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.
Here is an odd thing. Maybe Cherri will correct me. I go to her two petitions at change.org. One has 3,201sigs, and the other, more recent one, has 87. But the 3,201 figure has not changed in the last few weeks, so I think it is frozen.
Anyway, we do know they froze Cherri from adding new articles to the older one. That was really silly of “them” because they stuck it at the page that rather conspicuously has the Fodder article. Ha Ha. Viz.:
https://gumshoenews.com/2016/02/24/the-fodder-note-stunning-exculpatory-evidence-for-martin-bryant/
This is very helpful, I think — e.g., on plea-bargaining.
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Well firstly congrats on the Fringe and this article Mary, Your partly correct on my change.org ( first link) The very moment I put up information about Stephan Shane Parry ( corrupt ) and yes the Fodder letters etc. I was attacked from the change.org people immediately!! trying to solve this issue wasn’t going to be, they explained to me ” we cant have you talking about Government and people from the public in this manner. I did explain the evidence against Parry, as you can guess they weren’t interested . This site can still be voted on, the only thing I cant do now is put up new info on this particular site. The new site/link is up and running. Feel free to sign every-one, one day Martin WILL get his chance…..
https://www.change.org/p/cherri-bonney-martin-bryant-should-not-be-in-risdon-prison
Cherri, I guess the change.og administrators shoould be asked the same qq as above: How’re they gonna abide the day of His (or Her) coming?
Just curious — does Mr. Geldart say anything about criminal punishments applying to all members of society equally? Is there some inherent distinction between citizens and officers, etc.? Is there any chance of making legitimate complaints and having them properly acted upon against those who participated in the framing and prosecution of Martin Bryant (assuming that evidence exists of their wrongdoing in the case)? And if it were impossible to get Martin acquitted, I’d at least like to see the criminals within government would also be subject to the same restraints as Martin is within the “penal” system.
Dear Spec, I gasped when I read your first question: “Does Mr Geldart [who died in 1922] say anything about criminal punishments applying to all members of society equally?”
Of course he would not dream of saying it, as it is so totally understood. Every “Hemglishman” knows his rights.
Spec, I think you are American (as am I), so I gasped even more at your second question: “Is there some inherent distinction between citizens and officers, etc.?” Surely you jest, Spec.
As for your third qq, “Is there any chance of making legitimate complaints and having them properly acted upon against those who participated in the framing and prosecution of Martin Bryant?” I reply: You “should of” been at the Fringe.
And here is a qq that I address TO “those who participated in the framing and prosecution of Martin Bryant [or many similarly situated persons].” You won’t mind, Spec, if I resort to song?
(Note: for those who use pre-paid wi-fi and can’t afford a Youtube download, trust me the qq is: And who shall stand when He appeareth? For He is like a refiner’s fire.)
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Think about it, chums.
If I had been able, I would have been at “the Fringe” for the event.
I should have asked if there is anything you know of that legitimizes in some way a difference in the application of the law to “citizens” as opposed to “officers” or “officials.” I know that the elites as well as some police officers, etc., believe they are above the law as it is applied to “ordinary” people. They probably have some occult method of legitimizing their beliefs, in their own minds anyway. The “government” acts as if there is something in the law that allows elites and officers/officials to perform criminal acts with impunity and, in fact, carries on such actions every day of the world. At the same time, they do to some extent try to obscure and keep a great deal of these actions out of the public’s awareness.
Also, they’ve led the people to believe that spies/diplomats are allowed by law to do things that most of us would be prosecuted for. So I wondered if that idea was recorded anywhere that you know of and extended to others we may not recognize as spies/diplomats. If there’s nothing in the actual law that authorizes such behavior, then how is this type of thing justified?
Spec, your questions are very penetrating. You asked what Geldart says. On page 63 of the 1966 edition of Geldart’s book (edited by D Yardley) we find:
“Servants of the crown, from the highest executive, administrative, or military officers downwards, enjoy no general immunity for their public acts from either civil or criminal proceedings; and the command of a superior, even the command of the King is no defense to any such proceedings.” That is STANARD stuff, believe me. It is RULE OF LAW.
Spec now asks: if there is anything that legitimizes in some way a difference in the application of the law to “citizens” as opposed to “officers” or “officials.”
Well yes, In Australia, the queen can do no wrong. She is utterly immune to prosecution. And that is the one and only person who has immunity here. In the US no one has immunity. Spec I won’t ask your date of birth but mine is 1947 and I can assure you that to my cohort your qq are hilarious. Excuse me for picking on you – I guess everybody now assumes that gov’t is immune — but the essence of being American use to be the holding of the opposite view. (“F*ck the governor” so to speak.)
Now you’re getting warmer when you say: “I know that the elites as well as some police officers, etc., believe they are above the law as it is applied to ‘ordinary’ people. They probably have some occult method of legitimizing their beliefs, in their own minds anyway.”
Sure, Spec, they are law-breakers, i.e., criminals and they do indeed soothe their conscience with the idea that their Second Set of morals has priority.
Honest my pre-paid Wifi is running out, so I can’t reply til tomorro (at the library) to your further excellent qq, except thissa one:
The “government” acts as if there is something in the law that allows elites and officers/officials to perform criminal acts with impunity.”
