(7 March) A Fairy Meadow man has fronted court accused of trying to enact the centuries-old tradition of “duelling” in order to settle a dispute with a local police officer.
Prosecutors will allege Garth Murray challenged a leading gun senior constable from Wollongong to a duel during a verbal exchange between the pair on the morning of November 25 last year.
The offence of duelling – known under common law as ‘challenge’ – dates back to the 1700s when it was used as a form of alternative dispute resolution.
If there was a disagreement on a ship or between two people a challenge to a duel was made to settle the score.
The people who participated in these duels, which often involved two people firing pistols at each other, could be liable for murder, although convictions for such charges were rare and the use of the death penalty even rarer.
In one case from 1856, a man challenged another man to a duel after each party had made “disparaging allusions to the other’s family”.
The chief justice said “the practice of duelling, which he designated as at once inhuman, unchristian and absurd, an offence not only against the laws of God and man, but against common sense”.
Between 1800 and 1805, there were eight convictions for people challenging another person or attempting to provoke a challenge to a duel.
Criminal law specialist, Matthew Ward from Morrisons Law Group, said he had never seen anyone be charged with challenge in NSW as the offence could often be covered by more common charges.
“Thankfully, gone are the days of people in our community challenging each other to duels and engaging in the firing of pistols at close range,” he said.
“However, the criminal law and its common law offences still surprise us all.”
Mr Ward said a number of common law offences were abolished, however the offence of challenge was not one of them.
There is no maximum penalty for the offence, which means in different court jurisdictions the penalty could be life imprisonment however in local court there is a jurisdictional maximum penalty of two years in imprisonment.
Common Law is the body of law developed through judges applying the law to the particular facts in individual cases.
Where legislation does not cover the specific facts of a case, judges use legal principles and decisions made in similar cases to reach a decision.
Under statute law, courts are responsible for interpreting and applying the relevant laws, made by parliaments, to the cases before them.
The Tasmanian government codified the offence of duelling, stating any person who takes part in a duel, or any person who challenges another to fight a duel, is guilty of a crime.
Western Australia also codified the offence and there is a maximum penalty of two years and/or $6000 fine.
Murray, who was unrepresented during his brief court appearance earlier this month, will also defend charges of possessing a prohibited drugs and goods in his personal custody suspected of being stolen during the hearing on August 27.
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