Queensland University of Technology Law and Justice Journal
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Queensland University of Technology Law and Justice Journal |
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GERALDINE MACKENZIE [*]
The recent centenary of Federation celebrations in 2001 have provided an
opportunity to look back at the events of 1901 and consider
the impact of this
time in history, and the changes which have ensued in the subsequent century.
One of the major participants in
the story of Federation in Australia was the
distinguished Queenslander Sir Samuel Walker Griffith, (1845-1920), who at
various times
in his long career in law and politics was Premier of Queensland
(from 1883-88 and again from 1890-93), Chief Justice of Queensland
(1893-1903),
and Chief Justice of the High Court of Australia (1903-19).
Sir Samuel
made an extraordinary contribution to the law and politics, both in Queensland
and Australia, but it is in the context
of Federation and the drafting of the
Australian Constitution that his contribution is most consistently recognised.
Griffith however made an equally great contribution to criminal justice,
both in
drafting important legislation, and as a barrister and judge in criminal
matters. This article examines and analyses Sir
Samuel Griffith’s
contribution to criminal justice in Queensland, and argues that it is this
contribution which has been one
of the most significant, and remains so, one
hundred years after his Criminal Code came into operation in the year of
Federation, 1901. His other significant pieces of criminal justice legislation,
the Justices Act of 1886, and the Offenders Probation Act of 1886,
both of major significance, are also briefly examined. When put in the context
of his life and work in the law, a greater
understanding can be gained of the
origins of some of Queensland’s and indeed Australia’s most
influential criminal legislation.
As will be seen, Griffith’s life and
background was to have an important influence on his work in the law.
Sir Samuel Griffith was born in Wales in 1845, the second eldest of nine
children in a Congregational Church family, his father a
minister in the
church.[1] His major biographer, the
late Professor Roger Joyce, notes that the young Samuel was an avid reader from
a very young age, (mainly
of religious texts available in the house) and
somewhat of a prodigy.[2] After
having won many academic prizes at secondary
school;[3] in 1860 at the age of
15,[4] he commenced study for a
Bachelor of Arts at the fledgling University of
Sydney.[5]
Griffith’s
Arts degree consisted of three years study of the classics,
mathematics,[6] philosophy and the
sciences; and he graduated in 1863 (at the age of 17) with first class
honours.[7] He won many academic
prizes at the University of Sydney, and was awarded the Mort Travelling
Scholarship to visit Europe and England,
which he undertook from late 1865 to
early 1867.[8] This visit to Europe,
and consequent knowledge of the Italian language, was to have particular
relevance in the adoption of the
Italian Penal Code of 1889 as the basis
for much of the Queensland Criminal
Code.[9]
Despite his
parents having great hopes for him to commit his life to the church, it has been
suggested that the time spent travelling
Europe and being exposed to new ideas
was a significant factor in his move away from any theological vocation, to more
worldly pursuits.[10]
Griffith’s extraordinary academic achievements were no doubt a major
catalyst for his movement away from the influence of
the church and toward a
career in law.
