THE CASE OF THE SPELUNCHIAN EXPLORERS

MOCK APPEAL EXERCISE[1]

1. SUMMARY OF KEY INFORMATION

  1. Under the Law of Cambridgia the offence of murder is set out by statute in the following terms: 'Whoever shall willfully take the life of another shall be punished by death.'
  2. In Cambridgiajudges have no discretion in sentencing. This means that the punishment for murder is always death.
  3. In Cambridgia, persons sentenced to death can apply to the President (the head of the executive) for clemency. This is a Presidential power to grant a pardon to a person convicted of murder. It could be a full pardon or a reduction to a less severe sentence.
  4. Four defendants have been indicted for murder in a trial court.There is now an appeal to the Supreme Court. You will take on the role of participants in this process.
  5. The facts are set out below, followed by the roles and instructions.

2. FACTUAL BACKGROUND

The fourdefendants werecharged with the crime of murder. A trial was held and they were found guilty and sentenced to be killed by the Crown Court in the State of Robinson. They bring an appeal before this Court, the Supreme Court of Cambridgia.

The four defendants are members of the Speluncean Society, an organization of amateurs interested in the exploration of caves. Early in May of 2018 they, in the company of Roger Whetmore, then also a member of the Society, penetrated into the interior of a limestone cavern of the type found in the State of Robinson. While they were in a position remote from the entrance to the cave, a landslide occurred. Heavy boulders fell and completely blocked the only known opening to the cave. When the men discovered their predicament they settled themselves near the obstructed entrance to wait until a rescue party should remove the detritus that prevented them from leaving their underground prison. On the failure of Whetmore and the defendants to return to their homes, the Secretary of the Society was notified by their families. A rescue party was promptly dispatched to the spot.

The task of rescue proved one of overwhelming difficulty. It was necessary to supplement the forces of the original party by repeated increments of men and machines, which had to be conveyed at great expense to the remote and isolated region in which the cave was located. A huge temporary camp of workmen, engineers, geologists, and other experts was established. The work of removing the obstruction was several times frustrated by fresh landslides. In one of these, ten of the workmen engaged in clearing the entrance were killed. The treasury of the Speluncean Society was soon exhausted in the rescue effort, and the sum of eight hundred thousand frelars, raised partly by popular subscription and partly by legislative grant, was expended before the imprisoned men were rescued. Success was finally achieved on the thirty-second day after the men entered the cave.

Since it was known that the explorers had carried with them only scant provisions, and since it was also known that there was no animal or vegetable matter within the cave on which they might subsist, anxiety was early felt that they might meet death by starvation before access to them could be obtained.

On the twentieth day of their imprisonment it was learned for the first time that they had taken with them into the cave a portable wireless machine capable of both sending and receiving messages. A similar machine was promptly installed in the rescue camp and oral communication established with the unfortunate men within the mountain. They asked to be informed how long a time would be required to release them. The engineers in charge of the project answered that at least ten days would be required even if no new landslides occurred. The explorers then asked if any physicians were present, and were placed in communication with a committee of medical experts. The imprisoned men described their condition and the rations they had taken with them, and asked for a medical opinion whether they would be likely to live without food for ten days longer. The chairman of the committee of physicians told them that there was little possibility of this. The wireless machine within the cave then remained silent for eight hours. When communication was re-established the men asked to speak again with the physicians. The chairman of the physicians' committee was placed before the apparatus, and Whetmore, speaking on behalf of himself and the defendants, asked whether they would be able to survive for ten days longer if they consumed the flesh of one of their number. The physicians' chairman reluctantly answered this question in the affirmative.

Whetmore asked whether it would be advisable for them to cast lots to determine which of them should be eaten. None of the physicians, neither any judge or party official, nor any priest would answer this question.

Thereafter no further messages were received from within the cave, and it was assumed (erroneously, it later appeared) that the electric batteries of the explorers' wireless machine had become exhausted. When the imprisoned men were finally released it was learned that on the twenty-third day after their entrance into the cave Whetmore had been killed and eaten by his companions.

