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§ 341. “Any Offence Against any Law of the Commonwealth.”

OFFENCE.—The word “offence” has no special technical meaning in law. It is a general word signifying a public wrong, and includes all crimes and misdemeanours, whether indictable or punishable by summary conviction.

ANY LAW OF THE COMMONWEALTH.—The phrase “any law of the Commonwealth” includes, in the first place, the Constitution itself; which is not only a law of the Commonwealth, but in a sense, and with the reservation of the supremacy of the British Parliament, may be called the supreme law of the Commonwealth. It includes, in the next place, the laws of the Federal Parliament; which, together with the Constitution, are “binding on the courts, judges, and people of every State, and of every part of the Commonwealth.” (Constitution Act, clause v.)

Common Law Offences.—It is submitted that the words “offence against any law of the Commonwealth” would cover also any common law offence against the Commonwealth which the Federal Courts may have jurisdiction to try. (See sec. 326, supra.) So far as the common law can be relied upon by the Commonwealth and in relation to the affairs of the Commonwealth, it would seem to be, equally with federal statutes, the law of the Commonwealth. As examples of common law offences against the Commonwealth which might be indictable, even in the absence of federal legislation, the following are suggested:—Bribery of a public officer is a common law offence, and indictable as a misdemeanour. (Reg. v. Lancaster, 16 Cox, 737.) Any act of fraud upon a public officer, with intent to deceive, whereby a matter required by law for the accomplishment of an act of a public nature is illegally obtained, is an indictable misdemeanour. (Reg. v. Chapman, 2 Car. and K. 846; 1 Den. 432; 18 L.J. M.C. 152.) Being in possession of coining tools, with intent to use them, is a common law misdemeanour. (Rex v. Sutton, 1 East P.C. 172.) So is procuring base coin, with intent to utter it. (Rex v. Fuller, R. and R. 308.)

Acts Prohibited.—The Constitution is an Imperial Statute, and both it and the laws of the Parliament made under it are the law of the land. Accordingly the wilful doing of any act expressly prohibited by the Constitution or laws, even though not declared punishable, is a misdemeanour.

“Where an offence is not so at common law, but made an offence by Act of Parliament, an indictment will lie where there is a substantive prohibitory clause in such statute, though there be afterwards a particular provision and a particular remedy given. Thus, an unqualified person may be indicted for acting as an attorney contrary to the 6 and 7 Vic. c. 73, sec. 2, although sec. 35 and sec. 36 enact that in case any person shall so act he shall be incapable of recovering his fees, and such offence shall be


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deemed a contempt of court, and punishable accordingly.” (Russell on Crimes, 5th ed. i. 192.)

“Wherever a statute forbids the doing of a thing, the doing of it wilfully, although without any corrupt motive, is indictable.” (Id; Rex. v. Sainsbury, 4 T.R. 457.) Accordingly the provision that “each elector shall vote only once” (secs. 8, 30) is an express provision against plural voting, and any elector voting more than once at a federal election will be guilty of a misdemeanour. (Conv. Deb., Adel., p. 1183.)

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