It has been a while since I have written something but that is not because the highly opinionated Queen Ms Vee has lost her opinions. On the contrary , I have so much to say fellow law lovers. I have been most fortunate to have come across THE SPELUNCEAN CASE which was written by Lon Fuller. The facts of the case are as follows:
NOW I WOULD ALSO WANT TO GIVE MY OWN JUDGEMENT AS "TAVAZIVA J":
TAVAZIVA J: Fiat iustitia ruat cælum! That
is the expression that comes to my mind as I read the opinions rendered by my
learned brothers. The Latin maxim means “LET JUSTICE BE DONE THOUGH THE
HEAVENS MAY FALL”. Before I give my own opinion, I will begin
by analyzing the opinions just rendered by my brothers pertaining to this case.
Firstly, like
my brother Foster, the sentiments expressed by the Chief Justice in his
judgment indeed induce a sense of shock and leave me utterly speechless. The
wording of the statute is indeed clear "Whoever
shall willfully take the life of another shall be punished by death."
N. C. S. A. (N. S.) § 12-A. For the Chief Justice to even suggest that we
must let our sympathies come into play shocks me to the core. As judges, our
duty is merely to do that which the law states without letting our emotions
take a hold of us. As such I do agree
with the Chief Justice when he states that this statute permits of no exception
but I differ with him whereby he petitions us to join hands in making a
petition to the Chief Executive as it is clear what we must do. We ought to
follow the letter of the statutes without hesitation as the statute is clear
and unambiguous.
While
reading the opinion of my brother Foster, I must admit, I thought my brother
was suffering from hallucinations and delusions. I associate myself with the
views of my brother Tatting who correctly observes that Foster’s judgment is
marred with contradictions and fallacies. My brother Tatting accurately brings
out the difficulties that Foster’s approach brings. Instead of solving the
problem at hand, the approach leaves a lot to be desired. Foster argues that; “I believe something more is
on trial in this case than the fate of these unfortunate explorers; that is the
law of our Commonwealth. If this Court declares that under our law these men
have committed a crime, then our law is itself convicted in the tribunal of
common sense, no matter what happens to the individuals involved in this
petition of error. For us to assert that the law we uphold and expound compels
us to a conclusion we are ashamed of, and from which we can only escape by
appealing to a dispensation resting within the personal whim of the Executive,
seems to me to amount to an admission that the law of this Commonwealth no
longer pretends to incorporate justice.” The law is
clear and I do not know how my brother Foster is getting it all wrong. Which
tribunal of common sense is he talking about? Was he sworn in to uphold the
tribunal of common sense?
Indeed, what is that which is called common sense? Is this
common sense he talks of common to all people? How do we ascertain this common
sense exactly? The law should be certain and where certainty lacks, that law is
unsound and it is indeed a high sounding nothing. As justices of Newgarth , we
ought to uphold that law which is ascertainable and in this instance the law is
clear and unambiguous and must be followed to the dot. Foster argues that as
judges we must be able to “read between
the lines” just the way servants do. Well , well ,well if we as judges are
being asked to read between the lines and actually come up with the will of the
legislature, did the Explorers not read between the lines also when Whetmore
withdrew from the casting of the lots? They should have read between the lines
and should also have seen what Whetmore had eventually realized: An act of
murder is abhorrent and ghastly and cannot be justified in any way. These men
acted willfully and in a premeditated manner. Let’s take for example the case
of a man and a woman who are undergoing courtship. The man asks the woman for
coitus and she agrees. Later as they are undressing she changes her mind and
tells him to stop and screams “NO”. The man ignores her protests shouting “ The lady doth protest too much” and has
intercourse with her against her own will. Is that not rape? Can this man plead
that it was necessary for him to have intercourse with the lady as she had
aroused him? Can he plead that he was starving from the need to have sexual
intercourse (alas hunger comes in different forms!)? Alas, he cannot! It is
still rape no matter what this man might plead. alternatively , if the lady in
question was an underage minor and willingly consented to sexual intercourse
with a man who has attained the age of majority, our Newgarth Legal Age of
Majority Act states that such a man is guilty of rape and he still gets
convicted. What more of men who killed one of their own in cold blood? Surely
these men should be convicted. Clearly a murder has been committed. Clearly the
law has been broken . It is clear which path this bench must take. The road is
clear and there are no stumbling blocks: these men’s conviction should be
upheld as per the letter of the statute.
My brother
Tatting says “In the discharge of my duties as a justice of this Court, I am usually
able to dissociate the emotional and intellectual sides of my reactions, and to
decide the case before me entirely on the basis of the latter. In passing on
this tragic case I find that my usual resources fail me. On the emotional side
I find myself torn between sympathy for these men and a feeling of abhorrence
and disgust at the monstrous act they committed. I had hoped that I would be
able to put these contradictory emotions to one side as irrelevant, and to
decide the case on the basis of a convincing and logical demonstration of the
result demanded by our law. Unfortunately, this deliverance has not been
vouchsafed me.” It seems to me that my brother has forgotten the
sacred vows he made to uphold the laws of this land and also his duty as a
judge .To me(and indeed as it should be to every judge), a judge is justice
personified. It has been stated that:”The way in which a judge conceives his
judicial role is the most significant factor in the whole judicial process[1].”