Evidence of Griffith’s character points to an
academically brilliant, but sometimes difficult man. An early biographer,
Douglas
Graham, who knew Griffith well having served as his associate, noted
that Griffith’s quest for perfection meant that he had
high expectations
of others and little patience, and was sometimes judged as cold and
aloof.[11] By many accounts he was
a vain man,[12] and was said to have
had a ‘conscious sense of his own
superiority’,[13] although the
latter comment in one biography was tempered by the observation that
‘those who knew him well found him gracious,
kindly and
generous’.[14]
Griffith was said to have a great love for order and punctuality, which
coupled with his intellectual ability, accounts for his considerable
output of
work. Graham wrote that Griffith lived by rule, and had an extraordinary
productivity rate, which included writing at
the rate of 75 words per minute
(largely unreadable).[15]
Although he always intended to go to the Bar, Griffith was advised to
first undertake articles of clerkship, and therefore completed
three years of
articles in Brisbane in 1867.[16]
He also sat the Bar examination in that year, and became admitted to the Bar in
October 1867, as one of 25 Barristers then practising
in
Queensland.[17] Griffith was
recorded by Joyce as becoming busy at the Bar within his first year, and with a
small Bar making it impossible to specialise,
undertook many criminal matters,
including circuits in country
towns.[18] Graham notes that
Griffith’s success arose from his ‘complete knowledge of all his
facts, and the hard precision with
which he kept them in view of the
jury’, however also makes the observation that ‘he might have been
more effective before
a jury, if he had sometimes sought to persuade as well as
to convince them’.[19] His
success at the Bar led however to him becoming noticed in political circles, and
almost inevitably, his career moved towards
politics.[20]
Griffith was elected to the Legislative Assembly of Queensland in
1872.[21] Although he initially
held the seat of East Moreton, in November 1873 he was elected (by 29
electors),[22] to the new seat of
Oxley.[23] While in politics (a
period of 21 years), he continued his busy practice at the Bar, including taking
silk in 1876,[24] possible conflict
of interest notwithstanding.[25]
This was in fact not uncommon at the time, and would have occurred at least
partly for the reason that politics was then a part-time
career. It has been
noted however that Griffith spent more time on his legal practice than his
political career,[26] although
overwork and the effect of carrying on two careers simultaneously took a toll on
his health.[27] He was appointed
Attorney-General for Queensland in
1874,[28] but continued to accept
private briefs.[29] Griffith became
Liberal[30] Premier of Queensland
from 1883-88; and again from
1890-93.[31] While Premier, he
remained head of the Bar.[32] Joyce
records that while Griffith was Premier of Queensland (a period of four and a
half years), he appeared in 30 cases before
the Supreme Court, however none are
recorded as being in the criminal
jurisdiction.[33] He did however as
Premier take an active supervision in criminal matters, which was said to be
‘remarkably high for a
Premier’,[34] and intervened
in matters of remission of
sentence.[35]
Amazingly,
(at least by today’s standards), while Attorney-General Griffith continued
to accept defence briefs in criminal matters,
including in 1874 a minor assault
case under appeal.[36] In 1880, he
led the defence case in an appeal against a murder conviction where the death
penalty had been imposed.[37] An
argument in that case as to jurisdiction, based on the validity of Letters
Patent over the islands in the Torres Strait (where
the murder had taken place),
was unsuccessful. In contrast, in an earlier case of piracy in 1875, where
Griffith QC acted for the
Crown in his capacity of Attorney-General, the
conviction was quashed.[38] This
duality appears not to have been a concern, and in fact Griffith QC features
heavily as counsel in the Supreme Court Reports
for the Colony of Queensland,
from the years 1873-81, and subsequently in the Queensland Law Journal Reports
from 1881–92.
Griffith was sworn in as Chief Justice of Queensland on 14
March 1893, a position he held for 10 years. Griffith’s political
career,
and later judicial appointments, resulted in his detailed knowledge of criminal
justice legislation, which must have been
a major contributing factor to his
awareness of the need for codification and reform.
Despite Sir Samuel Griffith’s notable achievements as a barrister,
Attorney-General, Premier, and Chief Justice of both the
Supreme Court of
Queensland and High Court of Australia, it is as the architect of major criminal
justice reforms that he is probably
best known to criminal lawyers. Griffith is
also of course justly famous as a major participant in the drafting and
political acceptance
of the Australian
Constitution,[39] and is known as
one of the ‘fathers of
federation’.[40]
Although the Queensland Criminal Code of 1899 is Griffith’s
major achievement in criminal law, he was earlier responsible (in 1886) for two
major pieces of legislation
of groundbreaking importance; one introducing
probation orders, an important sentencing reform, and the other regulating the
criminal
jurisdiction of the Magistrates Court. A brief consideration of these
two pieces of legislation demonstrates Griffith’s early
legislative
drafting expertise, which he later to put to good use in drafting the
Criminal Code.
Griffith’s Offenders Probation Act
of 1886, which he drafted and saw through the Parliament, was the first
probation scheme in Australia, and one of the earliest in
the common law
world.[41] With reform as its major
objective,[42] the Act provided for
a sentence to be suspended pending the offender’s successful compliance
with the conditions of their release.
