This is a digital copy of a book that was preserved for generations on library shelves before it was carefully scanned by Google as part of a project
to make the world's books discoverable online.
It has survived long enough for the copyright to expire and the book to enter the public domain. A public domain book is one that was never subject
to copyright or whose legal copyright term has expired. Whether a book is in the public domain may vary country to country. Public domain books
are our gateways to the past, representing a wealth of history, culture and knowledge that's often difficult to discover.
Marks, notations and other marginalia present in the original volume will appear in this file - a reminder of this book's long journey from the
publisher to a library and finally to you.
Usage guidelines
Google is proud to partner with libraries to digitize public domain materials and make them widely accessible. Public domain books belong to the
public and we are merely their custodians. Nevertheless, this work is expensive, so in order to keep providing this resource, we have taken steps to
prevent abuse by commercial parties, including placing technical restrictions on automated querying.
We also ask that you:
+ Make non-commercial use of the files We designed Google Book Search for use by individuals, and we request that you use these files for
personal, non-commercial purposes.
+ Refrain from automated querying Do not send automated queries of any sort to Google's system: If you are conducting research on machine
translation, optical character recognition or other areas where access to a large amount of text is helpful, please contact us. We encourage the
use of public domain materials for these purposes and may be able to help.
+ Maintain attribution The Google "watermark" you see on each file is essential for informing people about this project and helping them find
additional materials through Google Book Search. Please do not remove it.
+ Keep it legal Whatever your use, remember that you are responsible for ensuring that what you are doing is legal. Do not assume that just
because we believe a book is in the public domain for users in the United States, that the work is also in the public domain for users in other
countries. Whether a book is still in copyright varies from country to country, and we can't offer guidance on whether any specific use of
any specific book is allowed. Please do not assume that a book's appearance in Google Book Search means it can be used in any manner
anywhere in the world. Copyright infringement liability can be quite severe.
About Google Book Search
Google's mission is to organize the world's information and to make it universally accessible and useful. Google Book Search helps readers
discover the world's books while helping authors and publishers reach new audiences. You can search through the full text of this book on the web
at http : //books . google . com/|
Digitized by VjOOQ IC
Digitized by VjOOQ IC
^
Digitized by VjOOQ IC
Digitized by VjOOQ IC
Digitized by VjOOQ IC
)M'
THE J '
WESTERN AUSTRALIAN
LAW REPORTS
1901.
VOL. III.
Edited by Harold W. Hensman, Ll.B.,
Of The Middle Temple,
BARRISTER-AT-LAW.
Published by Frederick Bull, 15 McNeil's Chambers,
Barrack Street.
Digitized by V:iOOQIC
269280
Digitized by VjOOQ IC
JUDGES & LAW OFFICERS
OF THE
Supreme €anxt ai Witsttxn %mixulm.
(1901).
EDWARD ALBERT STONE, Esq.
^ttient Inbges :
ALFRED PEACH HENSMAN, Esq.
R. W. PENNEFATHER, Esq.
GEORGE LEAKE, Esq., K.C.
Pasttt of i\it Court :
FRANCIS ARNOLD MOSELEY, Esq.
Digitized by VjOOQIC
Digitized by VjOOQ IC
• • •
CASES
DBTBRMlNED BY THB
FDLL COURT OF WESTERN AUSTRALIA.
REX V. DeBAUN* iqoi.
Criminal Law—LotUry^io and ii Wm. 3. CA. 17, 5w. x (Impiridl Acty-The Polic$ April 22.
Act, 55 Vic, No. 27, Sic. 93— TA* Polia Atnendmint Act, 56 Vic, No, 10, Sec.
3, and Sees. 11 to i^—The Constitution Act, 52 Vic, No. 23, Sec 57. T C T
The Imperial Stat.. 10 and it Wm. 3. Ch. 17, Section i, is in force in W.A., Hmsman, J.
^nd by that Section the keeping or setting up of a Lottery is made a public
nuisance, and is punishable as such; and as Sec. 93 of the Police Act
^ealt only with the mode of recovering penalties, it is not a variation or repeal
by implication of Section i of io and 11 Wm. 3, Ch. 17. Sec. 93, however,
operates as a repeal of Section 2 of 10 and 11 Wm. 3, Ch. 17. The subsequent
repeal of Section 93 does not revive the repealed portion of 10 and 11 Wm. 3,
Ch. 17. Sec. 57 of 52 Vic, No. 23 (Constitution Act) is merely declaratory of the
common law, and therefore all the laws of England in force at the time of the
arrival of the first settlers in the Colony, and which are applicable to the
conditions of an infant colony, must from the outset become and continue to be
the law of the Colony until by its own Legislature it proceeds to shape, modify,
*or abrogate the existing law, so as to adopt it to its own circumstances and
:situation.
