By Mary W Maxwell, PhD
In many articles and Comments at Gumshoe News, we have seen that at least one Australian citizen, Martin Bryant, has been effectively deprived of the protection of the law. Those who want to help seem stymied when trying to access the law on his behalf. I propose to show how we can overcome this by setting up a “Committee of Protectors” for Bryant.
A famous maxim of law is Lex semper dabit remedium. – “The law will always furnish a remedy.” Trust me — it was never ordained that a mentally-handicapped man in Oz be in prison and a warden be able to bar all visitors. (Cherri Bonney was turned away on the basis that she would need Martin’s permission for a visit — but there is no way to contact him!) This is a bad joke and we can fix it.
Uniting for Peace
Walk with me through a historical example. The phrase “Uniting for Peace” in this essay’s title harks back to a unique moment at the United Nations in 1950. It had something to do with China’s incursion into Korea. The USSR kept using its veto in the Security Council, to prevent a military response.
According to the Charter, the General Assembly has two powers: making resolutions and sending recommendations for action to the Security Council. The real power lies with the Security Council – it’s authorized to deal with matters that threaten international peace. (Memories! “international peace.”)
In 1950 the General Assembly got up on its high horse; it grabbed some extra power for itself. How did it do that? It passed Resolution 377, which is known as “the uniting for peace resolution.”
Each of the five Great Powers (I use the term ‘great’ loosely) had the right to block any proposed action by the UN. The GA said “Fine. If they use the veto to prevent good ways to help international peace, we can tell our member nations to take collective action. We will do the UNSC’s job by any other name.” (Not a verbatim quote there.)
Legitimacy does not come from a piece of paper. Mao said “Power comes from the barrel of a gun.” I say “Legitimacy comes from people’s agreement that the powerful have some sort of right to be in charge.” The justification may be religious or it could be related to familial things, as with a royal family.
For us moderns, legitimacy seems virtually built-in to democratic government (again I use the term loosely). If the majority wants something, it’s only logical that a government would grant it –as “the majority” in a democracy is the government, right?
Still, it helps if one can cite a moral principle, or promise that the proposed policy will be beneficial. In the General Assembly’s lead-up to its little 1950 coup over the Security Council, the French delegate put it very well:
“France supports the Charter—the whole Charter… Where peace and security are at stake, France considers that the General Assembly and the Security Council should assume all the responsibilities …
“It is unthinkable that this entire machinery, designed to safeguard the peace and security of the world, should remain inactive when there is a threat…. And if … there is a real danger of such inactivity, then we must revise our customs, our methods, our rules … [We could maybe even accept ‘le weekend.’]
“My delegation felt … that the draft resolution does not infringe upon the Security Council’s competence, responsibilities or powers. The Council should fulfill its role; if it does so it will be adequate… If, however, for some reason, it does not fulfill its role, the United Nations will not thereby be paralyzed.”
See what I mean?
Generally speaking, when humans come to an impasse, they find a way over it, under it, or around it. We in Oz can say “We refuse to be paralyzed when the elected government and the judiciary refuse to fulfill their roles.”
Martin Bryant’s Guilty Plea
This article was prompted by the fact that Martin Bryant, imprisoned for murder, has lacked protectors ever since April 29, 1996, the day he was arrested. This enabled the DPP (who I claim works for World Government) to bypass the most basic requirement of justice, namely, for an accused person to have a trial. “Due process,” as it were.
I stated, in an April 27, 2016 Gumshoe article, “In murder cases, even when the accused pleads guilty, it is customary to hold a trial.” I did not expect that this would lead to gnashing of teeth, renting of garments (you poor thing – you have to rent your garments?), and so forth, but one could see in the Comments section of my article that two persons from The Law felt quite agitated about my “error.” Mention was even made of removing my law degree.
The challengers — Max and Thomas — said, contra moi, that there has “never, ever” been any such thing as having a trial when the person has pleaded guilty, and Ms Maxwell should stop spreading the myth. (I really did not know it was being spread.)
Having now looked further into the matter, I see that all three of us — me, Max, and Thomas (or all two of us — me and Max-a.k.a.-Thomas) are partly correct.
Let’s say an accused person pleads guilty and everything looks correct to the judge. There is proof in the file (maybe physical evidence or witness statements, maybe even a video of this person committing the crime). There would thus be no need for a trial. Fair enough.
But sometimes a judge will suspect that the confession is fake. It could be the result of a deal done with the real murderer “You take the rap and I’ll give your family a huge reward.” “Or, you take the rap or I’ll kill your kids” — that sort of thing.