If the offender was convicted of a
‘minor offence’ as defined in the Act, the court had the option to
pass sentence,
which would then be suspended upon the offender entering into a
recognisance conditioned upon good behaviour for the duration of
the order. The
offender was also obliged to report to police every three months, and if the
offence related to property, could in
addition be required to make restitution
or pay compensation. Upon default of the conditions of the order, the offender
would be
obliged to serve the sentence of
imprisonment.[43] The Act therefore
provided for a sentencing order which was somewhat of an amalgamation of the
present orders of probation and suspended
imprisonment.[44] Probation orders
under the 1886 Act were said to have been widely
used.[45] One year after the
legislative scheme was in place, 85 prisoners had been put on probation, with
complaints of there being ‘more
probationers than constables’ and
the matter getting out of hand.[46]
These complaints would not be unfamiliar to contemporary observers of the
relationship between the criminal justice system and its
critics.
Griffith’s probation/suspended sentence order from the
1886 Act compares well with the form of modern orders for suspended imprisonment
in various jurisdictions. Suspended sentences have received deserved criticism
on the basis that as a matter of policy and practice,
they achieve little in the
way of rehabilitation;[47] have
difficulty being justified on the grounds of just
deserts;[48] and for similar reasons
do little in the way of general deterrence (although such orders are clearly
intended to have a specific
deterrent effect on the individual concerned). As
the major factor in the efficacy of suspended sentences appears to be fear on
the part of the offender of the consequences of breach, it is hardly surprising
that such orders have been subjected to strident
criticism.[49] Sir Samuel
Griffith’s 1886 legislation at least attached conditions to the order for
suspension. Current day probation orders,
which typically do not carry the
threat of a suspended sentence as an incentive for good behaviour, do however
have the advantage
in most jurisdictions of properly set up supervision
arrangements, so that at least an attempt of rehabilitation of the offender
can
be undertaken. Although such orders are not linked to a period of suspended
imprisonment, they are generally subject to breach
procedures which can be
potentially harsh in their operation, but which can be ameliorated after having
taken into account the circumstances
of the
offender.[50] A rethink of the form
and scope of modern suspended sentence orders, taking into account the original
1886 model, would be a useful
exercise.
Although Griffith’s
original Offenders Probation Act of 1886 has long since been
superseded,[51] his other major
piece of legislation from that year, the Justices Act 1886 (Qld) has not.
This Act, which governs the criminal jurisdiction of the Magistrates Court of
Queensland, is largely procedural in
nature, setting out in detail how
proceedings for both simple and indictable offences should be commenced and
subsequently dealt
with. The fact that it continues in operation, 116 years
later, with surprisingly little change in effect from the intent of the
original
legislation, demonstrates the lasting quality of Griffith’s skill in
legislative drafting.[52]
Griffith’s enduring legacy to criminal law in Queensland is the
Queensland Criminal Code of
1899.[53] Griffith’s
identification of the need for codification of the criminal law should perhaps
be viewed in the context of nineteenth
century moves in other jurisdictions to
undertake this task.[54] Jeremy
Bentham has been credited with the origin of the concept of
codification.[55] This mechanism
was embraced by reformers of the criminal law, including James Stephen, whose
draft English Code was not ultimately
adopted in England, but did form the basis
for criminal codes in Canada in 1892 and New Zealand in
1893.[56]
The Criminal
Code 1899 (Qld) continues in use in close to the same format as the original
draft presented by Griffith to both Houses of Parliament
in
1897.[57] Griffith began work on
the Criminal Code in 1896 while holding the office of Chief Justice of
Queensland. In order to do so he read widely on the criminal law of many
countries,
and completed the first draft on 25 March 1897, the final draft being
completed on 19 August
1897.[58]
An Explanatory
Letter to the Attorney-General dated 29 October 1897 was attached to the draft,
wherein Griffith pointed out that the
criminal law of Queensland, quite apart