Per Hensman, J. Even if 10 and 11 Wm. 3, Ch. 17, is not in force, the
keeping, etc., of a Lottery is a mis.demeanour at common law, and is therefore
indictable.
The defendant was, at the December Criminal Sittings of the
Supreme Court, charged with keeping and setting up a Lottery on
the 9th day of January, 1900, and on divers days and times between
that day and the 17th day of March, 1900.
Counsel for the accused, before pleading to the charge, moved
to quash the information on the several grounds set out in the case
stated, hereinafter referred to.
It was admitted by the Crown that the accused had voluntarily
closed the Lottery and had not since opened or kept the same for
«ome two months before the Police Court proceedings upon which
the information was founded, were taken.
Digitized by VjOOQ IC
.••. •. : • CASES AT LAW. [W. A. R,
• • • *
iQoi. ^ \^ After Tiearing argument the Chief Justice suggested that as the
R jx •/ ;/*aQsased admitted the keeping, etc., of the Lottery he should plead
jf 3" ' "guilty, and he (the Chief Justice) would reserve all the points
, :* taken by his Counsel for the opinion of the Full Court.
The plea of guilty having been entered, the following were the
questions submitted on a case stated by the Chief Justice for the
opinion of the Full Court, namely : —
1. Do the facts charged in the said information amount to an
offence punishable by law ?
2. Are the Imperial Lottery Acts in force in the State of
Western Australia ?
3. If the said Lottery Acts or any of them were at any time
in force in Western Australia, had they ceased to continue in force
after the i8th day of March, 1892 ? (a) By repeal direct or by
implication, (b) By reason of the same or each of them being
varied by the Legislature of Western Australia.
4. If the said Lottery Acts are in force in the State, is
the information bad in law ? (a) By reason of the fact that it was
found on an information laid by a private prosecutor, and are the
proceedings thereon irr^ular and void as being in direct contravention
of the Imp. Act, 45 Geo. 3, Ch. 143, Sec. 59 ? {b) By reason of the
fact that the information was for an alleged offence which, if it had
existed, had ceased to exist, and had been absolutely abated two
months before the taking of the inquisition or other proceedings
upon which the appellant was committed for trial, (c) By reason
of the fact that the Imperial Lottery Acts do not contemplate the
proceeding against, and punishment of, any person who has set up
or kept a lottery at a remote period, so as to be a public nuisance
within the Act, the setting up and keeping thereof having to
exist in presenti^ nsimely^ at or immediately before the inquisition,
in other words, '^ that at the time of, or immediately before the
taking of the inquisition there existed a public nuisance that
required to be abated."
Villeneuve Smith (with him Hensman), for the defendant,
appellant :
I. Assuming 10 and 11 Wm. 3, Ch. 17, was in force in
Western Australia, it had been repealed (a) by implication, {b) by
having been varied by the local Legislature.
Digitized by VjOOQ IC
VOL. III.] CASES AT LAW.
Section 93 of the Police Act repealed or varied the law relating ^9ox.
to Lotteries as it existed at the time of the passing of the Con- rxx
stitution Act (W.A.), 52 Vic, No. 23, Sec. 57, DeBaun.
The Imperial Act was passed {a) For supervision of Lotteries,
and made them a common nuisance ; {b) Fixed a penalty of ;^500 ;
{c) The offender to be proceeded against as a rogue and vagabond ;
{d) Penalty went to Crown ; {e) No appeal was given.
The local Act was passed for prohibition of Lotteries,
{a) Penalty, ;^2oo in discretion of Justices for first offence; {b) For
second offence penalty, imprisonment (imperative), not exceeding
6 uKHithSt and fine not exceeding ;^2oo ; (c) Penalty goes to His
Majesty, except so piuch as may be given to informer ; {d) A right
of appe^ is given.
This shews a variation of the Imperial Statute by local legis«
lation, and under the Constitution Act Section 57, as soon as Section
93 of Police Act became law 10 and 11 Wm. 3, 'Ch. 17, ceased to
exist. FarUscue v. SU Matthew^ Bethnal Grun (a), Micfull v.
Brown (b).
The Colonial Legislature, therefore, by passing Section 93 of
the Police Act, intended to deal with the question of lotteries gener-
ally. The Colonial Legislature considered such a measure necessary
in the then state of society in the Colony (1892), and they there-
fore proceeded to shape and modify the law as it then existed, so as
to adopt it to their own circumstances and situation, and thereupon
the Imperial Act ceased to exist. Attorney -General v. Stewart (c^)
Cooper V. Stuart (d).
