conviction of a person on indictment or to the sentence (other than sentence of death) passed on a person so convicted, may, if he thinks fit, at any time either

(a) refer the whole case to the Court of Criminal Appeal, and the case shall then be heard and determined by the Court of Criminal Appeal as in the case of an

appeal by a person convicted; or

(b) if he desires the assistance of the Court of Criminal Appeal on any point arising in the case with a view to the determination of the petition, refer that point to the Court of Criminal Appeal for their opinion thereon, and the Court shall consider the point so re- ferred and furnish the Attorney General with their opinion thereon accordingly."

Amendment of 5. The following subsection is hereby added to section five

Section 565. hundred and sixty-five of the Code:-

Charge of being	" (6.) In an indictment against a person for a crime, he
habitual criminal

may be joined	may also be charged with being an habitual criminal."
with charge of
crime.

The following section is inserted in the Code immediately after section five hundred and sixty-seven:—

New section. 6.

Indictment of	"567a. In an indictment against a person as an habitual crimi- nal, it is sufficient after charging the subsequent crime to state the substance and effect of each or any previous conviction, and the time and place thereof, and that the accused is an habitual crimi- nal."
habitual criminal.

2 GEO. V.] Criminal Code—Amendment. [1911, No. 52.

Amendment of

Section six hundred and two of the Code is amended by the addition of the following words :-	Section pos.
"Upon the hearing of a demurrer, the Court may allow the demurrer or may order the indictment to be amended in such manner as the Court thinks just, or may overrule the demurrer."	See Code 593, 595.

7.

The following sections are hereby inserted in the Code im- mediately after section six hundred and twenty-seven :—

Trial of habitual

New sections.

criminal.

of. 8 Edw. WT., c.

"627a. (1.)' In proceedings on an indictment charging a per- son with a crime and also with. being an habitual criminal, the accused shall in the first instance be arraigned on so much only of the indictment as charges the crime. and if on arraignment he pleads guilty or is found guilty by the jury, he shall be arraigned on the charge of being an habitual criminal.

59, s. 10 (4).

" (2.) If the charge of the crime was inquired into by a jury, the same jury may inquire into the charge of being an habi- tual. criminal, and it shall not be necessary to swear such jury again.

"627b. A charge in an indictment of having been previously convicted or of being an habitual criminal shall, for all purposes

Procedure and evi-

dence to be as on

charge of an

of procedure and evidence, be deemed a charge of having com-

offence.

mitted an offence."

8.

The following sections are inserted immediately after sec- tion six hundred and fifty-three of the Code :—	Insertion of new
sections. Habitual
"653a. (1.) Every person shall. be deemed to be an habitual criminal who-	criminals.
e. N.S.W., 1905,

9.

" (a)	commits any crime comprised in Class I., II., or III.,	No. 15, s. 3.
mentioned in the table at the foot of this subsection, after having been twice previously convicted of a crime of the same class; or
" (b)	commits any crime comprised in any other class men- tioned in the said table, after having been thrice pre- viously convicted of a crime of the same class; or

(c) commits any crime whatever, after having been pre- viously convicted as an habitual criminal in this State or convicted elsewhere as an habitual criminal within the meaning of the law there prevailing.

The Table referred to.

Class I. comprises all crimes made punishable under Chapter

XXVIII or XXIX of this Code.

Class II. comprises all crimes made punishable under Chapter

XXII. or XXXII. of this Code.

Class III. comprises all crimes made punishable under Divi-

sion II. of Part VI. of this Code.

1911, No. 52.] Criminal Code—Amendment. [2 GEO. V.

Class IV. comprises all crimes made punishable under Divi-

sion I. of Part VI. of this Code.

Class V. comprises all crimes made punishable under Chapter

XLIX. of this Code.

Class VI. comprises all crimes made punishable under Chap-

ter XVIII of this Code.

"(2.) A person shall be deemed to have been previously con- victed of a crime within the meaning of this section if so con- victed anywhere or at any time whether heretofore or hereafter and whether within or outside of Western Australia.

