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Decisions of the Superior Courts of New South Wales, 1788-1899

Applicability of Criminal Laws Opinion [1828] NSWSupC 22

reception of English law, date of reception - criminal code - imprisonment for debt

Supreme Court of New South Wales

Forbes C.J., Stephen and Dowling JJ, 1 April 1828

Source: Dowling, Select Cases, Vol. 1, Archives Office of N.S.W., 2/3461

[p. 34]

[Tuesday 1st April]

This day Forbes, C.J. Stephen, J. and myself met at the Chief Justice's house to consider of the operation of Mr. Peel's acts with reference to certain cases tried at the late gaol delivery upon acts which had been repealed by Mr Peel's code.  The following paper was drawn and agreed upon in order to be transmitted to Governor Darling.

[p. 35]

[1828]

[39. El. C. 15. (Breaking house, no person therein and stealing to value of 5l. 12. Anne St. 1. C. 7. (Stealing in dwelling value 40/s.]

[see No. 41 Letter Book.][1 ]

Supreme Court Office

New South Wales

1st April 1828.

At the late Criminal Sessions of the Supreme Court New South Wales certain prisoners were tried, convicted and sentenced respectively under various acts of parliament which have been repealed by the statute 7 & 8.G. 4.C. 27 and the new code of criminal law enacted by the 7. &  8. G. 4.C. 29. not having been previously adopted by the Legislative Council of the Colony, two questions have arisen for the consideration of the Judges.

First,

Whether the statutes on which the convictions of the said prisoners have proceeded having been repealed by the 7.& 8.Geo.4.C.27 such convictions, can by any construction of law be now upheld, so as to authorize the executive government to cause the sentences thereon pronounced, to be carried into effect, and

Secondly,

Whether, assuming that the convictions cannot be supported, by reason of their being founded [p. 36] on laws repealed by the parliament of Great Britain, it is competent to His Excellency the Governor, to pardon the said offenders conditionally, or in other words, to commute the capital sentences pronounced upon them to punishments of a more mitigated character.

The Judges having met at the Honorable the Chief Justice's Chambers, and having fully and maturely considered these questions are of opinion,

First,

That the convictions of the said prisoners cannot be upheld by any construction of law,

and consequently, that the executive government would not be authorised in causing the sentences thereon pronounced to be carried into effect, and,

Secondly,

That as the said convictions are wholly void, it is not competent to His Excellency the Governor of this Colony to pardon the said [p. 37] offenders conditionally or commute the Capital sentences pronounced upon them, to punishments of a more mitigated character

F. Forbes C.J.

J. Stephen, J.

J. Dowling, J.

Almost all the convictions above alluded to took place before my arrival in the Colony; and the result of this decision was, that several desperate offenders escaped from justice.[2 ]

See Campbell v Hall Corup.204

1 Blackstones Com. 108.

2 Per. Williams    75.

Shower's Parliamentary cases 31.

Pownal on the Colonies  127.

Notes

[1 ] This letter was also copied into the Chief Justice's Letter Book, Archives Office of New South Wales, 4/6651, p. 153.  The same source at pages 127-128 contains the following letter from Forbes C.J. to Governor Darling dated 26 December 1827:

" Your Excellencys private Secretary politely favoured me with a sight of several Acts of Parl passed at the late Session for consolidating and amending the criminal laws of England.  As it is of pressing importance that these Acts should be extended to this Colony as early as possible I have felt it a duty to call your Excellency's attention to the subject and to communicate my views on it.

"It is a question which has never been finally decided how far an English Statute remains in force in the Colonies after it has been repealed in England. The Supreme Court has always held the common and Statute laws of England to be in force in this Colony up to the passing of the New South Wales Act.  [128] The new Bill affirms this principle and declares that all the laws in England in force at the passing of the New South Wales Act (19 July 1823) should be taken and held to be and have been in force in the Colony. The Acts for amending the Criminal law have been passed since the period alluded to and consequently will not fall within the principle upon which the laws of England have been adopted in New South Wales. It is of equal moment to avoid the doubt I have already stated and to have the benefit of the very great improvement s which have been made both in the body of the criminal law and in the rules of administering it and I beg to submit as an outline of the means of accomplishing these desirable ends the following

"1. That the several Acts of Parliament passes in the 7th & 8 years of His Majesty following be immediately adopted that is to say the 7th Geo 4th Ch 64 and the 7th & 8th Geo 4. Ch 27 for improving the administration of justice, and also the 7th & 8th Geo Cha 29 & the 7 & 8 Geo 4 ch 30 for consolidating the laws relative to larceny and to malicious injuries to property.