A judge should thus exercise judicial temperament by being neutral ,
respectful and composed[2].
My brother seems to
forget that judges should be impartial: Judges should set aside their personal
dispositions, be neutral, dispassionate and should mete out justice in a manner
reminiscent of Lady Justice. Lady Justice is a symbol to us all who sit on the
bench on what justice should be like. Lady Justice has often been depicted wearing a
blindfold which represents objectivity, in that justice is or should be meted
out objectively, without fear or favor, regardless of money, wealth, fame,
power, or identity. Hence , we should
not concern ourselves with what the public wants or what we feel in our hearts.
In her left hand, Lady Justice holds balance
scales which represent the weighing of evidence meaning that evidence must be
weighed on its own merit. In her right hand, Lady Justice is seen to have a sword
that faces downward which represents punishment. Justice should be done and should be seen to
be done by all. And if the law appears unjust , we should remember that there
is no such thing as an unjust law. The law should be applied to everyone in the
same manner with no fear, favor or bias. As such , I believe that my brother
,Tatting has acted in a cowardly manner and has failed to uphold the laws of
this country which he swore to uphold at whatever cost. What he has done can be
contrasted with a secret service agent who fails to protect the President of
the country as he has sworn to do but rather tries to put the blame on terrorists
or somebody else. In this instance, the fact still remains that the agent has
failed his duty no matter how much he tries to justify his failure. The stench
simply does not go away. My brother Tatting forgets that justice should be done
though the heavens may fall.
I
am in agreement with the case of Commonwealth v.
Valjean whereby the Defendant was indicted for the larceny
of a loaf of bread, and offered as a defense that he was in a condition
approaching starvation. The court rejected this defense. My brother Tatting
makes a correct observation whereby he asks: “If hunger cannot justify the theft of wholesome and natural food, how
can it justify the killing and eating of a man?” Indeed , I am of the view
that a man’s life is so sacrosanct that it should not be interfered with. No
man has the power to play God , especially the common ordinary man who has not
been sworn to the bench like I am. Moreso , no man’s life should be held to be dearer
than another person’s life. In the Alexander Holmes’[3] trial, it was held that
self preservation is not always a defense to homicide. A case in point which also
helps clear things for the judiciary is the thought experiment of the “Plank of Carneades” which was first
proposed by Carneades of Cyrene[4]. The experiment explores concept of self-defense in relation to murder by using a
hypothetical case of two shipwrecked sailors, namely, A and B who see and swim
towards a plank that can only support one of them. Sailor A gets to the plank
first but Sailor B (anticipating that he is going to drown) pushes A off and
away from the plank causing A to drown (the causal link). Sailor B gets on the
plank and is later saved by a rescue team. The thought experiment poses the
question of whether Sailor B can be tried for murder because if B had to kill A
in order to live, then it would arguably be in self-defense. In the same
breath, if Sailor B had killed A
willfully and for the purposes of self preservation , the same should be
termed murder.
My brother Keen ,
I am afraid is the only one who understands that the law should be applied as
it is. I associate myself with Keen’s judgment that the conviction should be
upheld and agree with his reasoning. Moral considerations are indeed irrelevant
in applying this statute. One must not forget that law is law , its goodness or
badness is another , and so is its
morality. Morality has no place in the
world of the law. In fact , whose morality
would we be talking about? The positivist theory , which is indeed the
bedrock of Newgarth laws and is our prevailing doctrine , “says law is law, regardless of its moral content and regardless of
whether it is just or unjust. The positivist theory distinguishes law as it is from law as it ought to be. There is, therefore,
such a thing as an unjust law, a bad law, an immoral law, and so on[5].”
Hahlo and Kahn go a step further arguing that ;”The next question we have to answer is: what distinguishes the law of
the lawyer … from other practical laws, such as moral law, the laws of
etiquette or the laws of cricket? The answer is that law in the strict sense is
the only body of rules governing human conduct that is recognized as binding by
the state and, if necessary, enforced.[6]”
In this case the law of Newgarth with regards to murder should be enforced
whether it is just or unjust. So even if justice is not seen to be done in this
case, the law should be applied but I am convinced that in this case upholding
the conviction of these men is justice indeed.
