Criminal Law Procedure Act 1859 (SA)

ANNO VICESIMO SECUNDO ET VICESIMO TERTIO

V ICTORIB

REGINB.

No. 6.
An Act-for consolidating the Statute L a w in fcrce, in South Australia, relating to criminal procedure by i6dictment or information, by the Attorney-General, b virtue of the Act No. 10 of ' the year 1852, intitulcd " An Act %---a- o prow e-jiF7Z~e &= of ofenders

%wit	the ifitemention of Grand Juries."

f7TG:

.L.,%f,y-l

(Assented to, 1st September, 1859.1

& L / Z a, -

-. 9

HEREAS i t is expedient to consolidate the Statute Law in fiea le.

(I,,, .L-

force in the Province of South Australia relating to Criminal

Proced~iZiT0~	indictment or information.	by the ~ t to ;ney~enera l,	Q, , - -%/h	/
7

by virtue of the Act No. 10 of the year 1852, intituled "An Act to	J. * e - / W.	- - - - -
provide for the trial of offenders without the intervention of Grand Juries:" Be it therefore Enacted, by the Governor-in-Chief of the Provincc of South Australia, with the advice and consent of the Legislative Council and 'House of Asscinbly of the said Province;in
this present Parliament assembled, as follows-

being

s c. 4, C. 31, b. s.

1. It shall not be necessary to state any venue in the body of any Venue in the margin

sufficient. except

indictment, but " South Australia" named in the margin thereof shall ,h,, l0,d dwc,.+
b m e G to be the venue for all the facts stated in the body of such ~y~;~;~;;v~loo

indictment:

Provided that, in cases where local description is or here-

23,

after shall be rcquircd, such local description shall be given in the
body of the indictment.

Provision for the tria

,4?A 4d~A

2. Where any person, bcing feloniously stricken, poisoned, or ;fm;;g$tr;;;;

L",-

H7L

-&>

otherwise hurt upon the sea, or at any place out of the said Province, death or the cause of

&c;'&*

shall die of such stroke, poisoning, or hurt, in the said Province, or ~~~~$t~;;?;~ln

---

being feloniously strkken, poisoned, or otherwise hurt at any place in the said Province, shall die of such stroke, poisoning, or hurt, upon the sea, or at ahy place out of the said Province, every offence corn- mitted in respect of any such case, whether the same shall amount to the offence of murder or of manslaughter, or of being acccssory before the fact to murder, or after the fact to murder or man- slaughter, may be dealt with, inquired of, tried, determined, and punished in the said Province in the same manner in all respects as if such offence had been wholly committed in that Province.
As to indictments and informations:
Caurt may cause

records to be amended

3. I t shall be lawful for any Judge or Court sitring on the trial

in certain cases.

of any indict~ble

offence, if such Judge or Court shall sce fit so to

9 G. 4, c. 15.

11 & 12Vict.,c. 46,s.4.

do, to cause the record whereon the trial is pending, when any

S. 10.

'12 & 13 Yict., c. 45,

variance shall appectr between any matter in writing or in print

produced in evidence and the recital or setting forth t l lo~of

upon

14&15Vict.,c.fOO,s.l.

such record, to be forthwith amended in such particular by somc

officer of the Court; and whenever on the trial for any felony or

misclemeanor there shall appear to be any variance between the statement in the record and the evidence offered in proof thereof, in the name of any county, hundred, city, town corporate, district, township, or place mentioned or described in any such record, or in the name or description of any pcrson therein statcd or allcged to be the owner of m y property, real or personal, which shall form the subject of any offence charged therein, or in the name

or description of any person, therein statcd or alleged to be in-

jured or damaged, or intended to be injnrcd or dunlaged by thc corntnission of such offence, or in the Christian name or surname, or both Christian name and surname, or other description what- soever, of any person whomsoever therein named or described, or in the name or description of any matter or thing whatsoever therein s~arned or described, or in the ownership of any property therein named or described, or in my other particular not material to the merits cf the case, i t shall be lawful for the Court before which the trial shall be had, if it shall consider such variance not material

to the merits of the case, and that the party accused cannot be

prejudiced thereby in his defence on the merits., to order such record to be amended, according to the proof, by some officer of the Court or'other person, both in that part of the rccord where such variance occurs and in every other part of the record which it may become necessary to amend, on such terms as to postponing the trial to be had before the same or another jury as such Court s h d think reasonable; and after any such amendment as in this section men- tioned the trial shall proceed, whenever the same shall be proceeded with, in the same manner in all respects, and with the same conse- quences, both with respect to the liability of witnesses to be indicted for perjury and otherwise, as if no such variance had occurrcd; and the order for the amendment shall either be endorsed on the indictment, or shall be engrossed on parchment, and filed, to- gether with the indictment, among the records of the Court: Pro-

vidcd
~ i d c d that in all such cttscs whcre the trial shall be so postponed it shall be lawful fbr the Court to respite the recognizances of the pro- secutor and ~vitncsses, and of the party accusecl, and, his surety or sureties, if' any, accosclingly, in which case the prosccutof a i d wit- nesses s l d l bc bound to attend to prosecute and gi\e evidence respect,ively, ancl the party accused s l d l be bound to-attend to be tsiecl, at the time and placc to which such trial shall be postponed, without entering into any fresh recngnizaaccv for that purpose, in
such rind the samc nianner as if they werc originally bound by their
I-ecognizances to appear and prosecute or givc evidence at the time and place to which such trial sllall have been so postponed: Provided also, that whcrc any such trial shall be to be had before another jury
the Crown and the party accused s l d l respectikely be entitled to the
sanle challenges as they were respcctivcly entitled to before the first jury was sworn: Pro~ided also, that the orcl cl " record" in this sec- tion shall include every pleading which magi form part of the record.

4. Every verdict and judgment which shall be given after the making of any nrlicndrr~cnt under the provisions of this Act shall be	Verdirts and judg-
ments valid aftcr
amendmenta.
of tllc same force and effect in all respects as if the indictment	14Rc15Yi(~t.,c.lOO,s.2.

lrad originally been in the same fbrm in wl~icli	it was after such
amendment was made.

5. If it shall bcconle ncccssary at any time, for any purpose wliat- socver, to draw up a formal record in any case where any amcildment

Rcrods to he drawn up in amcndcd form,

without noticing the

shall havc bccn r~latlc urlder the provisions of this Act, such record

arnendnicnts.

l.l&lSVict.,

c.lOO,s.3.

shall be drawn up in tllc fbsnl ill which the indictrllent was after w c h mnendmcnt was made, without taking any notice of the fact of such amendmcht having been made.

6. Ko iidictruerit shall be abated by reason of any dilatory plea of nlisnomcr of the party offering such plea, if the Court shall

Trdictment not to

abate by dilatory plea

of misnomer, &c.

bo satisfied by affidavit or otherwise of the truth of such plea;

7 G. 4, c. 64, S. 19.

but in such case the Court shall forthwith cause the indictment to be amcnclcd according to the truth, and shall call upon such party

to plcad thcrcto, and shall procccd as if 110 such dilatory plea had

been pleadcd.

7. No indictment for any offence shall be held insufficient for What defects vhallnot

want of the averment of any matter unnecessary to be proved, nor

vitiate an indictrment

8, ;,

vict.,

for the omission of the words " as appears by the record," or S. 24.	the words " with force and arms," or of the words 'c against the 7 G. 4, c. 64, S. 20.
peace," nor for the insertion of the words " against the form of the
Statutc" instead of " against the forni of the Statutes," or vice
versd, nor for that any person mentioned in the indictment is
designated by a name of office or other descriptive appellation, instead of his proper name, nor for omitting to state the time a t which thc offence was committed in any case where time is not of the essence of the offence, nor for stating the time imperfectly, nor for stating the offence to have been committed on a day subsequent to thc finding of the indictment, or on an impossible day, or on a

day
day that never happened, nor for want of a proper or perfect venue, nor for want of a proper or formal coi~clusion, nor. for. want of or irnperfcction in the addition of any defendant, nor for want of the statement of the value or price of any matter or thing, or the amount of damage, injury, or spoil, in any case where the value or price, or the amount of damage, injury, or spoil, is not of the essence of the offence.
P ~ ~ d ~ b j ~ c t i o n ~ ~

indictments when to	Every objection to any indictment for any formal defect ap- parent on the face thereof shall be taken, by de~unrrer, or motion to quash such indictment, before thc jury shall bc sworn, and not after-
be taken.

formal defects. wards; and every Court before which any such o'rtjectiou shall be	Court may amend
14 $ 15 yict., c. 100, taken for any formal defect mty, if it be thought nccessary, causc
8. 25. the indictment to be forthwith amended in such particular by some

officer of the Court or other person, and thereupon the trial shall
proceed as if no such defect had appeared.
Description in indict-

ment o f offence

9. Where the offencc charged in any indictment for any felony

created, &C., by sta.	or misdemeanor has been created by any statute, or subjccted to
tute.