Spec that is the heart of the matter. The word IMPUNITY does not mean “they act boldly.” Look up the definition, it means WE LET THEM GET AWAY WITH IT. Yes, honest, look up “impunity.” I will translate:
Folks, if you can’t be bothered to understand Rule of Law, and apply it to the miscreants – especially the ones who are poisoning your clouds and what-have-you, well, then, fine — enjoy your poisoned clouds. Enjoy being degraded by a body search at the airport. Go ahead, enjoy – YOU ASKED FOR IT.
Spec, this stuff is why i call this article “What Hath Martin Bryant Wrought” — he hath wrought the fury of many people, including me. The Fringe only served to increase my …um..my…um… my
(Wi-fi runing out, can’t think of the word. Pleas eveybody, provide the word…)
I don’t mind if you make fun of me. My purpose in asking these questions is to try to come up with other ideas for talking to people who are strong believers in authority. People assume that authorities are “in place” because they deserve to be. (They’ve been well trained.) So far I’ve hit brick walls with everyone outside of my immediate family in trying to engage in discussions of these basic assumptions about how things are and current events, etc. Either people arrogantly assume they know what’s going on when they haven’t a clue or they seem afraid to even peek inside the box. They don’t know what they don’t know and when they don’t want to know, I start to wonder how things are ever going to get better when people either think there’s no danger in the world that can’t be handled by religious faith or Donald Trump or their beloved authorities, or they’d rather ignore everything and hope it all comes out right.
Thanks for writing the piece and answering my crazy questions. Your reply is very helpful.
Dear Speculator, (after your 2.23pm comment): I am preparing an article specifically to answer your question about spies (also known in Oz as “snouts”). But first Dee wants to post the second half of Geldart’s essay. (So, anyone searching for it later will encounter the two pieces paired up.) Yes, I had assumed you were shopping for “material.” And anyway, I love to be egged on.
“Egg me, egg me!”
Spec, you’ve got to give some credit to the Homeland Securities of this world (and the FBI and the ADL and the Blackwaters?). When they stick a gun in your face, as they surely did in Watertown, it naturally seems that they are “the police” or “the law.” Wow, it takes a bit of sorting out, doesn’t it.
How many people in Assachusetts – indeed how many lawyers in Assachusetts — know that the FBI has no police power whatsoever. (Please egg me about that).
Thanks Mary.
Geldart says “…no general immunity….” Is there then some sort of special immunity that might be given in specific circumstances, or why do you think he inserted the word “general”?
Apparently, the FBI has no charter. What the heck? So I guess they think it’s okay to just make up their own agenda as they go along.
The Watertown bullies were acting like they thought they were “the law,” but I don’t think I’d be too impressed with the services if I had been a Watertown resident. For goodness sakes, they were shooting right in residential neighborhoods and could have injured or killed innocent citizens! That’s unacceptable. Even if the event had been real, there was no urgency to have a shootout in the neighborhood(s). And I also saw reports where people were talking about the conditions of their houses when they were allowed to return. One person said “the law” left the doors open. Bullies and thugs of the super wealthy or the criminal class, if you prefer.
Every “Hemglishman” knows his rights ? Is that why the Crown’s henchmen are called “THE LAW” ?
OK, OK, maybe I’m talkin’ 14th century
But the fundamentals of every anno domini system have been identical, every single one has taken some Divine principle or other to support a reprobate cause; promising much, delivering nothing.
The above “failure to send your children to school” clause pretty much sums up the package of the last century: I can safely say that if Bryant had never seen the inside of any such place he wouldn’t have spent the last 20 years staring at a prison wall.
Genuine law is when a group of people adopt a mutually established code. It only happens in really small pockets and it only works when the players are prepared to hold the Counterfeiters to ransom
And yet it still isn’t necessarily fair to all members of the group.
It’s always going to be tenuous even in an obligation centered culture. Australia, like most countries, is rights-based which means the population is enslaved from within.
Is 26 Clare st relevant?
Dave are you referring to the house owned by Bryant on the day of the massacre?
Next door to the Tatts ladies. Google the adress. Conspiritable or just plain spooky? I used to poach the goldfish pond on the grounds.
Sorry, forgot to name it. Clare House.
Thank you Cherri for mentioning “change.org”. I have had an experience with them that makes me believe they are an “intelligence agency” or at least an agent.
So beware with any dealings with this organisation.
Back to the main thrust of today’s topic. I note the differences of types of charges that can be laid, that is civil or criminal. In regard to Martin Bryant, he had his financial assets stolen by the Tasmanian Government, yet I don’t recall him being charged with a civil offence.
Does anyone in our judicial system know ANYTHING about the LAW that they are supposed to be administering?
Wow. That’s a point. As Geldart has said, legislation is arbitary — it need not follow the principless of law. (Geldart says that in Chapter 1, “Statute Law and Common Law” — not included in above article.)
So the Tassie Parliament legislated to grab the funds that Bryant had on hand from an inheritance. Mal calls that theft. I call it statute law. Let’s fetch the facts first; i do not have them handy.