" (3.) For the purposes of this section a conviction of any offence outside of Western Australia shall, if such offence is of the same or substantially the same nature as any of the crimes mentioned in the said table, be deemed a conviction of such crime.

Conviction and

sentence of "653b. (1.) No person shall-be convicted of being an habitual

habitual criminal.

criminal except upon the indictment charging the commission of

the subsequent crime.

"(2.) When a person is convicted of being an habitual

criminal the Court may, in addition to any punishment provided by law which it may see fit to impose for the subsequent crime, sen- tence such person to preventive detention during the Governor's pleasure or for such period as to the Court may seem advisable.

Preventive de-	"653c. (1.) Sentence of preventive detention shall become
tention of habitual

criminal.

operative and commence on the expiry or sooner determination

cf. S Edw. VIL,

of any sentence involving deprivation of liberty which the con-

c. 59, s. 13.

victed person is undergoing or has been sentenced to undergo.

N.S.W., 1905, No.

15, s. 6.

" (2.) A person subject to preventive detention shall be de-

tained in some place of confinement set apart by the Governor by

proclamation in the Government Gazette as a place of detention

for persons so sentenced.

"(3.) Every person so confined shall be required to work

at some trade, work, or calling, and shall be paid such remuneration or granted such allowance as may be fixed by regulations made by the -Governor, and such remuneration or allowance shall be disposed of for the benefit of the confinee or any wife, child, or reputed child of the confinee, or any other relative or reputed relative of such confinee dependent on him for support, in such manner and propor- tions as the Governor may think fit.

" (4.) Persons subject to preventive detention may be re- quired to work outside the place of confinement, subject to such regu- lations as shall be made by the Governor, and such persons whilst outside the place of confinement for the purpose of so working shall be deemed in lawful custody, and (except in solar as is other- wise provided in the said regulations) shall be subject to the same liabilities and obligations and governed by the same laws and rules and entitled to the same rights as if they were within such place of confinement.

2 GEO. V.] Criminal Code—Amendment. [1911, No. 52.

" (5.) Any such .place of confinement as aforesaid shall be a prison, and persons subject to preventive detention shall be deemed criminal. prisoners within the meaning of the Prisons Act, 1903, and such persons shall be governed by that Act and the regu- lations thereunder accordingly, subject to such modifications in the direction of less rigorous treatment as the Governor may see fit to prescribe.

"(6.) Any person sentenced to preventive detention shall,

until he ceases to be an habitual criminal, be deemed to be a per- son convicted of and under sentence for crime and to be a con- vict within the meaning of the Statute (33 and 34 Viet., chap. 23), adopted and applied by the Act, 37 Victorian, No. 8.

"653d. (1.) The Comptroller General of Prisons shall report

Reports on

habitual criminals

annually to the Governor on the conduct and industry of persons

by Comptroller

undergoing preventive detention and their prospects and probable

General of Prisons.

Appointment of

behaviour on release, and for this purpose shall be assisted by a

assistant

committee at each place of detention, consisting of such persons as

committees.

the Governor may from time to time appoint.

cf. 8 Edw.

e. 59, s. 14.

"(2.) Every such committee shall hold meetings at such intervals of not more than six months as may be prescribed by the Governor for the purpose of personally interviewing the persons undergoing preventive detention and preparing reports embodying such information respecting them as may be necessary for the assistance of the Comptroller General, and may at any other times hold such other meetings and make such special reports respecting particular cases as they may think necessary.

"653e. (1.) The Governor may at any time discharge on license a person undergoing preventive detention, on such con-

Discharge of

habitual criminal

on license.

ditions as may in each case be thought reasonable.

cf. 8 Edw. VII.,

"(2.) The grant of any such discharge shall not determine e. 59, s. 15. .

the sentence, but the operation thereof shall be suspended whilst

N.S.W., 1905, No.

15, s. 7.

the license is in force.

"(3.) Any such license may prescribe as a condition that

the habitual criminal be placed and remain under the supervision or authority of any society or person named in the license who may be willing to take charge of the case.

