Dugan v Mirror Newspapers Ltd

The respondent pleaded the abovementioned facts as a defence to the action. The Supreme Court of New South Wales decided, both at first instance [20] and on appeal, that the plea is an answer to the applicant's claim: that a prisoner serving a life sentence for a capital felony could not sue for a wrong done him whilst under that sentence.

The applicant is also serving a concurrent sentence of fourteen years with hard labour for a felony committed by him at a time when he was at large on licence.

The sole question raised on behalf of the applicant is whether the law of England as it stood in 1788 and in 1828 disabled a prisoner serving such a sentence as I have firstly described suing for a wrong claimed to have been done to him and became part of the law of the colony of New South Wales at those times.

It was faintly suggested at one stage of the argument that, even if that law then became operative in the colony, the Court should now decide that such a law is inappropriate to the conditions of today. The Court can, of course, decide what the common law always has been: and, if earlier judicial decision is not to that effect, overrule or depart from such a decision: and the Court can, as it were, extend the principles of the common law to cover situations not previously encountered, or not as yet the subject of binding precedent. If the Court decides that the common law of England, properly understood, did deny a prisoner in the situation of the applicant the right to sue during the currency of the sentence and that that law was introduced into and became part of the law of the colony, there is no authority in the Court to change that law as inappropriate in the opinion of the Court to more recent times during which capital felony remained. If that were a proper conclusion (a matter on which I express no opinion), it is clearly a question for the legislature whether a change should be made in the law: such a change cannot properly be effected by the Court.

However, in this case, whilst the reasons for that state of the common law have been explored, it has not been submitted that the existence of the disability was not in truth part of the common law at those times.

In my opinion, the common law both in 1788 and in 1828, whatever the particular historical reason for it, did provide that a prisoner serving a commuted sentence for a capital felony was incapable of suing in the courts until he had served his sentence or was in receipt of a pardon. If that law became operative in the colony at its inception or in 1828 by virtue of 9 Geo. IV c. 83 s. 24, it became operative, in my opinion, not merely as to prisoners who had been convicted in England: it became operative as part of the substantive common law in the colony then and for the future and extended, until altered by the legislature, to all prisoners whether so convicted in England or in the colony. The law which would have been brought to the colony was general in its terms and scope and, in my opinion, it was not limited to prisoners who had been transported to the colony.

The substantive argument for the applicant has been that that law of England did not become part of the law of the colony because it was unsuited to the conditions of the colony at the time, i.e. either 1788 or 1828.

I have no doubt that such a law was suitable to those conditions. Understandably, its operation in the colony caused inconvenience: the consequences of its operation were sought to be avoided by various means and, indeed, were at times ignored. But the question is not whether the law was a convenient one but whether it could suitably be applied in the then conditions of the colony. At its inception, the majority of the inhabitants were prisoners under sentence. But free settlers were expected and, as Captain Arthur Phillip foresaw, a great country was like to develop. Free settlers came and were present in significant numbers by 1828. I can see no basis on which it could be said that a law which in its time was fundamental to the relationship to the community of those convicted of capital felony was not suitable to the community of the colony, both at its inception and in 1828.

I have had the advantage in this matter of reading the reasons for judgment prepared by my brother Jacobs. I agree with his account of the reasons for the common law which denied access to the courts to a prisoner still under sentence for a capital felony. I would adopt my brother's use of the statute of 5 Geo. IV c. 84 s. 26 as confirmatory of the general opinion as to the common law at the time of the inception of the colony and that it had become operative in the colony. In my opinion, that general opinion was not in error: the relevant common law, rightly understood, was in the sense I have expressed.

I also agree with my brother's reasons for his conclusion that the repeal of ss. 467 and 469 of the Crimes Act did not enable a prisoner who had been convicted of capital felony before that repeal to sue in the courts whilst still serving his sentence, whether in prison or at large on licence.

I find it unnecessary to enter upon the question whether a prisoner convicted of a non-capital felony could sue in the courts whilst still serving his sentence, though that seems to have been the assumption both of the Imperial legislature and of the New South Wales legislature in enacting 5 Geo. IV c. 84 s. 26, 46 Vict. No. 17, ss. 418 and 420, and the Crimes Act, 1900, ss. 467 and 469.

Although the applicant is serving a concurrent sentence for such an offence, the question really does not arise in his case. It is sufficient, in my opinion, that the common law operating in New South Wales at all times relevant to the conviction and sentence of the applicant for a capital felony, in my opinion, precluded him from bringing this action against the respondent for defamation.

The conclusion reached by the Supreme Court, both at first instance and on appeal, was, in my opinion, plainly right. That being so, I would have refused special leave to appeal. However, if three or more of my brothers are of opinion that special leave should be granted, I would join them and grant special leave. But I would dismiss the appeal.

I have had the advantage of reading the reasons for judgment prepared by my brother Jacobs. I agree with his conclusions and, in general, with his reasons, but there is one aspect of the matter, of no present practical importance, on which I take a different view.

Counsel for the applicant does not dispute that in 1828, by the law of England, an attainted felon was incapable of bringing any civil proceedings. As long as the attainder continued, his legal rights were extinguished - it was as though he had in fact suffered the penalty of death which had been imposed upon him. The submission advanced, however, is that this rule of law was unsuitable in its nature to the conditions existing in New South Wales, which was then a penal settlement, with a considerable proportion of its population made up of convicts, many if not most of whom were allowed at large, and that the rule therefore never became part of the law of New South Wales.

In considering whether the law with respect to attainder became part of the law of New South Wales, it is necessary to decide what that law would be in its application to the colony. I am, with all respect, unable to agree that the law as applied in New South Wales would be that a person sentenced to death in New South Wales would be incapable of bringing legal proceedings in New South Wales, but that a person sentenced to death in England, whose sentence was commuted and who was transported to New South Wales, would not be under the same incapacity. It is clear that the transportation itself did not put an end to the attainder, so that if the felon returned to England without having been pardoned he remained attainted: it was so held in Bullock v. Dodds [1] . It seems to me that it can be inferred that the felon who became dead to civil rights when the sentence of death was passed, and who remained dead to civil rights upon his return to England after his transportation, did not cease to be attainted while he was serving his term as a convict in the British colony to which he had been transported. The question that I find it necessary to answer is whether this law, whose effect would have been that many convicts in New South Wales in 1828 had no civil rights, became part of the law of that colony. In one respect, however, the common law had by that time been modified. By s. 26 of 5 Geo. IV c. 84, which was passed in 1824, possibly as a result of the decision in Bullock v. Dodds [1] , a felon who, although not pardoned, had received a remission of his sentence from the Governor could sue for the recovery of property acquired since his conviction or for damage or injury suffered since his conviction.

1. (1819) 2 B. & Ald. 258 [106 E.R. 361]. 2. (1819) 2 B. & Ald. 258 [106 E.R. 361].

In the early days of settlement in New South Wales it appears to have been accepted that persons attainted in consequence of a sentence of death imposed in England could not sue in New South Wales, and this rule has been described as a constant source of difficulty, although it was evaded by an insistence on obtaining from England proof of the conviction and sentence: see the article by Sir Victor Windeyer, A Birthright and Inheritance, in University of Tasmanian Law Review, vol. 1 (1961), 635, at p. 662 and the historical records there cited. It may be supposed that even after its modification by s. 26 of 5 Geo. IV c. 84 the rule still caused inconvenience or injustice to attainted convicts who had been emancipated and who wished to enforce property or civil rights in New South Wales. Certainly the rule that an attainted felon was incompetent as a witness was regarded as inconvenient in the conditions existing in New South Wales in 1831, for in that year the majority of the Supreme Court held in R. v. Farrell [2] that the rule was "not as yet adapted to the state and condition of a Colony, which still retains its original predominating character as a penal settlement " [3] . Forbes C.J., who dissented, took the view that the necessity of the situation warranted a departure from the strict rule of law to the extent that persons convicted and sentenced to death in England and transported to New South Wales should be regarded as competent witnesses, but he refused to go further and to hold that persons sentenced to death in New South Wales were also competent [4] . It is unnecessary now to consider whether this case was correctly decided. However it has never been held, at least in a reported case, that a person attainted in consequence of a sentence of death passed in England, and not within s. 26 of 5 Geo. IV c. 84, could sue in New South Wales.

