Corpus delicti

How the state can be an injured party

By reference to so-called “victimless crimes” (like speeding through a school zone driving an unregistered vehicle, while unlicenced, sipping rum, and smoking a fat joint) OPCA theorists often use the Latin term “corpus delicti” (“body of the crime”) referring to the principle that a crime must be proved to have occurred before a person can be convicted of committing that crime.

In Kuipers-Lloyd v Police [2013] SASC 137 the defendant was convicted of a speeding offence via a speed camera and appealed against the conviction.  The defendant’s notice of appeal advanced several contentions, including compliance with the National Measurements Act 1960 (Cth). 

“The defendant first contended that the Magistrate erred in failing to recognise the proceeding as a civil proceeding.  It was submitted that the elements said to be necessary to constitute a criminal proceeding, including the identification of a relevant mens rea and corpus delicti, were absent.

This submission is wholly without merit. The proceeding was a criminal proceeding and involved the hearing of a charge that the defendant had committed a summary offence against section 79B of the Road Traffic Act 1961 (SA).”

Click to access kuipers-lloyd-v-police-2013-sasc-137.pdf

Remembering of course, that according to OPCA theory, the only three ways you can “break the law”, and that is harm to others, harm to their property, or fraud or mischief in contracts. Since there is no victim or “injured party” relating to the charge, OPCA theorists frequently raise the question: “Where is the corpus delicti?”

The answer is very simple really, the charge is not lacking in corpus delicti, it is actually the basis for the complaint. As the State is obliged to act on behalf of the collective, the state can also be an injured or aggrieved party.

In democratic countries like Australia, the parliament is considered the voice of the people, as the people elect representatives to govern according to the constitution. For example: often a political party will promise the introduction of certain laws, or the repeal of others, as part of their election campaign platform. When elected, these laws are then created in accordance with legislative powers and parliamentary procedures established by the constitution.

When someone breaches laws created by representatives that were duly elected by the people, the cases are called “The Crown v Smith” or “The People v Smith” etc. (The “Crown” or “The people” have the same meaning in constitutional theory. See “the meaning of the Crown in constitutional theory” as held in Sue v Hill [1999] HCA 30.

Extract from Vattel’s “Law of Nations”:

§ 1. Of the state, and of sovereignty: A nation or a state is, as has been said at the beginning of this work, a body politic, or a society of men united together for the purpose of promoting their mutual safety and advantage by their combined strength. From the very design that induces a number of men to form a society which has its common interests, and which is to act in concert, it is necessary that there should be established a Public Authority, to order and direct what is to be done by each in relation to the end of the association. This political authority is the Sovereignty; and he or they who are invested with it are the Sovereign.

§ 2. Authority of the body politic over the members: It is evident, that, by the very act of the civil or political association, each citizen subjects himself to the authority of the entire body, in every thing that relates to the common welfare. The authority of all over each member, therefore, essentially belongs to the body politic, or state; but the exercise of that authority may be placed in different hands, according as the society may have ordained.”

Vattel describes the substance of the entity which is the State. It is the public authority, which was created and established by THE COLLECTIVE ACTING IN CONCERT. Similarly, corporate structures such as governments are, in legal terms, an entity considered to be a single legal creature. It has a ‘body’ consisting of the people or citizens making up the group, and a ‘head’ consisting of the public authority or parliament.

So ultimately, it is THE PEOPLE AS A COLLECTIVE that are the “injured party” in these matters. And in this situation, this public authority is acting on behalf of the collective, as in every democratic nation.

Bradley v Barber [2016] QCA 053

“The respondent also submitted that, as to the question that the appellant sought to agitate that Crown Law and/or lawyers instructed by Crown Law could not represent the respondent in the appeal because of a “living man versus living woman” argument, the respondent correctly pointed out that the learned primary judge ruled against the point and the submission made in this Court should be rejected for the same reasons. I agree. There was no substance whatever in the appellant’s argument on this point.

As to whether the matter should properly be regarded as criminal not civil, the learned primary judge ruled against this, correctly. There is no substance in this complaint.”

Click to access bradley-v-barber-2016-qca-53.pdf