"(4.) The society or person under whose supervision or

authority a person is so placed shall, whenever required by the Governor or the Comptroller General of Prisons, report on the conduct and circumstances of that person.

"(5.) Any habitual criminal released on license in which

no such condition as is mentioned in subsection three has been inserted shall be subject to police supervision, and the provisions of subsections two and three of section six hundred and fifty-three of this Code shall apply to him accordingly.

1911, No. 52.] Criminal Code—Amendment. [2 GEO. V.

"(6.) A license under this section may during the subsis- tence of the sentence of preventive detention be revoked by the Governor at any time, and such sentence shall again become opera- tive.

Termination of	"653f. (1.) A sentence of preventive detention shall come to
preventive

detention.	an end and the person thereby affected cease to be an habitual
of. 8 Edw. VII.,	criminal by virtue thereof--

e. 59, s. 16.	" (a)	on the expiry of the term (if any) fixed by the sentence;
N.S.W., 1905, No.
15s. ss. 7 and 9.	or
" (b)	if the Governor shall by order under his hand declare the sentence terminated; or

"(c) if the habitual criminal having been discharged on a license has for any period of three years been by virtue of such license lawfully free from preventive deten- tion, and has not during that period been convicted of any crime or misdemeanour, or convicted of and sen- tenced to not less than three months' imprisonment for any simple offence.

"(2.) In calculating the term (if any) fixed by any sen- tence of preventive detention the time during which the person sentenced is lawfully absent from the place of confinement under a license shall be treated as part of the term; but save as herein provided no period during which such person is absent from the place of confinement shall be reckoned as part of the term.

Arrest of "653g. Any habitual criminal subject to preventive detention

habitual criminal.

may, whenever necessary, be apprehended without warrant and

taken to the proper place of confinement.

Other sentences

"653h. The fact that any person is subject to preventive de- tention shall not prevent him undergoing or suffering any other punishment to which he may be or become liable or affect any sen- tence passed upon him.

not affected.

Repeal of	10. Sections six hundred and sixty-seven, six hundred and
Sections 667, 668,

669, 670, and 671,

sixty-eight, six hundred and sixty-nine, six hundred and seventy,

and substitution

and six hundred and seventy-one of the Code, and all amendments

of new sections.

thereof, are hereby repealed, and the following sections substi-

tuted:—

Court of "667. (1.) The Full Court (as defined by section fifteen of the

Criminal Appeal.	Supreme Court Act, 1880) shall, subject as hereinafter provided,
cf. 7 Edw. VII.,
e. 23, ss. 1, 2.	have jurisdiction to hear and determine appeals under this Chap-
ter, and the expression Court of Criminal Appeal in this Code
shall mean the said Full Court.
"(2.) The determination of any question before the Court of Criminal Appeal shall be according to the opinion of the major- ity of the members of the Court hearing the case.

2 Gno. V.] Criminal Code—Amendment. [1911, No. 52.

" (3.) The Court of Criminal Appeal shall, for the purposes

of and subject to the provisions of this chapter, have full power to determine, in accordance with this chapter, any questions necesL sary to be determined for the purpose of doing justice in the case before the Court.

" (4.) Rules of Court shall provide for securing sittings

of the Court of Criminal Appeal, if necessary, during vacation.

" (5.) The Registrar of the Supreme Court shall be Regis-

trar of the Court of Criminal Appeal.

" (6.) It shall be no objection to a Judge taking part in the

determination of any question that he presided at the trial of the

appellant or that the appeal is against his own decision.

"(7.) Appeals under this Chapter shall be heard and de- termined before an uneven number of Judges.

"668. (1.) A person convicted on indictment may appeal to Right of appeal

in criminal cases.

the Court of Criminal Appeal—

" (a) against his conviction on any ground of appeal which in- Ibid., s. 3.

volves a question of law alone; and

" (1)) with the leave of the Court of Criminal Appeal or upon the certificate of the Judge who tried him that it is a fit case for appeal against his conviction on any ground of appeal which involves a question of fact alone, .or a question of mixed law and fact, or any other ground which appears to the Court to be a sufficient ground of appeal ; and

"(c)	against any sentence of preventive detention passed 8 Edw. VII. e,
upon him; and 59, s. 11.
"(d)	with the leave of the Court of Criminal Appeal against any other sentence passed on his conviction, unless the sentence is one fixed by law.