From the testimony of the defendants, which was accepted by the jury, it appears that it was Whetmore who first proposed that they might find the food without which survival was impossible in the flesh of one of their own number. It was also Whetmore who first proposed the use of some method of casting lots, calling the attention of the defendants to a pair of dice he happened to have with him. The defendants were at first reluctant to adopt so desperate a procedure, but after the conversations by wireless related above, they finally agreed on the plan proposed by Whetmore. After much discussion of the mathematical problems involved, agreement was finally reached on a method of determining the issue by the use of the dice.

Before the dice were cast, however, Whetmore declared that he withdrew from the arrangement, as he had decided on reflection to wait for another week before embracing an expedient so frightful and odious.The others charged him with a breach of faith and proceeded to cast the dice. When it came Whetmore's turn, the dice were cast for him by one of the defendants, and he was asked to declare any objections he might have to the fairness of the throw. He stated that he had no such objections. The throw went against him, and he was then put to death and eaten by his companions.

After the rescue of the defendants, and after they had completed a stay in a hospital where they underwent a course of treatment for malnutrition and shock, they were indicted for the murder of Roger Whetmore.

At the trial, after the testimony had been concluded, the foreman of the jury (a lawyer by profession) inquired of the court whether the jury might not find a special verdict, leaving it to the court to say whether on the facts as found the defendants were guilty. After some discussion, both the Prosecutor and counsel for the defendants indicated their acceptance of this procedure, and it was adopted by the court. In a lengthy special verdict the jury found the facts as I have related them above, and found further that if on these facts the defendants were guilty of the crime charged against them, then they found the defendants guilty. On the basis of this verdict, the trial judge ruled that the defendants were guilty of murdering Roger Whetmore. The judge then sentenced them to be hanged, the law of our Commonwealth permitting him no discretion with respect to the penalty to be imposed.

After the release of the jury, its members joined in a communication to the President asking that the sentence be commuted to an imprisonment of six months. The trial judge addressed a similar communication to the President. As yet no action with respect to these pleas has been taken, as the President is apparently awaiting the decision of this Court.

3. THE EXERCISE

You will be broken up into 4 groups of two, each taking on a role in the Supreme Court hearing, and a subsequent hearing (after the judgment) before the President and Attorney-General. The exercise will proceed as follows:

1. The Supreme Court Hearing. Counsel for the Appellants and Counsel for the Respondents will present their arguments to the court on whether or not the 4 defendants are guilty of murder. The three judges will ask questions.

2. The Supreme Court Judgment. Each of the three judges will reach a decision and will state briefly their reasons for their decision.

3. The Hearing Before the President and Attorney-General. Counsel will briefly address the President and Attorney-General on the following 2 issues:

(1)Should the executive grant clemency, reducing the penalty from death to another penalty or acquitting the accused.

(2)Should the President and Attorney-General change the law of murder? How so.

4. Speech of the President and Attorney-General. President and Attorney-General will deliver a speech to the people in which they decide whether they would grant clemency, and whether the law will be amended and if so how.

4. ROLES AND INSTRUCTIONS

You will be split into teams of two so you can help each other and plan your arguments together. Your roles are as follows:

1. Counsel for the Appellants (the four convicted persons): Ms Lauren Doyle with Mr Eric Neagoie

First, you have been instructed by the 4 convicted persons to appear for them at the hearing in the Supreme Court and to argue that the Court should find them not guilty of murder. You may wish to consider some of the arguments below including statutory interpretation and human rights arguments.

Second, after the Court case, you will also be invited to make an oral petition to the President. Here you will have to argue on the assumption that if under the statute you are liable for murder, 1.Why should the President exercise clemency (their discretion to change the sentence), and 2. Alternatively, how could the law be retrospectively changed to prevent it applying in the circumstances?

