1-191 (Text)

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In reference to the query "Whether I have experienced any and what difficulty in applying the provisions of the statute and common law of England to any description of offences committed in this colony, and the grounds upon which I have hesitated so to apply them"; it does not seem incumbent on me, in this communication, to do more than unfold the principle, upon which certainly, as to several statutes, I have not been able to free myself from the hesitation alluded to, and the grounds may be explained in very few words. The Court of Criminal Jurisdiction under the terms of the statute, 29 G. 3 ch. 2, is to be "a Court of Judicature for the trial and punishment of all such outrages and misbehaviours, as, if committed within this realm would be deemed and taken according to the laws of this realm to be treason or misprision thereof felony or misdemeanor."
By force of this enactment it is clear, as observed by His Majesty's Attorney and Solicitor General in their communication to Earl Bathurst upon a case of this nature referred to them, dated 29th August, 1818, that "all criminal laws, which were in force in the 27th year of the late King extend to New South Wales unless repealed . . . whatever question might arise whether a felony created since the 27th G. 3 would become a felony in New South Wales."
But the question still remains whether the commission of an act in New South Wales must necessarily become triable, as a felony, before the colonial court, because the same act, committed in England, has been declared by statute to be a capital felony. If the legislature has provided, previously to the 27th Year of His late Majesty, without confinement to the actual place of commission or any other local or peculiar restriction, any particular offence to be a capital felony, then the offender, committing a like offence in this territory, would be subject to the jurisdiction of the Criminal Court here.  It may explain, to adduce instances of the question, by reference to positive statutes in point. The Stat. 12 Ann, Stat. I ch. 7, s. I enacts that any person, who shall steal goods of the value of 40s. or more, being in a dwelling house, although not actually broken, etc., shall be absolutely debarred of clergy. Under the 27 of G. 3 the court could clearly try, and capitally convict any person, who had been adjudged guilty of stealing above the value of 40s. from a dwelling house in the territory. But if a charge was exhibited by the Judge Advocate here against a prisoner under the 43 G. 3, ch. 58 (and no statute provisions can be of more important and serious operation in the colony) the matter of difficulty arises; for it is enacted that, if "any person or persons shall either in England or Ireland wilfully and maliciously shoot at any of His Majesty's Subjects, or present, point or level any kind of loaded fire-arms at any of His Majesty's Subjects, etc., with intent to obstruct them, resist or prevent the lawful apprehension and detainer of, etc., the person so stabbing, etc., shall suffer death without benefit of clergy." Passing by any question, that may arise, as to this enactment taking effect at a period subsequent to the Act giving criminal jurisdiction to the colonial court here, it appears to me, that to shoot or stab any of His Majesty's Subjects in New South Wales, or Within the local jurisdiction of our court, cannot be adjudged a capital felony under this Act; for the offence is not committed at the place, where only, if committed, it is declared a capital felony, such an offence therefore here cannot be deemed and taken "according to the laws of this realm" to be a felony, to which, if committed at certain other particular specified places, the punishment of death is affixed. In short such an offence committed in this Colony would not, upon conviction in the English courts, render the party liable to suffer death - it is a capital crime in England and Ireland, but not in Scotland even, nor any where else.
There are several other statutes to which reference might be made involving the like question but trusting that I have already made myself fully understood, at least as to my views and doubts on this subject, it may be unnecessary, on this occasion, to enter further into the discussion.