from Imperial Acts, was scattered throughout nearly 250 statutes, not to mention
the common
law principles which also
applied.[59] In the letter, he
stated that he had derived assistance from an English Draft Code of Criminal
Law, which had not, he observed,
become law. Sir Samuel noted however that the
English Draft Code was not without
criticism.[60] The Explanatory
Letter said that he had derived ‘very great assistance’ from the
1888 Italian Penal Code, which he considered
to be ‘the most complete and
perfect Penal Code in
existence’.[61] He also had
frequent recourse to the Penal Code of the State of New
York.[62] Knowledge of Italian,
first gained when he travelled to Italy on the University of Sydney Travelling
Scholarship in 1865, appears
to have contributed in large measure to his
enthusiasm for the Italian
Code.[63]
After meetings with
the Criminal Code Commission in early 1899, he revised the rules and forms to
the Criminal Code until August
1899.[64] The Draft Code presented
by Sir Samuel Griffith in 1897 was passed as Schedule One to the Queensland
Criminal Code Act 1899 (63 Vic No 9), and received assent from Sir Samuel
himself as acting Governor on 28 November
1899.[65] He continued work on the
Rules in 1900,[66] into which he was
said to have invested an ‘extraordinary amount of laborious
care’.[67] The draft
Criminal Code was a massive undertaking, containing 733 sections,
comprehensively covering issues of procedure, criminal responsibility, offences
and defences. The Griffith Code was later adopted by Western Australia and
Queensland’s close neighbour Papua New
Guinea.[68] Internationally, the
influence and adoption of the Griffith Code was far more widespread, being
either the basis of, or a very strong
influence on criminal codes in Nigeria,
(which in turn influenced other African countries), Israel, Fiji, the Solomon
Islands and
the Seychelles.[69]
The Criminal Code continued in use virtually unchanged until the
Goss Labor Government, which came into power in Queensland in 1989 promising
reform,
commissioned a review in
1990.[70] The review process
culminated five years later in the enactment of an entirely new Criminal
Code 1995, which was intended to replace the Griffith Code of
1899.[71] Although the 1995 Code
was enacted, it never came into effect; the Goss Labor Government losing power
in 1995 after a by-election.
The 1995 Code was eventually repealed in 1997 by
the new Coalition Government.[72]
The 1899 Code therefore remains in force in Queensland, but was substantially
amended and overhauled by the Criminal Law Amendment Act 1997, exactly
100 years after the Draft Code was presented to both Parliaments by Sir Samuel
Griffith.[73] Further substantial
amendments were made in 2000 based on recommendations from the Women’s
Taskforce on Women and the Criminal
Code, and were enacted in the Criminal
Law Amendment Act 2000
(Qld).[74]
This most
recent update of the Criminal Code in 2000 adds to the 1997 amendments in
helping bring the Criminal Code up to date, and particularly takes
account of changing community attitudes at the commencement of the twenty-first
century. In updating
the Code in 2000, significant amendments were made to the
provisions on carnal knowledge; obscene publications (including provision
for
computer generated images); female genital mutilation; rape, including adding a
definition of ‘consent’; sexual assault;
and kidnapping.
Despite
these two major amendments in 1997 and 2000, the Criminal Code remains in
need of further overhaul, the confusing and difficult to apply self defence
provisions of ss 271 and 272 a case in point.
It is fair to make the general
observation that successive Queensland State governments have been slow in
amending the Code to maintain
currency with community standards. A penal code
drafted in 1897 in Victorian times will inevitably need amending from time to
time
to reflect changing attitudes to criminal offences. Examples of provisions
which should not have survived for the time they did,
are treason and mutiny
offences (Part 2, not repealed until 1997, despite these clearly being in the
Commonwealth jurisdiction since
1901); defamation of foreign princes: s 53 (not
repealed until 1997); smuggling offences: ss 67, 68 and 76 (not repealed until
1997,
despite the fact that the Commonwealth took responsibility for customs
matters at federation in 1901); pretending to exercise witchcraft
or tell
fortunes: s 432 (not repealed until 2000); and Chapters 18 and 19: offences
relating to the coin, and posts and telegraphs
respectively, not repealed until
1997 despite the fact that these were clearly within the jurisdiction of the
Commonwealth, and had
been for many years.
