Martin, Maurice, and Lindy Bryant, circa 1975
by Mary W Maxwell, LLB
You just never know where things will lead. A huge miscarriage of justice occurred in the 1996 Port Arthur case, and many Australians do not plan to put up with it.
Let’s say 2,000 are opposed to the continued incarceration of Martin Bryant. I draw that figure from the fact that 3,200 people have signed Cherri Bonney’s petition at change.org for “an inquest for all our sakes.”
I’m guessing, generously, that 1,000 of those people are not Australian (there is no national rule on signing change.org petitions). So I use the 2,000 figure. But we could easily multiply that by 10, as only some folks ever know that a change.org petition exists.
There was an unanticipated meeting at my home in Adelaide last night, following the Fringe’s Moot Court Trial, so-called. The fur flew a little bit as to what the state can and cannot do.
I reached for “the source.” For me that is usually Blackstone or Coke as I have not yet managed to crawl into the 19th Century.
However, I didn’t have them handy, but I always have the cute little vade mecum, Elements of English Law, by William Geldart (1907). Whadda book!
Permit me to publish here at GumshoeNews.com the first part of Geldart’s Chapter 8: Crimes. And later to natter on about Port Arthur.
The rest of this article is all a direct quote: from Geldart:
ELEMENTS OF ENGLISH LAW
- Sources of Criminal Law
Our Criminal Law is almost entirely Common Law with large statutory additions and modifications and some attempts at consolidation or codification by statute. Equity never had anything to do with Criminal Law; and the Star Chamber, which in some ways
bore the same relation to the Common Law Courts on the criminal side as the Chancery had to the Common Law Courts on the civil side has long since disappeared, and with it
its attempts to create new forms of criminal liability. Perhaps we owe to it the punishment by the Common Law Courts of some crimes, such as perjury, not known to the older Common Law.
- Civil and Criminal Law contrasted
The difference between Civil Law [contract, tort, etc] and Criminal Law turns on the difference between two different objects which the law seeks to pursue — redress or punishment. The object of civil law is the redress of wrongs by compelling compensation or restitution: the wrong-doer is not punished, he only suffers so much harm as is necessary to make good the wrong he has done. The person who has suffered gets a definite benefit from the law, or at least he avoids a loss.
On the other hand, in the case of crimes, the main object of the law is to punish the wrongdoer; to give him and others a strong inducement not to commit the same or similar crimes, possibly to reform him, possibly to satisfy the public sense that wrong-doing ought to meet with retribution. But this punishment is not directly or mainly beneficial to the person injured.
If a fine is imposed it goes to the State; if the criminal is imprisoned or put to death the injured man or his relations may feel some satisfaction, but the satisfaction of their feelings ought not to be regarded as the object of the punishment.
In all cases of crime the law treats the wrong-doing as not merely an injury to an individual, but as a matter of public concern.
An individual suffering civil injury need not sue the wrong-doer, and may contract not to sue him. Where a crime has been committed, the person injured cannot prevent proceedings being taken to secure punishment, and an agreement not to prosecute is a criminal offence.
Criminal proceedings are taken in the name of the King as representing the State, and every citizen has a right to set the law in motion, whether he has been injured or not, and public officers exist to set the law in motion where necessary.
The King can pardon crimes after conviction, and, except in the case of a trial by impeachment, even before conviction; but the King cannot pardon a civil wrong done to a private person, so as to deprive him of his remedy. So, again, the King can, through the Attorney-General, stop a criminal prosecution, but he cannot stop a civil action.
Many crimes may be committed without giving any one a right to bring a civil action: e.g. treason, and forgery where no one has been defrauded, so too perjury.
On the other hand, many or most civil wrongs are not crimes: e.g. trespass where no wilful damage is done is no crime, and the notice that “trespassers will be prosecuted” has been well described as “a wooden falsehood.” (Maitland, Justice and Police, p. 13; This and the two following sections owe a great deal to Maitland’s chapter on “Civil and Criminal Justice.”)
In some cases, however, the same act is both a crime and a civil wrong, as in the case of injuries to the person and defamatory libel, and in general it may be said that any criminal act which causes damage to an individual is civilly actionable.
In such cases both civil and criminal proceedings may, with some exceptions, be taken for the same act: it is not necessary to choose between the two, but the proceedings are quite distinct.
Only in some exceptional cases can punishment and redress be obtained in the same proceedings; thus for instance in the case of a prosecution for theft, the court which convicts may order the restitution of the goods to the owner; judicial separation may be obtained in proceedings by a wife against her husband on the ground of aggravated assault; so, too, in the case of petty offences the magistrates may order the guilty party to pay damages up to 40s. instead of punishing him.