Section 93 is practically a repeal by implication of the
Imperial Act.
Applying the words used by Charles, J., at p. 177 in Fortescue
V. St. Matthew f Bethnal Green, to the present case, " it cannot be
denied that both these Acts {i,e., 10 and 11 Wm. 3, Ch. 17, and
55 Vic, No. 27, Sec. 93) cover the offence with which De Baun is
charged, but the Western Australian Act differs from the Imperial
Act, both a& to the amount of the penalties which may be imposed,
and as to the conditions under which these may be recovered. Again,
a right of appeal is given in the Colonial, and none in the Imperial
(a) 1891 2 Q.B., 170. (b) I. E. & E., 267.
(c) z6 R.R., p.p. 1C6 and 7. {d) 14 ApplCas. 386.
Digitized by VjOOQ IC
CASES AT LAW- fW. A.E.
^9^' Ac3L Agaitit in die Imperial Act the penalty is a fixed and
jUs imperative one of ^^500. In the Colonial Act the Justices have a
discretion up to ;^2oo. .
V.
FwrUscm v. Si. Matthew, Bethnal Green, and Michelle, Brown,
are directly in point, and therefore the Police Act, Section 93,
operates as a repeal of the Imperial Act, and in Section 57 .of
the Constitution Act the Legislature must be taken to have intended
to vary the law.
The intention xA Section 57 of the Constitution Act is that the
law is to continue in force until repealed or varied by local
legislation, or, in other words, so soon as the Colonial Legislature
proceed to modify, abrogate, or vary the law as it existed at the
time ef the proclamation of the Constitution Act, then such law
shall cease to exist. Cooper v. Stuart, p. 291.
Unless an Imperial Statute has been by legislative enactment
adopted, there is no necessity for express words to repeal it, and
therefore Imperial Statutes, which are simply the law of the Colony
by reason of the fact that the first settlers brought the English laws
which were applicable with them, cease to apply so soon as the
Colonial Legislature passes laws dealing with the same subject.
Cooper V. Stuart, p. 291, Attorney -General v. Stewart, p. 166.
The subsequent repeal of Section 93 of the Police Act does not
revive the Act of William, as the Shortening Ordinance Act, 46
Vic, No. II, enacts "that repealed Ordinances are not to be
revived on the Act repealing them being itself repealed."
2. 10 and II Wm. 3, Ch. 17, is not applicable to Western
Australia. It is purely local to England and Wales. The object is
political, it having grown out of local circumstances, namely, the
abuse of the Great Seal of England. The Act was not applicable
to the conditions of an infant colony, and therefore did not become
the law of the colony. Attorney- General v. Stewart, p. 162. Its
operation was limited to England and Wales. It did not extend to
Ireland, Scotland, or the Colonies. Attorney-General v. Stewart, p.
165, Cooper V. Stuart, p. 286. The Act of William is a penal Act,
and therefore does not go with the subject. Cooper v. Stuart, p. 291,
Clarke's Colonial Law, p. 8.
3. The Attorney-General only can institute proceedings
Digitized by VjOOQIC
VOL. in.] CASES AT LAW.
under lo and n Wm, 3, Ch. 17. Jiex v. TudefAam (a)^ Taylor v. iqm.
Smeaion (&). rsx
4. The nuisance had ceased to exist two months before the Police osBatoi.
Court proceedings. The words of the Act are " keeping and setting
«/." This is a present offence, and must have existed at or
immediately before proceedings taken. The proceeding is for the
removal or abatement of the nuisance — the Court will do nothing in
vain. How can they proceed to remove or abate a nuisance that
does not exist ? The intention of the Act is clear, otherwise a man
could be prosecuted for having kept or set up a Lottery, e.g., five
years ago. Roscoe^ p. 826, R. v. Incledony 12 R.R. 313, Arck. Crim.
Pleadings p* 103.
E. A, Harney (with him Woo^^ for the Crown, contra.
As to the Imperial Act 10 and 11 Wm. 3, not being
applicable in this State, the Common I^aw established by
prescription, and the Statutory Law together make up the body of
the English law at any given date.
When England conquers a country or obtains a cession of a
country having already a code of laws, the English law does not
follow English settlement of necessity. But when England
colonises an uninhabited country the law then in force in England
attaches to the residence of the Colony. Colonisation is not the
^acquisition of new country, but the enlargement of the area of
British jurisdiction. It is not a conflict between two systems of
jurisprudence, but the extension of British jurisprudence to a region
where there was none before. Hence there was really no necessity
for a Statutory Constitution for Western Australia. Mayor of
Lyons v. East India Company {c).
