Legal Australian System Week 2 Speluncean Explorers Case Exercise
Who were the parties involved in the case? The four surviving Speluncean explorers. The government . What was the nature of the case?
The surviving explorers were charged with the murder of Roger Whetmore. The explorers had been trapped in a limestone cave by a collapse of rock On the 23rd day,the dice throw went against Whetmore and he was put to death and
eaten by the rest of the party.
After the rescue, the four survivors were indicted for the murder of Whetmore
What remedy was sought by the plaintiffs? In the case, the jury asked the court for a "special verdict" i.e. that the court determine guilt or innocence. What specific legal question(s) was the court asked to resolve?
Whether the decision of the original court is correct
What was the court's decision? The court concluded, being equally divided that the original decision would stand and that the men should be hanged for murder. What was the court's reasoning in reaching its decision?
Truepenny CJ: He stated that the court should rely upon the Executive to mitigate the rigours of the law. If clemency is exercised justice will be accomplished without impairing either the letter or spirit of the statutes. He thus affirmed the original decision, but left it up to the Executive to resolve the dilemma.
Truepenny CJ:
Is Truepenny right? Don't we all think that we could make a special case? Is this a practical solution or an abdication of responsibility? This is a strict interpretation of the law, with no creativity and reliance on the "separation of powers" doctrine to get him out of resolving the problem.
Foster J:
The case is governed by 'The Law of Nature'. The circumstances meant that the basic principles underlying the law that assume that men can live together, can no longer apply. This was an extreme situation and thus the underlying premise of legal order lost meaning. Therefore the law of nature applies and under those conditions they agreed to a new set of principles, to which Whetmore was
also a party.
Foster J:
Is the precedent of Fehler v Neegas really relevant? This is quite a creative judgment, but one gets the feeling that Foster made his decision and is scrabbling about for reasons to justify it. A bit like smacking a dart into the wall and then drawing the circles around it. This is also a "purposive" approach to interpreting legislation.
Tatting J:
He rejects arguments regarding the law of nature and also rejects interpretation the of the statute, noting that deterrence is not the only purpose of the statute. It is also there to provide an orderly outlet for retribution; it is also to for rehabilitation of the wrongdoer and he cites precedents for this. He also looks at the issue of charging the defendants with the appropriate crime.
Tatting J:
He argues that it is simplistic to state that we must just apply the statute in light of its purpose. But here, the statute has many purposes and each judge may interpret its purpose in the light of what s/he thinks is important. Hard cases make bad law! Is this any reason not to come to a conclusion? Very wussy response by withdrawing himself from the decision. Judges are there to judge! That's their responsibility!
Keen J:
It is not the function of the judiciary to give instructions to the executive. The judiciary is not concerned with morality. The sole question is whether the explorers willfully took the life of Whetmore within the meaning of the section. He states that the legislative branch of government is supreme; therefore judiciary must give effect to that law and not concern itself with issues of
morality.
Keen J:
How can Keen make pronouncements "in his function as a private citizen"? When is a judge not a judge? When you are a lawyer, can you/should you act differently from your own belief system? He states that he is not there to determine "right or wrong" but to apply the law of the land. Is this right? Is morality irrelevant t...