Perhaps even more incredible
is the fact that it is still illegal (in 2002) under the Criminal Code in
Queensland to challenge to fight a duel (s 73); or fight in a prize fight (s
74). That these offences, which could only be described
as colonial relics,
remain on the statute books illustrates the fact that there is a need for penal
codes to be regularly overhauled,
preferably away from political considerations
which can easily overshadow the process.
Although arguably Griffith’s greatest contribution to criminal
justice was as the draftsperson of the Queensland Criminal Code, he also
made a lasting contribution as both Chief Justice of the Supreme Court of
Queensland (1893-1903), and as the first Chief
Justice of the High Court of
Australia (1903-19).[75] As a judge
he was said to have ‘few equals’, and to have a mastery of the law
which places him among the two or three
leading lawyers in Australia of all
time.[76] He was 47 when he became
Chief Justice of Queensland, and retired from the High Court in 1919 just before
his death in 1920 at the
age of 75, and therefore much of his career was spent
as a senior member of the judiciary.
As Chief Justice of Queensland he
was said to be a dominating figure on the Bench, and had the ability to go
straight to the heart
of the case before
him.[77] Although he was obliged to
take a substantial drop in income in accepting the position, he undoubtedly
deeply appreciated the social
prestige and trappings of the
office.[78] Joyce records that of
the 413 reported cases over which Griffith presided as Chief Justice, 56 were in
the criminal jurisdiction.[79]
There is no doubt that Griffith made a major contribution to criminal
jurisprudence in the early years of the State, particularly
in the early
interpretation of his Criminal Code.
An early example of
Griffith’s interpretation of the Criminal Code can be seen in the
case of R v Corbett,[80] a
report of Griffith CJ’s directions to the jury in a case of intoxication
under s 28 of the Code. His direction to the jury
that the defence of
intoxication was only available when the accused person became intoxicated under
circumstances for which they
could not be fairly held responsible, remains the
applicable test today for involuntary intoxication.
Griffith’s
contribution as Chief Justice of the High Court of Australia was also a
distinguished one, but not without occasional
controversy. His appointment was
of particular significance as he was a Queenslander, and very few other
appointments from Queensland
have been made, in the near century of the High
Court’s existence.[81] All
three initial appointments to the High Court in 1903 had distinguished careers
before taking their positions on that Bench.
In addition to Sir Samuel
Griffith, Sir Edmond Barton had served as the first Prime Minister of Australia,
and Richard O’Connor
had been Solicitor-General and Minister for Justice
in New South Wales. Griffith is said to have had cordial relations with the
other two original members of the court, with the three concurring in almost all
decisions, which were frequently written by
Griffith.[82] This harmonious state
did not continue after 1906, when a further two appointments were made to the
court, Isaac Isaacs and Henry
Higgins; with Griffith complaining that they were
long-winded in giving their dissenting
judgments,[83] and Griffith and
Isaacs being involved in a contest to see who could do their work
best.[84] Griffith’s judicial
ability is not in dispute, but one aspect of his work as a judge is said to have
caused particular consternation
among other judges. Graham (as noted above a
former associate of Griffith’s), observed that Sir Samuel was in the habit
while
on the Queensland Supreme Court Bench of giving lengthy oral judgments
without the aid of notes, and only with the assistance of
the Law Reports in
front of him.[85] Although it is
said that his first judgment on the High Court was delivered in like fashion,
(with the other two judges concurring),
they reportedly demanded that he stop
the practice, as they felt quite unable to deliver half hour oral judgments on
complex issues.[86]
Griffith retired from the High Court in 1919 after the effects of a
stroke left him with very little use of his right hand, and a
lasting
deleterious effect on his health. He was unable to attend his final sitting of
the High Court in Brisbane, and his retirement
speech was read by the Chief
Registrar.[87] He died one year
later at home in Brisbane at the age of 75.
Griffith made an
extraordinary contribution to public life, primarily to law and politics, but
also to education.[88] Of his many
achievements in the law, it is a justifiable claim that his contribution to
criminal justice was one of the most significant.