7 G. 4, C. 64,	S. 21. a greater degree of punishment by any statute, the indictment shall, after verdict, be held sufficient to warrant the punishment prescribed by the statute if it describe the offence in the words of the statute.
to state

that jurors have af-

10. Wherever, in any legal proceedings whatever, legal pro-

firmed.

ceedings may be set out, it shall not be llec&sary to specify that any

g &- 7Vict.7	c.85,	2.	narticular nersons who acted as iurors had made affirmation instead	I
of oath, b;t it may be stated &at they served as jurym~n, in the same manner as if no Act had passed for enabling persons to serve as jurynlen without oath.

I n indictments fat

offences committed

11, In any indictment for any felony or misdemeanor, wherein

on the property of	it shall be requisite to state the ownership of any propcrty whatso-
partners, i t may be
laid in any one part-	ever, whether real or personal, which shall belong to or be in the
ner by name, and	possession of moye than one person, whether such persons be part-
others.	ners in trade, joint tenants, parccners, or tenants in common, it shall

7 G. 4, c. 64, S. 14.

be sufficient to name one of such persons, and to state such property to belong to the person so named, and another or others, as the case may be; and whenever, in any indictment for any felony or misdc- meanor, it shall be necessary to mention, for any purpose whatsoever, any partners, joint tenants, parceners, or tenants in common, i t shall be sufficient to describe them in the manner in this section before- mentioned; and this provision shall bc construed to extend to all joint stock companies and trustees.

Upon an infictment

for jointly receiving,

12. If upon the trial of two or more persons indicted for jointly

persons guilty of	receiving any property it shall be proved that one or more of such
sepnratcly receiving
may be convicted.	persons separately received any part of such property, it shall be
14 & 16 Vict. c. 100.	lawful for the Jury to convict upon such indictment such of the said
a. 14.	persons as shall be proved to have received any part of such pro-

per ty.

13. If
A party indicted for

23. If upon the trial of any person charged with any felony or misdemc:anor i t shall appear to the Jury upon the cvicience that the

fclony or rnisden~eanor

of an attempt to com-

may be found guilty

defendant did not complete the offence charged, but that he was

mit the same, and

guilty only of an attcmpt to cornrnit the same, such person shall not

punished aicordiaglp.

14 Sr 15 Yict.

c. 100,

by reason thereof be entitled to be acquitted, hut the Jury shaU be

S. 9.

a t liberty to return as their verdict that the defendant is not guilty of thc fclony or misdemeannr charged, but is guilty of an attempt to commit the same; and thereupon slich person shall be liable to be punished in the same manner as if he had bccn convicted upon an indictment for attclnpting to commit the particular fclony or nnisden~eanor ehwgptl in the said indictnlcnt; and no person so tried as herein lastly mcntioiled shall be liable to be afterwizrds prosecuted for ail attcmpt to coirmit the feloiiy or misdemcanor for which he was so tried.

14 l f upon the trial of any person for any misilcmcanor i t shall appc"r that the facts give11 in evidence amonnt in law to a fclony,

Person tried for mis- dome nlor not to he

scquittedif the oRcncc turn out to bc f~ lony,

such person shall not by reuson thereof be entitled to be acquitted

unless the Court so

of sudi rnistlememor; and no person tried for such mistlemeanor

direcat.

l 4 & l 5 'C'ict., c.

100,

shall be liablc to be ttftcrtvards prosecuted for fclony on the same

S. 12.

facts, n n l ~ s s the Court before which such trial may be had shall think fit, in its tliscretion, to discharge the Ju ly from giving any verdict upon such trial, and to clirect surh person to be indicted for felony, in which case such person may be dealt with in all respects as if he had not been put upon his trial for such misdemeanor.

15. Whesever i t shall be nec~ssaty

in any indictment to mention

Ucscription of instru- rnents in indictments.

or make any avernlcwt as to any instrument, whether the same con-

14 Si 15 Vict., c. 100,

sists wholly or ilk part of writiug, print, or figuscs, it shall be

sufficient to describe s71ch instrument by any name or (hignation by which the same may be usudly known, or by the purport thereof, withont setting out any copy or fBc-simile of the whole or any part thereof, or otherwise describing tllc same or thc value thweaf.

16. I n any indictni~nt

for

engra~ing

or nd&g the whole or any

pzrt of any instrument, matter. or thing whatsoever, or for using or	having the unlawful possession of any platr, or other matrrial upon	which tlic whole or any part of any instrument, matter, or thing
whatsoever s l d l have been engra~ccl or made, or for having the un- lawful possession of any p a F r upon which the wholc or any part of any instrument, matter, or thing whatsoever shall have bccn made or printed, it shall bc sufficient to describe such instrument, matcer, or thing by any name or clesignation by which the same may be usually knowu, without setting out any copy or fac-simile of the whole or any part of such instrument, rnatter, or thing.

17. I n erery inclictmmt in which i t shall bcx

ncwessary to mcntiorl

Coin and b a n k - ~ d c a

may b.! demibed

or make any ave~mellt

as to any money or any note of thc Bank of

sirnply ns money.

Endancl or any othcr Bank it shall be suficient to describe such	14 & 1.i Vict., c. 100.
money or bank-note simply as moncy, without specifying any parti-	B. 18.
cular coin or bank-note; and such allegation, so far as regards the d~scription of the propcrty, s l d be -sustained by proof of any

amount

amount of coin or of any bank-nde, although the particular species of coin of which such amount was composed, or the particular nature of the bank-note, shall not be proved, and in cases of em- bezzlement and obtaining money or bank-notes by false pretences, by proof that the offender embezzled or obtained any piece of coin
or any bank-note, or any portion of the value thereof, although such
piece of coin or bank-note may have been delivered to him in order that some part of the value thereof should be returned to the party delivering the same, or to some other person, and such part shall have been returned accordingly.
As to Bemoval of Indictments by certiorari:
motion ay parts in- dicted for certiwari in 18. No writ of certiorari whatsoever, at the proseclxtion of any term time to be made party indicted, shall be hereafter granted, awarded, or directed in

h	oper Court.

6 & 6 W. & M. c. 11. te rn time out of

the Supreme Court, to remove

any indictment for

a 2.	any miderneanor before trial had, fmrrl before the Court of Oyer and Terminer, ar any other Court, unless such certiorari shall be granted or awarded upon motion of counsel, and by rule of Court made for the granting thereof, bcfore the Judge or Judges of the said Court sittlng in open Court.
Writs of certimri

granted in vacation.

19. In vacation, writs of certiorari may be granted by any Judge

6 & 6 W. & M. C. 11, of the Supreme Court;

and the name of such Judge, ar,d also the

S. 4.	name of	such person at wlmse instance the same is granted, shall be
I & 2 Vict., C. 45.

endorsed on the said writ.

Motionby proscoutor	20.	NO ~vrit	of certiorari shall issue from the Supreme court fur
f a certiorari in term

time to be made in	removing into that Court any indictment from any Court of Oyer
open Court.

& 6 W. 4. c. 33. S. 1.

and Terminer, or Gaol Delivery, or any other Court, at the in- stance of the prosecutor or any other person, except Her Majesty's Attorney-General, without mdion first made in thc Supreme Court, or befofbre sclme Judge of the Supreme Court, and leave obtained to remove such indictment, in the same manner as where such appli- cation is made m the part of any ctefeildant.