"(2.) An appeal may be made to the Court of Criminal Appeal on the part of the prosecution-

" (a) against any decision allowing a demurrer to an indict- ment or arresting judgment on an indictment or quash- ing an indictment ; or

"(b) against any verdict of acquittal on an indictment and any judgment founded thereon when such verdict has been found by direction of the Judge or other auth- ority entitled to give directions on law to the jury at the trial; or

"(e) against any judgment (including any verdict on which the same is founded) given on a plea to the jurisdiction of a Court , to try an accused person for an offence alleged in an indictment.

1911, No. 52.] Criminal Code—Amendment. [2 GEO. V.

Determination of

appeals in ordin-	"669. (1.) The Court of Criminal Appeal on any such appeal unreasonable or cannot be supported having regard to the evi- dence, or that the judgment of the Court before whom the appellant was convicted should be set aside on the ground of a wrong de- cision of any question of law or that on any ground there was a miscarriage of justice, and in any other case shall dismiss the appeal:
ary eases.	against conviction shall allow the appeal, if they think that the
7 Edw. VII., e.	verdict of the jury should be set aside on the ground that it is
23, s. 4.
"Provided that the Court may, notwithstanding that they are of opinion that the point raised in the appeal might be decided in favour of the appellant, dismiss the appeal if they consider that no substantial miscarriage of justice has actually occurred.

"(2.) Subject to the special provisions of this Chapter

the Court of Criminal Appeal shall, if they allow an appeal against conviction, quash the conviction and either direct a judgment and verdict of acquittal to be entered or order a new trial.

"(3.) On an appeal against sentence the Court of Criminal

Appeal shall, if they think that a different sentence should have been passed, quash the sentence passed at the trial, and pass such other sentence warranted in law by the verdict (whether more or less severe) in substitution therefor as they think ought to have been passed and in any other case shall dismiss the appeal.

How other

appeals disposed

"670. (1.) On any appeal against a decision allowing a de- murrer, quashing an indictment, or arresting judgment the Court may affirm, reverse, or modify the decision, and give any judg- ment and make any order which ought to have been given or made in the first instance, and exercise any powers of amendment or any other powers and direct any step to be taken which ought to have been exercised or taken in the first instance.

of.

"(2.) If an order arresting judgment is reversed, the Court

is to direct that judgment be pronounced upon the offender, and

See Code 671. he is to be ordered to appear, at such time and place as the Court may direct, to receive judgment, and any justice or the Registrar may, for the purpose of securing such appearance, issue his warrant for the arrest and detention of the offender. An offender so arrested may be admitted to bail by order of the Court, which may be made at the time when the order directing judgment to be pronounced is made or afterwards.

"(3.) On any appeal against an acquittal by direction or on

an appeal against any judgment given on a plea to the jurisdiction, the Court, if it allows the appeal, may reverse any judgment, de- cision, or verdict, the correctness of which was in question in the appeal, and may order a new trial or that the accused shall stand his trial, as the case may require.

2 GEO. V.] Criminal Code—Amendment. [1911; NO. 52,

"671. (1.) When the Court orders a new trial or that any per- Court ,nay give

as

son do stand his trial or be called upon to plead to an indictment„te, tiliT to et

or where there is or may be any issue to be tried in consequence of the Court's decision, the Court may fix the time and place of the trial, and may give such directions with regard thereto as may appear necessary.

"(2.) Any justice or the Registrar may, with a view to securing such person's appearance at and during the trial, issue his warrant for the arrest and detention of the 'person to be tried or directed to be called upon to plead, and such person may be ad- mitted to bail by order of the Court of Criminal Appeal or of the Court before which he is being or to be tried, which order may be made at any time.