1. (1831) 1 Legge 5. 2. (1831) 1 Legge, at p. 34. 3. (1831) 1 Legge, at pp. 11-13.

In a famous passage Blackstone stated the principles governing the adoption of English law in a settled colony. He said (1 Comm. 107):

It hath been held that, if an uninhabited country be discovered and planted by English subjects, all the English laws then in being, which are the birthright of every English subject, are immediately there in force But this must be understood with very many and very great restrictions. Such colonists carry with them only so much of the English law as is applicable to the condition of an infant Colony; such, for instance, as the general rules of inheritance and protection from personal injuries. The artificial requirements and distinctions incident to the property of a great and commercial people, the laws of police and revenue (such especially as are enforced by penalties), the mode of maintenance of the established Church, the jurisdiction of spiritual Courts, and a multitude of other provisions are neither necessary nor convenient for them, and therefore are not in force. The same test has been adopted under s. 24 of 9 Geo. IV c. 83 which applied to New South Wales the laws and statutes in force in 1828. The question has been said to be, was the law "suitable or unsuitable in its nature to the needs of the Colony", or could it "be reasonably applied in the existing circumstances of the Colony": see Quan Yick v. Hinds [6] . In applying these tests it would not be right, in my opinion, to ask whether the law in question was applicable to the conditions existing in a penal settlement. The ordinary rules relating to the adoption of English law in a settled colony have been held to be applicable in relation to New South Wales: Cooper v. Stuart [7] . It would indeed be a poor birthright if the common law inherited by the settlers of New South Wales was only that applicable to the condition of persons living in an open penitentiary. In any case, "as the population, wealth and commerce of the Colony increase, many rules and principles of English law which were unsuitable to its infancy, will gradually be attracted to it": per Lord Watson in Cooper v. Stuart [8] . That statement of course does not mean that statutes enacted in England after 1828 were introduced into the law of New South Wales; what Lord Watson probably meant was that that part of the common law which is suited to a more advanced state lies dormant until occasion arises for enforcing it: see Delohery v. Permanent Trustee Co. of N.S.W. [9] , per Barton and O'Connor JJ. The argument advanced on behalf of the applicant in the present case rests on the assumption that only the law applicable to the primitve state of society in New South Wales in 1828 became part of the law of the colony, but that assumption is in my opinion erroneous. 1. (1905) 2 C.L.R. 345, at pp. 356, 367, 378. 2. (1889) 14 App. Cas. 286, at p. 291. 3. (1889) 14 App. Cas., at p. 292. 4. (1904) 1 C.L.R. 283, at p. 291.

It may be superficially attractive to suggest that in deciding whether a rule of the common law is applicable to the condition of the infant colony, and became part of its law on settlement or in 1828, the court should consider whether the rule would now be regarded as appropriate, and reject what seems out of harmony with modern notions. Such a course would however lead to a dangerous uncertainty as to matters of fundamental principle. It is a course which so far as I am aware has never been taken by this Court or by the Judicial Committee. When Griffith C.J. in Quan Yick v. Hinds spoke of a law being "suitable or unsuitable in its nature to the needs of the Colony" [10] , he did not in my opinion intend to suggest that a law was suitable if the court approved of it and unsuitable if it did not. He had already declined to accept such a principle. In Delohery v. Permanent Trustee Co. of N.S.W., he had said, in delivering the judgment of the Court [11] :

The learned Chief Judge appears to have thought that, in determining whether any particular part of the law of England was introduced into New South Wales by the Statute of 1828, the test to be applied is to consider whether the law is beneficial, by which we understand him to mean suitable to the existing conditions of Australia. But whether a law is suitable or beneficial to a country or not is a question for the legislature, and not for a Court of law. Moreover, the test prescribed by the Statute is not whether the law is suitable or beneficial, but whether it can be applied. It is plain that a law may be applicable in the sense that it can be administered, although it may, as a matter of opinion, be considered not "applicable", in the sense of being suitable or beneficial. The words "suitable or unsuitable" in this context may be liable to mislead, and I would prefer to state the test as being whether the law could reasonably be applied in the conditions of the colony. A law will fail to meet that test if it relates to "matters and exigencies peculiar to the local condition of England" (Nelan v. Downes [12] ), but it will not be rejected because in the light of opinions held a century and a half later it appears inconvenient or unjust. 1. (1905) 2 C.L.R., at p. 356. 2. (1904) 1 C.L.R., at pp. 310-311. 3. (1917) 23 C.L.R. 546, at p. 551.

In Quan Yick v. Hinds [13] Griffith C.J. said that "it has never been doubted that the general provisions of the criminal law were introduced by the Act 9 Geo. IV c. 83". In my opinion the law relating to attainder then became part of the law of New South Wales. Although we may now regard its rules as archaic, they were, in 1828, no less applicable to the conditions of a newly settled colony than to those of England. The conclusion that those rules applied is strongly supported by the fact that s. 26 of 5 Geo. IV. c. 84, which mitigated their effect, showed by its preamble that it was intended to apply to New South Wales. The rules thus applied have never been abolished by statute in New South Wales.

The applicant has been sentenced to death, and is still serving the sentence of penal servitude to which the sentence of death was commuted. He was incapable of maintaining the proceedings in the Supreme Court.

I would refuse the application for special leave to appeal.

In their reasons for judgment other members of the Court have said all that I would wish to say about attainder as a consequence of a capital sentence. I am satisfied that attainder was a part of the common law which was applicable to the colony of New South Wales immediately before the enactment of the Criminal Law Amendment Act of 1883 N.S.W.. This being so it is unnecessary for me, in the resolution of this appeal, to choose between the divergencies as to relatively minor aspects which are manifest in the judgments of such of my brothers as share with me this view.

Neither the Criminal Law Amendment Act of 1883 nor its successor, the Crimes Act, 1900, deal specifically with attainder and its attendant common law disabilities. However these two statutes do specify certain other disabilities as ones flowing from a conviction of felony and it was submitted on behalf of the applicant that in doing so these statutes should be treated as furnishing, for New South Wales, a comprehensive and exclusive specification of all applicable disabilities of a convicted felon, other common law disabilities, not so specified, being, in effect, repealed. It is with this submission that I wish to deal in some detail.

In the course of his judgment my brother Jacobs refers to and quotes from the First Report of the Law Reform Commission which, in 1871, reported upon the consolidation and amendment of the criminal law in New South Wales. It was as a result of that report that, after a delay of more than ten years, the Criminal Law Amendment Act of 1883 N.S.W. was finally enacted. Among the Commissioners were included Sir Alfred Stephen, the Chief Justice, Sir James Martin, who was to be his successor as Chief Justice, the Attorney-General and the Solicitor-General of the Colony. Their Report refers to the desirability of adopting in the Colony the then very recent English reforms affecting the consequences at common law following conviction of felony and, incidentally, leaves no doubt but that the Commissioners regarded those consequences as being no different in New South Wales from what, until the previous year, they had been in England. In 1870 both attainder and forfeiture for felony had been abolished by the Forfeiture Act 1870 Imp. and in their Report the Commissioners speak of the Act as "that very desirable measure", the substance of which they have adopted and included in the draft Criminal Law Amendment Bill annexed to their Report. By their use of the existing machinery of the colonial Insolvency Act the Commissioners sought, in only six clauses of this draft Bill, to provide for the substance of what was contained in the much longer Imperial Act, while at the same time including a provision for the protection of a felon's wife and children during the period of his legal incapacity.

A feature of the Forfeiture Act, 1870 U.K. was that, while abolishing forfeiture and attainder, some of their consequences were preserved, but now as part of the statute law. Thus, by s. 8 of the Act no convict might bring any action at law or in equity for the recovery of any property, debt or damage whatsoever; nor might he alienate or charge any property or make any contract save as therein provided. For the purposes of the Act a convict was a person sentenced to death or penal servitude upon a charge of treason or felony.