Indictments mt tab

21. KO indictment, exeept against bodies corporate not autho-

removed by

certiorari,

exceptonasdavlt

rized to appear by attorney in the Court in which indictment

thatafairtriulcannot is preferred, shall be removed into the Supreme Court by writ be had.
16 & 17 Vict., c. 30., of certiornl-i, either at the instanm of tllc prosecutor or of the
8. 4. defendant (other than the Attorney-General acting on behalf of
the Crown), unless it be made to appear to the Court from which the writ is to issue, by the party applying for the same, that a fair and impartial trial of the case cannot be had in the Court below, or that some question of law of more than usual difficulty and impor- tance is likely to arise upon the trial, or that a view of the premises in respect whereof the indictment is preferred, or a Special Jury, may be required for the satisfactory trial of the same.
Bemgnizaneebbe

enteredintoby persons

22. Every person proceeded against in any Court of Oyer and

indicstedbeforo the

Terminer, Gaol Delivery, or any other Court, who shall obtain a

writ

writ of certiorari for removing any indictment whatever to the $;;;z?;f

the writ

Supreme Court, not being in custody for want of bail to answer 5 & 6 W. & M.,

11,

the indictment, shall, before the allowance of such writ, enter i t 9

W, 3, c. 13.

into a recognizance before some Judge of the Supreme Court, 5 $ 6 W. 4, c. 33, s. 2-

or before a Justice of the Peace of the said Province in such sum, 1 85 2 Vict., c. 45, a. 1.

and with such sureties, as the Supreme Court or any such Judge shall, by endorsement on the said writ, order and direct; and if any such person shall be in custody for want of bail to answer the charge contained in such indictment he shall be detained in custody untd the like recognizances as are in this section directed to be entered into previous to the allowance of such writ of certiorari shall have been entered into, or until he be discharged by due course of law.

23. The condition of the recognizance shall be, that the party "arm bf cm*tion of

such rrcognizance.

proceeded against shall at the return of

such writ appear a i d plead

5 a G W. & M ,c. 11,

to the said indictment in the Supreme Court, and shall appear from

W. 3, c. 33,

day to day in the said Court, and not depart until he shall be dis- 5 a 6 W. 4, C. 33, S. 2.

charged by the said Court, and that he shall, tit his own costs and ,, 5.

16 & 17 Vict., c. 30,

charges, cause or procure the issue that shall be joined u p m the said indictment, or any plea relating thereunto, to be tried at the next Criminal Sitting of the said Court after the certiorari shall be returnable, if the said Court shall not appoint any other time for the trial thereof, and if any other time shall be appointed by the Court, then at such other time; and that he shall give due notice of such trial to the prosecutor or his attorncy (exccpt in cases where the writ of certiorari is awarded at the instance of Her Majesty's Attorney-Ciellera.1); and further, that he shall, in case he shall be convicted, pay to the prosecutor his costs incurred subse- quent to the removal of such indictment.

24. Whcncvcr any such writ of certknzri shall be awarded at ~

the inst;mcc of the prosecutor (not being Her Majesty's Attorney- secutor.

General), the prosecutor shall enter into a recognizance (to be ,.	16 & 17 Vict., c. 30,
acknowledged in the same manner as is reauired in cases of writs of certiorari &mded at the instance of a &fendant) with the con- dition following; that is to say, that the prosecutor shall pay to the

defendant, in case he shall be acquitted, his costs incurred subse-

quent to such removal.

25. The costs hereinbefore respectively mentioned shall be taxed How much costa &all

be taxed and re-

according to the course of the Supreme Court; and for thc recovery co,e,,~.

thereof the person entitlzd thereto shall, at the expiration of tcn 16	l 7 Vict-, c. 30,
days after demand made of the person at whose instance the writ of "
certiorari was awarded, and on oath made of such demand and of
refusal of payment, have a writ of attachrnent granted against such last mentioned person by the said Court for such contempt; and the said Court shall and may also order the said recognizance to be estreated.

26. The recognizances, taken as aforesaid, shall be certified If reco@xancos not

into the Supreme Court with the certiorari and indictment to entered mto, court be-

be
low may proceed to

trial.	be there filcd; and the name of the prosecutor, if he be the
6&ci\V.&M.,c.ll,s.2.	party grieved or injured, or some public officer, shall be endorsed

16& 17Vict.,

c,YO,a.7.

on the back of the said indictment; and if the person at whosc illstance any wiit of certiorwi shall be awarded shall not, before the allowance thereof, enter into such recognizance as hcrcinbeforc provided, the Court to which such writ may be directed shall ancl may proceed to the trial of the said indictment, as if such writ of certiorari had not been awarded.

Civil offlcers prose-

cuting &all have

27. If the defendant prosecuting such writ of certiorari be con-

reasonable costs, if	victed of the offence for which he was proceeded against, the Court
defendant convicted.
6 & 6 W. & M., c. 11,	shall give reasonable costs to the prosecutor, if he be the party
S. 3.	grieved or injured, or be a Justice of thc Peace, Mayor, Bailiff, Con-
stable, or any other civil officer, who shall prosecute upon the X-
count of any fact committecl or done, that concerned him as officer to prosecute or present, which costs shall be taxccl according to the course of the Court; and the prosecntor, for the recovery of slxch costs, shall, at the expiration of ten h y s after demand and on oath made of such dcmand, and of rvfusal of payment, have a writ of attachment granted against thc dcfcndant by tllc szicl Court fos such his contempt; and the recognizance shall not be dischnl-gccl till the costs so taxed shall be paid.
Certiorari may issue
before indictment	28. Whcrc any person shall be prosecuted for any misdemeanor or Pession of Gad I)elivery, a writ of ccrtiornrt may Lc applied for and issued before such indictment has been found or filctl, in the like cases, in the sanlc manner, arid upon the same tct.ms ant1 coidi- tions as if such writ of certiorari had been appliccl fbr aftcr such indictment had been found or filed.
found.	by indictment at any T,ocal Court, or Session uf Oyer and 'l'ermincr,

60 G. 3, aud 1 0.

When a cerliornri is

29. Whenever any writ of certio~ari shall be deIivcred to any

dclivcred to auy Caul t

to ,move

any indict-

Court for the purpo& of removing any indictlnrnt fiom such ~ o u r f,

bind the prosecutor

ment,suchCourtshall such Court shall require any pcrson who shall be attending such

and witnesses to ap- Court under any recognizance or subpcena to prosecute, or to pro-

pear On the

I. C f. 4, c. 4, ~. 8.

secute and give evidence, or to give evidence, upon the trial of snch

indictment, to enter into a recognizance, in such sum of money as to such Court shall seem fit, to prosecute, or to prosecute and give evidence, or to give evidence, as the case may bc, upon thc trial of such indictment, whenever and wherever the same shall be tried.

Where a certiorari is	30. Whenevcr any writ of certiorari shall be delivered to any
delivered to any Court

to remove any indict-	Court for the purpose of removing any indictment from such
bail or comtnit any
mcmt, such Court may	Court, i t shall be lawful for such Court either to require any
defendant who has	person who shall be attending such Court under any rccogni-
appeared there under
any recognizance.	zance to take his trial upon such indictment, to enter into such
l. C i. 4, c. 4, s. S.	recogniza~~ce, with so many sureties, and in such sum or snms of money, and with such condition for his appearance and taking his trial upon such mdict;msnt, whenever and wherever the same
shall be tried, as to such Court shall seem fit, or to commit such

person
person to the common Gaol or House of Chrrection, there to remaiu until he shall be removed under the provisions of this Act or otherwise delivered by due course of lawl

31.