His foremost pieces of
criminal justice legislation, the Offenders Probation Act, the
Justices Act and the Criminal Code, were major achievements by any
measure and the legal concepts as expressed by those pieces of legislation have
stood the test of
time. Undoubtedly he was a brilliant lawyer and judge, and
his development of the criminal law through his judgments in both the
Supreme
Court of Queensland and High Court of Australia furthered his contribution. No
other Queenslander can lay claim to such
a lasting and major impact on criminal
law continuing from the late nineteenth century through into the
twenty-first.
[*] Senior Lecturer, Faculty of
Law, Queensland University of
Technology.
[1] See generally
Roger Joyce, Samuel Walker Griffith (University of Queensland Press, St
Lucia, 1984) Ch 1.
[2] Ibid 3; See
also A Douglas Graham, The Life of the Right Honourable Sir Samuel Walker
Griffith (The Law Book Co of Australasia Pty Ltd, Brisbane, 1939)
5.
[3] Graham, above n 2,
6.
[4] Joyce notes however that it
was not necessarily unusual at that time to matriculate and enter university at
that age: see Joyce,
above n 1, 9.
[5] According to one of his
biographers, he was one of fewer than 30 students in the entire university: R K
Forward, Samuel Griffith (Oxford University Press, Melbourne, 1964) 4.
Joyce states that he was one of nineteen students who commenced an Arts degree
in
1860: Joyce, above n 1, 9. The University of Sydney was established in
1850.
[6] Joyce makes the
observation that the mathematics curriculum studied then would now be regarded
as introductory to tertiary level
study: see Joyce, above n 1,
10.
[7] Joyce, above n 1, 10;
Forward, above n 5, 4-5. He obtained an MA in 1870, see Forward,
5.
[8] Forward, above n 5, 5;
Graham, above n 2, 8; Joyce, above n 1,
15-19.
[9] Alberto Cadoppi;
Justice Cullinane (translation), ‘The Zanardelli Code and Codification of
the Countries of the Common Law’
(2000) 7 James Cook University Law
Review 116, 134 and see also later discussion on the influence of the
Italian Penal Code on the Queensland Criminal
Code.
[10] Joyce, above n 1,
20.
[11] Graham, above n 2,
77-94. Graham also makes the observation that Griffith might have been an even
greater man if life hadn’t
been so kind to him; as everything had come
easily to him, he found it difficult to understand those who had suffered
hardship: at
94-95. See also Forward, above n 5,
6.
[12] Forward, above n 5, 6;
Joyce, above n 1, 22.
[13]
Forward, above n 5, 6.
[14]
Ibid.
[15] Graham, above n 2,
82; see also Forward, above n 5,
6.
[16] See generally Joyce,
above n 1, Ch 1.
[17] Ibid 23;
Graham, above n 2, 13.
[18]
Joyce, above n 1, 24–26. Although Joyce had access to Griffith’s
meticulously kept diaries when writing his biography,
he does not go into much
detail of Griffith’s practice at the Bar, largely due, no doubt, to the
size of the manuscript, and
the emphasis he placed (understandably) on
Griffith’s later life.
[19]
Graham, above n 2, 15-16.
[20]
Joyce, above n 1, 30; Graham, above n 2, 16.
[21] Joyce, above n 1,
31.
[22] Voting was restricted
to property owners.
[23] R B
Joyce, 'Samuel Walker Griffith' in D J Murphy and R B Joyce (eds), Queensland
Political Portraits 1859-1952 (University of Queensland Press, St Lucia,
1978) 147. Ironically, Oxley was also (over 125 years later), to be the name of
a Federal
seat held for one term by another famous incumbent, Pauline Hanson,
who was to become president of the right-wing One Nation
Party.
[24] Joyce, above n 1,
48.
[25] See generally Joyce,
above n 1, Ch 2 for a description of his early career in
politics.
[26] Joyce,
‘Samuel Walker Griffith’, above n 23,
144-145.
[27] Joyce, above n 1,
40.
[28] Ibid
47.
[29] Ibid. Although
Griffith objected, he was ultimately prevented from acting as a private
barrister in divorce cases because of his
position as Attorney-General: Joyce,
51. It appears however that this impediment was not seen to exist in other
types of matters.
