Common Law

The development of Common Law in England in 1066 by William the Conqueror who defeated King Harold has some importance in the Australian Legal System today as some of its characteristics have been replicated into our legal system.

Before the Norman Conquest of England in 1066 there was no unitary, national legal system. Prior to 1066 the England legal system involved a mass of oral customary rules, which varied according to region.

Each country had its own local court dispensing its own justice in accordance with local customs that varied from community to community and were enforced in arbitrary fashion.

An example of this is where the courts generally consisted of informal public assemblies that weighed conflicting claims in a case and, if unable to reach a decision, might require an accused to show their guilt or innocence by carrying a red-hot iron or snatching a stone from a cauldron of boiling water or some other ‘test’ of veracity. If the defendants wound healed within a prescribed period, he was set free as innocent; if not, execution usually followed.

The English law system began as a customary law used in the King’s court to settle disputes and conflicts which affected the monarch directly. To begin with, these only included the graver crimes which became “Pleas of the Crown”. After the Norman Invasion there were many different types of court apart from the royal court – The Stannary courts of Devon and Cornwall, the courts of the Royal Hunting Forests. It was during Henry II’s reign that the clerics in his court began specialising in legal business and acting in a judicial capacity. Clerics were part of the King’s royal entourage.

In 1154 Henry II institutionalised common law by creating a unified court system ‘common’ to the country through incorporating and elevating local custom to the national level, ending local control, eliminating arbitrary remedies, and reinstating a jury system of citizens sworn on oath to investigate criminal accusations and civil claims. Judges of the realm went on a regular journey throughout the country bringing the King’s justice to every citizen. Their aim was that there should be a common system of law throughout the land.

The judges formed a nucleus of judges with national jurisdiction who had no local connections. They were less susceptible to the corruption which had spoilt a similar attempt earlier in the twelfth century in which the loyal judges had actually been based in the local communities. As the decisions of these courts came to be recorded and published, so the practice developed where past decisions would be cited in argument before the courts and would be regarded as being of persuasive authority.

Henry II was largely responsible for the regional and itinerant royal justice through whom the law truly became common - available to all. It is true that he significantly enhanced the development of the common law. They developed a range of claim forms, called writes, and established procedures which, perhaps significantly, gave them greater importance. Another important development, for example, was the expansion of the ‘King’s Peace’. This was the monarch’s, as opposed to a local lord’s, right to deal with any local disorder or crime.

When an issue goes to court and there is no statute that covers it, a judge will hear the case and issue a verdict. The record of this verdict becomes a precedent so that when similar cases arise, other judges may take into account the penalty previously issued. Previous judgements therefore form the basis for common law.

Common law precedents may also arise from interpretation of statute law. The wording of the statute may be ambiguous or vague with regard to the specific context of a case, so the judgement would reference the statute but expand the law to encompass aspects of the case previously excluded.

Common law may eventually become statute law. If Parliament recognises that value of turning a common law precedent into statutory legislation, then they will pass a Bill based on the common law verdict in a process called codification.

Ivan Milat – Belanglo Backpack Murders: In four incidents between December 1989 and April 1992, a total of 7 back packers disappeared while travelling south from Sydney. They were travelling in circumstances where they were unlikely to have been missed for some time after they were killed. All had set out along the Hume Highway, near Liverpool, in order to hitchhike south.

Their bodies were discovered in the Belanglo State Forest over a period between September 1992 and November 1993. Forensic evidence showed that each victim had been attacked savagely, with a great deal more force than was necessary to cause death, and apparently for some form of psychological gratification. The murders received international notoriety as the ‘backpacker murders’. In 1996 Ivan Milat was convicted of seven offences of murder and one offence of ‘detaining for advantage’.

For each of the offences of murder Milat was sentenced to penal servitude for life. For the offence of detaining for advantage he was sentenced to penal servitude for six years. Milat has appealed unsuccessfully against his convictions. The judges that were present at Ivan Milat’s hearing were Gleeson CJ, Meagher JA and Newman J. The case took place in The Supreme Court of New South Wales Court of Criminal Appeal.

An example of common law is evident in this case because the decision of his punishment was made by a judge as there was no statute law to cover this case. If common law was non-existent, the punishment of this case could have been less severe than what the public would have wanted. This means that everyone has a chance to a fair and just trial to plead their case.

Common law has a strong influence and importance on the Australian Legal System. We follow in the footsteps of England as our guidelines are similar. Common law allows us to improve and develop our countries legal system. Making sure everyone has a fair and just trail.