W h e n e ~ e r

any writ

certiorari shall

delivered

any ~

Court for the purpose of removing any indictment from such Court, the Court shall not

and any person charged with any offence by such indictment shall d,,nt then in prison.

clischarge any defen-

then be in prison, such person shall not be discharged bp such 1 G. 4, c. 4, s. 11.
Court out of prison, but shall remain therein until he sball be removed nltder the provisions of this Act or otherwise discharged by riue course of lam.
As to the ju~istliction of Local Courts:

32. This Act shall not affect any of

the provisions of

the Ordi- N o t t o a f f e c t L 0 ~ ~

Courts.

name No. 5 of 1850, to cstnblisl; Local Courts, or of any Act for amending the same, or of the Act No. .l l of 1853, " To make further provision for the administration of justice in rcspcct of offences committed by the Aboriginal Natives of South Australia,''
As to conipelling attendance after Indictment found:

33. Whenever any person shall be charged with any of3ence for Jirmmt by Judge of

Supremo Court, and

which he

ljc prosccutcd in the Supreme Court, not being treason prureedlngs tfiereon,

or felony, and the same shall be made appear to any Judge of the 48 G

said Uonrt by affidavit or certificate of tho indictment against such person in the said Court for such offence, it shall be lawful for such Judge to issue his warrant undcr his hand and seal, and thereby to cause such person to be apprehended and brought befbre him or some other Jnrlge, or before some one of I h r hla,jesty's Justices of the Peace for the said Yrovince, in order to his being bound to the Queen's Majesty, with two sufficient sureties, in such sum as in the said warrant shall be expressed, with condition to appear in the said Court at the time mentioned in such warrant, and to answer to all and singular indictments for any such off'ence; and in case any such person shall neglect or refuse to become bound as aforesaid, it shall bc lawful for such Judge or Justice re-

spectively to commit such person to the common Gaol of Adelaide,

or of the district or place where the offence shall have been com- mitted, or where he shall have been apprehended, there to remain until he shall bccomc bound as aforesaid, or shall be discharged by order of the said Court in tern1 time, or of one of such Judges in ~acat ion; and the rccognizancc to be thereupon taken shall be returned and filed in the said Court, and shall continue in force until such person sllall have been acquitted of such offence, or in case of conviction shall ha\-e rcceived judgment for the salno, unless sooner ordered by the same Court to be discharged; and JVhen~losecutormayosecutor~nay

t~nterplcaof'notgu~lty,

where any person, cither by virtue of such warrant of comniitmelit and proceed to tlinl,
as aforesaid, or by virtue of any writ of capins ad wspond~ndttm
issued out of the said Court, is now detained or shall hereafter be
committed to and detained in any Gaol for want of bail, it shall be
lawful for the prosecutor of such indictment to cause a copy thereof
to be delivered to such person, or to the Gaoler, Keeper, or

Turnkey,

Turnkey of the Gaol wherein such person is or shall be so cle
tained, with a notice thereon endorsed, that unless sudi person shall within eight days from the time of such delivery of a copy of the indictment as aforesaid, cause an appearance and also a plea or demurrer to be entered in the same Court to such indictment, an appearance and a plea of not guilty will be entered thereto in the name of such person; and in case he shall thereupon for the said space of eight days after such delivery of a copy of the indictment as aforesaid neglect to cause an appearance and also a plea or de- murrer to be entered in the same Court to such inciictment, it shall be lawful for the prosecutor of such indictmcnt, upon an affidavit being made and filed in the said Court of the delivery of a copy of such indictment, with such notice endorsed thereon as aforesaid, to such person, or to such Gaoler, Keeper, or Turnkey, as the case may be, which affidavit may be made before any Judge or Commis- sioner of the Supreme Court authorized to take affida~its in such Courts, to cause an appearance and the plea of l id guilty to be en- tered in the said Court to such indictment for such person, and such proceedings shall be had thereupon as if the defendant in such indictment had appeared and pleaded not guilty according to the usual course of the same Court; ancl if upon the trial of such indictment any defendant so committed and detained as afore- said shall be acquitted of all the offences therein charged upon him, it shall be lawful for the Judge before whom such trial shall be had
to order that such defendant shall be forthwith discharged out of
custody as to his commitment as aforesaid, and snch defe~dant shall
be thereupon discharged accordingly,
As to estreating Rccognizances:

Recogdzances in ccr-

34, In every case where any person bound by rccognizancc for his

tain cascs not to be

appearance, or for whose appearance any other person shall be so

estreated

Judge's order.

bound, to prosecute or give evidence in any case of felony or mis-

7 G.

4, c. 64,

S. 31.

demeanor, or to answer for any common assault, shall thercin make default, the Officer of the Court by whom the estreats are made out shall and he is hereby required to prepare a list in writing, specify-

ing the name of every person so making default, and the nature of the offence in respect of which every such person, or his surety, was

so bound, together with the residence, trade, profession, or calling

of every such person and surety, and shall in such list distinguish

the principals from the sureties, and shaU state the cause, if known,

why each such person has not appeared, and whether by reason of

the nonappearance of such person the ends of justice have been defeated or delayed; and every such officer shall and is hereby re- quired, before any such recognizance shall be estreated, to lay such list, if at a Court of Oyer and Terminer or Gaol Delivery of the Supreme Court, before one of the Judges of that Court; if at any other Court, before the Judge or presiding Justice of s~zch Court who are respectively authorized and required to examine such list, and to make snch order touching t1x estrcating or putting in process gf any such recognizance, as shall appear to them respectively to be just; and it shall not be lawfnl for the officer of any Court to estreat or put in process any such recognizance ~ d h u t the written order of Judge or Justice, beforit whom respectively such list shall have been Inid. As

As to Juries de medietate 2iftyuce :
35. Every alien charged with any felony or misdeineanor may be Right of aliens to be

tried by a Jury de medietute l i n. , and, on the prayer of every ~2~$$~ie3'c

alien so indicted, the Sheriff or other proper minister shall, by com-

mand of the Court, return for one-half of the Jury a competent number of aliens, if so many there be in the town or place where the trial is had, and if not then so many aliens as shall be found in the same town or place, if any; and no such alien Juror shall be liable to be challenged for want of any qualification required by law; but every such alien may be chhlenged for any other cause, in like manner as if he were duly qualified.

As to Arraignment and Pleading:

36. If any person being arraigned upon any indictment for A d e a o f ('Not

Guilty," without

treason or felony, shall plead thereto a plea of " Not guilty," more, shall put the

he shall by such plea, without any further form, be deemed to

have put himself upon the country for trial; and the Court shall 7 s: 8 G. 4, c. 28,s. I.

in the usual manner proceed to the trial of such person ac-

cordingly.

37. If any person, being arraigned upon or charged with any Court

Ifherefusesto~lmd,

may order a plc a

indictment for treason, felony, or misdemeanor, shall stand mute of

to be

of malice, or will not answer directly to the indictment, in every	c, ,,,	,	,	,.
such case it shall be lawful for the Court, if it shall so think fit, to order the proper officer to enter a plea of "Not guilty" on behalf of such person, and the plea so entered shall have the same force and effect as if such person had actually pleaded the same.

38. In any plea of autrefois convict or autrefois acquit, it shall be f0i8

Form

convict

of plea

autre-

aulre-

sufficient for any defendant to state that he has been lawfully con- f. ozs acquit. victed or acquitted (as the case may be) of the said offence charged :6*$,15Yict.7 in the indictment.

39. No plea setting forth any conviction or attainder shall be Attainder of another

pleaded in bar of any indictment, unless the attainder or conviction

crime not pleadable.

&, G, *,

as, a. 4,

bc for the same offence as that charged in the indictment.

No person prosecuted shall be entitled to traverse or postpone the trial of any indictment found against him at any Local Court, 14 a 16 Vict., c. loo,

Proviaion n s t o h - versing indictments.

40.

Session of Oycr and Termincr, or of Gaol Delivery: Provided,

27-

that if the Supreme Court, upon the application of the defendant or otherwise, shall be of opinion that he ought to be allowed a further time, either to prepare for his defence or otherwise, such Court may adjourn the trial of such person to the next subsequent Local Court or Session, upon such terms as to bail or otherwise as to the Supreme Court shall seem meet, and may respite the recog- nizance~ of thc prosecutor and witnesses accordingly, in which case the prosecutor and witnesses shall be bound to attend to prosecute and give evidence at such subsequent Local Court or Session, without

entering
entering into any fresh recognizance for that purpose: Provided, that nothing in this section contained shall extend to any prosecution by
information in the nature of a quo warranto.
As to charging the J.ury.
not in@c

of prisoners' lande, &C.,

41. Where any person shall be indicted for treason or felony, the

nor whether he fled.