[30] The
Liberal party was not the same conservative party that it is today in
Queensland. It was said that the party was the working
man’s friend, and
that if Griffith were alive today, because of his socialist leanings he would
have been Labor party leader:
Forward, above n 5, 17. He also undertook some
‘socialist writings’ in 1888 which apparently caused an outcry from
the conservatives: ibid.
[31] The
Liberal party election success in 1883 was said to be due largely to their White
Australia policy: Ibid 13.
[32]
Joyce, above n 1, 119.
[33]
Ibid.
[34] Ibid
118.
[35]
Ibid.
[36] Long v
Rawlins (1874) 4 SCR 86.
[37]
R v Gomez (1880) 5 SCR
189.
[38] R v Jimmy
(1875) 4 SCR 130. The conviction was quashed as the prisoner could not legally
have been convicted of piracy on a question of territoriality.
[39] See generally, John
Macrossan et al, Griffith, the Law and the Australian Constitution
(Royal Historical Society of Queensland, Brisbane, 1998); and in particular, Kay
Saunders, 'Sir Samuel Griffith and the Writing of
the Constitution' in John
Macrossan, Kay Saunders, Sandra Berns, Colin Sheehan and Katie McConnel (eds),
Griffith, the Law, and the Australian Constitution (Royal Historical
Society of Queensland, Brisbane,
1998).
[40] See Joyce, above n
1, Ch 8; and also discussion by the Chief Justice of Queensland The Hon Paul de
Jersey AC, 'Led in, but now Leading:
Queensland and Federation' (Speech to
Australasian Pioneer's Club Annual Dinner, United Services Club, Brisbane, 4
August 2000).
[41] R S
O’Regan, ‘Sir Samuel Griffith and the Origins of Probation in
Australia’ (1992) 66 The Australian Law Journal 281,
281.
[42] Ibid, noting the
Preamble and Griffith’s second reading speech in support of the
Bill.
[43] See generally R S
O’Regan, ‘Sir Samuel Griffith and the Origins of Probation in
Australia’, above n 41, for a
full description of the
legislation.
[44] See now Pt 5
Div 1 Probation Orders, and Pt 8 Orders of Suspended Imprisonment, Penalties
and Sentences Act 1992
(Qld).
[45] See R S
O’Regan, ‘Sir Samuel Griffith and the Origins of Probation in
Australia’, above n 41,
283.
[46] Joyce, above n 1, 119.
[47] In that the offender is
typically not required to undergo any form of supervision or rehabilitatory
programmes.
[48] In that the
offender can be perceived by the community as really not undergoing any form of
punishment.
[49] See for
example, Mirko Bagaric, 'Suspended Sentences and Preventative Sentences:
Illusory Evils and Disproportionate Punishment'
(1999) 22 UNSW Law Journal
5.
[50] See for example in
Queensland, Pt 7 Div 2 Penalties and Sentences Act, Contravention of
Orders. In the case of a breach of probation, the offender is not only
resentenced on the original charges, but
is also charged with breaching the
order (see s 123).
[51]
Provisions for probation orders are now found in the Penalties and Sentences
Act 1992 (Qld). Previously they were contained in the Corrective
Services Act 1988; Offenders Probation and Parole Act
1980; and the Offenders Probation and Parole Act 1959. The
original Offenders Probation Act of 1886 drafted by Griffith was
superseded by the Criminal Code in 1901, which in s 656 made provision
for suspended sentences. In time these orders largely fell into disuse, and
suspended sentences
were “reintroduced” by the Penalties and
Sentences Act 1992 (Qld), Pt
8.
[52] For commentary on the
Justices Act, see successively Kennedy Allen, The Justices Acts
(Queensland) (Law Book Company, Sydney, 1929 (and later editions)); Judge
Morley and Glen Martin, Queensland Magistrates Courts (Law Book Company,
Sydney, 1982 (looseleaf)); Geraldine Mackenzie, Summary Offences Law and
Practice Queensland (Law Book Company, Sydney, 1995
(looseleaf)).
[53] Hon Dean
Wells, ‘The Griffith Code – Then and Now’ (1994) 3 Griffith
Law Review 205, 205.