My
brother , Handy, in his opening statement asserts that ;”I have listened with
amazement to the tortured ratiocinations to which this simple case has given
rise. “Unfortunately, my brother evokes the same
reaction from me when he delivers his opinion which leaves me in utter
amazement. I am as pale as a corpse as my brother Handy argues that this court
should take account of public opinion (apparently 90% of the public wants these
men to be released) and also states on record (without any shame , I must add)
that he has heard rumors that the Chief Executive will not commute the sentence
despite strong opinion. I must confess
that I nearly fell off my chair as I listened to my brother judge uttering such
nonsense. Being a judge is not a
popularity contest and my brother , Handy should not use this forum to gain
popularity. A judge must be willing to hand out judgments that can spark public
outrage as long as is upholding the law he was sworn to protect. The court’s
duty is not to please the public . The court’s duty is to the law and to
the law alone : it is the sworn duty of every judge to apply the law, whatever
he or she may think of the law[7]. To the
public , it might seem like justice is not being done in this case but it
should be understood that ;” Admittedly law and justice do not always
coincide. Examples of oppressive and unjust laws can be found in many
countries. But this does not mean that the courts, which are sworn to uphold
the law can ever allow their personal, subjective view of what constitutes
justice to override the clear provisions of the law[8].”
I
have come to the conclusion that these men willfully committed the murder of
Whetmore beyond a reasonable doubt. In Bristow v. Commonwealth[9]
the court held that "… a man
must be taken to intend that which he does, or which is the immediate or
necessary consequence of his act,". The same position was reinforced
in the case of State v. Saunders[10] where
it was held that if the act is dangerous and indicates a disregard of human
life causing the death of another, the act is murder even though he didn't
intend to kill. There is no dispute then as to whether these men murdered
Whetmore or not. They committed the heinous crime and in such circumstances the
law must be applied. I believe that all the three
requirements for criminal proceedings set out in Commonwealth v. Kravitz 400 Pa. 198 (1960)[11] were satisfied at the trial court as I have
perused the record. The Kravitz case, supra, quoted the leading case of Commonwealth
v. Gardner wherein the court held that: `In all criminal proceedings it is incumbent on the Commonwealth to
establish beyond a reasonable doubt three elements: (1) the occurrence of an
injury or loss, in homicide, a person deceased; (2) a criminal agency, in
homicide, for example, that the death was caused by a beating, gunshot or
circumstances indicating a felonious act (these two combined show a crime has
been committed by someone); (3) that the defendant is the responsible party.”
The court in this case further referred to the case of Commonwealth v. Bausewine
whereby the court held that facts and
circumstances proved (in a criminal case) must, “in order to warrant a conviction, be such as to establish the guilt of
the defendant, not . . . as being absolutely incompatible with his innocence,
but at least beyond a reasonable doubt." This statement of the law was
repeated in Commonwealth v. LaRue and Commonwealth v. Rogozinski.
In making my decision , I
have had occasion to go through the case of R v Dudley and Stephens (1884) 14 QBD 273 DC
which is a leading English criminal case that established a precedent,
throughout the common law world,
that necessity is not a defense to a charge of murder.
It concerned survival cannibalism following a shipwreck whereby Dudley and Stephens killed and ate a
young boy for food. The court held that necessity was not a defense to a charge
of murder and I am of the view that the same reasoning should apply to this
case. If necessity is indeed a defense to
murder, then a woman who kills her abusive husband should be absolved of the
crime of murder. If we take necessity as a defense, then surely everyone can
conjure up their own meaning of the word. To save us all the trouble, if we
were to take the opinions of my brothers Foster and Handy, we might as well
just declare that Newgarth is now a lawless jungle.
It is my opinion, that this act
of murder is so odious that nothing may justify/ support it. I am firmly convinced
that it is not legal neither is it right to kill a fellow human being. It
is clear that a murder has been committed. I therefore conclude that the
conviction should be affirmed.
[1] Flango
VE : Judicial Roles for Modern Court : http://www.ncsc.org/sitecore/content/microsites/future-trends-2013/
[2]
ibid
[3] Christianson, Stephen. "Alexander Holmes Trial: 1842." Great
American Trials. 2002. Encyclopedia.com. 10 Aug. 2016<http://www.encyclopedia.com>; see also U.S.
v. Holmes (1842) 1 26 Fed. Cas. 360
[4]
Encyclopedia.com
[5] Madhuku
L : An Introduction to Zimbabwean , Weaver Press, 2010 at Page 2
[6] Note
3
[7] Note
3 at page 6
[8] Ebrahim JA in Minister of Lands & Ors v Commercial
Farmers Union as quoted in State v Collop 1981 (1) SA 150 (AD), . 161
[9] As quoted in Robert A. Hendel: Criminal Law - Murder - Proof
of Malice. Biddle v. Commonwealth, 206 Va. 14 (1965) William & Mary Law Review; Volume 7 | Issue 2 Article 19;
http://scholarship.law.wm.edu/wmlr
[10] State v. Saunders, 108 W.Va. 148, 150 S.E. 519
(1929). Quoted in supra note 9
[11]
Law.justia.com/annotations