An examination of the Criminal Law Amendment Act of 1838 N.S.W. reveals that, contrary to what might have been expected from a reading of the Report of 1871 and more especially of the draft Bill annexed to it, it contains no such provisions as s. 8 of the United Kingdom Act, despite both the fact that six of its sections, numbered 416 to 421 under the heading "Forfeiture of Property by Conviction", do, as the Report suggests, otherwise generally give effect to the provisions of the Forfeiture Act, 1870 U.K. and the further fact that in some of those six sections reference is made to a convicted felon's "disability", a term which might be thought apt to refer to the consequences of just such a provision as is found in s. 8 of the Imperial Act.

If then attention be exclusively confined to the express terms of ss. 416 to 421 of the Colonial Act of 1883 the proper conclusion would be, not that by mere silence the pre-existing common law had in some way been impliedly repealed, but rather that this enactment left unaffected, as part of the subsisting common law, those disabilities which flowed from attainder and which in England, by s. 8 of the Imperial Act of 1870, no longer depended upon the common law but were now, instead, dealt with by statute. This conclusion would be confirmed by the fact that a comparison of the two measures would reveal that whereas both abolish forfeiture only the United Kingdom Act, by s. 1, abolishes attainder, the corresponding section of the Colonial Act, s. 416, making no reference to attainder or its abolition. It is true that the sidenote to s. 418, "Disabilities of felony", might then appear inappropriate in so far as it suggests that the section is the exclusive repository of those disabilities which are to be visited upon felons. But sidenotes are at most only a quite minor aid, "a most unsure guide", in statutory interpretation (Reg. v. Schildkamp [14] ) and can in no way prevail against failure of the statute either expressly or by necessary implication to repeal the pre-existing common law. The statute's silence on the question of attainder would thus leave its common law consequences untouched. The reaching of this conclusion is, of course, assisted by the fact that the Act of 1883 is itself no criminal code, comprehensive and exclusive: although the Commissioners' Report does refer to their draft Bill as "this extensive code", the use of this term is then immediately, and very properly, qualified by the parenthetical disclaimer, "if the term may be thought not too ambitious". Being no more than what its title indicates, namely "An Act to consolidate and amend in certain respects the Criminal Law", its provisions provide no necessarily definitive and exclusive source of law for the subject matter with which it deals. That it deals with some aspects only of a particular topic by no means signifies that the common law no longer governs aspects on which it is silent.

All this would suggest that this appeal should be dismissed, the common law consequences of attainder persisting despite the enactment of the Criminal Law Amendment Act of 1883. However in the reasons for judgment of my brother Murphy, which I have had the advantage of reading, his Honour draws attention to aspects of the legislative history of the Criminal Law Amendment Act of 1883 and, in particular, to certain changes made to the clause which ultimately emerged as s. 418 during the course of the Bill's passage through the legislature. These changes are such as to suggest the existence of an identifiable legislative intent that the common law disabilities of a convicted felon should no longer apply in New South Wales. They, together with the reference to the Report of the Law Reform Commissioners earlier referred to, have led me to an examination of the circumstances in which the Act of 1883 found its way into the statute book in the form it did.

In effect, what happened was that when what ultimately became s. 418 began life as cl. 420 of the draft Bill prepared by the Law Reform Commissioners in 1871, it imposed disabilities very similar to those to be found in s. 8 of the Forfeiture Act, 1870 U.K.. It rendered a convicted offender incapable of alienating or charging property, of making any contract or of suing without the written permission of the Attorney-General. It seems clear from this that the Law Reform Commissioners did not intend that the common law consequences of attainder should continue to be applicable by virtue of the common law. Instead, following the model of the Forfeiture Act, 1870 U.K., they were to be imported into the statute law. This entirely accords with the tenor of their Report.

Yet it is apparent from the form in which s. 418 was ultimately enacted that somewhere in the long years of Parliamentary debate that intervened between the draft Bill of 1871 and the enacted legislation of 1883 the imposition of these disabilities was omitted from the clause that became s. 418. To trace the progress of debate is not easy, there were intervening prorogations of Parliament which necessitated the reintroduction of the measure de novo and in any event official Hansard reporting of debates in the New South Wales Parliament began only in 1879, before which date newspaper reports must be consulted. However it is clear from what appears in the judgment of Murphy J. that in 1882, when the Bill was, by no means for the first time, being considered by the Committee of the Assembly, the disabilities here in question were omitted from the clause, never to be restored. Hence the form which s. 418 finally took. In my brother Murphy's judgment is set out s. 418, showing the provisions thus omitted from it.

As I have already said, merely to find that a measure which is not an entire code is silent as to certain aspects of a topic, previously dealt with by the common law, while otherwise dealing comprehensively with that topic, is of itself no reason for regarding the measure's silence as an implied repeal pro tanto of the common law. Is, however, the position otherwise if that silence is the result not of a mere omission on the part of the legislature to legislate on that particular aspect but, rather, of a clear intention that that aspect shall form no part of the law? And if so, how is such an intention to be ascertained if its expression is to be sought elsewhere than in the legislation itself, which the legislature has enacted as the expression of its will? Are courts to seek out the intention of legislators by an examination of the course of debate in Parliament and to attribute that intention to the legislature as a whole: in the present case treating silence as repeal despite the failure of the legislation expressly to repeal the relevant aspect of the common law which legislators may be seen to have rejected in debate? These questions presuppose the existence of a clearly expressed intention on the part of some at least of the body of legislators responsible for the enactment of the legislation. If no such intention existed the questions never arise. With this in view I have read the Report and its draft Bill and some of the relevant Hansards to discover whether indeed there is revealed any clear and coherent intent on the part of legislators to which, were it consistent with any acceptable view concerning statutory interpretation, effect might be given.

The legislators were confronted in 1882 by the Commissioners' draft Bill; not, it is true, entirely in its pristine form, it having been the subject of extensive parliamentary consideration and some amendment in the previous decade, but nevertheless closely conforming to that form. It still contained the six clauses headed "Forfeiture of Property by Conviction" already referred to, including cl. 420 (the progenitor of s. 418) containing disabilities upon alienating property, contracting and suing. For some reason that clause had by this time ceased to speak in terms of "any such offender", as it had done in the Commissioners' draft Bill; instead it spoke of "an offender". Presumably this change resulted from some drafting amendments made in the intervening eleven years: as appears below, this change may have given rise to unforeseen consequences.

The debate in committee on cl. 420, on which may largely depend any search for the legislators' intent, begins with a motion by a private member that the fact that the clause applies only to convicted felons be made clear by inserting "of felony" after "offender". In moving the motion he queried whether, as drafted, the clause was, as the marginal note suggested, restricted to felons and sought by his motion to remove any doubt as to this. The Attorney-General, having the carriage of the Bill, made the perhaps surprising reply that "The clause clearly applies to cases of misdemeanour as well as of felony". What is more surprising is that this operation of the clause was apparently regarded by the House as acceptable to it, the motion specifically restricting its operation to convicted felons being thereupon withdrawn without debate.

Accordingly at that stage the committee had before it a clause which, as it had been told, would for mere misdemeanours impose those grave disabilities always previously reserved only for those attaint. Perhaps not surprisingly, the next motion was for the omission from the clause of the three disabilities, affecting alienation, contracting and suing, the mover saying that it was unjust to deprive "a prisoner" of the right to dispose of his property, which he might need to sell so as to support his family or so as to appeal against conviction. The latter portion of the clause was also objected to as implying that a prisoner's wife would derive no benefit from his property. The Attorney-General immediately agreed to the omission from the clause of the three disabilities, a motion to that effect being carried, and went on to himself move that the latter part of the clause be omitted, as it then was. He found it necessary, some three weeks later, to move for its reinstatement, but that is nothing to the point.

A number of features appearing from even the brief account which Hansard provides concerning amendment of this clause in committee makes this example of legislative history unsuitable as material from which to discern the intent of the legislators, let alone the intent of the legislature, assuming that such an enterprise is to be undertaken at all.