Jury impannelled to try such person shall-not be charged to inquire

& G. *7 c- 281

5* concerning his lands, tenements, or goods, nor whether he fled for such treason or felony.

Upon trial of persons

for subsequent of-

42. Where any person is proceeded against under any Act pnsscd

fences, the previous	or t~ be passed for any offence committed after one or more previous
c ~ n v i c t i o n ~ ~ t t o b e
stated to the jury, or	conviction or convictions, i t shall not be lawful, on the trial of such
given in evidence,	pcrson for such subsequent offence, where a plea of not guilty shall

O'	have been entered on his bchalf, to charge the Jury to ihquire con-

guilty of the aubse-

quent offence.	cerning any previous conviction, until they shall have inquired con-
14a15vict~,c.19~a.95	cerning such subsequent offence, and shall have found such person
guilty of the same; and whenever in any indictment any previous conviction shall be stated, the reading of snch statement shall bc deferred until after such finding: Provded that if upon the trial of any person for any such subsequent ofknce such person shall give evidence of his good character, it shall be lawful for the prosecutor, in answer thereto, to give evidence of the conviction of such person for the previous offence or offcnces before such verdict of guilty s l d l have been returned, and the Jury shall inquire concerning snch pre- vious conviction or convictions at the same time that they shall inquire concerning such subsequent off'ence.

As to defence by Counsel:

Prisaners

make

their defence by

43. All persons tried for felonies shall be admitted, after the close

thereto, by Counsel learned in the law, or by Attorney practising as

Counsel.

couneel,

of the case for the prosecution, to make full answer and defence

l l * j

Co~iesof

depositions

44. All persons who, after the passing of this Act, shall be held

to be allowed to

prisoners.

to bail or committed to prison for any indictable offence, shall be

&7Wm4, c-T14,

s.3- entitled to require and have, on demand (from the person who shall have the lawful custody thereof, and who is hereby required to deliver the same), copies of the examinations of the witnesses re- spectively upon whose depositions they have been so held to bail or committed to prison, on payment of a reasonable sum for the same, not exceeding twopence for each folio of ninety words, or by the order of a Judge without the payment of any fee: Provided .that if such demand shall not be made before the day appointed for the commencement of the Session at which the trial of the person

on whose behalf such demand shall be made is to take place, such
person shall not be entitled to have any copy of such examination of witnesses, unless the Judge or other person to preside at such trial shall be of opinion that such copy may be made and delivered without delay or inconvenience to such trial; but it shall neverthe-
less
less be competent for such Judge or other person presiding at such trial, if he shall think fit, to postpone such trial on account of such copy of the examination of witnesses not having been previously had by the party charged.

45. All persons under trial shall be entitled at the time of their P r h m u entitled to

inspect depositions on

trial to inspect, without fee or reward, all depositions (or copies trial.

thereof) which have been taken against them, and returned into the j&6W-4 j	C- H41" 4+
Court before which such trial shall be had.

,4s to Evidence

ting the formal part) of the indictment and trial for any felony or certificate of tt,<, trial and eubornntion, a

46.

certificate containing the substance and effect only (onlit- 011 trials for pel.jury

misdemeanor, purporting to be signed by tlle Clerlr of the Court, of "0 indictment on

or other officer having the custody of the records of the Court committedbu&ient

which the perjuiy was

where such indictment was tried, or by the deputy of such Clesli ;y;y;;f;:.t;:k	or other officer, shall upon the trial of any indictment for perjury	z.2.
or snbornation of perjury be sufficient evidence of the trial of such indictnient for felony or niisdemeanor, without proof of the @-nature or official ch;iracter of the person appearing to have signed the same.

,.Is to persons indicted for a subsequent Felony:

47. ?T7hosocver shall be convicted of ally felony, not punishable I1unisllment on con-

vrction for a subsc-

with tlcath, committed after a pscvious coirviction for felony, shall quent felony.

on such subsequent conviction be liable, at the discretion of the 7 k 8 G. (i,

c. 28, S. 11.

Court, to bc inlprisoncd for life or for any less term, with or with- out liarcl labor, and with or without solitary confincmcnt, for any portion or portions of his imprisonment, or of his iinprisonment with hard labor, not exceeding one month at any one time, and not escccding thrcc months in any one year, and also, if a male, under the age of fourteen years, to be once, twice, or thrice publicly or privattly whipped, if tllc Court shall so think fit, in addition to any such imprisonment: Provided that no person shall be liable to be l'ullishlne~t for

larceny after prevlow

imprisoned for more than tcn years, by reason only of n conviction

for felony.

16 12.

1 7 y ~ r t. ,

c. 99,

for larceny after a previous conviction for fclony.
48. In any indictmcnt for any such felony as in the b s t prc- Form o f i n d i ~ t ~ ~ n t

ceding section mentioned, committed after n prcvioos conviction '"

and

""cqucnt

proof of con-

f '. l O n ~ ~

for felony, it shall be sufficient to state that the offender was at viction.

a certain time and. place convicted of felony, without otl~cswisc 7"s"

describing the prcvious felony; and a certificate containing the substance and eff'ect only (omitting the formal part) of the in- dictment and conviction for the previous felony, purporting to be signed by the Clerlr of the Court or other officer having the custody of the records of the Court where the offender was first convicted, or by the deputy of such Clerk or officer, shall, upon proof of the idcntity of the person of' the offender, be sufficicnt c~idencr. of the first conviction, without proof of the signature 01. ofIicinl c~haractc~r of the person appearing to h a w signed the sninc,

As to insane Persons tried for Offeuces

*hen	p e m o n ~ f l a r d

with treason, felony,	49. I n all cases where it shall be given in evidence upon the trial of any person charged with treason, felony, or misdcmeanor, that such person w$s insane at the timc of the commission of such offence,
or miederneanor, is

acquitted

pound of On

insanity,

the

jurptofindsospecially,

and sucll person shall be acquitted, the Jury shall be required to find

specially whether such person was insane at the time of the com-

cmtody till the Go-	mission of such offence, and to declare whether such person was
vernolJs pleacurc be
known.	acquitted by them on account of such insanity; and if they shall

39&40G. 3, c.?4 S 1. find that such person was insane at the time of thc committing of
3 & 4 Vict., c. 04, s. 3.
such offence, the Court before whom such trial shall be had sha l ordcr such person to be kept in strict custody, in such place and in such manncr as to the Court sIlaIl s x m fit, until the Governor's pleasure shall be known; and it shall thereupon bc lawful fbr the Governor to give such order for the safe custody of such person so found to be insane, during his pleaswe, in such place and in such manner as to him shall seem fit.

for any oifence is found 50. If any person charged with any offincc shall be insane, and

Wbere~msonindictcd

to be Insane by a jury shaU upon arraignment be found so to he by n Jury lawfully im-

impannouedonar- pamelled for that purpose, so that such pcrson cannot be tried

laignment, thc Court

to orderhimto bekept upon the indictment, or if upon the trial of any person so

In custody the charged such person shall appear to the Jury charged with the in-

Governor's pleasure

be known. dictnleut to bc insane, it shall be lawful for the Court beforc

39'400.3~c~B4,s-2. whom any such person &all be brought to bc arraigned or tried as aforesaid to direct such finding to Fe recorded, and thcre- upon to order such geison to be kept in strict custody until the Gover-nor's plcnsurc shall be knomn; and if any person charged with any offence shall be brought before a n y Court to be discharged for want of prosecution, and such person shall appew to be ilwanc, it shall be lawful for such Court to order a Jury to bc irnpannelled to try the sanity of such pcrson; and if the Jury so irnpannelled shall find such person to be insane, it s l d be lawful for the Court to order sucll person to be kept in strict custody, in such place and in such nlanner as to such Court shall seem fit, r~lltil thc Governor's

pleasure shall bc known; and in all cases of insanity so found it

shall be lawful for the C+overnor to give such ordcr for the safe

custody of such person so found to be insane, during his pleasure,

in such place and in such manner as to him shall seem fit.