"2nd. That instead of re enacting the above Acts of Parliament in the form of local ordinances in pari passu a short Act of the Legislature be framed by the Law Officers reciting the expediency of adopting the Statutes referred to and enacting that the same and every clause therein contained shd be in force in New South Wales and applied by the Courts of the Colony to the same extent and in like manner as if such statute had severally been passed and formed a part of the laws of England before the Settlement of a Colony in New South Wales or had been several re enacted in such Acts of the Legislature.

"[129] I propose this plan for many reasons in preference to a particular enactment of the clauses of the several statutes - it preserves uniformity in the application of the Statute Law of England and obviates many questions which might be easily raised but which it would be difficult to determine with accuracy - and in the application of penal law all doubts should be scrupulously avoided."

[2 ] This is a note by Dowling J.  The point in issue here was the date of reception of the general statute law of England under the common law's reception rules, and in particular whether recent statutory changes to the criminal law were in force in the colony. 

 

The conventional view was that in the absence of a legislative provision saying otherwise, the appropriate date was the date of settlement, 1788.  (See R. v. Broadbear and Broadbear, 1826.)

Forbes C.J. took a different view, that the date of reception of statute law was that of the commencement of the local legislature, the New South Wales Legislative Council, under (1823) 4 Geo. 4 c. 96.  (For an example of  his view, see Brown v. Mannix, 1828.)  Forbes expressed this view in a letter to Hay, dated 12 November 1827 (Historical Records of Australia, Series 4, Vol. 1, pp 746-747).  He said that "In all the older Colonies of the British crown in America, it was held to be from the time of a local legislature being established within the Colony; until such time, the Colony was held not to be fully settled; not having within itself the elements of a legislative function, it was still considered as within the care of Parliament, and entitled to receive the benefit of all the municipal laws of the mother country.  I have several printed cases of decisions incidentally recognizing this general principle in the Colonies, but, as they are not usually to be met with, I must refer you to a work in which you will find it laid down as a fundamental maxim in the older Colonies (Pownall on the Administration of the Colonies, page 127)."  Ultimately, he said, the colony's own legislature would be able to clarify this and to state what applied and what did not, but Forbes thought that New South Wales would not be in that state within the next half century.

Forbes had decided similarly when he was Chief Justice in Newfoundland before sailing to London and then New South Wales.  In Yonge v. Blaikie (1822) 1 Newfoundland Law Reports, 277 at p. 283, he said that from his experience, colonial courts dated the discontinuance of English statute law not from the date of settlement, but from the institution of a local legislature in the colony.  The peculiar history of Newfoundland may have influenced this decision by Forbes, as it was by no means clear when the island was settled.  Even in 1822, some people avoided referring to it as a "colony".

Mr Justice Dowling took the same view, that the colony received all applicable statutes up to the date of the establishment of a local legislature: see Brown v. Mannix, 1828.

This Applicability of Criminal Laws Opinion must have been based on a third view of the adoption of English statute law, since the Peel Act referred to was passed in 1827, after the establishment of the New South Wales Legislative Council.  The matter had been referred to the Legislative Council, which passed two Acts, the first adopting the new English criminal laws, and the second the latest restrictions on imprisonment for debt (a Frivolous Arrests Act): see Sydney Gazette, 28 March 1828, and its issues over the next few succeeding weeks, in which it published the new English legislation now in force in New South Wales.  The local reception Acts were (1828) 9 Geo. 4 Nos 1 and 2, which commenced operation on 1 April 1828.  The criminal law reception Act, 9 Geo. 4 No. 1, could have affected prior convictions only if they were retrospective in operation, but s. 2 made clear that it was not to affect offences committed before 1 April 1828.  The judges in this opinion thus appear to have assumed that the 1827 English statutes applied in the colony from the moment of their passage in England.  That is clear from the personal papers of Forbes C.J. which are held by the Mitchell Library (A 1381, Reel CY 986).  At pp 89-90 there is a list of convictions which Forbes thought were nullified by the new English criminal laws.  In the case of Lazarus Levey, for instance, Forbes says he was convicted on 13 February 1828 of an offence committed on 10 November 1827 against 2 Geo. 2 C. 25 "which Statute was repealed before the offence committed".  That is, Forbes assumed a running adoption of English statute law even when the local legislature had not adopted it, and even when the new law could not have been known in the colony.  The  Sydney Gazette, 25 April 1828, pointed out the irrationality of this policy of the assumed application of laws which were not yet known in the colony.