One starts with the Attorney-General's statement that the clause applied to misdemeanours as well as to felonies, a statement which was calculated to make any late nineteenth century legislature recoil from a measure which was thus said to apply notions of "civil death" to every convicted person, no matter how trivial the misdemeanour of which he had been convicted or how short the term of imprisonment he was to serve. This perhaps explains the Attorney-General's ready acceptance of the major reshaping of the clause which was the immediate sequel. Moreover that reshaping seems itself to have been infected by still further misconceptions. In seeking the retention of a prisoner's right to dispose of his property the mover of the amendment is plainly disregarding an important feature of the scheme involved in these six sections, a feature upon which the Commissioners prided themselves in their Report, namely the use of the Colony's Insolvency Act provisions so that a felon's property might be vested in an administrator and administered for the benefit of his creditors and his wife and children. This, together with superadded misconceptions, is again reflected in the objection voiced to the latter part of the clause as implying that a prisoner's wife would derive no benefit from his property: under the clauses, both as proposed and as enacted - see ss. 420 and 421 - a felon's wife and children might derive benefit from his property by means of distributions made by the administrator from his sequestrate estate. But in any event the latter part of cl. 420 was wholly irrelevant to all this; it was directed to a distinct subject matter, having as its wholly benevolent aim the conferring upon a felon's wife of capacity to sue and to acquire property in her own right during her husband's disability, despite her status as a married woman. To omit this provision served no purpose at all germane to the concern of the mover of the motion, that a wife might derive benefits from her convicted husband's property. The Attorney-General's reintroduction of the provision into cl. 420 some weeks later was no doubt prompted by a belated recognition of this.

One final curiosity in the history of cl. 420 is that the mover of the motion which resulted in the omission from it of the three relevant disabilities went on, consistently with his views on cl. 420, to attack the whole scheme for sequestration of a prisoner's property, enshrined in cl. 422. Following his attack, consideration of this clause was postponed without debate and such reading as I have done of later Hansards does not disclose any resumption of its consideration. Presumably despite this objection, it retained its original form providing for sequestration by order of the court; certainly as ultimately enacted s. 420 (of which cl. 422 was the progenitor) so provided. If so the Attorney-General seems to have seen no inconsistency in accepting the view that a prisoner should be free to deal with his property after conviction, that being the view which led to the omission of the three disabilities from cl. 420, while preserving the power to sequestrate his entire estate upon conviction.

This venture into legislative history has, so far as I am concerned, thrown no clear light upon the intent of the legislators, let alone the legislature but has perhaps demonstrated how uncertain may be the guidance to be had from such a source. However it has at least served one immediately relevant purpose. It has revealed that all that occurred in the debate in committee of the Assembly in 1882 and, in particular, the omission from cl. 420 of the three disabilities, cannot cast light upon the intent of the legislature which enacted the Act of 1883. That Act was an enactment of the 11th Parliament with the Stuart Government in office, whereas the debate in question occurred during the 10th Parliament, in the era of a Parkes Government. The 10th Parliament was dissolved on 23rd November 1882, whereupon the much-debated Bill lapsed once again, as it had on at least three prior occasions in the 1870s, and it was the Stuart Government that then re-introduced it afresh in January 1883, after a general election, to a legislature necessarily differently constituted. Even if any aid in interpretation is to be derived from legislative debates and proceedings it can scarcely be so derived unless it be in the enacting Parliament that those debates and proceedings take place: otherwise it is the intention of a quite differently composed group of legislators that is being ascertained and given effect to, a group who were not responsible for the enactment being interpreted. It involves a situation not wholly dissimilar from that referred to by Vinson C.J., delivering the opinion of the Court in United States v. United Mine Workers of America [15] , when he rejected as evidence of legislative intent the statement of senators in debate, some of whom had not been senators when the relevant, and earlier, legislation was enacted.

1. (1947) 330 U.S. 258, at pp. 281-282 [91 Law. Ed. 884, at pp. 906-907].

There is, I think, a further reason why the debate in committee in the 10th Parliament and the omission at that time of the three disabilities from cl. 420 casts no light upon the significance of their omission from s. 418 as finally enacted. Not only was the enacting legislature, the 11th Parliament, differently constituted but it had before it a significantly different Bill. No longer, as in the 10th Parliament, was it dealing with the clause on the footing that it applied to all prisoners, whether felons or merely convicted of misdemeanours. Instead, the Bill before the 11th Parliament was specifically restricted to felons only; it did not refer in its opening words to the conviction of "an offender" but spoke of the conviction "of an offender for any felony". Thus no longer did it purport to impose "civil death" as a consequence of convictions for misdemeanours. It would, I think, be entirely speculative to attribute to the 11th Parliament the same reaction to cl. 420 as was evinced by some members of the 10th Parliament towards a significantly different clause.

It follows that what seemed at first sight to lend a particular significance to the silence of s. 418 concerning the three disabilities of attainder in fact bears no such significance. Neither the contrast between the original form of cl. 420 and the wording of s. 418 as enacted nor the circumstances in which cl. 420 came to be amended bear, on examination, the significance initially supposed: neither is capable of lending to the silence of s. 418 the form of some repeal of the common law.

In reaching this conclusion I have necessarily ventured far into the use of legislative history, only, in the outcome, to discover that it leads to no conclusion different from that which would have followed from a disregard of anything extrinsic to the words of the legislation itself. The experience suggests that any partial and limited use of legislative history may involve its own peculiar hazards.

The limits to the permissible use of material extrinsic to the legislation itself in aid of its interpretation are not clear. The relevant English and Australian authorities, many of them dealing expressly with the use of legislative history and some disclosing a surprising liberality of view, are discussed in Mr. P. Brazil's article, Legislative History and the Sure and True Interpretation of Statutes in General and the Constitution in Particular, University of Queensland Law Journal, vol. 4 (1964), p. 1 and by Mr. D. C. Pearce in Statutory Interpretation in Australia (1974), esp. at pp. 45-49 and pp. 143-147. No doubt legislative history should never be resorted to when the legislation in question is clear on its face, otherwise the interpreter risks doing what Frankfurter J. described, in Greenwood v. United States [16] , as going to the statute only when the legislative history is doubtful. English and Australian authorities establish that it may not be resorted to to determine what it is which Parliament has in fact enacted in legislating for a particular situation, but only so as to cast light upon what has been variously described as the mischief to be remedied, the subject matter which the legislation intended to deal with or the legislation's general background.

1. (1956) 330 U.S. 366, at p. 374 [100 Law. Ed. 412, at p. 419].

The present case is not one where the legislation is on its face ambiguous, unless silence may itself be pregnant with ambiguity. Moreover it may be doubted whether the use to which I have sought to put legislative history falls within those permissible parameters defined by reference to the uncertain limitations which speak of mischief, of the subject matter of discussion, of the legislation's background and the like. If I have strayed too far it has been at the prompting of material well recognized as proper to be consulted, at least in case of ambiguity and in search of the mischief aimed at - Wacal Developments Pty. Ltd. v. Realty Developments Pty. Ltd. [17] , namely the 1871 Report of the Law Reform Commissioners: and to have halted at their report and its annexed Bill might have led to an erroneous conclusion. But that it were better never to have strayed at all, instead adhering to the unadorned words of the legislation and their consequences, is a conclusion which is at least open.

One concluding observation on this topic may be permitted. The important place which legislative history has assumed this century in the United States seems to me likely to mislead if sought undiscriminatingly to be applied to our own legislation, the product of a legislature operating on the Westminster model. Even on its home ground its full acceptance is of relatively recent growth. Holmes J. could still speak, in 1922, of speculation about the purposes or construction of a statute based upon the vicissitudes of its passage through the legislature as "a delicate business" (Pine Hill Coal Co. Inc. v. United States [18] ): and see generally Mr. Justice Frankfurter, Some Reflections on the Reading of Statutes, Columbia Law Review, vol. 47 (1947), p. 526, the recent paper by Professor Murphy on the "plain meaning rule" in the Columbia Law Review, vol. 75 (1975), p. 1299, the note on recent Canadian developments by Professor Hudon in the Canadian Bar Review, vol. 55 (1977), p. 370 and American Jurisprudence 2d, vol. 73, pars. 169 et seq. What was said by Jackson J. in Schwegmann Bros. v. Calvert Distillers Corporation [19] , that the court should "not go beyond Committee Reports, which presumably are well considered and carefully prepared", whether or not it represents the majority view in the United States, does draw attention to one reason why United States' practice in statutory interpretation is likely to prove inappropriate to our Westminster system. From Congress' legislative process there emerges legislation differing quite markedly in form from that to which we are accustomed in this country; accompanying that legislation are Committee Reports of which there are here no local equivalents. Professor Corry's treatment of all this in his paper, The Use of Legislative History in the Interpretation of Statutes, Canadian Bar Review, vol. 32 (1954), 624, esp. at pp. 633-635 , demonstrates why the quite different legislative environment of the United States is inherently unlikely to provide appropriate guidance to the use of legislative history in our parliamentary system.