"671a. When a person charged on indictment has been ac- Appeal by person

quitted on account of unsoundness of mind, he shall have the like acreol i timit(tleclof on the

right of appeal as if he had been convicted, and the verdict shall fnsanity.

for the purposes of the appeal be deemed to be a verdict convict-

ing the accused with a declaration of his unsoundness of mind

added, and the Court shall deal with the appeal accordingly: pro-

vided that if the appeal be allowed, the Court shall either order

an unqualified verdict and judgment of acquittal to be entered

or order a new trial.

"671b. (1.) If it appears to the Court of Criminal Appeal that an appellant, though not properly Convicted on some count or

Powers of

Court in special

eases.

part of the indictment, has been properly convicted on some other

cf. 7 Edw. VII.,

count or part of the indictment, the Court may either affirm the

c. 23, s. 5.

sentence passed on the appellant at the trial, or pass such sentence in substitution therefor as they think proper, and as may be war- ranted in law by the verdict on the count or part of the indictment on which the Court consider that the appellant has been properly convicted.

"(2.) Where an appellant has been convicted of an offence

and the jury could on the indictment have found him guilty of some other offence, and on the finding of the jury it appears to the Court of Criminal Appeal that the jury must have been satisfied of facts which proved him guilty of that other offence, the Court may, instead of allowing or dismissing the appeal, substitute for the verdict found by the jury a verdict of guilty of that other offence, and pass such sentence in substitution for the sentence passed at the trial as may be warranted in law for that other offence not being a sentence of greater severity.

"(3.) Where on the conviction of the appellant the jury

have found a special verdict, and the Court of Criminal Appeal consider that a wrong conclusion has been arrived at by the Court before which the appellant has been convicted on the effect of that verdict, the Court of Criminal Appeal may, instead of allowing

1911, No. 52.] Criminal Code—Amendment. [2 GEO. V.

the appeal, order such conclusion to be recorded as appears to the Court to be in law required by the verdict, and pass such sen- tence in substitution for the sentence passed at the trial as may be warranted in law.

"(4.) When it appears to the Court that a convicted appel- lant ought to have been acquitted on account of unsoundness of mind, they may quash the conviction and direct a judgment and verdict of acquittal on account of unsoundness of mind to be en-

See code 645. tered, and shall thereupon order the appellant to be kept in strict

custody until His Majesty's pleasure is known, and in any such case the Governor in the name of His Majesty may give such order for the safe custody of the appellant during the pleasure of the Governor, in such place of confinement and in such manner as the Governor in Council may think fit.

Re-vesting and	"671c. The operation of any order for the restitution of any
restitution of

property on con-	property to any person made on a conviction on indictment, and
viction.	the operation, in case of any such conviction, of the provisions of
cf. 7 Edw. VII.,	subsection one of section twenty-four of the Sale of Goods Act,
c. 23, s. 6.
1895, as to the re-vesting of the property in stolen goods on con-
viction, shall (unless the Court before whom the conviction takes place direct to the contrary in any case in which, in their opinion, the title to the property is not in dispute) be suspended-

" (a)

in any case until the expiration of ten days after the

date of the conviction; and

" (b)

in cases where notice of appeal or leave to appeal is given within ten days after the date of conviction, until the determination of the appeal;

and in cases where the operation of any such order, or the opera- tion of the said provisions, is suspended until the determination of the appeal, the order or provisions, as the case may be, shall not take effect as to the property in question if the conviction is quashed on appeal. Provision may be made by rule's of Court for securing the safe custody of any property, pending the sus- pension of the operation of any such order or of the said pro- visions.

"(2.) The Court of Criminal Appeal may by order annul or

vary any order made on a trial for the restitution of any property to any person, although the conviction is not quashed; and the order, if annulled, shall not take effect, and if varied, shall take effect as so varied.

"(3.) Any person against whom an order of restitution is

made may, subject to rules of Court, appeal to the Court of

Criminal Appeal against such order.