- Classification of Crimes and Offences
Criminal offences may be broadly divided into two main classes: indictable offences, and offences punishable on summary conviction before magistrates. In cases of the former class (which in general comprises the more serious offences), the accused is indicted by a grand jury which decides on prima facie evidence whether there is any case at all against the prisoner ; if they decide that there is not, they are said to “throw out the bill.”
This, however, is not an acquittal, for he may be again indicted; it only means that they refuse to accuse him. If, as happens in the great majority of cases which come before the grand jury, a ‘true bill’ is returned, the trial takes place before a judge or commissioner at the Assizes or before a Court of Quarter Sessions, in any case with a petty jury; the latter, subject to the right of the accused to appeal, finally decides whether he is guilty or not.
If they bring in a verdict he can never be tried again for the same offence. In practice the process of indictment is preceded by an inquiry before a magistrate, or magistrates, who decide whether there is sufficient evidence to send the case for trial, and the procedure before the grand jury has thus come to be very much a matter of form.
The decision of the magistrate is, of course, not conclusive either for or against the accused. In a certain number of cases of the less serious indictable offences the magistrates have now a power, with the consent of the accused, or, if he is under age, of his parent or guardian, to try and decide finally the whole case and inflict punishment but there is a limit to the amount of punishment which they can impose in such a case.
And no one can be deprived of his right to be tried by a jury in such cases against his will. [Ahem]
Indictable offences are classified in a way which corresponds only roughly to the seriousness of the offence. At the head we have the offence of treason, which stands in a class by itself. Other indictable offences are divided into felonies and misdemeanours.
At a time when felonies, with one exception, were punishable with death, and in any case involved forfeiture of the felon’s property, the distinction was one of great importance; at the present day felonies are still distinguished from misdemeanours in a number of points.
The power to arrest without a warrant is even now more extensive in the case of felony than in that of misdemeanour. A person accused of felony is not, whereas a person accused of
misdemeanour as a rule is, entitled to bail as of right; the procedure at the trial differs, and a rule, of which the extent and application are uncertain, forbids a person who has suffered damage by an act which amounts to a felony from taking civil proceedings until the offender has been convicted.
Felonies include most but not all of the more serious offences: murder and manslaughter, theft or larceny, in the strict sense of the word, embezzlement (which is often very hard to distinguish from theft), bigamy, and some kinds of forgery.
Misdemeanour includes some very serious crimes: e.g. assaults on the King, riots, bribery, perjury, blasphemous, seditious and defamatory libels, obtaining by false pretences, some kinds of forgery, and many serious frauds.
Misdemeanours, however, include even offences which popularly would hardly be called crimes at all: a man or a body which is under a duty to repair a highway or a bridge and neglects to do so commits a misdemeanour, which will be tried by the same procedure as, for instance, perjury.
Generally speaking, however, the offences which involve little, if any, moral blame are not misdemeanours, but are punishable on summary conviction.
In the cases of offences punishable summarily the magistrate or magistrates decide the whole case without a jury, and impose the punishment. This class includes a great number of minor offences: petty assaults, petty forms of dishonesty, e.g. travelling on a tramcar with the intention to avoid payment of the fare, cruelty to animals, failure to send one’s children to school, riding a bicycle at night without a lamp, and so forth.
In the more serious of these cases, where the accused is liable to imprisonment for more than three months, he has a right, if he chooses to insist on it, to be tried by indictment, i.e. have trial by jury.
- Penal Actions. There are some exceptional cases where the proceedings are in form civil, but in substance criminal, i.e. intended mainly to secure punishment and not redress.
Proceedings of this kind are called penal actions. The reason why these actions are allowed is mainly historical. At one time the King’s power to pardon crimes or to stop criminal proceedings was largely used to protect wrong-doers who were supposed to be acting in the King’s interest, e.g. public officers who were breaking the law.
In order to prevent an offender of this kind from escaping punishment, Acts of Parliament would provide, not that he might be indicted and tried like a criminal, but that an individual, or individuals, should have the right to bring an action of debt against him for a sum of money.
In some cases this action was given to the “party grieved,” i.e. to any one wronged by the breach of duty, and in such cases the penalty would serve the double purpose of compensation, though it might be out of all proportion to the wrong
done, and also of punishment ; still, the main object was to secure punishment.
Thus the Habeas Corpus Act provides heavy money penalties against all who offend against its provisions: e.g. judges who refuse to issue the writ, officers who send a prisoner out of England.
The right to the penalty is a private right, enforceable like any debt; and the King has no power to pardon, at any rate, after the proceedings have been commenced.
In other cases the right of action is given to the “common informer,” that is, any member of the public who chooses to take proceedings; in others, again, to some corporation which represents professional interests, such as the Law Society or the Goldsmiths’ Company.
— Mary W Maxwell hopes to discuss the relevance of all this to current Australian criminal law in the near future.