Criminal Code Amendment Act 1918 (WA)

No. 32.] Criminal Code—Amendment. [1918.

CRIMINAL CODE AMEND-

MENT.

9° Crno. V., No. XXII.

No. 32 of 1918.

AN ACT to amend the Criminal Code.

[Assented to 24th December, 1918.j

Council and Legislative Assembly of Western Australia, inDE it enacted by the King's Most Excellent Majesty, byand with the advice and consent of the Legislative

this present Parliament assembled, and by the authority of

the same, as follows:—

Short title. 1. This Act may be cited as the Criminal Code Amend-

ment Act, 1918.

Amendment of

Section" 18. 2. Section eighteen of the Criminal Code (hereinafter

called "the Code") is hereby amended- by the deletion of

the words "preventive detention" and the substitution of

the words "detention in a reformatory prison."

Amendment of

Section 19.

3. Section nineteen of the Code is hereby amended by the

insertion, after paragraph six, of the following paragraph:-

6a. If any child or young person under the age of

eighteen years is convicted on indictment of any offence

punishable with imprisonment, the Court. in lieu of sen-

tencing him to imprisonment, may order him to be sent

to an industrial school (as defined in the State Children

Act, 1907) until he is eighteen years of age, or until the

expiry of two years from the date of the conviction, which-

ever period shall be the longer, and such child or young

person may by virtue of the order be dealt with as is pro-

vided in the State Children Act, 1907, with reference to

children sent to industrial schools, and the relative pro-

visions of that Act shall apply to him accordingly.

1918.] Criminal Code—Amendment. [No. 32.

4.    Section one hundred and eighty-two of the Code is Amendment of

hereby amended by omitting the words "the offender cannot Section 182.

be arrested without warrant."

5.    Section one hundred and eighty-five of the Code is Amendment of

hereby amended by the substitution, in the second paragraph, section	185.
of the word "crime" for the word "misdemeanour," and of the word "fourteen' for the word "three," and by the re- peal of the third paragraph thereof.

6.    Section one hundred and eighty-seven of the Code is Repeal ofSec.

hereby repealed, and the words "or one hundred and eighty- seven," in section two hundred and six of the Code, are hereby excised.

7.    (1.) Section one hundred and eighty-eight of the Code Repeal of see.

hereby repealed, and the following sections inserted in DtMt8Wtonn of w

ne provisions.

lieu thereof:-

187. (1.) Any person who has or attempts to have Defilement of

Cr

unlawful carnal knowledge of a girl under the age of Mitg.d

sixteen years is guilty of a crime, and is liable to im-

prisonment with hard labour for five years with or with-

out whipping:

Provided that if the offender's age does not exceed twenty-one years he is guilty of a misdemeanour and liable to imprisonment with hard labour for two years, with or without whipping.

(2.)

It is a defence to a charge of either of the offences defined in this section to prove that the accused person believed, on reasonable grounds, that the girl was of or above the age of sixteen.

(3.) A prosecution under this section for the offence of having unlawful carnal lmowledge must be begun within six months, and for the offence of attempting to have unlawful carnal knowledge within three months, after the offence has been committed.

(4.) A person cannot be convicted of either of the offences defined in this section upon the uncorroborated testimony of one witness.

The wife of the accused person is a competent and compellable witness.

(5.)

No. 32.] Criminal Code—Amendment. [1918.

Defilement of

idiots.	188. (1.) Any person who, knowing a woman or girl to be an idiot or imbecile, has or attempts to have unlawful carnal knowledge of her is guilty of a crime, and is liable to imprisonment with hard labour for five years with or without whipping.
(2.) A person cannot be convicted of either of the offences defined in this section upon the uncorroborated testimony of one witness.

The wife of the accused person is a competent

and compellable witness.

(2.) The words "one hundred and eighty-seven" are

(3.)

hereby inserted before the words "one hundred and eighty-

eight," in section two hundred and six of the Code.

Substitution of new section for8. Section one hundred and eighty-nine of the Code is Section 189. hereby repealed, and the following section is hereby inserted

in lieu thereof :—

Indecent deal-	189. (1.) Any person who unlawfully and indecently
Mg with gins

under sixteen	deals with a girl or woman
and others.