2 GEO. V.] Criminal Code—Amendment. [1911, No. 52.

"671d. (1.) Where a person convicted desires to appeal under this Chapter to the Court of Criminal Appeal, or to obtain the	Time for
appealing.
leave of that Court to appeal, he shall give notice of appeal or	Ibid., s. 7.
notice of his application for leave to appeal, in such manner as may be directed by rules of court, within ten days of the date of conviction. Such rules shall enable any convicted person to pre- sent his case and his argument in writing instead of by oral argument if he so desires. Any case or argument so presented shall be considered by the Court.
"In other cases notice of appeal must be given within ten days after the pronouncement, finding, or making of the judgment, verdict, order, or decision complained of.
"Except in the case of a conviction involving sentence of death, the time within which notice of appeal or notice of an appli- cation for leave to appeal may be given may be extended at any time by the Court of Criminal Appeal.
" (2.) In the case of a conviction involving sentence of death or corporal punishment

"(a) the sentence shall not in any case be executed until after the expiration of the time within which notice of appeal or of an application for leave to appeal may be given under this section; and

" (b) if notice is so given, the appeal or application shall be heard and determined with as much expedition as prac- ticable, and the sentence shall not be executed until after the determination of the appeal, or, in cases where an application for leave to appeal is finally re- fused, of the application.

"671e. The Judge or chairman of any Court before whom a per- son is convicted shall, in the case of an appeal under this Chapter	Judge's notes and report to be fur-
nished on appeal.
against the conviction or against the sentence, or in the case of
an application for leave to appeal under this Chapter, furnish to	Ibid., s. 8.
the Registrar, in accordance with rules of court, his notes of the trial; and in all cases of an appeal against sentence, and in any other case if he thinks it desirable in the interests of justice to do so, or if required by the Court of Criminal Appeal, shall also furnish to the Registrar in accordance with the rules of court a report giving his opinion upon the case or upon any point arising in the case.
"671f. For the purposes of this Chapter, the Court of Criminal Appeal may, if they think it necessary or expedient in the in-	Supplemental
powers of Court.
terest of justice-	Ibid., s. 9.

" (a) order the production of any document, exhibit, or other thing connected with the proceedings the production of which appears to them necessary for the deter- mination of the case; and

1911, No. 52.] Criminal Code—Amendment. [2 GEO. V.

" (b) if they think fit order any witnesses who would have been compellable witnesses at the trial to attend and be examined before the Court, whether they were or were not called at the trial, or order the examination of any such witnesses to be conducted in manner provided by rules of the Court before any Judge of the Court or before any officer of the Court or justice of the peace or other person appointed by the Court for the purpose, and allow the admission of any depositions so taken as evidence before the Court; and

"(c) if they think fit receive the evidence, if tendered, of any witness (including a convicted appellant) who is a com- petent but not compellable witness : provided that the

See WA., 1906,

No. 28, s. 8. evidence of the wife or husband of a convicted appel- lant shall not be received, except on behalf of the appellant, unless she or he has been first informed by the Court that she or he is not compellable to give evi- dence if she or he is unwilling to do so.

"(d)

where any question arising on the appeal involves pro- longed examination of documents or accounts, or any scientific or local investigation, which cannot in the opinion of the Court conveniently be conducted before the Court, order the reference of the question in manner provided by rules of court for inquiry and report to a special commissioner appointed by the Court, and act upon the report of any such commissioner so far as they think fit to adopt it; and

"(e)

appoint any person with special expert knowledge to act as assessor to the Court in any case where it appears to the Court that such special knowledge is required for the proper determination of the case;

and exercise in relation to the proceedings of the Court any other powers which may for the time being be exercised by the Supreme Court on appeals in civil matters, and issue any warrants necessary for enforcing the orders or sentences of the Court : Provided that in no case shall any sentence be increased by reason of or in consideration of any evidence that was not given at the trial.

Legal assistance	"671g. The Court of Criminal Appeal may at any time assign
to appellant.

