Gavin R. Putland, BE PhD
| Sunday, April 06, 2014 | (Comment) |
If you are charged under a retrospective ‘law’
Your Honour,
The prosecution contends that my alleged conduct on a certain past date, which was legal under the laws made on or before that date, can be made illegal with effect on that date, by a law passed after that date. If this contention of law is correct, then my alleged conduct on that date can be made legal again, with effect on that date, by a law passed after today. Obviously this court has no way of knowing whether such a law will be passed. Consequently, according to the prosecution's contention of law, this court has no way of knowing whether my alleged conduct was legal or illegal, and therefore has no way of finding me guilty of any offence in respect of that conduct, whether I engaged in that conduct or not.
In those circumstances, I have nothing to gain by disputing the prosecution's contention of law, whatever my opinion of it may be, and I have nothing to gain by disputing the prosecution's version of the facts, whatever the real facts may be. Accordingly, I demur on all matters of law and fact except that the prosecution's contention of law has the legal implication that I am entitled to an acquittal.
The only possible flaw in that reasoning is that the prosecution's contention of law is so odious that the court cannot accept my demurrer thereon. If the court, after due deliberation, eventually accepts the prosecution's contention, the rest of my reasoning stands, and I am entitled to an acquittal on that basis. If, on the contrary, the court rejects the prosecution's contention, then I am entitled to an acquittal because my alleged conduct was legal at the time in question.
In short, if the prosecution's contention of law is right, I am entitled to an acquittal as a matter of law regardless of the facts; and if the prosecution's contention of law is wrong, I am entitled to an acquittal as a matter of law regardless of the facts.
Either way, the prosecution has erred in law by seeking a conviction. Having erred in law, the prosecution is ipso facto at fault and liable for, at least, civil damages. Indeed the prosecution has just contended that I was not absolved of criminal liability by my ignorance of a law that had not been made when I allegedly breached it. In those circumstances, the prosecution cannot turn around and claim to be absolved of a mere civil liability by its own ignorance of legal implications that are, and always were, plain for all to see.
I therefore submit that I am entitled not only to an acquittal, but also to damages and costs on a full indemnity basis.
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