1. (1922) 259 U.S. 191, at p. 196 [66 Law. Ed. 894, at p. 895]. 2. (1951) 341 U.S. 384, at p. 395 [95 Law. Ed., at p. 1048].

Having concluded that the Criminal Law Amendment Act of 1883 did not, by its mere silence, affect any change in the law concerning attainder and its consequences, I also regard the provisions of the Crimes Act, 1900 as leaving this position unchanged. I would accordingly grant special leave to appeal but would dismiss the appeal.

I would refuse this application for the reasons given by Jacobs J.

The applicant is currently and was at the material time being kept in penal servitude for life, that being the condition on which mercy was extended to him when he was under sentence of death after conviction for the felony of wounding with intent to murder (Crimes Act, 1900 N.S.W., s. 459). He had received a licence (presumably under s. 463) to be at large but during the time that he was at large he committed a felony for which he was sentenced to fourteen years' imprisonment with hard labour. He is currently and was at the material time serving that sentence.

While kept in penal servitude and while serving the sentence of imprisonment he commenced actions in the Supreme Court of New South Wales alleging that he had been defamed by the respondent. In its defence to each action the respondent set out the facts of his convictions and sentences and that he was at all material times serving the sentences. The question is whether the matters so raised constituted good defences.

The question as it arises is a narrow one. It is whether a man convicted of a felony in respect of which he had been sentenced to death and spared the penalty of death upon condition that he be kept in that penal servitude can maintain an action in New South Wales for a civil wrong. At the time of the foundation of the colony he could not do so in England, nor could he do so in 1828 when 9 Geo. IV c. 83, s. 24 was enacted. A man so convicted of a felony and duly sentenced to death was attainted so long as the attainder endured. Every person so attainted was "disabled to bring any action: for he is extra legem positus and is accounted in law civiliter mortuus": Co. Litt. 130 a. If the subject matter of the cause of action had not been forfeited under the law relating to forfeiture of property upon conviction for a felony, the plea to the cause of action was one in abatement: Comyns' Digest, Abatement E. 3 Attainder. The disability to bring action did not depend on corruption of blood, which had been a separate consequence where there was attainder and which, except in cases of treason and murder (including those aggravated forms which were petit treason), was abolished by 54 Geo. III c. 145.

Attainder was the consequence of a capital sentence: see Chitty's Criminal Law, 1st ed. (1816), vol. 1, pp. 723-725; thus no attainder followed judgment upon conviction for petit larceny, the only felony which at common law did not carry a judgment of death. Because petit larceny was a felony, the defendant, semble, incurred a forfeiture upon conviction: Co. Litt. 391 a; but even this was not altogether clear: Co. Litt. 41; Comyns' Digest, Forfeiture B3; Chitty , op. cit., vol. 1, p. 731.

Whether or not it was law (separate from the law of attainder) that a person convicted of a non-capital felony was disabled to bring an action either wholly or until he had endured the punishment to which he was adjudged appears to me uncertain. I can find no clear authority upon the question. Batty v. Fay [20] was a case of attainder upon judgment of death. Fleming v. Smith [21] was argued as a case of forfeiture upon a conviction for felony. Such a plea was a good plea in bar. It was there held that there was no forfeiture of rights of action for damages in tort. It should be noted that the statute 9 Geo. IV c. 32 by s. 3 appears to assume that there was some disability until the person had undergone the adjudged punishment but the section may have been dealing only with forfeiture. Dicey in his Parties to an Action states at p. 2 that a person convicted of a felony becomes incapable of suing at law or in equity, and remains under this disability until either he has obtained a pardon, or his term of punishment has expired. He first cites Whitaker v. Wisbey [22] but that case dealt only with the question whether goods of a felon bona fide transferred by him prior to conviction were liable to forfeiture. Then he cites Bullock v. Dodds [23] to which I shall later refer, and then Coke on Littleton, 390b. However Coke there deals only with attainder and forfeiture. He does not state that a person convicted of the non-capital felony, petit larceny, and therefore not attainted could not sue.

1. (1795) Ridg. L. & S. 511. 2. (1861) 12 Ir. C.L. 404, at p. 406. 3. (1852) 12 C.B. 44 [138 E.R. 817]. 4. (1819) 2 B. & Ald. 258 [106 E.R. 361].

The Imperial Parliament in the Act 5 Geo. IV c. 84 by s. 26 (to which I shall subsequently refer) and the New South Wales legislature in 46 Vic. No. 17, ss. 418 and 420 and later in the Crimes Act, 1900, ss. 467 and 469 (now repealed) seem to have made the assumption that any felon whilst enduring his punishment was under some legal disability to maintain a civil action. However, on such an important question of civil right, authority or principle would need to be found to support such a supposed rule when it cannot be based on attainder. I have not been able to find such authority or any principle from which it could be deduced. I would therefore expressly leave the question open.

An unconditional pardon would end (but not reverse) an attainder. And a pardon upon condition would also end the attainder once the condition was fulfilled. Thus the enduring of a punishment imposed as a condition of pardon from suffering death would end the attainder: Chitty , op. cit., vol. 1, p. 773. But certainly the attainder endured so long as the condition of the pardon had not been fulfilled. And that is the present case.

I turn now to the question whether the law as it had developed in England was a law which could be applied in the colony at the time when 9 Geo. IV c. 83 was passed. What would that law be if it were applied and as it would be applied in the colony? It would be that a person who had been sentenced to death for a felony committed in New South Wales and who was kept to penal servitude as a condition of the penalty of death being respited was disabled to bring any action in New South Wales. The question to be determined is no wider than that. Whether or not a person sentenced to death in England and transported to New South Wales for life or for a term of years not then expired was disabled to bring an action in New South Wales is a different question. It was not determined by Bullock v. Dodds [24] because in that case it was sought to bring the action in England. In the argument on the present application the reasons advanced why the English law was not applicable, as being unsuited to the needs of the colony, envisaged circumstances where emancipated transportees would have been unable to sue upon contracts or for wrongs done to them after their emancipation but before complete performance of the condition of respite from death and before any pardon under the Great Seal. Reliance was placed on Bullock v. Dodds [24] . But there are at least two answers to an argument based on this decision. First, Bullock v. Dodds [24] was a case where action was brought in England where the judgment of death had been given; it does not follow that a person lawfully at large outside the realm of England and in part of the King's dominions to which he had been transported was in those circumstances extra legem positus in that place. In England the person attainted under the common law was out of the protection of the King of England and lost the benefit of the King's writ. The writs were the writs of the King's courts in England. The attainder made the felon civiliter mortuus in the place under whose laws the judgment was pronounced. Thus attainder in the Court of Admiralty for an offence upon the high seas did not result in forfeiture of lands in England unless a statute so provided: see Co. Litt. 391 a. It therefore does not follow that an emancipated convict was out of the protection of the King in the place to which he had been transported. I would not be disposed to hold that he was and the law cannot be made to comprehend this different kind of case in order to establish that it was not suited to the conditions of the colony at the time. But when the law is taken to be that a person attainted in one place of the King's jurisdiction lost the benefit of bringing an action in that place so long as he was attainted, then there is no reason which I can see why that law was not suitable to be applied in the colony of New South Wales. But secondly, even if the rule be expressed more widely, the general subject matter had by 1828 received the attention of the Imperial Parliament. By 5 Geo. IV c. 84, s. 26 it was provided as follows:

XXVI. And Whereas it hath sometimes happened, that Felons under Sentence or Order of Transportation in New South Wales and the Islands adjacent, have received from the Governor or Lieutenant Governor thereof Remissions, either absolute or conditional, of the Whole or of some Part of the Term of their Transportation, and have by their Industry acquired Property, in the Enjoyment whereof it is expedient to protect them; and the like may happen in future in the same Colony, and in other Colonies to which Felons may be transported under and by virtue of this Act; Be it therefore enacted, That it shall and may be lawful for every Felon under Sentence or Order of Transportation, who hath received or shall receive any such Remission as aforesaid from the Governor or Lieutenant Governor of New South Wales, or from the Governor or Lieutenant Governor of any other Colony, who may be authorized to grant the same, while such Felon shall reside in a Place where he lawfully may reside under such Sentence, Order or Remission, and under the Provisions of this Act, to maintain any Action or Suit for the Recovery of any Property, Real, Personal or Mixed, acquired by such Felon since his or her Conviction, and for any Damage or Injury sustained by such Felon since his or her Conviction, not only in the Courts of the Colony or Place where such Felon shall lawfully reside, but also in the Courts of this Kingdom, and of all other His Majesty's Dominions; and if the Defendant in any such Action or Suit shall plead or allege in his Defence the Plaintiff's or Complainant's Conviction of Felony, and the Plaintiff or Complainant shall allege and prove that he or she hath received such Remission as aforesaid, and is residing in some Place consistent therewith and with the Provisions of this Act, a Verdict shall pass and Judgment shall be given for the Plaintiff or Complainant.

This provision specifically dealt with the subject matter on the assumption that the law respecting disablement from action of attainted felons could be applied in New South Wales. It was designed to ameliorate that law. It can hardly be said in 1828 that the law thus ameliorated could not be applied in the colony. 1. (1819) 2 B. & Ald. 258 [106 E.R. 361]. 2. (1819) 2 B. & Ald. 258 [106 E.R. 361]. 3. (1819) 2 B. & Ald. 258 [106 E.R. 361].

The death penalty was abolished in New South Wales in 1955. Thereafter attainder became obsolete in New South Wales. It had not been abolished by the Criminal Law Amendment Act of 1883, 46 Vic. No. 17 N.S.W., as it had been by the Forfeiture Act, 1870 U.K.. The New South Wales Act of 1883 provided, as the Crimes Act, 1900, now provides, that no inquest, conviction or judgment, in respect of any felony committed after the passing of the Act should cause any escheat or forfeiture of land or goods. No particular provision was made which disabled a felon to sue while he was enduring his punishment, as did the English Act. But the Law Commission, one of whose members was Sir Alfred Stephen, in its Report which led to the 1883 Act stated, "We have introduced clauses into the Bill, adopting in substance that very desirable measure;" (i.e. the Forfeiture Act, 1870) "but without its elaborate and in some respects complicated provisions". Since the Act did not abolish attainder and since attainder was the source of the disability to sue, it cannot be said that the Act wholly abolished that disability. Indeed its express reference in ss. 418 and 420 (later ss. 467 and 469 of the Crimes Act, 1900) to the offender's disability makes such a view hardly tenable.

Sections 467 and 469 of the Crimes Act, 1900 were repealed in 1974 and 1970 respectively but until then they stood in the statute law of New South Wales as a recognition that there was a disability at least in an attainted felon to sue. I could not accept that the repeal of those sections had the effect that the applicant who had been attainted on 10th June 1950 thereafter became entitled to sue. The mere repeal of the sections disclosed no such intention on the part of the legislature. The applicant remains one of that ever-diminishing group of persons in New South Wales who, by reason of having been sentenced to death and thereby attainted, cannot bring a civil action while the attaint remains.

The applicant was convicted in 1950 on a charge of feloniously wounding with intent to murder and was given a sentence of death which was commuted to penal servitude for life. In 1970, while at large on licence, he was charged with and convicted of assault and robbery for which he was sentenced to 14 years' imprisonment with hard labour. While serving the two sentences concurrently, he commenced an action in the Supreme Court of New South Wales against the respondent for defamation. Yeldham J. entered verdicts for the respondent [25] , basing his decision on two principles, each of which he said entitled the respondent to succeed. The first was that a person against whom a judgment of death was recorded (after conviction of felony) suffered attainder, and, as a consequence, corruption of his blood, which prevented him from suing. The second was that any person convicted of a felony was incapable of suing at law or in equity and remained under that disability until either he obtained a pardon or his term of punishment expired. The Court of Appeal dismissed the applicant's appeal and affirmed Yeldham J.'s judgment.

The respondent claims that there are common law principles unaffected by statute which prevent a convicted felon (at least one sentenced to death) from suing while the sentence remains in force or, if it is commuted to a term (including a life term) of imprisonment, during that term even if the person is not in prison but has been released on probation or parole. Its claim that the existing common law maintains those principles means that the universally accepted standard of human rights as spelled out in the International Bill of Human Rights would be violated.

The International Bill of Human Rights includes the Universal Declaration of Human Rights which provides:

Art. 6. Everyone has the right to recognition everywhere as a person before the law.

Art. 7. All are equal before the law and are entitled without any discrimination to equal protection before the law.

Art. 10. Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal in the determination of his rights and obligations.

Art. 29 (2). In the exercise of his rights and freedoms, everyone shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and general welfare in a democratic society.

and the International Covenant on Civil and Political Rights, which provides:

Art. 14. All persons shall be equal before the courts and tribunals.

Art. 16. Everyone shall have the right to recognition everywhere as a person before the law.

Article 6 of the European Convention on Human Rights, which is similar to Art. 10 of the Universal Declaration of Human Rights provides:

(1) In the determination of his civil rights and obligations everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.

In Golder v. United Kingdom [26] the European Court of Human Rights held that Art. 6 conferred a right of access to the courts and that an English Prisons Rule providing that: "A prisoner shall not be entitled to communicate with any person in connection with any legal business except with the leave of the Secretary of State." was a violation of s. 6. The court said:

In civil matters one can scarcely conceive of the rule of law without there being a possibility of having access to the courts. [27]

The principle whereby a civil claim must be capable of being submitted to a judge ranks as one of the universally "recognised" fundamental principles of law: the same is true of the principle of international law which forbids the denial of justice. Article 6 (1) must be read in the light of these principles. [27]

It would be inconceivable, in the opinion of the Court, that Art. 6 (1) should describe in detail the procedural guarantees afforded to parties in a pending lawsuit and should not first protect that which alone makes it in fact possible to benefit from such guarantees, that is access to a court. The fair, public and expeditious characteristics of judicial proceedings are of no value at all if there are no judicial proceedings. [28]

Art. 6 (1) secures to everyone the right to have any claim relating to his civil rights and obligations brought before a court or tribunal. [29]

1. (1940) 312 U.S. 546 [85 L. Ed. 1034].
   1. Eur. Court H.R., 21st Feb. 1975; Series A No. 18, at p. 5.
   2. Eur. Court H.R., Series A No. 18, at p. 17.
   3. Eur. Court H.R., Series A No. 18, at p. 17.
   4. Eur. Court H.R., Series A No. 18, at p. 18.
   5. (1940) 312 U.S. 546 [85 L. Ed. 1034].

The principles also offend general statements of the rule of law and due process (see Ex parte Hull (1940) [29] ; Bounds v. Smith [30] ).

1. (1940) 312 U.S. 546 [85 L. Ed. 1034]. 2. (1977) 430 U.S. 817 [52 Law. Ed. 2d. 72].

In the absence of statute, the common law jurisdictions in the United States refuse to recognize civil death as part of the common law (see Platner v. Sherwood [31] ) even as a consequence of the death sentence (see also "Civil Death Statutes - Medieval Fiction in a Modern World", Harvard Law Review, vol. 50 (1937) 968, at pp. 969-970). They rejected it after some hesitation and continue to reject it (see H. D. Saunders, Civil Death - A New Look at an Ancient Doctrine, William and Mary Law Review, vol. 11 (1970) 988, at p. 990 ).