7 Edw. VII., e.	a convicted appellant a solicitor and counsel or counsel only in
23, s. 9.	any appeal or proceedings preliminary or incidental to an appeal in which, in the opinion of the Court, it appears desirable in the interests of justice that the appellant should have legal aid, and that he has not sufficient means to enable him to obtain that aid.

Right of appellant "671h. (1.) Subject to any order to the contrary made by the

to be present.	Court of Criminal Appeal, a convicted appellant, notwithstanding
cf. ibid., B. 11.

2 GEO. V.] Criminal Code—Amendment. [1911, No. 52.

that he is in custody, shall be entitled to be present if he desires it on the hearing of his appeal, except where the appeal is on some ground involving a question of law alone, but in that case and on an application for leave to appeal and on any proceedings pre- liminary or incidental to an appeal shall not be entitled to be present, except where rules of court provide that he shall have the right to be present, or where the Court gives him leave to be present.

"(2.) The power of the Court to pass any sentence under this Chapter may be exercised notwithstanding that the appellant is for any reason not present,

"671i. (1.) A convicted appellant who is not admitted to bail shall, pending the determination of his appeal or of his applica-

Admission of

appellant to bail,

and custody when

tion for leave to appeal, be treated in accordance with the special

attending Court.

regulations for the time being applicable to prisoners unconvicted

Ibid., s. 14.

of crime during the period of their detention for safe custody only.

"(2.) The Court of Criminal. Appeal may, if it seems fit, on

the application of an appellant, admit the appellant to bail pend-

ing the determination of his appeal.

"671j. (1.) The registrar shall take all necessary steps for

Duties of regis-

trar with respect

obtaining a hearing under this Chapter of any appeals or appli-	to notices of
cations, notice of which is given to him under this Chapter, and	appeal, etc.
shall obtain and lay before the Court in proper form all docu-	Ibid., s. 15.
ments, exhibits, and other things relating to the proceedings in the Court before which any convicted appellant or applicant was tried, which appear necessary for the proper determination of the appeal or application.
" (2.) If it appears to the registrar that any notice of an appeal against a conviction purporting to be on a ground of appeal which involves a question of law alone does not show any sub- stantial ground of appeal, the registrar may refer the appeal to the Court for summary determination, and where the case is so referred, the Court may, if they consider that the appeal is frivo- lous or vexatious, and can be determined without adjourning the same for a full hearing, dismiss the appeal summarily, without calling on any persons to attend the hearing or to appear for the Crown thereon.
" 0.) Any documents, exhibits, or other things connected with the proceedings on the trial of any person on indictment, who, if convicted, is entitled to or may be authorised to appeal under this Chapter, shall, be kept in the custody of the Court of trial in accordance with rules of court made for the purpose, for such time as may be provided by the rules, and subject to such power as may be given by the rules for the conditional release of any such documents, exhibits, or things from that custody.

1911, No. 52.] Criminal Code—Amendment. [2 GEo. V.

" (4.) The registrar shall furnish the necessary forms and instructions in relation to notices of appeal or notices of appli- cation under this Chapter to any person who demands the same, and to officers of Courts, governors of prisons, and such other officers or persons as he thinks fit, and the governor of a prison shall cause those forms and instructions to be placed at the dis- posal of prisoners desiring to appeal, or to make any application under this Chapter, and shall cause any such notice given by a prisoner in his custody to be forwarded on behalf of the prisoner to the registrar.

"(5.) The registrar shall report to the Court or some Judge thereof any case in which it appears to him that, although no application has been made for the purpose, a solicitor and counsel or counsel only ought to be assigned to an appellant under the powers given to the Court by this Chapter.

Powers which may

be exercised "671k. The powers of the Court of Criminal Appeal under this.

by a. Judge of the	Act to give leave to appeal, to extend the time within which notice
Court.	of appeal or of an application for leave to appeal may be given,
Ibid., s. 17.	to assign legal aid to an appellant, to allow the appellant to be present at any proceedings in cases where he is not entitled to be present without leave, and to admit an appellant to bail, may be exercised by any Judge of the Supreme Court in the same manner as • they may be exercised by the Court of Criminal Appeal, and' subject to the same provisions; but if the Judge refuses an appli- cation on the part of the appellant to exercise any such power in his favour, the appellant shall be entitled to have the application determined by the Court of Criminal Appeal as duly constituted for the hearing and determination of appeals under this Chapter.