Section 57 of 52 Vic, No 23, (Constitution Act) is merely
declaratory of the Common Law, and, therefore, all the laws of
England in force at the time of the arrival of the first settlers in
the Colony, and which are applicable to the conditions of an infant
Colony must, from the outset, become and continue to be the law
of the Colony until by its own Legislature it proceeds to shape,
modify or. abrogate the existing law so as to adopt it to its own
circumstances and situation.
The Supreme Court Act, 24 Vic, No. 15, Sec 4, makes all
(a) 10 L.J., M.C. 163. (6) II Q.B. 207.
(0 I, Moore's P.C. Reports, p. 47a.
Digitized by
Google
CASES AT LAW. [W. A . R.
1901. English Acts prior to 1829 applicable, as regards procedure, to
Rex Western Australia.
V.
DbBaun. Section 93 does not cover all the ground bf the Act of William.
No repeal by implication can exist if there is no contradiction
in both Acts existing side by side.
The Act of William is to make lotteries indictable as public
nuisances. Section 93 renders summarily punishable the keeping'
of a lottery. It does jiot, therefore,^ make it cease to be a Statutory
nuisancei but it provides a summary concurrent remedy. In effect
it says to the Crown, henceforth you can exercise your discretion
by proceeding against the Lottery holder for a nuisance by
indictment or by punishing him under the Statutory provision of
the Police Act.
ihis is sliowB, iirstY by the imwiMj 'attbe^iidof the Section,
excluding from the remedy there given» other remedies then or
thereafter to become law. Secondly by vthe analogy of .other
cases — before the establishment of Pettty Sessions jurisdiction, all
punishable offences had to be dealt with by^ jndictment, and , the
summary jurisdiction added, and did not substitute the remedy in
any of the cases. Thus the Sorcery Act, 20 Vic, No. 5, gave a con-
current summary jurisdiction where the amount was under £St with-
out in any degree abrogating the procedure by indictment. Thirdly,,
in New South Wales where the provisions as to the transference
of English law are identical, it has been held that the ** Little
Goes ** Act, 42 George 3, is applicable there notwithstanding that
New South Wales has a general local act dealing with such
matters.
Although New South Wales has no Constitution Act, its
Supreme Court Act is identical with ours, being the sole incor-
porating medium, and it has been held that the English Lotteries
Act applies, notwithstanding that lotteries are specially dealt with
by 39 Vic, No. 28. Moreover, our Constitution Act is a work of
supererogation and leaves untouched the general principles of the
Lex Loci. R, v. Ah Tow (a). Attorney Gerurdl v. Edgely (ft).
Finally, even if io.ai^4,ii Wm. 3,sCh. 17, is not in force here,,
the keeping, etc., of a lottery is a ipisdemeanour at common law^
and is, therefore, indictable.
(a) 7 N.S.W.L.R., 347 (b) 9 N.S.W.L.R.. 157
Digitized by VjOOQ IC
VOL. III.] CASES AT LAW.
As to an indictment under lo and ii Wm. 3, not lying for a 1901.
nuisance already abated, although the indictment under, the Act of rbx
William is for a nuisance, the nuisance need not exist art, the time j. ^'
of the indictment, because the Act of William provides for the
abatement of the nuisance as well as for the punishment of the
offence, and by Section 2 it provides even a summary remedy by
fine. R. v. Crawskaw (a), R, v. Stead (ft), R. v. Pattendorf (c).
The objection taken that the proceedings should be taken by
the Attorney-General, and should not be institi^ted by indictment,
only applies to the recovery of penmlties^ as is seen from Section 59
of 46 Geo. 3, Ch. 148.
VUlenenve Smithy in reply. Section 4 of 24 Vic, No. 15, refers
to the laws regulating the administration of justice, and not to the
general law of the State. Whicker v. Hume (i), Attorney-General v.
Edgley (e) is not in point, and if it were it is not good law, as it
conflicts with Whicher v. Hume, and the latter case does not appear
to have been cited in Edgley's case.
Cur. adv. vult.