[54]
See generally Cadoppi, above n 9, 123 ff.
[55] Ibid 123.
[56] Ibid
123-129.
[57] Queensland at that
time had both a Legislative Assembly and a Legislative Council; the latter upper
house was abolished in
1922.
[58] Joyce, above n 1,
219.
[59] Sir Samuel Griffith,
Explanatory Letter to Draft of a Code of Criminal Law (Government of
Queensland, Brisbane, 1897)
iv.
[60]
Ibid.
[61] Ibid vii. For a
detailed discussion of the use by Griffith of the Italian Penal Code in drafting
the Queensland Criminal Code, see Cadoppi, above n
9.
[62]
Ibid.
[63] See Forward, above n
5. Sir Samuel also developed an interest in translation of Italian works, in
particular Dante, see Graham,
above n 2, 90-92. See also generally Cadoppi,
above n 9.
[64] Joyce, above n
1, 219.
[65]
Ibid.
[66]
Ibid.
[67] Graham, above n 2,
89.
[68] Criminal Code
1913 (WA); Criminal Code Ordinance 1902 of British New
Guinea and subsequent enactments. See generally, Robin O'Regan, New Essays
on the Australian Criminal Codes (The Law Book Co, Sydney, 1988) Ch 8
‘The Migration of the Griffith Code’; R G Kenny, An Introduction
to Criminal Law in Queensland and Western Australia (5th ed, Butterworths,
Sydney, 2000) 5-6. Tasmania and the Northern Territory also adopted criminal
codes, but these were not based
on the Griffith Code, although it was
influential on their development. See Criminal Code 1924 (Tas),
and Criminal Code 1983 (NT).
[69] See detailed discussion of
the influence of the Griffith Code on penal codes in other jurisdictions in
O’Regan, ‘The
Migration of the Griffith Code’, above n 68; and
Cadoppi, above n 9.
[70] See
details of the commissioned review in Queensland Department of the
Attorney-General, First Interim Report of the Criminal Code Review Committee
to the Attorney-General (Brisbane, March
1991).
[71] See description of
this process in Wells, above n
53.
[72] See Criminal Law
Amendment Act 1997
(Qld).
[73] See description
of the lengthy “reform” process in Sally Kift, 'How Not to Amend a
Criminal Code' (1997) 22 Alternative Law Journal 215, including a
detailed description of the 1997 amendments.
[74] See Taskforce on Women and
the Criminal Code, Report of the Taskforce on Women and the Criminal Code
(Office of Women's Policy, Government of Queensland, Brisbane,
1999).
[75] See C L Pannam, 'The
Radical Chief Justice' (1964) 37 Australian Law Journal 275; and also Hon
John Macrossan, ‘Queensland Judicial Perspective - A Century On’
(1994) 3 Griffith Law Review
194.
[76] B H McPherson, The
Supreme Court of Queensland 1859-1960: History Jurisdiction Procedure
(Butterworths, Sydney, 1989) 191. (Mr Justice McPherson is a justice of the
Supreme Court of Queensland (Court of Appeal division)
and well placed to make
such a judgment.)
[77] Graham,
above n 2, 60.
[78] See
generally Joyce, above n 1, Ch
9.
[79]
Ibid.
[80] [1903] St R Qd
246.
[81] It is interesting to
note that three of these Queenslanders have also been appointed as Chief
Justice, Griffith himself, Sir Harry
Gibbs and Sir Gerard Brennan.
[82] Joyce, above n 1,
261.
[83] Forward, above n 5,
26.
[84] Graham, above n 2,
65.
[85] Ibid
66.
[86]
Ibid.
[87] See ibid 101-105 on
the period after his retirement and leading to his
death.
[88] Griffith’s
many achievements in education are discussed in Joyce, above n 1, Ch 3.
Griffith sat on the Board of Trustees
of Brisbane Grammar School from 1871-1904,
and helped found Brisbane Girls Grammar School in 1874 (he sat on the board of
BGGS from
1882). While in politics he attempted (unsuccessfully) to pass a Bill
to introduce a university in Queensland, and Griffith University
is now named
after him: see Macrossan, above n 75, 199-200.
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