What shall not be

51. No judgment after verdict upon any indictment for any

auffirie~t

to stay or

reversejxdgmentaftcr felony or miadcmeanor shall be stayed or reversed for want of
verdict.

7 G, 4, c. 64, S, 21,	a similiter, nor by reason that the Jury process has been awarded to a wrong officer upon an insufficient suggestion, nor for any misnomer or rnisdesc;iption of the officer returning such proce& or of any of the Jurors, nor because any pcrson has servcd upon
the Jury who has not been returned as a Juror by the Sheriff or
other oficer.

52. In case any person shall be found guilty of treason or felony, for which judgment of death may ensue, and shall be	Whcn prisoner re-
prieved without judg-
ment of death given against him, such
reprieved without judgment at that time given against him, the	judgment may be
Supreme Court, or the Judge, or Judges who at any time thereafter	given at any time thereafter by Juetioen
shall be assigned by the Governor to deliver the Gaol wherc such	of Gaol Delivery.
person found guilty shall remain, shall have full power and authority	1 Edw. 6, c. 7, 8. 6.
to give judgment of death against such person so found guilty and reprievecl as such Court or Judge, or Judges before whom such person was found guilty might lmve done if such person had been tried before him or them.
Court may abstain

53. T&Thei~ever

any person shall be convicted of airy felony punish-

from pronouncing

able by death, except murder, and the Court before which such

sentence of death on

persons convicted of

offender shall be convicted shall be of opinion that under the par-

an felonies.

ticular circumstances of the case such offender is a fit ancl proper

4 8. 4, c. 48, a. 1.

6 k 7 W. 4, c. 30,

g. 2.

subject to be recommended fbr the Royal mercy, i t shall be lawful for such Court, if i t shall think fit sc) to do, to direct the proper officer then being present in Court to require ancl ask, whereupon such officer shall require and ask, if such offender has or knows any- thing to say why judgment of death should not be recorded against such offender; and in case such offender shall not allege any matter or thing sufficient in law to arrest or bar such judgment, the Court shall and may and is hereby authorized to abstain from pronouncing judgment of death upon such offcnder, and instead of pronouncing such judgment to order the same to be entered of recorcl, and there- upon such proper officer shall and may and is hereby authorized to entcr judgrncnt of cleat11 011 record against such offcnder in the usual aild accustomed form, and in such and the samc manner as is now uscd, and as if juclgrrient of death had actually been pro- nounced in open Court against such offender, by the Court before

wl~ich

such offender shall llave bcen convictecl.

54. :l

record of cwry such judgnent so eutcrcd as in the last &cord ofjudgment

to have the same effect

preceding section mentioned shall have the like effect, to all intents a, if pronounced.

and purposes, and be followed by the same consequences, as if such 4 G. 42

48~ 2.

judgmcnt had actually bcen pronounced in open Court, and the

offcnder had been reprieved by the Court.

55. No plea or process which shall haw been made upon any Justices of the Peace,

indictment under any Commission of the Peace shall be discon- sion, shall have the

under a new Commis-

tinued by any new Commission of the Pcacc, but cvcry such same powers as the

-plea and process shall stand in force, and the Justices of the mer cOm,,i,sion.

Justices under a fw-

Peace assigned by such new Commission of the Peace, after that l1	6 q C. 6,
they shall have the same indictments, informations, pleas, and pxo- ccsses before them, shall have full power and authority to continue the said pleas and processes, and the same pleas and processes, and all that depends upon them, to hear and finally determine, in the same manner as the other Justices might and ought to have done if no new Commission had been made.

56. Wherever
Sentence q o n person

already imprisoned

56. Wherever sentence shall be passed for felony on a person

nmler another already imprisoned under sentence for another offence, it shall be

sentence.

7 & 8 G. 4, c. 28, a. 10. lawful for the Court to award imprisonment for the subsequent

offence, to commence at the expiration of the imprisonment to which
such -person shall have been pieviously sentencd.
Puniahmentof hard

labor for certain

57. Whenever any person shall be convicted of any one of the

offences.

offences following, that is to say-any

attempt to commit a felony;

l4 & 15Yict.r c. ''	'9	any riot; keeping a common gaming-house, a corninon bawdy-house,
a. 29.
a G. 4, C. 1x4.	or a common ill-governed and disorderly house; any cheat or fraud punishable at common law; any conspiracy to cheat or defraud, or to extort money or goods, or falsely to accuse of any crime, or to obstruct, prevent, pervert, or defeat the course of public justice; any escape or rescue from lawful custody on a criminal charge; any public and indecent exposure of the person; any public selling, or exposing for public sale or to public view, of any obscenc book, print, picture, or other indecent exhibition; it shall be lawful for the Court to sentence the offender to be imprisoned in the common Gaol or House of Correction for any term now warranted by the law relating to each particular offence, and also to be kept to hard labor during the whole or any part of such term of imprisonment.

-4s to Costs, Expenses, and Compensations:
Governor, with the

advice of the Ex~cu-

58. It shall be lawful for the Governor, with the advice and

tive Council, may

consent of the Executive Council, by a proclamation to be pub-

make rcgulatiOns

as to lished in the Government Gazette, to make regulations as to the rates

costs, expenses, and
compensations, and as and scales of payment of all or any costs, expenses, and compensa-

to granted certificates by exawining to tions tobe allowed or ordered to be paid under this Act or any other Act

Magistrate.

to prosecutors and witnesses, and to persons attending the Court in

14 ~r l ~ i c t. ,

C. 55, S. 5. obedience to any recognizance or subpmna, in cases of criminal pro-

sccutions, and (except as hereinafter mcntioncd) to persons who may have been active in or towards the apprehension of persons charged with offences, and also regulations as to the rates ur scalcs of pay- ment according to which certificates may be granted by the csami-

ning Magistrate in respect of the expenses of any prosecutur or

witness for the prosecution, or othcr person, of attending bcforc such Magistrate, and of any compensation for trouble and loss of time therein, in any case where any Court or Judge is einpowcred ilnder this Act or any other Act to order payment of such expenses or com- pensation, and concernirlg the forms of such certificates, and the details or particulars to be inserted thtrcin of the expenses, trouble, and loss of time to which such certificates relate; and from time to time to alter any such regulations, or to make new regula- tions in relation to any of the matters in this section before men- tioned, and such regulations for the time being shall be binding on

all Courts and persons whomsoever.

ment of expenses of 59. The Court before which any person shall be prosecuted or

Courtmay orderpay-

progpcu~ioninallcsses tried for any felony or such misdemeanor as in this section after-men-

of felmy, and in tioncd is hereby authorized and empowered, at the request of thc

prosecutor

prosecutor or of any other person who shall appear on recognizance ~~~n~~~
or subpena to prosecute or give evidence against any person accused 7 G. 4, c. 64, ss. 22,23.

of any felony, or against any pcrson indicted for any assault with 12k13Vic,.,c.76,8.2.