(i.)	who is under the age of sixteen years; or
(ii.)	who is to the knowledge of the accused person

an idiot or imbecile; or

(iii.) who is under the age of seventeen years, and of whom the accused person is a guardian, employer, teacher, or schoolmaster,

is guilty of a crime, and is liable to imprisonment with

hard labour for four years with or without whipping:

Provided that if the offender's age does not exceed twenty-one years he is guilty of a misdemeanour and liable to imprisonment with hard labour for two years, with or without whipping.

If the girl dealt with is under the age of thirteen years he is guilty of a crime, and liable to imprisonment with hard labour for seven years with or without whip- ping.

(2.)

(3.) If a person accused of the offence of unlawfully and indecently dealing with a girl under the age of sixteen years proves that the act committed was done with the consent of the girl, that she was in fact of or over the age of thirteen years, and that he believed at the time on reasonable grounds that her age was greater than stated in the indictment, he shall be in the same position as if her age had in fact been such as he so believed it to be.

1918.] Criminal Code—Amendment. [No. 32.

(4.) The wife of the accused person is a competent and

compellable witness.

(5.) The term "deal with" includes doing any act which if done without consent would constitute an assault as hereinafter defined.

(6.) A prosecution under tins section for the offence of unlawfully and indecently dealing with a girl under the age of sixteen years must, if she is of or over the age of thirteen years, be commenced within three months after the offence has been committed.

9.    Section one hundred and ninety of the Code is hereby Amendment of

amended by inserting the word " employer" after the word Section 190.

" guardian," in line one, and by the substitution of the

word " crime" for the word "misdemeanour," and of the word

"five" for the word "two."

Section one hundred and ninety-four of the Code is hereby amended by inserting after the word "brothel," in line six, "or (3) being the keeper of a brothel suffers any girl or woman under the age of twenty-one years to be therein."	Amendment of
Section 194.

10.

11.	The following section is hereby inserted in Chapter	Insertion of
new section in

XXII. of the Code, between sections two hundred and five	Chap. nil.
and two hundred and six:-

205A. Nothing in the foregoing provisions of this /tape or at-

chapter shall apply to or in respect of the offence of notmpaffed

tet rapeected by

foregoing 190'

rape or attempted rape.

visions of this

Chapter.

Section two hundred and ten of the Code is hereby amended by the addition of paragraphs, as follows:	Section 210.
Amendment of

12.

In any prosecution under paragraph (1) on proof that the place was kept as a place to which persons resort for the purpose of playing at any game of chance, the averment in the indictment, information, or complaint that the place was kept for gain shall be deemed to be proved in the absence of proof to the contrary.

Any person who, being the owner or occupier of any house, room, or place, knowingly and wilfully permits it to be opened, kept, or used as a common gaming house by another person, or who has the use or management, or assists in conducting the business of a common gaming house, is guilty of an offence, and is liable on summary conviction to imprisonment with hard labour for six months, or to a fine of one hundred pounds.

No. 32.] Criminal Code—Amendment. [1918.

Amendment of 13. Section two hundred and eighty-nine of the Code is

Section 289.

hereby amended by the addition of paragraphs, as follows:— If the accused person admits that he is guilty of the offence, the justices before whom he is charged may, in their discretion, deal with the charge summarily.

The offender is liable on such summary conviction to imprisonment with bard labour for six months.

Amendment of

Section three hundred and twenty-three of the Code is hereby amended by omitting the words "proceeding civil or criminal,' and inserting the words "criminal proceed- ings" in place thereof. "

Section 323. 14.

Amendment of	15.	The second paragraph of section three hundred and
Section 928.

twenty-eight of the Code is hereby repealed.

Amendment of	16.	Section four hundred and twenty-seven of the Code
Section 427.

is hereby amended by the addition of the following para-

graph:—

If in any case it appears to the justices that for any reason the sentence which they are empowered by this chapter to pass on the person convicted by them is in- adequate, they may, in lieu of passing sentence, commit the convicted person for sentence.

Amendment of	17.	The following paragraph is hereby inserted in section
Section 582.

five hundred and eighty-two of the .Code, between the third

and fourth paragraphs thereof :--

Where an enactment constituting an offence states the offence to be the doing or the omission to do any one of any different acts in the alternative or the doing or the omission to do any act in any one of any different capa- cities or with any one of any different intentions or states any part of the offence in the alternative, the acts, omis- sions, capacities, or intentions or other matters stated in the alternative in the enactment may be stated in the alternative in the statement of the offence in the indict- ment charging the offence: provided that the court may at any stage of the proceedings amend the statement if it appears to the court to be so framed as to be embar- rassing.

