Sunday, May 9, 2010

Extract from Journal Article

After briefly mentioning it in a recent “blog”, I have received a number of requests to post my famous article 'When is a dog wild? Semantics again triumph the spirit of the law' TB Whitelocke KC 24 AltCrimJ 7 - 125.’

While, my agreement with the publisher at the Alternative Criminal Law Journal forbids me from reproducing the entire work, I have posted an extract below (pages 84-86) which should sate the ravenous appetites of the countless hordes looking to nuzzle on the teat of my wisdom. For those who, understandably, want more feel free to contact me at Albert Bathurst Piddington Chambers and I will happily recite the entire article to you by heart. You must not take notes and should set aside between four and five hours.

* * * * *
.....In Hardman v Director of Public Prosecutions (NSW) [2003] NSWCA 130 (29 July 2003), it was noted that in McKenzie v Stratton [1971] VR 848 the defendant, who was, like me on so many occasions, charged pursuant to the Summary Offences Act 1966 (Act), although in his case in relation to allegedly being drunk and disorderly in a public place. In that decision, Nelson J commendably found that a person found in a taxicab in a car park was found in a public place, namely, the car park.
I want to make it abundantly clear that I have never shot any animals whilst in a taxi-cab. In fact, I have never been in a taxi-cab at all. Once again, I cannot over-emphasise the fact that I was on horseback and was merely a non-insane automaton, acting without any awareness whatsoever of my own actions. How can a veritable zombie, moved solely by an uncontrollable and primordial desire, be asked to pay ten (10) penalty units? More on that nonsense that later. For now it is appropriate to reflect on the injustice of the fact that this is not the first time I have been charged under this section (in addition to my many many brushes with other sections of the Act, particularly sections 11H: Intimidatory use of vehicles and vessels and 27N: No personal liability for person conducting search under direction of correctional officer) a great many times. Therefore, it is critical that you, the reader, focus on the patent absurdity of this rule, in order to ensure that noble sportsmen in the future who, unlike me on that tragic afternoon, are actually aware of their actions are not held to account by this spurious regulation. By way of background, the actual text of the section I am deemed to have offended is as follows:

28J Offence of hunting on private land
(1) In this section:
"animal" means any vertebrate animal but does not include a fish within the meaning of the Fisheries Management Act 1994 .
"hunt" an animal includes search for, pursue, trail, stalk or drive out the animal in order to capture, trap, harm or kill the animal.
"occupier" and "owner" have the same meanings as they have in the Rural Lands Protection Act 1998 .
"private land" has the same meaning as it has in the Rural Lands Protection Act 1998 .
(2) A person who, without reasonable excuse (proof of which lies on the person) enters private land and hunts for any animal on the land, without the consent of the owner or occupier of the land, is guilty of an offence.
Maximum penalty: 10 penalty units or imprisonment for 12 months, or both.
(3) Without limiting subsection (2), a person is taken to have reasonable excuse for the purposes of that section if:
(a) the person did not know that the land was private land, or
(b) the person is an Aboriginal person:
(i) who is a member, or in the company of a member, of a Local Aboriginal Land Council and who is undertaking traditional cultural hunting within the area of the Council in accordance with a permit issued under section 48 of the Aboriginal Land Rights Act 1983 , or
(ii) who enters the land and hunts an animal pursuant to a native title right or interest that is the subject of an approved determination of native title or of a registered native title claim, or
(c) the person enters the land and hunts animals in accordance with a duty imposed on the person under the Rural Lands Protection Act 1998 or the Wild Dog Destruction Act 1921 to suppress and destroy the animals, or
(d) the person is of a class, or enters the land and hunts in the circumstances, prescribed by the regulations.

I will deal with whether the deceased animal was a vertebrate, whether the property had an “occupier” and whether I knew the land was “private” in great detail later. For now, I will concentrate on the unavoidable conclusion that I was under a fiduciary duty to destroy the animal.

In coming to this result, one simply is unable ignore the axiomatic statement of my intellectual forebear Charles Dickens “There is a passion for hunting something deeply implanted in the human breast.” No human breast is more passionate than mine. As I famously said in 1948 (although this quote is often wrongly attributed to my dearly departed friend Ernest Hemmingway) “When you have shot one bird flying you have shot all birds flying. They are all different and they fly in different ways but the sensation is the same and the last one is as good as the first.” The gentle pleasure derived from discharging firearms is not limited only to airborne prey. When you have shot a European Wolf or an African Hunting Dog, that incredible sensation returns every time you shoot any other type of dog, whether it be a Dalmatian or the ever-feisty Cavalier King Charles Spaniel. The pleasure is comes from knowing that you have bested a potentially deadly foe.

These days, people are altogether too comfortable with man’s so called “best friend”. It wasn’t too long ago (in fact as recently as during the reign of James VI) when wolves in Scotland were considered such a threat to the population that special houses called "spittals" were erected on highways for protection. More frighteningly, through the power of the internet I have learned that in Italy between the 15th and 19th centuries, 440 people were killed by wolves in central Padania alone! Modern man must not ignore the lessons of history. Cowardice today in the face of burgeoning dog ownership could lead to a return of the terrors of Padania tomorrow!

I am profoundly aware of when an animal (be it a dog or even man) is wild and therefore a direct threat to human life. My mastery of this concept was never more evident that when I produced and scored a Broadway version of Joseph Moncure March’s work “The Wild Party” with Michael John LaChiusa. I have also translated The Wild Party into Legal French and Swedish. My depth of knowledge of the term “Wild” is beyond the comprehension of most and certainly beyond the criticism of any court constituted by man.

For fullness, I will now speak to be self-defence and the common law doctrine of necessity.....

No comments:

Post a Comment

Law Blogs