1 Vict., c. 44.

intent to commit felony; or for any attempt to commit felony; or 14&16Vict.,c.ll,s.2.	14 & lbvict., c. 19, S.	4.
for any riot; or for any misdemeanor for receiving any stolen property,	14 & 15 Vict., c. 56,

; or for unlaw- fully and carnally knowing and abusing any girl, being above the age of ten years and under the age of twelve years; or for unlawfully talring or causing to be taken any unmarried girl, being under the age of sixteen years, out of the possession and against the will of her father or mother, or of any other person having the lawful care or charge of her; or for conspiring to charge any person with any felony, or to indict any person for any felony; or for conspiring to commit any felony; or for being found at night armed v i th intent to break ancl enter a dwelling-house or other building, or with im- plcmcnts of housebreaking, or disg-niked, or in a dwelling-house or other building, with intent to commit a felony; or for maliciously inflicting grievous bodily harm, with or without a weapon; or for nlaliciously stabbing, cuttiug, or woundirlg; or for the wilful reft~sal or rlcglect to nrovitle for or for rnaliciously assaulting any apprentice or scrvant; o; for any assanlt brought before any Justices for sum- mary decision, in which the Justices shall be of opinion that the same is a fit subject for prosecution hy indictment, and shall bind the com- plainant and witnesses accordingly; to order payment unto the
knowing the salnc to have been stolen; or for any assault upon a ss.2,3- in aid of such officer, or lawfully authorized to apprehend any of- fender; or for any neglect or bscach of duty as a Peace Officer; or for any assault committed in the pursuance of any conspiracy to raise the rate of wages; or for obtaining any property by false pretences; or for wilful and indecent exposure of the person; or for wilful and corrupt pevjwy or subornation of perjury; or for endeavoring to conceal the birth of a child; or for procuring by false pretences, false representations, or other fraudulent means, the defilement of any woman or child undcr the agc of twcnty-one years

prosecutor of the costs and expenses which such prosecutor shall

incur in preferring the indictment, and also paymeut to thc pro- secutor anti witnesses for the prosecution of such sums of money a3 to thc Court shall secm rmsonablc and sufficient to reimburse such prosecutor and witnesses for the expens~s they shall have severally incurred in attending before the examining Magistrate, and in othcr- wise carrying on such prosecution, and also to compcnsate them for- their trouble and loss of time therein; and although no information shall be established it shall be lawful for the Court, where any person shall, in the opinion of the Court, Oond fide have a t tend~d the Court in obedience to any snch recognizance or subpcma, to order
unto such person of such sum of money as to the Court shall seem reasonable and sufficient to reimburse such person for the expenses which he shall have bond $de incurred by reason of attending before the examining Magistrate, and by reason of such recog- uizance or subpaena, and also to compensate such person fin trouble and loss of time; and the amount of the cxpcnscs of at,tenrlirlg beforc

the

the examining Magistrate, and the compensatiou for trouble and lass of time therein, shall bc mentioned in the eertificate of the Magistrate granted before the trial or attendance in Court, if such Magistrate shall think fit to grant the same.
OriIer for payment to

be made out bp proper

60. Every order for payment to arty prosecutor or other person as -and delivered by the proper officer of the Court nnto such prosecutor

dmcer

COUT~, .na

in the l a ~ t

prmeding secdon menticwed shall be forthwith made out

paid

C. Sheriff-

64, S. 24.

or other person, and shall be made upon the Sheriff, who is hereby authorized and required, upon sight of every such order, forthwith to pay to the person narncd therein, or to any one duly authorized to receive the same on his behalf, the money in such order mentioned, and shall be allowed the same in his qocounts.

Terminer may order 61. Where any person shall appear to any Court of Oyer and

Courtsof Operand

romnensation tothose Terlniner or Gaol Z)elivew to have been active in or towarcls the

whdha~ebeen m the apprehension active apprehension of any perso; charged with rnurdw, or with f'lonions~y

ofoertain offendrrs.

and maliciously shooting at or attempting to discharge any kind of

7 0. 4, c. 64, S. 28.

loaded firc-arms at any other person, or with stabbillg, c~l~tting,

wounding, or poisoning, or with administering anything to procure

the rnisca~.i-iage of any woman, or with rape, or with burglary, o r

felonious housebreaking, or with robbery, or with arson, or with

horse-stealing, bullock-stcnling, or sheep-straling, or stealing of any

other description of cattle o r stock, or with bclng acct.ssol.Ji b(4'ol-e

the fact to any of such offences, or with receiving any stolen

property, knowing the same to have bccn stolen, every s w h Court

is hereby authorized and empowered, in any such case, to. crrtler

the Sheriff to pay to the person who shall appcar to tlic Cfnu1.t

to have been active in or towards the apprehension of any person

charged with any such offence such sum of money as to ~ h c Court

shall seem reasonable and sufficient to compensate such person for

his expenses, exertions, and loss of time in or tavmds such ap-

prehension: Provided that nothing herein contained shall preveiit

any of the mid Courts from also allowing to any such persons, if

prosecutors or witnesses, such coqts, expenses, and coinpcnsation as Courts are by this Act empowered to altllow to prumutors and wit-

nesses respectively.

Such o 1 6 m to be paid

?,y thc Sheriff, who

62. The order for payment to any person in nymt of such ap-

may obtain rcpayuent	prehension as in the last preceding section is mentioned shall be
trn application to	forthwith made out and delivered by the proper officer of the Court

immly.

7 C;. 4. c. 64. S. 28.	unto such person, and the Sheriff for the time being is hereby anthorized and required, upon sight of the order, forthwith to pay to such person, or to any one duly authorized on his behalf, the
money in such order mentioned; and every such Sheriff may duly
apply for repayment of the same to the Treasurer, who, upon in- specting such order, together with the acquittance of the person entitled to receive the money therean, shall forthmith,order repay- ment to the Sheriff of the moncy so by him paid, without any fce or reward whatever.

63. If any man shall happen to be killed in endeavoring to ap-
prehend

p e l m d any person	who	shall	be	charged	with	any offence in the	c ~ ~ t f i i ~ ( 9 f f c n ~ e r s ~
Lour t may older wrn-

fifty-second section of this Act mentioned, it shall be lawful for the pens:ition t0i,i8

~ o h t

before whom such person shall be tried to order the Sheriff to :c1~:

c. 64,

8. 3o

pay, from any fimds which may have been provided for that purpose
by Parliament, to the widow of the man so killed, in case he shall have been marricd, OF to his child or children in case his wife shall be clcad, or to his father or mother in case he shall have left neither wife nor child, such sum of money EM to the Cowt in its cliscrction shall seem meet; and the order for payment of such money shall be made out and delivered by the proper officer of the Court unto the party en- titled to receivc the same, or unto some onc on his behalf to be narnrd in such order by the direction of thc C'ourt; and every such order shall be paid by and repdd to the Sheriff in the m a n e r in tfie sixty-second section of this Act mentioned.

64. TI-hel.~

any Court or Judge empowered under this Act or any Expmsesandcon~~en-

sutiorr to be woor-

other Act in this behalf shall order payment to any prosecutor or ,,ined ntcording to

witness for the prosccution, or to any pcrson attending the Court in f i ~ h

1 w J: ~ t i o n q,

Alagiulrate's

LCI tifi-

ol)t.dicnce to any recognizance or subpenit, in the case of any pro- ,,t, .,,t to bo oonclu-

srcution for Clony or niisderneunor, or of any costs or expenses ;

;

l 5 vl,t., ,

i5,

7.
incurred, nr of any compensation for trouble or loss of time, or ss. G, tion of this Act mentioned; and m h m the cxpenscs ancl compeusa- tion in rcspect of attending before any examining Magistrate are so o ~ d ~ r e d to be paid, such espenws ancl compensation shall also bc ascertained by the proper officer of the Court according to such regulations, Gut the amount thereof' as so ascertained-shall not exceed the amount mcntioilecl in the certificate of the examining
orclcr p~ymcnt to any pc3rson who may appear to haw been active
in or towards the apprchmsion of any lmson charged with any
offcnce, of cornpcnsntion for exptmes, exertions, and loss of time, in
or tolvards such apprehension, tho anmunt of such costs, expcnscs,
or compensntion bhall be ascertained by thc proper officcr of the
Magistrate; and, save as aforesaid, thcl certificate of any examining

Magistrate shall not be conclusive as to the amount to be allowecl

for expenses of attendance before him, or for compensation for

trouble or loss of time therein: Provided that nothing in this Act, or Not to interfere with

p a p e n t v fix ~strnor-

in any regulations made under this Act, shall interfere with or affect d inay c*olltfigc,	6rc..
the power of any Court to order payment to any person, who shall appear to such Court to have shown extraordinary courage, diligence, or exertion in or towards any such apprehension, as in the sixty-first section of this 14ct mentioned, of such sum as such Court shall think reasonable and adjudge to be paid in respect of such extraordinary courage, diligence, or exertion.