1918.] Criminal Code—Amendment. [No. 32.

18.    Section five hundred and ninety-four of the Code is snpsst!totgolonniz

hereby repealed and the following section inserted in lieu Section 594.

thereof :—

594. Except as hereinafter stated, upon an indictment %sole:tall= for

charging a person with an offence he may be convicted glnatehda.t

of any offence which is established by the evidence, and

which is an element or would be involved in the com-

mission of the offence charged in the indictment.

19. The following section is hereby inserted in the Code Insertion of new section after

after section five hundred and ninety-six:— Section 590.

596A. Upon an indictment charging a person with = retort° catt

having or attempting to have unlawful carnal knowledge roalLimaregrt

of a girl under a particular age, he may be convicted of

unlawfully and indecently assaulting or dealing with her

(she being a girl under that particular age, or a girl or

woman of or over that age) if such offence is established

by the evidence.

20.	The following section is hereby inserted in Chapter	section after
Insertion of new

LXIII. of the Code, after section six hundred and seven:- Section 007.

607n. Nothing in this chapter shall be deemed to authorise the conviction of any person of any offence on	Saving of Pro-
visions as to
time.
any prosecution which has not been commenced within the time (if any) limited by law for the commencement of a prosecution for such offence.

21.    Section six hundred and eighteen of the Code is hereby tengoldninGeinst. of

amended by the insertion of the words "that he was duly convicted of the offence charged in the indictment or" after the word "satisfied," in the second paragraph.

22.    The following section is hereby inserted in the Code II/eigiimgrnew

after section six hundred and thirty-five:— Section 635.

635a. At the -trial on indictment of any person under Exclusion of

eighteen years of age (either alone or in conjunction with Le'l	rog	ns.fr'm
any other person) for any offence, or at the trial on in- dictment of any person for any offence of an indecent character committed against a person under the age of eighteen years, the court may exclude all or any persons not directly interested in the case from the court-room or place of trial, and may prohibit the publication of all or any portion of the evidence or proceedings.

23. Sections five hundred and eighty-nine and six hundred Repeal of So c.

al 589

and forty-nine of the Code are hereby repealed. 049.

No. 32.] Criminal Code—Amendment. [1918.

Amendment of	24.	Section six hundred and fifty-six of the Code is hereby
Section 656.

amended by the repeal of the third paragraph, and the sub-

stitution of the following paragraphs:

If sentence is not passed forthwith, the court or any judge or chairman of the court may, at any subsequent sitting of the court at which the offender is present, pass sentence upon him.

When an offender has been discharged on his recogni-

sance as aforesaid, any judge or chairman of the court

may at any time, on an ex parte application made by or

on behalf of the Attorney General, issue a warrant under his hand to arrest the offender and bring him before a justice of the peace, and the justice may commit him to prison until he can be brought before the court to re- ceive sentence, and the sheriff or other proper officer shall bring him before the court to receive sentence as soon as practicable.

Amendment of 25.

Section six hundred and fifty-seven of the Code is hereby amended, as from the commencement of the Code, by the substitution of the word "is" for the word "his," in the fourth line of the section.

Section 657.

Repeal of Sec-	26.	Sections six hundred and sixty-one to six hundred and
tions 661 to

665.            sixty-eight (both inclusive) of the Code are hereby repealed.

Insertion'of new

sections after 27. The following sections are hereby inserted after sec-

Section 660.

tion six hundred and sixty, in Chapter LXV. of the Code, that

is to say-

Indeterminate

sentence on	661. When any person apparently of the age of eighteen years or upwards is convicted of any indictable offence, not punishable by death, and has been previously so convicted on at least two occasions, the court before whom such person is convicted may declare that he is an habitual criminal, and direct that on the expiration of the term of imprisonment then imposed upon him, he be detained during the Governor's pleasure in a reform- atory prison.
habitual
criminal.
Indeterminate

sentence on	662. When any person apparently of the age of
person con-

victed of in-	eighteen years or upwards is convicted of any indictable
dictable offence.
Leval	offence, not punishable by death (whether such person has been previously convicted of any indictable offence or not), the court before which such person is convicted may, if it thinks fit, having regard to the antecedents,

1918.] Criminal Code—Amendment. [No. 32.

character, age, health, or mental condition of the person convicted, the nature of the offence or any special circum- stances of the case

(a)	direct that on the expiration of the term of im- prisonment then imposed upon him he be de- tained during the Governor's pleasure in a re- formatory prison; or
(b)	without imposing any term of imprisonment upon him sentence him to be forthwith committed to a reformatory prison, and to be detained there during the Governor's pleasure.

