Jurisprudence 315 University of Miami School of Law

Australian problems

Rex v. Jack Congo Murrell, (1836) 1 Legge 72. 39
R. v. Jemmy, (7 Sept. 1860) Argus (Newsp.) (Vic.) (Vic. Sup. Ct. F.C.). 40

Brief the cases as if you were going to have to state the question presented and the rule of law in one of your first year classes.

Now ask yourself if you think the result in each of these cases was just?

What, if anything, is or are the source or sources of obligation for the defendants in these cases?

Which if any of the following factors are relevant to your view of the defendants' duties:

whether the defendant had actual notice of the rule of law applied in the case

whether the defendant could reasonably be expected to have notice of the role of law applied in the case

the means by which the British came to be holding court in that place at that time

the rule of law that would be applicable to similar facts in London, England at the time the cases were decided

the role of all that would have been applied to these facts by a competent tribunal made up of the defendants' peers

You may find it helpful to consider the following hypothetical cases:

The case of the foreign traveler (I)

Tina Traveler was visiting Singapore in 1996. Unfortunately, she brought along two marijuana cigarettes and attempted to share one with a new friend. This new friend turned out to be an undercover policeman. The penalty for drug trafficking in Singapore is death. Tina's parents want the United States State Department to intervene to demand that the charges be dropped.

The case of the foreign traveler (II)

Tony Traveler was visiting Miami in 1996 from his home in Ruritania. While shopping at the grocery store, Tony had the misfortune to be sneezed upon by Viktor Victim. Sneezing on strangers is a mortal offense in Ruritania. Viktor did not apologize for his transgression. Tony therefore killed him.

At trial, Tony argued that his actions were perfectly justified. He seemed very puzzled when the court did not agree.

The Case of the Violent Death

In 1836, defendant was arrested in British occupied Erewhon, an island off the coast of Australia. In 1836, British law in Erewhon was, for all practical purposes, the same as British law in Australia.

Defendant was charged with murder. At trial before the learned Judge, witnesses testified that Defendant was seen to have a violent argument with he deceased hours before his untimely death. Many witnesses heard the decedent call the defendant a series of vile names. Both were then seen to stalk off to their respective tents for the night.

At some time during the night, decedent died a horrible death. Although there were no marks of a struggle on his body, he was found dead the next morning with an expression of abject horror upon his face. No one was seen to enter his tent, and the amount of traffic around the encamptment in the ordinary evening suggests that it would have been difficult for anyone to enter unobserved.

Nevertheless, the locals immediately suspected the defendant, and a mob descended upon his tent, whereby he was forced to come out. A search of his tent revealed the implements with which witnesses testified the defendant caused the violent death of the decedent: a small doll with a pin through its heart. The learned Judge convicted the defendant and sentenced him to five years for killing a native.

On this appeal, counsel for the defendant argues that under the customs of the country, it was well understood that the penalty for insulting a shaman is death, and that if the defendant can be said to have caused the death at issue, it was therefore a justified act.

What verdict? Why?


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