C.C.A.

R. v. BECKETT.

Lukin J.

And again at page 296 of the same work the author says:
"But repeal by implication is not favoured.
It is a
reasonable presumption that the Legislature did not intend to
keep really contradictory enactments on the Statute book, or,
on the other hand, to effect so important a measure as the repeal
of a law without expressing an intention to do so."

The provisions of section 305 of the Criminal Code as it now stands, and section 24 of The State Children Act, cannot be said to be contradictory or repugnant to or irreconcilable with one another, no more than other provisions for punishment by imprisonment-i.e., punishment for arson, rape, etc.-before the passing of the Amendment Act could be said to be repugnant to section 24 of The State Children Act. It seems to me, then, following these authorities, that the present language of section 305 must be construed in regard to a convicted child in accordance with the terms of section 24 of The State Children Act, since section 305 of the Criminal Code as amended does not in express terms modify or repeal section 24.

During the argument, it was questioned whether, in relation to one another, section 305 of the Criminal Code could be said to be a general provision, and section 24 of The State Children Act a particular provision. When the various sections of the Criminal Code that impose punishment of imprisonment, including section. 305, are contrasted with section 24 of The State Children Act, in so far as they affect one another, or deal with the same subject— that is, punishment of offenders-the former deals with the punishments to which all persons alike are liable, and the latter deals not with all kinds of punishment, on all persons alike, but only with the particular kind of punishment-i.e., imprisonmenton a particular class, i.e., children under 17 years of age, and excepts that particular class from that particular kind of punishment.

The

Qua the punishments and the persons liable thereto, which is the relevant aspect in which we are now considering the matter, the former is obviously what is termed a general enactment and the latter a particular or special one. position then is that the Criminal Code by its latest amendment has made a general provision imposing punishment of imprisonment on all offenders alike for wilful murder, and the question is:Does such general provision, being later in date than section 24 of The State Children Act, affect the particular provision contained in

C.C.A.

such section ? The rule of construction as laid down in the text books under the maxim “Generalia specialibus non derogant," in R. v. BECKETT. my opinion applies. Craies on Statute Law, 2nd Ed., p. 337, Maxwell on the Interpretation of Statutes, 6th Ed., pp. 313, 314.

66

In the case of Goodwin v. Phillips (1) in the High Court, O'Connor J. said The conflict between the two sections is one of the kind to which Sir George Jessel, M.R., refers in Taylor v. Corporation of Oldham (2). Where there is a general provision which if applied in its entirety would neutralise a special provision dealing with the same subject matter, the special provision must be read as a proviso to the general provision, and the general provision, in so far as it is inconsistent with the special provision, must be deemed not to apply."

66.66

In a case in the House of Lords, Seward v. Vera Cruz (3), Lord Selborne said: Now, if anything be certain it is this, that where there are general words in a later Act capable of reasonable and sensible application without extending them to subjects specially dealt with by earlier legislation, you are not to hold that earlier and special legislation indirectly repealed, altered, or derogated from merely by force of such general words, without any indication of a particular intention to do so."

In a case in the Privy Council, Barker v. Edger (4), Lord Hobhouse said: "When the Legislature has given its attention to a separate subject, and made provision for it, the presumption is that a subsequent general amendment is not intended to interfere with the special provision unless it manifests that intention very clearly." See also the remarks of Lord Hatherley in Garnett v. Bradley (5), and a multitude of other cases referred to in the text books by Craies and Maxwell,

There is a further aspect of the case which seems to me equally decisive against the Crown's contention. The substituted amendment adds these further words, "which cannot be mitigated or varied under section 19 of this Code." These words limit the prohibition of mitigation and variation to such as may be exercised under the powers contained in section 19 of the Criminal Code, and omits to refer to and leaves open the mitigation and variation arising in other ways. The express mention of the one thing "mitigation and variation under section 19," implies the exclusion of another-e.g., section 24 of The State Children Act from such

(1) 1908, 7 C.L.R. 1, at p. 14.
(2) 1879, 4 Ch.D. 395, at p. 410.
(3) 1884, 10 A.C. 59, at p.68.

(4) [1898] A. C. 748.
(5) 1878, 3 A. C. 944.

Lukin J.

C.C.A.

R. v. BECKETT.

Lukin J.

prohibition of mitigation and variation. If the Legislature meant to exclude the application of the State Children Act, nothing could have been more easy than to say so by a reference to The State Children Act-Griffith C.J. in Mooney v. Commissioners of Taxation (1); and as pointed out above, it is significant that where the Legislature made consequential amendments in three other Acts it made no reference to The State Children Act.

I think the argument for the Crown is based on speculation as to the intention of the Legislature, which does not give any sound foundation for the Crown's contention. In this regard, Lord Watson, in Salomon v. Salomon & Co. (2) said, "Intention of the Legislature is a common but very slippery phrase, which popularly understood, may signify anything from intention embodied in positive enactment to speculative opinion as to what the Legislature probably would have meant, although there has been an omission to enact it. In a Court of law or equity, what the Legislature intended to be done, or not to be done, can only be legitimately ascertained from that which it has chosen to enact, either in express words, or by reasonable and necessary implication."

For the reasons herein appearing, I am of opinion that the prisoner is entitled to the benefit of the law, as on a proper interpretation of its statutory provisions it stands, and that he is therefore entitled to succeed in this appeal.

Appeal dismissed; conviction affirmed.

Solicitor for prisoner: R. J. Barnett, Official Solicitor to the Public Curator.

Solicitor for the Crown: The Crown Solicitor.

(1) 1905, 3 C.L.R. 221, at p. 234.

(2) [1897] A.C. 22, at p. 38.

Supplement to The Queensland Law Reporter, December 8, 1922.

COSTS-

Q. W.N. 44

1.

1.

And see INDUSTRIAL LAW.
And see LANDLORD AND TENANT.

See INDUSTRIAL LAW.

See PRACTICE. 3.

See SHIPPING.

CRIMINAL LAW

ARBITRATION Misconduct of Arbitrator-
Inspecting Plaintiff's books in absence of defendant
and without notice to him-Inspecting motor car,
making enquiries, and having experiments made
at a garage in the absence of the parties-Mistake
of law apparent on face of award-Setting aside
award and referring matter to another arbitrator
-Assault-Setting fire to crops-Evi-
agreed on by both parties-Supreme Court Act of dence-Practice-Applications for leave to appeal
1921, s. 3 (2)--District Courts Act, 1891, s. 134-Argument on application for leave and on
GREGORY . T. CYCLE Co.
merits-The Criminal Code, ss. 335, 463.

Q. W. N. 30

1.

A prisoner was charged on two indictments
of common assault and of setting fire to standing
crops of sugar cane. There was evidence in
both cases from which it could be inferred that
the prisoner was guilty, and, having been con-
victed by a jury, he was sentenced to one year's
imprisonment, with hard labour, for the assault,
and to five years' imprisonment, with hard
labour, for setting fire to the crops, the sen-

tences to be concurrent.

On application for leave to appeal against
the convictions and sentences,

Held, that the applications should be refused.
Semble, on an application for leave to appeal
against a conviction and sentence, where, for
convenience, the merits of the whole matter
are argued, the Court will not interfere with the
sentence if the application for leave to appeal is
refused.