The civil death doctrine does not accord with modern standards in Australia (see Report of the Royal Commission into New South Wales Prisons, the Hon. Mr. Justice Nagle (1978), pp. 561-562; Report of the Board of Inquiry into Several Matters Concerning H.M. Prison Pentridge and the Maintenance of Discipline in Prisons, Victoria (1973-1974); Law Reform Commission Report No. 20 (Tasmania), "Civil Disabilities of Convicted Persons" (1978)).

There is thus an overwhelming weight of opinion against the doctrine that a convicted person should, while under sentence, be without redress for a personal wrong whether the wrong occurs before, during or after imprisonment. It is unjust that such a person injured in, for example, an ordinary road or factory accident cannot sue. Although the doctrine treats the person as dead if he seeks to be a plaintiff, it treats him as alive when he is a defendant. The doctrine is anachronistic and beset with problems if it is to be applied to worker's compensation and in cases (such as compensation to relatives and testator's family maintenance cases) where the rights of other persons may be bound up with those of the claimant under sentence. Also, is the doctrine applicable to claims under Commonwealth Acts? Although the judges of the Court of Appeal thought that civil death did not accord with modern standards they still maintained it, (suggesting that the legislature should abolish it).

The original notion that the common law was customary and that judicial statements of it were declaratory only has long been a fiction.

Roscoe Pound said of it ("Courts and Legislation", The American Political Science Review, vol. 7 (1913), p. 361):

Laid down by Blackstone, this notion that judicial decisions were merely evidence of law, or of that part of the law not evidenced by statutes, was accepted as a fundamental proposition. Austin characterized it justly as "the childish fiction, employed by our judges, that judiciary or common law is not made by them, but is a miraculous something, made by nobody, existing, I suppose from eternity, and merely declared from time to time by the judges". The common law is law made by judges in the area left to them by constitutions and legislation; for this reason, it is often more accurately described as judge-made or decisional law. Australian courts (especially this Court) should, while taking into account the advantages of predictability, evolve the common law so that it will be as rational, humane and just as judges can make it. The present condition of the common law is the responsibility of the present judges. If this were not so, we would still be deciding cases by following the decisions of medieval judges. As Mr. Justice Holmes said: ("The Path of the Law", Harvard Law Review, vol. 10 (1897), p. 469): It is revolting to have no better reason for a rule of law than that so it was laid down in the time of Henry IV. It is still more revolting if the grounds upon which it was laid down have vanished long since, and the rule simply persists from blind imitation of the past.

Mr. Justice Cardozo said: "When a rule, after it has been tested by experience, has been found to be inconsistent with the sense of justice or with the social welfare, there should be less hesitation in frank avowal and full abandonment" (Selected Writings of Benjamin Nathan Cardozo (1947), p. 152).

Attainder is an ancient judicial doctrine under which a person who suffers judgment upon conviction for treason or felony (it is not entirely clear whether only when the judgment was death) was deprived of status as a person. Its effects were forfeiture of the person's property and corruption of the blood and civil disabilities. "Forfeiture" meant that the attainted person's property was subject to seizure by the Crown. "Corruption of the blood" prevented the person from transmitting his land to heirs "of his blood" because they were "corrupted". Therefore, subject to forfeiture to the Crown, his property escheated to the lord of the fee. Civil disabilities were the forfeiture of civil and property rights, especially the right to sue which is generally referred to as civil death. The civil disabilities were generally regarded as a consequence of attainder separate from forfeiture and corruption of the blood but were sometimes regarded not separately but as an incident of corruption of the blood; this is how Yeldham J. and the Court of Appeal treated civil death. Loss of status as a form of punishment was a feature of many ancient societies, (see Damaska, Adverse Legal Consequences of Conviction and Their Removal: A Comparative Study, Journal of Criminal Law, Criminology and Police Science, vol. 59 (1968), p. 347, Civil Disabilities Vanderbilt Law Review, vol. 23 (1975) pl. 941) and the same concept was applied to those who entered Christian closed orders (loc. cit., pp. 943-944).

The history of civil death is confused. It had a practical application perhaps when the death sentence was usually carried out, particularly as the disability from suing prevented a person about to die from causing problems by initiating proceedings which he would be unable to complete.

Although the principles referred to by Yeldham J. have been referred to in a number of articles and English cases, their origins were so obscure that counsel had difficulty in pinning them down. They have never been dealt with at the highest judicial level and the paucity of judicial authority is striking. The Court was not referred to any reported case which decided that a prisoner was disabled from suing for a personal wrong. Bullock v. Dodd [32] , in which it was held that a prisoner could not sue on a bill of exchange, was concerned with property. After that case, New South Wales courts in the early part of last century seem to have regarded persons under sentence as disabled from suing.

The respondent contends that the common law principles which would debar or suspend the applicant's claim were recognized in England prior to 1828 and that, in terms of s. 24 of the Imperial statute 9 Geo. IV c. 83, they were applicable to the then colony of New South Wales and introduced as part of its law by that statute. Section 24 provided that all laws and statutes within the realm of England at the time of the passing of the Act "shall be applied in the administration of justice in the Courts of New South Wales and Van Diemen's Land respectively so far as the same can be applied within the said colonies ". The respondent contends that, therefore, corruption of the blood (resulting in disability to sue) is still the law in New South Wales. The applicant contends that the common law rule was not suitable to the conditions of the colony in 1828 and it was not made applicable by the statute. I find this argument inconclusive. The relevant common law is the present, not that of 1828. Whether such a rule was suitable or unsuitable (or applicable or inapplicable) in 1828 does not answer the question whether it is now the common law. If the respondent's contention were correct, the common law of tort and other branches of the law in New South Wales would be confined to what was suitable for (or applicable to the conditions of) the colony in 1828. But when we define the common law for New South Wales in such areas, we do not engage in the task of finding out what the judges thought it was in 1828. The same applies to this area. The error is to fail to distinguish between the application of s. 24 of 9 Geo. IV c. 83 to legislation and its application to the common law. Although the common law is often regarded as if it were static, it is not.

None of the cases or old writings decisions purporting to state the common law principles bind this Court in our elucidation of the common law of New South Wales.

The main objection to recognizing the civil death principles as existing common law principles is that in treating persons as non-persons, that is, dehumanizing them, the principles violate the fundamental standards of human rights and are inconsistent with the rehabilitative goals of our criminal justice system. As this Court has the choice of accepting or rejecting the principles, I would refuse to recognize the doctrine of civil death as part of the existing common law. Judges have created the doctrine of civil death and judges can abolish it. Judges have closed the doors of the courts and judges can re-open them.

The New South Wales Court of Appeal suggested, and it was also suggested during argument before this Court, that it should be left to the legislature to supersede the unmeritorious common law rule. The answer is that legislators are engaged on serious economic and social problems. It is well-known that legislative programmes are so full that many important proposals are delayed sometimes for years. Legislators have more to do than poring through law reports to see which outmoded judicial doctrines should be abolished, and might well resent their attention being distracted in order to do what the courts themselves could do but neglect to do. In my opinion, it is an application of responsibility for the courts to decide to maintain an unjust, inhumane rule invented by their judicial predecessors and to justify their inaction by the excuse that the legislature can abolish it.

The relevant New South Wales legislation is the Crimes Act, 1900, as amended. This deals in Pt. XIII with "Proceedings After Sentence" in three divisions. The first division is "(A) Execution of Sentence". The death penalty was abolished from 14th April 1955, apparently except for treason and piracy. The second division is "(B) Commutation or Mitigation of Sentences". There is no suggestion in this division (and there was none when the penalty for wounding with intent to murder was death) that a consequence of commutation of that sentence was disability to sue. The third division, "(C) Consequences, &c, of Conviction for Felony", contains:

Forfeiture of Felonies Abolished 46 Vic. No. 17, s. 416 465 (1). No inquest, conviction, or judgment, in respect of any felony, shall cause any escheat or forfeiture of lands or goods. No Forfeiture of Chattel Causing Death 13 Vic. No. 18, s. 1 (2) There shall be no forfeiture of any chattel which may have moved to, or caused, the death of any human being for or in respect of such death. Disabilities of Felony 46 Vic. No. 17 s. 418 466. After the conviction of an offender for any felony, until he has endured the punishment to which he was sentenced, or the punishment, if any, substituted for the same, or the unremitted portion of such punishment, or has received a free pardon for his offence, he shall be incapable of holding, or being elected or appointed to any office, or of exercising any electoral or municipal franchise.

