December 17, 2011

Common Law: Working Just Fine Down Under

Well, parts of it anyway.

I was sent a link on Twitter to this great story. My thanks go to @gruffdiver for the link.

Here are the basics:

25 year old guy in Sydney, well-oiled, leaves a restaurant. Someone accuses him of leaving without paying. The cops turn up and have a word in his shell-like. Our hero takes to his heels. The cops catch him (he is on foot and they are in a car, yet despite being arseholed, he manages to run half a kilometre), and he is arrested.

Read the rest of it right here.

But I couldn't resist a snippet:

"Justice Kaye said it was an ancient principle of the common law that a person not under arrest has no obligation to stop for police, or answer their questions. And there is no statute that removes that right.

"(Mr Hamilton) before being placed under arrest did not have any obligation to stop when requested to do so, or to answer questions asked of him,'' the judge said.

"The conferring of such a power on a police officer would be a substantial detraction from the fundamental freedoms which have been guaranteed to the citizen by the common law for centuries.''

The next time anyone tells you that statutes are supreme, tell them to piss off.

Common law rules all.

And rightly so.



Anonymous said...


A decision akin to the 1966 Rice vs. Connolly case that I linked to a couple of months ago (can't quite remember in what posting though!).

Very similar to the quote from the case Down Under, the judge back then said this:

"It seems to me quite clear that though every citizen has a moral duty or, if you like, a social duty to assist the police, there is no legal duty to that effect, and indeed the whole basis of the common law is that right of
the individual to refuse to answer questions put to him by persons in authority
, and a refusal to accompany those in authority to any particular place, short, of course, of arrest."

In both cases people were nicked and in both cases police stupidity was made a matter of record as was the superiority of the common law.

As is seemingly too common across the world these days, they can never admit even a hint of error though, can they? "We'll go through the judgement very carefully, then we'll decide what we need to do".

Dear Sydney Police: You've been told what you need to do, so pay up and fuck off.



Anonymous said...

""Justice Kaye said it was an ancient principle of the common law that a person not under arrest has no obligation to stop for police, or answer their questions. And there is no statute that removes that right."

But if there was a statute that removed the right then the common law right would no longer exist. That is the implication of the judge's comment.

Your conclusion that this case shows that common law overrides statures is nonsense.

Anonymous said...

Also, a question...

Why do you prefer law made by judges over law made by parliament? It seems odd given your (totally bizarre) refusal to believe that courts are really courts or that judges have any authority.

F***W*T TW****R said...

You can't remove common law with a statute. And in any case, in Lawful Rebellion Stautes are irrelevant, obviously with the neccesary caveats.

pitano1 said...

lets get this straight.

parliament make statutes/legislation/mumbo..jumbo.
judges interpret the law.

that is made by the PEOPLE.
through precedent.

Russ said...

"Your conclusion that this case shows that common law overrides statures is nonsense."

"That is the implication of the judges comment.!"

That is, of course, your interpretation; mine is that this article identifies the difference between understanding, perception, reality and actuality

Magna Carta Society Blog said...

Anonymous posting at 17.42, It is a maxim of the common law that we are entitiled to defend ourselves against threats to our life, liberty and property.

Defending against infringement of our liberty deals with statutes that are against the common law.
Regards, John Hurst.

Magna Carta Society Blog said...

“There exist a law, not written down anywhere, but inborn in our hearts; a law which comes to us not by training or custom or reading; a law which has come to us not by theory but from practice, not by instruction but by natural intuition. I refer to the law which lays it down that, if our lives are endangered by plots or violence or armed robbers or enemies, any and every method of protecting ourselves is morally right.”

Marcus Tullius Cicero

Anonymous said...

One notable judge had this to say about statutes and the common law:

"And it appears in our books, that in many cases, the common law will controul acts of parliament, and sometimes adjudge them to be utterly void: for when an act of parliament is against common right and reason, or repugnant, or impossible to be performed, the common law will controul it, and adjudge such act to be void." (Lord Coke, 8 Rep. 118a, a.k.a "Dr Bonham's Case".)

Coke didn't just make that up on the spot. He drew on, for example, a predecessor, William Herle, who was active in the late 13th and early 14th centuries not long after the establishment of Parliament and was Chief Justice of the Common Pleas himself several times.

They most certainly did not like that up 'em, not one bit. There have been many arguments and interpretations over that judgement in the centuries since, for and against, some with an agenda, some without. King James hated it and "instructed" Coke to "correct" the judgement several years later. (Coke refused.)

I believe it was called on as a basis for the opposition to the Stamp Act, and was the ultimate origin of the modern process of judicial review.

In the commentary of one edition of the Reports, the following is found:

"The second point is in 117b and the matter of law in support of it, which is condemned here, is in page 118 vis. that a statute against reason is void, and is supported by many authorities then, and by others before, and since in our Courts: and the antiquity of it is still more ancient."

Both the case mentioned by the Captain and the Rice vs Connolly case from 1966 make plain that refusing the whim of "authority" is fundamental to the common law. Anything proposing the removal of such inherent rights of personal liberty and security would self-evidently be "against common right and reason, or repugnant". (They're trying...)

Coke also wrote in the preface to Part IV of his Reports:

"For any fundamental point of the ancient common laws and customs of the realm, it is a maxim in policy, and a trial by experience, that the alteration of any of them is most dangerous".



F***W*T TW****R said...

It's an amazing feeling when that switch goes upside the bonce and you change from being 'Me the legal fictoon/vassel', to 'Me the sovereign person'. That's when you start to see the relationship between you and the state in a different light. You become more powerful. Good job C.R. and the posters here. I'm learning all the time. :-D

TTC said...

Howdy Cap'n

Something that I would like to add for discussion is the fact that Australia's Head of State and therefore "defender" of the common law is our very own Queen Elizabeth II of the House of Windsor.

Thinking about the text of her Coronation Oath to defend the laws of not only England but of the many named Commonwealth nations, I am most certain that this judgment in Australia has quite a significant standing here in England too - because of the Queen's role in defending our laws and customs.

I'd be happy to bow to superior wisdom, but as this is a Superior Court ruling on the primacy of the same common law that Her Majesty The Queen is "defender" of, I would have thought this case citable in any court in England..?


Stealthy said...

Superb post Captain :D

coz said...

RE: does this ruling apply over there

Things are very murky here about 'the crown'. There's this thing called the Australia Act 1986 which invents a legal fiction called the Queen of Australia, which is not a living being and cannot sign anything. Apparently we are beholden to this thing.

Now there's this other theory that we have never been anything other than a Brit colony (I prefer this theory), and it's the same for NZ and Canada, although apparently Sth Africa is a separate entity, its own country.

Makes your head spin sometimes...

F***W*T TW****R said...

Coz search wikipedia with legal fiction. A simple and straight forward explanation is there

coz said...

yeah that's not a bad article, I can see myself quoting it someday. muhaha