Case speluncean explorers

Justice Truepenny

Would affirm the conviction and sentence. The murder statute obviously applies to the defendants' conduct, and it is not within the Courts province to ignore the statute. The Executive may provide clemency (pardon D or shorten sentence). Indeed, given the facts of the case, the Executive is likely to provide clemency, and the court should formally encourage the executive to do so.

Justice Foster

Would reverse. The statute is inapplicable for two separate reasons

(1) Once the explorers were cut off from society, they returned to a state of nature and society's laws did not apply to them. This stems from the proposition that our law is predicated on the possibility of men's coexistence in society. Our law functions to facilitate and improve men's coexistence. When the assumption that men may live together loses its truth, as it obviously did in this situation where life only became possible by the taking of life, then the basic premises underlying our whole legal order have lost their meaning and force. Foster would say cessante ratione legis, cessat et lipsa lex - ‘the reason for the law ceasing, the law also ceases'.

(2) The statute can be applied to the men but the purpose of the statute would not be served by applying it in this case. This is because a man may break the letter of the law without breaking the law itself, as in the case of Commonwealth v. Staymore. The statute should not be taken literally. This is because self-defence should be considered; although self-defence cannot be reconciled with the words of the statute it can be reconciled with the purpose of the statute, that is, to deter men from killing one another. Indeed, if killing in self-defence is to be considered murder then the defence no longer works as a deterrent. Thus, the literal meaning of the statute should not be applied to cases of self-defence.

Justice Tatting

Would recuse (to disqualify from participation in a decision on grounds such as prejudice or personal involvement). The statute clearly applies. The men were not under a code of nature, as Foster thought, because there are no authority to apply that code. Tatting agrees that no statute, whatever its language, should be applied in a way that contradicts its purpose. Yet, what if the statute has many different purposes as is the case here? Indeed, it has been said that its purpose is to provide an orderly outlet for the instinctive human demand for retribution - Commonwealth v. Scape - and it has also been said that its purpose is the rehabilitation of the wrongdoer - Commonwealth v. Makeover. Moreover, the excuse of self-defence is usually that the men did not act wilfully but rather acted in response to an impulse deeply ingrained in human nature. Yet, in this case, the men not only acted wilfully but with great deliberation and after hours of discussing what they should do. Tatting refuses to believe that if the men's act were to be regarded as murder then the defence no longer works as a deterrent. Rather, he argues, the men would have been more hesitant to eating a fellow man if they knew the act would be deemed as murder by the law. Foster concludes by saying that the statute clearly applies, but he could not live with himself if he voted to affirm because the result would be evil i.e. absurd that these men be put to death when their lives have been saved at the cost of ten heroic workmen. Therefore, he recuses.

Justice Keen

Would affirm. He feels that the defendants should be provided clemency by the Chief Executive, but as a Judge it is not his role to advice the Executive as to what to decide. As a judge he does not decide the morality side of the equation; it is not up to him to decide what is “right” or “wrong”. The judge simply applies the statute as it is. Keen feels that the statute very clearly applies on its own terms to this case.

Justice Handy

Would reverse. The statute clearly applies, but the judge must exercise common sense. Furthermore, public opinion overwhelmingly supports reversal, and it is clear that the executive will not grant clemency. Therefore, it falls to the court.