The' Chief Justice. This is a case stated by me for the
opinion of this Court upon the somewhat important and rather
difficult points of law raised by counsel for the defendant on the
hearing of an information against the defendant, charged with
keeping a lottery. The various points of law are set out in the
special case, together with the questions which this Court is asked
to decide. The various points were very fully argued before us by
Mr. Smith, and they are of considerable interest, as one of them
involves the question as to whether the Imperial Lottery Acts are
in force in this State or not. The first question put to the Court
is, *< Do the facts charged in the said information amount to an
offence punishable by law ? ** The information contained three
counts, but I need only read the first, which charged the
defendant, that he did, on the 9th day of January, 1900, and upon
divers other days and times between that day and the 17th day of
March, 1900, at Perth in the said State, unlawfully set up- a
certain lottery to the great damage and common nuisance of all
the liege subjects of our Lady the Queen inhabiting and- residing,
(a) 30 L.T.M.C. 58. (b) 8 T.R. 142.
(e) I. Strange 686. (d) 7 H.L. Cases 124, and at p.p. 151-2.
(e) 9N.S.W.L.R..P157.
Digitized by VjOOQ IC
CASES AT LAW, [W. A. R
1901. and to the evil example of all others in the like case offending.
Rbx Now, whether the information discloses an offence punishable in
V.
DsBAtTN. ^^^ depends upon the question of whether the Imperial Act of
Parliament known as the Lotteries Act 10 and 11 Wm. 3, Ch. 17
is in force in this State, and consequently, if it is in force, whether
it has been repealed by implication or otherwise by the 93rd
Section of the Police Act of 1892. Upon the point of whether the
Act of William III is in force in this State, we must iir^t look at that
Act, the first section of which recites that several evil disposed
persons for divers years last past have set up many mischievous and
unlawful games, not only in London, but in most of the eminent
towns and places in England and the dominion of Wales ; and it
was by that Statute enacted that all such lotteries were to be
deemed common nuisances. Under that Section the defendant
was informed against, and the law with regard to the question of
whether that Act is in force in this State or not, seems to have
been decided in the case of Cooper v. Stuart (a). Lord Watson in
giving judgment in that case said, "The extent to which English
law is introduced into a British Colony, and the manner of its
introduction must necessarily vary according to the circumstances.
There is a great difference between a Colony acquired by conquest
or cession, in which there is an established system of law, and
that of a Colony which consists of a tract of territory practically
unoccupied without settled inhabitants or settled law at the time
it was annexed to the British dominions. The Colony of New
South Wales belongs to the latter class. In the case of such a
Colony the Crown may by ordinance, and the Imperial Parliament
may by Statute, declare what parts of the Common or Statute law
of England shall have effect within its limit. But when it is not
done, the law of England must (subject to well-established
exceptions) become from the outset the law of the Colony, and be
administered by its tribunals. In so far as it is reasonably
applicable to the circumstances of the Colony, the law of England
must prevail until it is ^ibrogated either by ordinance or Statute."
It is to that class of Colony that his Lordship referred. The
learned Judge in the course of his judgment also quoted the well>
known observations of Sir William Blackstone to the effect that
such colonists carry with them only so much of the English law as
(a) 14 App. Cas., 286^
Digitized by
Google
VOL. III.] CASES AT LAW.
iis applicable to the conditions of an infant Colony; such, for 1901.-
instance, as the general rules of inheritance and protection from Rex
personal injury. In a previous case, The Attorney General v. dbBaun.
Stewart J tried in 1817, a question was raised as to whether the
law of mortmain was in force in the colony of Granada. In that
case Sir William Grant said the question of whether the Stfeitute of
mortmain was in force in the colony of Granada depended upon the
consideration of whether it was a law of local policy adapted
solely to the country in which it was made, or a general regulation
of property equally applicable to any country in which it is by the
rules of English law that property is governed. The effect of
the same Statute was discussed in reference to the State of New
South Wales where a similar point was raised, and the House of
Lords held that the general principles laid down by Sir William
Grant in the case of the A ttorney General v. Stewart were entirely
correct and governed the case. In another case tried in 1875
before the Privy Council, the question of the English law as
regards perpetuities was discussed in its relation to the colony of
Penang, and the Privy Council held that the English law extended
to that settlement upon circumstances of public policy.
Now when I was sitting in the Criminal Court I was inclined
to agree with the view placed before me by Mr. Smith, that it
could hardly be held that such an Act as 10 and 11 Wm. 3, could
apply to the circumstances of an infant colony just settled by a
handful of inhabitants ; but upon further consideration and review
of the cases, it seems to me that one has to consider whether that
Act was passed simply as a matter of local policy, or whether for
public policy — whether it was an Act dealing with the morals of
the community in general, or only dealing with a particular
section of the community. I am of opinion, from the wording of
the Act, that it was clearly intended to deal generally with the
subjects of the Sovereign, and to prevent these unlawful games
called lotteries being continued, and that it expressly enacted that