Section 3 of the Act provides that certain parts of the Act (including ss. 465 and 466) "so far as their provisions can be applied shall be in force with respect to all offences, whether at common law or by statute, whensoever committed and in whatsoever court tried". The respondent claims that s. 466 only deals with some of the disabilities which a person convicted of felony is to suffer and that, as the legislature did not specifically abolish attainder, all the consequences of attainder (except forfeiture specially abolished by s. 465) were left intact, in particular corruption of the blood with the disability which prevents a convict from suing during the period mentioned in s. 466. In my opinion, the legislature addressed itself directly to the disabilities which arise from conviction of felony and as s. 3 makes clear, this includes a felony which results in a death sentence. The disabilities were confined to those specified in s. 466, and an additional one should not be implied. Implications are sometimes made to add to an express statement by the legislature particularly to preserve some personal freedom or fundamental right, but there is no such rationale here. On the contrary, the implication would add what is universally accepted to be a violation of a fundamental right.

There is no justification for presuming that the legislature would intend to preserve corruption of the blood and other consequences of attainder; the presumption should be the opposite. The sections are to read as presently speaking (see The Commonwealth v. District Court of the Metropolitan District [33] ). The legislature should not be deemed to cling to outmoded judicial doctrines. Therefore, even if there were a common law disability as claimed, it is no longer the law in New South Wales.

The parliamentary history of these provisions confirms the view that the New South Wales' Parliament has not maintained these medieval doctrines. As the marginal note to s. 466 of the Crimes Act indicates, the section reproduces s. 418 of the Criminal Law Amendment Act of 1883 (46 Vic. No. 17).

The Criminal Law Amendment Act was founded upon the First Report of the Law Reform Commission (chaired by Sir Alfred Stephen, Chief Justice of the Supreme Court and a member of the Legislative Council of New South Wales). In the report entitled "The Consolidation of the Criminal Law" the Commission stated:

By an Imperial statute passed last year only (the 34 Victoria c. 23), Forfeiture to the Crown for Felony is abolished; the offender's property nevertheless being made answerable to a limited extent, at the discretion of the Court, for the costs of the prosecution, and the payment of compensation to persons whom his act may have injured. The Court may also, if it sees fit, assign the residue of the property to a person called an administrator, for the benefit of the offender's creditors and family - he being himself under disability, and therefore unable to deal with it. We have introduced clauses into the Bill adopting in substance that very desirable measure; but without its elaborate and in some respects complicated provisions. It has appeared to us, that by making use of the already existing machinery of our Insolvent Act, and conferring on all such assignments, of which there will not be many, the effect of an Adjudication in that jurisdiction, the proof of the offender's debts and the collection and preservation or distribution of his property will follow as a matter of course - without the necessity of any new officer, or of special enactments and an untried code of procedure. By this simple expedient we have been able to substitute six clauses for the twenty-nine of the English Act; and at the same time to add a provision, not found in the latter, for the protection of the offender's wife, (and, through her, of their children), during his own legal incapacity.

The United Kingdom Act referred to in the Report, 34 Vict. c. 23, known as the Forfeiture Act, 1870, was "an Act to abolish Forfeitures for Treason and Felony and to otherwise amend the Law relating thereto" provided that conviction or inquest for treason, felony or suicide should not cause any attainder or corruption of blood or any forfeiture or escheat (s. 1) but that conviction for treason or felony was to be a disqualification for certain offices (s. 2) and "No action at law or in equity for the recovery of any property, debt, or damage whatsoever shall be brought by any convict against any person during the time while he shall be subject to the operation of this Act; and every convict shall be incapable, during such time as aforesaid, of alienating or charging any property, or of making any contract, save as hereinafter provided" (s. 8).

The provisions of the Forfeiture Act, as the Report stated, were carried into the Bill but expressed more simply. Thus attainder was impliedly excluded. The Bill had a lengthy and chequered parliamentary history, due to the fact that several times when its passage was almost complete, the New South Wales Parliament was prorogued. Clause 420 of the Bill (which was later renumbered 418) stated:

After the conviction of an offender until he has endured the punishment to which he was sentenced or the punishment if any substituted for the same or the unremitted portion of such punishment or has received a free pardon for his offence he shall be incapable of holding or being elected or appointed to any office or of exercising any electoral or municipal franchise or alienating or charging any property or making any contract or without the written permission of the Attorney-General of maintaining any action or suit at law or in equity Provided that for the maintenance of herself and her children or for enforcing the payment of wages earned by her or them or the recovery of property to which she may be entitled or of damages for any personal injury the wife of every such offender while under disability may maintain any suit or action and any property acquired by her since her husband's conviction may in an indictment be described as the property of the wife as if she were unmarried. (My italics).

The parliamentary debates show that when the clause was being considered in the Committee of the Assembly, it was amended by deleting the words in italics (see Parliamentary Debates, Session 1882, pp. 635-636). The proviso was also omitted but restored in a later sittings of the same Session. The words, "Provided that", were replaced by, "And", (see p. 928).

The Parliament therefore specially dealt with the disability to sue and deliberately omitted it from the disabilities of felony. (For a somewhat similar case of a legislature altering a draft Bill which accompanied a law reform report, see Wacal Developments Pty. Ltd. v. Realty Developments Pty. Ltd. [34] .)

Yeldham J.'s reasons (which were adopted by the Court of Appeal) were founded (at least on his first principle) on the premise that disability to sue derived from corruption of the blood and that, as this was not abolished until the Forfeiture Act, 1870, it was applicable in New South Wales in 1828. But by the Corruption of Blood Act, 1814, 54 Geo. III c. 145, "an act to take away corruption of blood save in certain cases", corruption of the blood was abolished in all cases of felony (except of murder and of abetting, counselling or procuring murder). If the common law doctrine would otherwise have been in force in New South Wales, presumably the Corruption of Blood Act would have been applicable by virtue of 9 Geo. IV c. 83, s. 24. If disability to sue derived from corruption of the blood, the disability did not, at least from 1828, apply in New South Wales to the felony on conviction of which the applicant was sentenced to death.

An argument was based on the presence of the following section in the Crimes Act until 1974 when it was repealed by s. 10 of Act No. 50, 1974. In words similar to those in s. 417 of the 1883 Act, it allowed a wife to sue in her own right during the disability of her husband:

Position of Wife of Felon 46 Vic. No. 17, s. 418 467 (1). The wife of every such offender while under disability may, for the maintenance of herself, and her children, or, for enforcing the payment of wages earned by her or them, or the recovery of property to which she may be entitled, or of damages for any personal injury, maintain any suit or action. (2) Any property acquired by any such wife since her husband's conviction may, in an indictment, be described as her property as if she were unmarried.

It was contended that this shows that the husband was disabled from suing. The parliamentary history already referred to contradicts this. But without resort to that, the section can be explained without implying a disability to sue which contradicts the express statement of the civil disabilities in s. 416. Under the common law principles for which the respondent contended, a wife could not (until the Married Women's Property Act, 1901 N.S.W.) sue or be sued without her husband unless he were civilly dead. If he were civilly dead, she would not need the statutory right in s. 467, because in that case she "may bring an action or be impleaded during the natural life of her husband" (Co. Litt., 133a). But if the husband could sue because there was no disability to sue when s. 418 of the 1883 Act came into force, the wife could not. Because of his imprisonment or only conditional release, the practical difficulties that the wife would face if she were unable to sue during his period of sentence were overcome by allowing her to do so. The word, "disability", in s. 467 of the 1883 Act is therefore not to be read as disability to sue. It means the disability of being a person still under sentence, the same as "subject to the operation of the Act" in s. 8 of the Forfeiture Act, 1870.

Therefore, the two principles on which Yeldham J. and the Court of Appeal acted should not be recognized as part of the existing common law, and even if either were so recognized, the Parliament of New South Wales has, since 1883, excluded its operation.

Special leave to appeal should be granted and the appeal allowed.

I agree with reasons for judgment of Jacobs J. and have nothing to add.