As to restitution of stolen property:
65. If any person guilty of any felony or misdemeanor in stealing, The owner of ~tolen
taking, obta;liiing, or converting, or in knowingly receiving any pro- property prortcuting thief or receiver to
perty whatsoever, shall be indicted for any such offence, by or on conljiction shall hare
behalf of the owner of the property, or his executor or administrator, p,y. restitution of his pro-

and convicted thereof, in such case the property shall be restored to 7

4, c.2'4 8.57

the
the owner or his representative, and the Court oe ore whom any s~zch
person shall be so convicted shall have power to award from time to
time writs of restitution for the said property, or to order the rcsti-
tution thereof in a summary manner: Provided that if it shall appear,
before any award or order made, that a valuable security shall have
been bond$& paid or discharged by some person liable to the pay-
ment thereof, or, being a negotiable instrument, shall have been bond
jide taken or received, by transfer or delivery, by some person, for a
just and valuable consideration, without any notice, or without any
reasonable cause to suspect that the same had by any felony or mis-
demeanor been so stolen, taken, obtained, or converted, in such casc
the Court shall not award or order the rcstitution of such security.
As to the Court of Criminal Appeal:

be reserved for con- 66. When any person shall have been convicted of any treason,

QueHtions law may

sideration of Judges, felony, or midemeanor before any Judge of the Supreme Court, or

'I &

Irict.9 c* 7%

S. 1.

Court of' Oyer and Termincr or Gaol Delivery, or before any Local Court, the Judge or Court, Justice or Jnstices of the Peace bcfore whom the case shall have been tried may, in his or thcir discretion, reserve any question of law which shall have arisen on the trial for the consideration of the Supreme Court, and thereupon shall have authority to rcspite execution of the judgment on such conviction, or postpone thc judgment until such qucstion shall have ?pen con- sidered and decided, as he or they may think fit, and in either case thc Court, in its discretion, shall commit the person corivicted to prison, or shall take a rccognizance of bail, with one or two sufficient suretiest and in such sum as the Court shall think fit, conditioned to appear at such timc or times as the Court shall direct, and receive judgment, or to render himself in csccution, as tlic casc may be.

Qucations rcscTrcd

bc certified to the

67. The Judge or Court before which the question shall arise,

Judges.

shall thereupon state, in a case signed in the manner now nsual, any

l '

Vict.j

c. 7 4 question of law which shall have bccn so reserved, with the special

S. 2.

circumstanc~s upon mhich the same shall haw arisen; and such

casc shall be transmitted to the Supreme Court; and such Court

shall thereupon have full power and authority to hear and finally determine the said question, and thereupon to reverse, affirm, or amend any judgment which shall have been given on the indictment or information on the trial whereof such question shall have arisen, or to avoid such judgment, and to order an entry to be made on the record, that in the judgment of the Supreme Court the party convicted ought not to have been convictcd, or to arrest the judg- ment, or order judgment to be given thereon at some other Session of Oyer and Terminer or Gaol Delivery, or at some other sitting of the Local Court where the question arose, if no judgment shall have been before that time given, as they shall be advised, or to make such other order as justice may require; and such judgment and order, if any, of the Supreme Court, shall be certified under the hand of the presiding Chief Justice or scnior puisne Judge, to the Clerk of Arraigns, or Associate, or his deputy, or to the Clerk of the Yeace, or the Clerk of the Local Courts, as the case may be, who

shall
shall enter the same on the original record in proper form; and a ccrtificste of such entry, under the hand of the Clerk of Arraigns, or Associate, or his deputy, or the Clerk of the I'eace or his deputy, as the case may be, in the form, as near as may be, or to the effect, nlentiolled in the next succeeding section of this Act, with the necessary alterations to adapt it to the circumstances of the case, shall be delivered or transmitted by him to the Sheriff or Gaoler in whose custody the person convicted shall be; and the said certificate shall bc a sufficient warrant to such Sheriff or Gaoler, and all other persons, for the execution of the judgment, as the same shall be so certified to have been affirmed or arncnded, and execution shall be thereupon executed on such judgment, and for the discharge of the person convicted from further imprisonment, if the judgment shall bc reversed, avoided, or arrested, and in that case such Sheriff or Gaolrr shall forthwith discharge him, and also the next Court of Oyer and Ternliner or Gaol Delivery, or the Justices at the nest sitting of the Local Court shall vacate the recognizance of bail, if any; and if the Court of Oyer and Terminer, or Gaol Delivery, or Local Court shall bc directed to give judgment, the said Court shall pocced to give judgment at the next Session.

68. The certificate mentioned in the last preceding Section shall Fom of certifioate.

11 tk 12 Vict., c. 78.

be in the following form, or to the same effect :-

S C ~ C ~.

Whereas at (describe the Court)

held on

before

, or at

and

A.B., late of

laborer, having been found guilty of felony, and judgment thereupon given, that (state the substance), the Court before whom he was tried reserved a certain question of law for the consideration of the 8uprcme Court, and execution was thereupon respited in the meantime:

This is to certify, that the Judges of thc said Supremc Court having met at the Supreme Court House, in the City of Adelaide, on the day of it was considered by the said Judges there that the judgment aforesaid should be annulled, and an entrymixk on the rccord that the said A.B.	ought not,in the judgment of the said Judges, to have been con-	victed of the felony aforesaid; and you are therefore hereby re-
quired forthwith to discharge the said A.B. from your custody.

(Signed)

W.11.

Clerk of Arraigns of the Supreme Court.

To the Gaoler of

and the Sheriff of

and all others

whom it may concern.
69. The jurisdiction and authorities to review by this Act given Quorlnr~ uf Judges.
to the Judges of the Supreme Court shall and may be exercised by the said Judges or two of them (but if by two only, the Judge before whom the case in which the question of law arose shall not
be one) and the judgment or judgments of the said Judges shall be Thcir judgment to be

delivered in open Court, after hcaring counsel or the parties, in case

ol)cn

the prosecutor or the person convicted shall think it fit that the casc 11 & l o Vict., C. 78,
shall be argued, in like manner as the judgments of thc Supreme
Court are now delivered.

70. The

Case	certificate

be sent back for	70, The Judges, when a case has been rescrved for their opinion, cate to be sent back for amendment, and thcrmpon the same shall be amended accordingly, and judgment shall1 be delivered after it shall have been amended.
amendment.	shall have power, if they think fit, to cause the case or certifi-

l1 & l 2	c. 78j
a. 4.

As to other Matters:

Interpretation of

terms.

71. In the construction of this Act, and of all Acts rvlating to

the criminal law of the said Province, hcrctofor~ or hpreaftcr to bp passed, th6 word "indictable" shall bt. understood to mean liable to prosecution by indictment or informatim; the word " indict-

ment " shall be understood to include "

information," "

inquisition,"

and " presentment," as well as indictment; the word " indictrurnt,"

shall be understood to mean "charged by indictnlent or information; and the terms " finding of the indictment" shall be understood to include the taking of an inquisition," " the exhibiting of an

information," and "

the making a presentment ;" and the word

" pcrson " shall bc understood to ~nclucl% bodies politic and corporate as well as individuals; and the word " property" shall be nndcsstood to include goods, chattels, money, valuable securities, ancl every othcr matter or thing, whether real or personal, upon or with respect to which any offence may be cornmitteil.

Special jurors not	72. From and after the passing of this Act, so much of the Ordinance No. 12 of 1843, " To Rcgulate Trials by Jury in South Australia," as provides " That no person in the Special Jurors' list thereinafter mentioned shall be liable to serve as Common Jurors
exempted.
at any Criminal Sitting? of the Supreme Court or at the Genrral
Sessions of the Peace" shall bc, and the same is hereby repealed.
Corr.mencmentof Act.

Persons committing

73. This Act shall commence and take effect from the passing

offences to bc thence-	thereof: And thenceforth, if any person shall commit or bc clmrgd
forth proceeded
against under this	with any offence punishable under any of the Acts of this present
nnd other Criminal	Session of Parlianlent for consolidating the Statute Law in foscc in
LawandCousolidatioll	BC&.

thc said Province relating to indictable offences, such person shall be proceeded agzinst and punished under such of the provisions

of the said several Acts and of this Act as are applicable thereto,

and not otherwise.

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