663. Any question arising under this chapter as to giuiryntooac. whether any person is or is not an habitual criminal or rtltrilnati .onry has or has not been previously convicted, or should or gro=oetty should not be detained in a reformatory prison, shall be the Court'

determined by the court on such evidence as the court

may think fit to hear.

664. A person shall be deemed to have been previ- relteri tophree,

ously convicted of an offence for the purposes of this aoiltiss. convie-

chapter if so convicted anywhere or at any time whether

heretofore or hereafter, and whether within or outside

of Western Australia, and any conviction -for any offence

outside of Western Australia shall., if such offence is of

the same or substantially the same nature as any offence

defined by the law of this State, be deemed for the pur-

poses aforesaid a conviction for the offence so defined.

665. (1.) An indeterminate sentence shall commence Service of Inde- terminate sen-

and become operative on the expiry or sooner determine tenm

tion of any sentence involving deprivation of liberty

which the convicted person is undergoing or has been

sentenced to undergo.

Indeterminate sentences shall be served in a re- formatory prison under and subject to such provisions as shall be made by law for the establishment of such prisons and for prescribing the manner of serving such sentences and regulating the treatment, employment, and discipline of persons undergoing such sentences.

(2.)

(3.)

The fact that any person is subject to an indeter- minate sentence shall not prevent him from undergoing or suffering any other punishment to which he may be or become liable.

any provisions to be made under any law relating to batMn. 666. (1.) The Governor may at any time, subject to Release on pro-

prisons, and subject to any conditions which he may see

No. 32.] Criminal Code—Amendment. [1918.

fit to impose, direct the release on probation for two years of any person undergoing an indeterminate sen- tence hereunder, and such person shall be so released accordingly. •

(2.) Any such license may prescribe as a condition that the released person be placed and remain under the supervision or authority of any society named in the license which may be willing to take charge of the case, and such society shall, whenever required by the Gover- nor or Comptroller General of Prisons, report on the conduct and circumstances of the released person.

(3.) Every person so released while he remains in

Western Australia shall (except in so far as the Gover- nor shall, in the case of a person placed under the super- vision or authority of some society, otherwise order) be subject to police supervision, and the provisions of sub- sections two and three of section six hundred and sixty of this Code shall apply to him accordingly.

Nothing herein shall prevent the exercise by the Governor of the Royal Prerogative of Mercy in respect of any person on whom an indeterminate sentence has been imposed.

(4.)

667. (1.) If, during the period of probation, a person so released

Recommittal c

persons re-	(a)	is proved at any court of petty sessions to have
leased on pro-

bation or ter-	failed (without some excuse which such court
reformative
mination of Ids	deems reasonable) to comply with any of the
detention.	said provisions of section six hundred and sixty, or with any condition on which he has been re- leased, or to have been associating with reputed thieves or other reputed criminals; or

(b) is convicted of any indictable offence or of any simple offence which is punishable by imprison- ment for a period exceeding one month,

then the court of petty sessions or the court before which he is so convicted as aforesaid, as the case may be, may by order direct that such person forth?•ith or on the com- pletion of the term of imprisonment (if any) then im- posed upon him be recommitted to a reformatory prison during the Governor's pleasure, and he shall be so re- committed and the indeterminate sentence shall, subject to any such imprisonment as aforesaid, again become operative.

1918.] Criminal Code—Amendment. [No. 32.

Complaint of any matter necessary to secure an order of recommittal by a court of petty sessions here- under may be made in manner provided in the Justices Act, 1902, in respect of a charge of a simple offence, and for the purpose of having such matter heard and deter- mined such summonses, warrants, and other proceedings may be issued and taken as could be issued or taken if the complaint were in respect of such a charge.

(2.)

(3.) An order of recommittal under this section on the ground of the conviction of the person concerned may be made at any time during the period of probation and before the expiry of the sentence (if any) imposed on the conviction and, when the order is not made at the time of the conviction, the person concerned may be brought before the court or justice having power to make such order in the same manner as if he were charged with an offence to be dealt with by such court or justice, and (if he is in prison) the provisions of section fifty-two of the Prisons Act, 1903, shall be deemed to apply to the case accordingly.

(4.) If during the period of probation none of the events aforesaid happens, or if no order of recommittal is made in consequence of any such event which has hap- pened, then the indeterminate sentence shall be deemed to be annulled as from the end of such period.