Society does not want the judiciary to stand by and let this happen. The judges have been trained to see that information in the file supports the guilty plea. Indeed a judge often makes the person describe in detail how he did what he did.
(Can you imagine Bryant being able to give a play-by-play? “And then I coughed, Your Honor, just ask my GP, I’ve got a lung condition….”)
Martin Bryant’s Lack of a Protections
If any individual accused person can be cheated by the legal system, presumably the system is failing, and this augurs ill for all of us.
As far as I can see, every one of the numerous “unfair tactics” used to get this man into prison were the fault of the legal professionals and not the fault of the written law. The law is perfect, or as near as dammit, when it comes to due process.
Bryant had a guardian. In 1994 the court appointed Perpetual Trustees as his guardian. According to the law, Martin should have had a say in whether or not he should have a guardian, as he was 27 years old. Maybe he did have a say. We don’t know.
It is hard to know anything about Bryant’s guardianship, as “privacy laws” stand in the way of the public seeing the records. After all, a decision by a state’s Guardianship Board is not a court case, and so is not public. (Note: it’s subject to judicial review, though, under the heading “administrative law.”)
If the judge in Bryant’s case knew that there was a guardian, there’s no question but that the judge should have sought the guardian’s participation in a guilty plea. If he did not do so, that surely makes for malfeasance on the judge’s part. I believe it makes for criminality on the judge’s part. Perverting the course of justice is a crime.
Crime? Note: any person can “lay an information” with any police office as to his or her awareness of a crime. He or she does not have to bring the case to court personally.
Our Lack of Protectors Is Due to Corruption
So far we see that protections do exist on paper yet they were, in reality, squelched as far as Martin Bryant is concerned. I have indicated three possible examples of corruption.
- The Guardian, who has a duty to assist with such an essential decision as how to plead in court, did not step in. (Or at least we have no indication of it.)
- The court personnel, who must have known that Bryant was under guardianship, did not (apparently) put a brake on the case from the moment of his arraignment in hospital – say, May, 1996 — to the date of sentencing, 22 November, 1996.
- The DPP did not fulfill his obligation of presenting to the judge various factors to open the subject of the guilty plea being possibly inappropriate.
I won’t list other occupations here for which one could find, in law, an obligation to act protectively of Bryant – such as his lawyers or the prison warden. (Media, anyone?) My point is not to chase up any of these persons today but to say that where the occupant of a role does not do what the law has entrusted to that role, the legal “protection” is obviated.
Agitation at Gumshoe
Since about December 2015, the media outlet Gumshoe News has been engaging in informal inspection of the legal case related to Port Arthur massacre, the PAM. Several Australians (more than a dozen) have been making helpful comments online about the case.
I do not by any means want to say that it’s up to Gumshoe News to do this or that related to Bryant’s case. Still, the fact is that, just by the nature of the online venue, a quorum of persons did coalesce to deal with the Port Arthur thing. They could form a committee.
Recall how the UN General Assembly in 1950 said “We ain’t puttin’ up with these here blockages no more” — or words to that effect. They saw the Protectors (the UN Security Council) going on smoko when they weren’t supposed to be on smoko.
Common sense prevailed. Commitment to the goals of the organization prevailed. (Actually, there is a cynical explanation: the Uniting for Peace Resolution 377 occurred because the US did not like being blocked by the USSR’s veto as to making war in Korea — but that’s beside the point.) A way of getting around a blockage was found.
Forming a Committee
You can’t persuade me that Australians are unable to get around the various barriers to helping Martin Bryant. I’ll never believe that.
It may be that nearly all Aussies prefer to stay out of it and thus vote for their own slavery down the track. (In fact, I’m a bit worried that that is the case.) But that’s not the same as an inability of people to solve a problem. This Port Arthur problem is about as solvable as you can get.
We, as a group of concerned citizens, have as much legitimacy as, or more legitimacy than, the Protectors who are out on massive smoko. A few persons – I’d recommend a gang of four –could declare themselves “The Committee of Protectors for Martin Bryant.”
I myself do not wish to be a committee member but I’m willing to talk about its formation. I don’t see it as a Gumshoe group as such. Note: 2,250 souls have signed Cherri Bonney’s petition at Change.org, so there’s plenty of potential around the nation, including in the heart of Hobart.
I can be contacted at maryWmaxwell.com.
— Mary W Maxwell and Dee McLachlan have constructed a book from pertinent articles and comments at Gumshoe. The book is now available as a PDF and will soon be at Amazon. “Port Arthur: Enough Is Enough.”