Trial by combat: is it an option in Australia?

trial by combat

A US man has requested that a judge allow him to settle a legal dispute with his ex-wife in trial by combat. Discontent with modern processes, which the man said had “destroyed him legally”, the man asked the judge to allow him to duel is ex-wife and her lawyer, and requested the judge grant him 12 weeks in order to obtain samurai swords for the battle.

As absurd as it seems, the man is not the first to make such a request. In 2015, a New York lawyer demanded the court to reinstate trial by combat to settle a dispute between two investment firms. While the judge in the matter agreed that trial by combat was technically still available in New York, he declined to order it in the matter.

Is trial by combat available in Australia?

Trial by combat was allowed in Britain until 1818, when the Court of Kings Bench upheld the right of the defendant to a trial by battle on appeal from a murder conviction.

Abraham Thornton was charged with the murder of a woman, but was acquitted by a jury at trial.

Outraged with the acquittal, the woman’s brother, William Ashford, launched a private appeal. When called upon for a plea, Thornton professed that he was not guilty, and was ready to defend the same with his body, before putting on a pair of leather gauntlets and throwing another pair to Ashford. However, Ashford did not accept the challenge, his counsel arguing that his youth and lack of bodily strength was reason for him not to engage in the battle.

Thornton’s counsel argued for his right to engage in trial by combat, noting that due to the “extraordinary and unprecedented prejudice” held by the public against him a fair jury could not be obtained. The court agreed with Thornton, noting that as the evidence against him was not overwhelming, a battle was in fact a permissible option.

However, Ashford again declined the offer to battle, and Thornton was released without further action. The following year, the House of Lords enacted legislation abolishing trial by combat as an option.

Because Australia inherits much of its law from Britain, an argument for trial by battle is unlikely to be successful here.

We can help

If you have been charged with a criminal offence, you can contact the team at Hamilton Janke Lawyers 24/7 by calling 4038 1666.

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