668. Any person at or immediately prior to the com- illgeltrtol°v11

mencement of these provisions undergoing or liable to Mees?,fsepur;_ undergo a sentence of preventive detention, which has :ilea=

been heretofore imposed on him as an habitual criminal, " P

or released on probation from such detention, shall be

deemed to have been sentenced or released under these

provisions, and these provisions shall apply to him ac-

cordingly: provided that if a period shall have been fixed

as the duration of the preventive detention of such per-

son, then the sentence to which he is subject by virtue of

these provisions shall be deemed to be annulled at the

end of that period.

28. Section six hundred and seventy-eight of the Code is trow. of

hereby amended

(1.) By the substitution for the second paragraph of

the following paragraphs, that is to say

Notwithstanding the provisions of any law here-

tofore enacted, every sentence of death shall be

No. 32.] Criminal Code—Amendment. [1918.

executed by the Comptroller General of Prisons or his deputy, or by some substitute appointed by such Comptroller General or deputy by writing under his hand.

The Comptroller General or his deputy is re- quired to be present at the execution, together with the superintendent or gaoler and proper officers of the prison, including the medical officer. Such adult spectators as the Comptroller General or his deputy may think fit may also be present.

(2.) By the deletion in the fourth paragraph of the words "the Sheriff or Under Sheriff or such deputy," and the substitution of the words "the Comptrol- ler General of Prisons or his deputy."

Insertion of new 29. The following section is hereby inserted in the Code

section after

Section 082. after section six hundred and eighty-two:—

Enforcement of

order for pay-	682A. (1.) When any decision of the Supreme Court adjudges or orders the payment of a pecuniary penalty or compensation or sum of money or costs, then such decision may be enforced in such manner and by such means as a similar decision of justices is enforceable, and shall for that purpose be deemed an order made by justices, and the relative provisions of the Justices Act, 1902, shall apply thereto accordingly.
ment of penalty,
compensation,	or any court of general or quarter sessions of the peace
Or costs.
(2.) For the purposes of enforcing such decision the Registrar or Clerk of the Court, as the case may be, shall have power to make such subsidiary orders and to sign and issue such warrants as any justices might make and sign in a similar case or as may be authorised by rules of court.
(3.) The provisions of this section shall be without prejudice to any other method of enforcement.
(4.) "Decision" means any judgment, sentence, or order given, pronounced, or made in or in connection with a criminal cause or matter.

Amendment of	30. Section six hundred and eighty-eight of the Code is hereby amended by the deletion of the words "preventive detention," and the substitution of the words "detention in a reformatory prison."
Section 088.

1918.] Criminal Code—Amendment. [No. 32.

31. Sections one hundred and ninety-five, six hundred and gggre' ,3ctie5,13f

fifty-nine, six hundred and seventy, six hundred and eighty, trag:68°,

and seven hundred and nine of the Code are hereby amended

by the substitution of the word "eighteen" for the word

"sixteen" therein.

32.    Section seven hundred and eleven of the Code is trepit.of

hereby amended by the deletion of the words "which is such that the offender may be arrested without warrant," in para- graph (a), and by the deletion of the word "such," in para- graph (b), and also in paragraph (c).

33. The followincr section is hereby inserted in the Code Insertion of now section after

after section seven hundred and forty-six:— b Section 746.

746A. When a person bound by recognisance (by Enforcing to-

before whomsoever taken) to take his trial or attend any

other proceeding before the Supreme Court or a court

of general or quarter sessions of the peace in any crim-

inal cause or matter or bound by any other recogni-

sance, before whomsoever taken (entered into pursuant

to any judgment, order, or sentence of any such court,

given, made, or pronounced in a criminal cause or mat-

ter), to keep the peace or be of good behaviour or receive

judginent or do or refrain from doing anything or ob-

serve or comply with any other condition whatsoever,

fails in any condition of the recognisance, such court or

any judge or chairman thereof, on the production of the

recognisance, and on the application of counsel for the

whomsoever ordered or permitted to be entered into and e"IlLsances. forthwith, and that such person and any surety bound by the recognisance shall forthwith pay to the Attorney General to the use of the Crown the sum in which he is bound.

The provisions of this section shall be without preju- dice to any other method of enforcing recognisances.

34. Section seven hundred and forty-eight of the Code is Repeal of Sec. Ron 748.

hereby repealed.