After receiving this opinion the Attorney General, Baxter, and Solicitor General, Sampson, sought advice as to whether statutes enacted after (1823) 4 Geo. 4 c. 96 which had no clauses specially applying them to New South Wales and which have been "received" in the colony, were in operation unless enacted by the Legislative Council.  (Source: Chief Justice's Letter Book, Archives Office of New South Wales, 4/6651, pp 151-152.)  The three judges replied on 12 April 1828 (p. 152), stating that "we are of opinion that where a Statute is enacted in England (not being a declaratory or repealing Statute) subsequently to the Statute 4 Geo. 4 c. 96 and does not contain any clause specially extending its operation to this Colony, but which has been received (or arrived) here, such Statute is not in force, unless enacted by the Legislature of the Colony."  Thus Forbes assumed that of the English Acts passed after the creation of a colonial legislature, only declaratory and repealing statutes were received as they came into force in England.  See C.H. Currey, Sir Francis Forbes: the First Chief Justice of New South Wales, Angus and Robertson, Sydney, 1968, p. 315, and ch. 28 generally.  See also Forbes to Horton, 15 December 1826, Historical Records of Australia, Series 4, Vol. 1, p. 678.

The Australian anticipated this problem on 23 January 1828.  It reported an opinion that the old criminal laws were properly repealed for India (and New South Wales) but that since the Peel Acts did not mention the colonies, they were not in force there.  It recommended action by the Legislative Council.  See also Sydney Gazette, 12 March 1829.

Pedder, the Chief Justice of Van Diemen's Land, apparently reached a different view from the judges in New South Wales: see Sydney Gazette, 17 November 1829.

This issue of the date of reception of English statutes was eventually resolved by imperial statute.  The Australian Courts Act (1828) provided, in s. 24, that all the laws and statutes of England at the time of the passage of the Act (which was 25 July 1828) were to be applied in New South Wales, "so far as the same can be applied".  Ever since then, that has been the date of reception for New South Wales and the colonies and states which derived their law from it, that is, Queensland and Victoria.  The same applies to Van Diemen's Land/Tasmania.  This new provision did not explain this opinion, however, since the opinion was written before the 1828 imperial Act came into force.  See A.C. Castles, An Australian Legal History, Law Book Co., Sydney, 1982, pp 393-398.  There had been an earlier attempt to resolve the issue by statute.  In 1826, the Attorney General, Bannister, drafted a local statute, which Forbes declared to be repugnant to English law: see Chief Justice's Letter Book, Archives Office of New South Wales, 4/6651, pp 72-74.

This reception of statutes passed as late as 1827 did not always operate to favour defendants.  The reverse applied in May 1828, when Owen Flannaghan was found guilty under "Mr. Peel's new Act" of receiving stolen goods.  The offence was punishable by death.  See Australian, 23 May 1828.

The judges informed Governor Darling on 7 July 1828 that prisoners convicted under legislation which was subsequently found to have been repealed "can be disposed of only by granting an unconditional pardon to the prisoners so convicted": Chief Justice's Letter Book , Archives Office of New South Wales, 4/6651, p. 169.  They then named the prisoners who were in this position.  For examples of these cases, see R. v. Geeson, Herbert and Welsh, 1828; R. v. Bensley, 1828; R. v. Evans, 1828; R. v. Tennant, Ricks, Cane and Murphy, 1828.  The latter case shows how lucky prisoners could be by the application of the new laws rather than the old; R. v. Bensley shows the opposite fortune.

On the new criminal laws, see also Sydney Gazette, 30 April, 21 May, 4 July and 17 September 1827; and Australian, 9 April 1828.  On the governor's attempt to create a local law on criminal punishment, which the Chief Justice thought repugnant to English law, see Forbes to Darling, 4 August 1828, Chief Justice's Letter Book , Archives Office of New South Wales, 4/6651, p. 181.

Published by the Division of Law, Macquarie University