2. Respondents (the Director of Public Prosecutions of Cambridgia):Ms DragaPetrovic with Mr AnupamSivaram

You are appearing for the Director of Public Prosecutions of Cambridgia.

First, you are instructed to argue that the Court has no choice but to find the defendants guilty of murder. You may wish to consider some of the arguments below and will need to respond to those arguments below which would find the appellants not guilty and any arguments made by the appellants in Court.

Second, you will also have an opportunity to address the President on whether 1. executive clemency should be granted and 2. whether the law should be amended, and if so what should it say?You may make any arguments you wish but you must consider what is the best outcome for the community, the country and the law of Cambridgia.

3. Judges (can ask Counsel questions, must deliver a judgment): Chief Justice Sir Timothy Mason with JusticeMaria Belafaand Justice Benjamin Stimpson

Judges will discuss the case amongst themselves. Then the Judges will sit on the appeal. They will hear the arguments made by counsel. They will ask Counsel questions about their arguments. They will then deliver their judgment to the Court. The judgment will either be in favour of the appellants (quashing the conviction) or in favour of the respondents (upholding the conviction). The judges will also state their reasons to the Court. The Court's decision - uphold or quash will be by majority.

4. The President of Cambridgia, Mr Jason El Helou& Attorney-General Ms TalaSihabi

The President and Attorney-General will work together and will perform two tasks after the Court case is concluded. They will hear arguments from counsel and they will address the public on two issues:

  • The President: will the President exercise his discretion to grant clemency to the defendants (for this purpose we assume the court finds that the defendants are guilty, even if they don't). If so will the President absolve the defendants of all guilt or grant a different punishment? Why? And what will the President say in his public statement to the people?
  • Attorney-General: Will the law of murder be amended in any way in light of this case? What will be the text of the new law?

5. FURTHER INFORMATION

The following are ideas and suggestions that may inspire you in your roles. You may chose to address or not address these issues as you see fit, but consider these to be issues that have arisen in connection with the case that may be relevant.

  1. Literal interpretation of the statute. What would be the result? It has been suggested a literal interpretation results in the conclusion that the defendants are liable for murder.
  2. Purposive construction of the statute. What is the purpose of the offence of murder? Does this change the outcome? Should a literal interpretation be discarded in favour of a purposive interpretation? If the purpose of the offence of murder is to deter people from killing one another, doesn't that purpose fall away in cases of self-defence? The argument has been put as follows - one of the principal objects underlying any criminal legislation is that of deterring people from crime. If it were declared to be the law that a killing in self-defense is murder such a rule could not operate in a deterrent manner. A man or woman whose life is threatened will repel their aggressor, whatever the law may say. Looking therefore to the broad purposes of criminal legislation, can we safely declare that this statute was not intended to apply to cases of self-defense. Is this the only purpose of the statute though? And was this a case of self-defence?
  3. What was the intention of the statute? Do we know anything about this?
  4. What about the argument that once the explorers were cut off from society, they returned to a state of nature and society's laws did not apply to them?The argument has been made by some law professors in the lead up to the case that our law is predicated on the possibility of people's coexistence in society. Our law functions to facilitate and improve people's coexistence, and in this case where the men were so far from civilised society the law as we know it ceased to operate. Is this persuasive?
  5. Human rights. Are there any human-rights based arguments that can be made about the offence of murder? Could the statute be invalid on the basis of contradiction of any human rights?
  6. What about a 'common sense' argument: is it possible for judges to strict rule of law and apply a view of their own morality?
  7. Is it possible for the judges to join in the petition to the President for clemency?
  8. Should there be a specific defence of 'necessity'? For example - 'it will be a defence to murder if a person commits murder a) to escape an imminent threat, and b) murder was committed in order to avoid the consequences of irreparable evil such as death or serious harm to oneself or another person b) you honestly believed that you were placed in a situation of imminent danger and c) your actions were in proportion to the threat.'

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[1] This exercise is an abridged version of Lon Fuller's famous article 'The Case of the Spelunchean Explorers'