Definitions. "6711. In the provisions of this Code relating to appeals to the

ef. ibid., s. 21.

Court of Criminal Appeal, unless the context otherwise requires-

" The expression 'convicted appellant' includes a person who

has been convicted, or who has been acquitted on account

of unsoundness of mind, and who desires to appeal or to

obtain the leave of the said Court to appeal under this

Chapter, and has given notice of appeal or of his applica-

tion for leave to appeal within the time or extended time

limited by or pursuant to this Chapter for that purpose;

and

"The expression 'sentence' includes any order of the Court made on conviction with reference to the person convicted, and the power of the Court of Criminal Appeal to pass a sentence includes a power to make any such order of the Court."

2 GEO. V.] Criminal Code—Amendment. [1911, No. 52.

Amendment of

11. The following words are added to section seven hundred Section 713.

and thirteen of the Code :— ef. ibid., s. 18.

"and the procedure and practice relative to appeals to the Court of Criminal Appeals. Rules so made for the regu- lation of the procedure and practice relative to such appeals may make provision with respect to any matter for which provision is to be made under Chapter LXVIII. by rules of court or which it may be necessary or convenient to pre- scribe for any of the purposes of that Chapter or for the efficient conduct of any proceeding thereunder, and may regulate generally the practice and procedure under that Chapter, and the officers of any Court before whom an appellant has been convicted, and the governor or other officers of any prison or other officer having the custody of an appellant and any other officers or persons, shall comply with any requirements of those rules so far as they affect those officers or persons, and compliance with those rules may be enforced by order of the Court of Criminal Appeal."

Addition of new

12. A new section is added at the end of the Code, as follows	section.
"714. (1.) The Governor may by regulations-	Power of
Governor to make

" (a)	prescribe the treatment of persons undergoing preven-	regubtions.
tive detention, but so that such treatment shall be less	cf. N.S.W., 1905,
rigorous than that of ordinary criminal prisoners;	No. 15, s. 12.
" (b)	prescribe the work to be performed by such persons and the conditions under which it shall be performed, but so that such work shall be less severe than the work classified as hard labour under the Prisons Act, 1903;

"(c) prescribe the remuneration or allowance to be paid or

granted for the work of habitual criminals ;

" (d) prescribe the manner in which a convicted appellant, or other person, when in custody, is to be brought to any place at which he is entitled to be present for the pur- poses of Chapter ',XVIII., or to any place to which the Court of Criminal Appeal or any Judge of the Supreme Court may order him to be taken for the purpose of any proceedings of that Court or rendered necessary by or in consequence of any judgment or order of that Court, and for the manner in which he is to be kept in custody while absent from prison for the purpose; and declare that an appellant or other person whilst in custody in accordance with regulations made hereunder or taking effect by virtue of this section shall be deemed to be in legal custody.

1911, No. 52.] Criminal Code—Amendment. [2 GEO. V.

"(2.) Any regulations made or purporting to be made under this section shall

"(a) be published in the Government Gazette;

" (b)	take effect according to their tenor from the date of publication or from a later date to be specified therein; and
" (c)	be judicially noticed and, unless and until they are dis- allowed as hereinafter provided and except in so far as they are in conflict with any express provisions of this Code or of any Act, be conclusively deemed to be valid.

"(3.) Such regulations shall be laid before both Houses of Parliament within seven days after publication if Parliament is in session, and, if not, then within seven days after the commence- ment of the next session.

"(4.) If either House of Parliament passes a resolution at any time within one month after any such regulation has been laid before it, disallowing such regulation, then the same shall thereupon cease to have effect, but without prejudice to the past operation thereof."

By Authority : FRED. Wm. SIMPSON, Government Printer,Perth.