Judicial Fraud

Judicial fraud can occur in New Zealand courts when they are unable to obtain jurisdiction by consent. In September 2011 Judge Richard Russell admitted to comitting fraud, and he said that it was due to "the rules". The fraud related to his misrepresentation of the facts regarding the existence of a pleading.

Lex est sanctio sancta, jubens honesta, et prohibens contraria. 2 Inst. 587. - Law is a sacred sanction, commanding what is honourable, and forbidding what is contrary.

Quod est inconveniens, aut contra rationem non permissum est in lege. What is inconvenient or contrary to reason, is not allowed in law. Co. Litt. 178.

Interpretatio talis in ambiguis semper fienda, ut evitetur inconveniens et absurdum. In ambiguous things, such a construction is to be made, that what is inconvenient and absurd is to be avoided. 4 Co. Inst. 328.

"[it] is a very useful rule in the construction of a statute to adhere to the ordinary meaning of the words used, and to the grammatical construction, unless that is at variance with the intention of the legislature to be collected from the source itself, or leads to any manifest absurdity or repugnance, in which the language may be varied or modified so as to avoid such inconvenience, but no futher"

Baron Parke, Becke v Smith (1836)

"Acts of Parliament are to be so construed, as no man that is innocent, or free from injury or wrong, be by a literal construction punished or endamaged."

Link

In the context of justice, what is more repugnant than a judge committing the unlawful act of fraud in a court of law?

In short, the remedy is for those responsible for the legislation to issue an injunction to the judiciary that they observe Baron Parke's rule such that to injustice or absurdity occurs.

English common law vs Roman civil law

New Zealand's political system is civil in nature, but the original English settlers were from a common law background. Common law is often misrepresented as being equivalent to case law. This misreprestation omits the common law basis of popular usages and customs, these having an origin more ancient that the civil law.

English common law began with King Alfred the Great, and was based on parts of the Judaic law as present in King Alfred's book of laws. In England the will of the body politic was subject to the law, while in Rome the will of the body politic was paramount.

"For when an Act of Parliament is against common right and reason, or repugnant, or impossible to be performed, the common law will control it and adjudge such Act to be void."

Coke, Reports, vol. 4, part 8, 118a. (Dr Bonham's case)

"Whatever the people had last ordained should be held as binding by law."

The Twelve Tables Link

England has been marked by internal conflict arising from the introduction of Roman law. Blackstone wrote how King Stephen opposed the introduction of the foreign law in England by the clergy. The "ninteen year winter" of his reign was described as a period of anarchy, with the nobility and laity pitted against the clergy.

In English common law the law of Rome was not well regarded, and the sources of the common law are conflicted, with Bracton drawing from the Roman corpus juris, Coke disparaging the foreign law, and Blackstone finding value in it.

Lex scripta si cesset, id custodiri oportet quod moribus et consuetudine inductum est; et, sl qua in re hoc defecerit, tunc id quod proximum et consequens ei est; et, si id non appareat, tunc jus quo urbs romana utitur servari oportet. If the written law be silent, that which is drawn from manners and custom ought to be observed; and, if that is in any manner defective, then that which is next and analogous to it; and, if that does not appear, then the law which Rome uses should be followed.

"Then saith he unto them, Render therefore unto Caesar the things which are Caesar's; and unto God the things that are God's." Matthew 22:21 (the tribute passage).

Rome as Babylon: The [church that is] at Babylon, elected together with [you], saluteth you; and [so doth] Marcus my son. 1 Peter 5:13.

Blackstone and Coke as sources of the common law

Blackstone on the evils arising from ignorance of the common law: The mischiefs that have arisen to the public from inconsiderate alterations in our laws, are too obvious to be called in question; and how far they have been owing to the defective education of our senators, is a point well worthy the public attention ... For, to say the truth, almost all the perplexed questions, almost all the niceties, intricacies, and delays ... owe their original not to the common law itself, but to innovations that have been made in it by acts of parliament; "overladen" (as sir Edward Coke expresses it) "with provisos and additions, and many times on a sudden penned or corrected by men of none or very little judgment in law." ... And if this inconvenience was so heavily felt in the reign of queen Elizabeth, you may judge how the evil is increased in later times, when the statute book is swelled to ten times a larger bulk: unless it should be found, that the penners of our modern statutes have proportionally better informed themselves in the knowledge of the common law. Blackstone's Commentaries, introduction section i.

Blackstone on the nature of sovereignty: In general, all mankind will agree that government should be reposed in such persons, in whom those qualities are most likely to be found, the perfection of which is among the attributes of him who is emphatically styled the supreme being; the three grand requisites, I mean, of wisdom, of goodness, and of power: wisdom, to discern the real interest of the community: goodness, to endeavor always to pursue that real interest; and strength, or power, to carry this knowledge and intention into action. These are the natural foundations of sovereignty, and these are the requisites that ought to be found in every well-constituted frame of government. Blackstone's Commentaries, introduction section ii.