Culleton v McAlpine
[2020] WASC 243
•26 JUNE 2020
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: CULLETON -v- McALPINE [2020] WASC 243
CORAM: SMITH J
HEARD: ON THE PAPERS
DELIVERED : 26 JUNE 2020
FILE NO/S: SJA 1113 of 2018
BETWEEN: RODNEY NORMAN CULLETON
Appellant
AND
DAVID LEA McALPINE
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram: MAGISTRATE D P SCADDEN
File Number : NG 842 of 2015
Catchwords:
Criminal law - Appeal against conviction - Single judge appeal - Grounds of appeal had no reasonable prospects of success - Leave refused
Legislation:
Commonwealth Constitution (Cth), s 42, s 75(v)
Constitution Act 1889 (WA), s 2(3)
Criminal Appeals Act 2004 (WA), s 2, s 7(1), s 9(1), s 9(2), s 10(2)
Criminal Code (WA), s 378
Criminal Procedure Act 2004 (WA), s 20(3)(a), s 23, cl (3)(2)(a)
Criminal Procedure Rules 2005 (WA), r 60, r 63
Interpretation Act 1984 (WA), s 24
Magistrates Court Act 2004 (WA), s 5, sch 1 cl 4, sch 3, s 36
Parliamentary Privileges Act 1987 (Cth)
Supreme Court Act 1935 (WA), s 13, s 16
Result:
Application in the appeal dismissed
Leave to appeal refused
Appeal dismissed
Representation:
Counsel:
| Appellant | : | No appearance |
| Respondent | : | Ms R N Paljetak |
Solicitors:
| Appellant | : | No appearance |
| Respondent | : | State Solicitor for Western Australia |
Case(s) referred to in decision(s):
Culleton v Elliot [2019] WASC 407
Hedley v Spivey [2012] WASCA 116
Hopes v Australian Securities and Investments Commission [2017] WASCA 108
R v Theophanous [2003] VSCA 78; (2003) 141 A Crim R 216
Rayney v AW [2009] WASCA 203
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
SMITH J:
Procedural background and appellant's application filed in the appeal on 17 October 2019
On 7 September 2018, the appellant lodged an application for leave to appeal against a decision of the Magistrates Court on 30 August 2018 convicting the appellant of an offence of stealing a motor vehicle contrary to s 378 of the Criminal Code (WA), to the value of $27,000 between 13 March 2015 and 11 June 2015.
The programming of hearing the appellant's application for leave to appeal and the appeal were delayed because the appellant did not serve the application for leave to appeal on the respondent until 20 September 2019.[1]
[1] Service certificate, filed 20 September 2019.
On 17 October 2019, the appellant filed an application in the appeal. On 21 November 2019, the Principal Registrar made an order pursuant to rules 60 and 63 of the Criminal Procedure Rules 2005 (WA) that:
(a)the appellant's application lodged on 17 October 2019 in the appeal and the appellant's application for leave to appeal were to be listed for hearing with the appeal; and
(b)required the appellant to lodge a written outline of submissions in support of the applications and the appeal, not less than six weeks before the hearing (5 May 2020).
The applications and the appeal were listed for hearing on 17 June 2020. Despite repeated correspondence to the appellant from the court advising him that he was required to lodge his submissions, the appellant expressly declined to do so.
The appellant attended the hearing on 17 June 2020, but stood in the public gallery and informed the court that he refused to appear and be heard in respect of the applications and the appeal. The basis of his refusal appears to be that he is under the mistaken view of the law that a judge of this court has no jurisdiction to determine any matter before the court, unless the judge has sworn an oath of allegiance to Her Majesty the Queen.
On having being informed by the appellant that he did not intend to appear and be heard, I made an order on 17 June 2020 that the application in the appeal lodged on 17 October 2019, leave to appeal, and the appeal be determined on the papers.
The basis of the appellant's refusal to appear and be heard on the appeal is nonsensical. A judge of this court is not required to swear an oath of allegiance to Her Majesty the Queen.
Pursuant to s 13 of the Supreme Court Act 1935 (WA), before a person who is appointed to an office of judge of this court or performs any function of the office of judge, he or she is required to take an oath or affirmation before the Governor, or some other person authorised for the purpose by the Governor, in the form set out in the Second Schedule of the Supreme Court Act. The oath prescribed in the Second Schedule is as follows:
I, [name], [insert an oath or affirmation according to the Oaths, Affidavits and Statutory Declarations Act 2005] that I will faithfully serve the people and the State of Western Australia in the office of [title of office] of the Supreme Court of Western Australia and I will do right to all manner of people, according to law, without fear or favour, affection or ill will.
In the appellant's application in an appeal, lodged on 17 October 2019, the appellant seeks orders which have no basis in law. As counsel for the respondent points out in written submissions, the orders sought are nonsensical, and appear to relate to an argument that has no basis.
The orders sought (which relate to the decision made by the magistrate to convict the appellant of the offence on 30 August 2018) appears to attempt to raise an argument that the magistrate acted without jurisdiction because her Honour was not exercising the judicial power of the Commonwealth as she had not taken an oath of allegiance to the Queen. The appellant also raises this in grounds 5 and 6 of the application for leave to appeal.
This contention is plainly wrong at law.
Firstly, the appellant was not convicted of an offence created by a law of the Commonwealth, nor did the magistrate exercise any judicial power of the Commonwealth, as her Honour was required to, and did, apply the law of the State of Western Australia.
Secondly, magistrates appointed to the Magistrates Court, like judges of this court, are not required by law to swear an oath of allegiance to Her Majesty the Queen. The oath and affirmation of office of a magistrate is prescribed by s 5, cl 4 of sch 1 and sch 3 of the Magistrates Court Act 2004 (WA). The oath and affirmation of an office of a magistrate is, in effect, the same form as an oath prescribed for judges of this court.
The Court of Appeal have repeatedly dismissed variants of these contentions as being completely devoid of merit, and have described such arguments as frivolous and vexatious.[2] The appellant recently sought unsuccessfully to raise such arguments before the Chief Justice.[3]
[2] Hedley v Spivey [2012] WASCA 116 [7], [20] (McLure P, Buss & Mazza JJA agreeing); Hopes v Australian Securities and Investments Commission [2017] WASCA 108 (Corboy J).
[3] Culleton v Elliot [2019] WASC 407 [10] ‑ [15].
In the application in the appeal, the appellant also appears to seek an order that the court be convened pursuant to s 16 of the Supreme Court Act 1935 (WA) which confers jurisdiction on the court, subject to any other enactment in force.
As the Criminal Appeals Act 2004 (WA) is in force, and by the operative effect of s 7(1) and s 10(2) of the Criminal Appeals Act, a person who is aggrieved by a decision of a court of summary jurisdiction (a magistrate) may appeal to the court by lodging an application for leave to appeal, consequently, s 16 of the Supreme Court Act has no application to a criminal appeal against a decision of a court of summary jurisdiction.
In email correspondence sent to the court by the appellant on 17 June 2020, the appellant claimed that he was unable to appear and be heard on the appeal because the Criminal Appeals Act is invalid.
The basis of this submission appears to be a mistaken contention that the Criminal Appeals Act has no operative effect because it was not duly assented to by the manner and form provision prescribed by s 2(3) of the Constitution Act 1889 (WA), which provides that every bill, after its passage through the Legislative Council and the Legislative Assembly, shall, subject to s 73, be presented to the Governor for assent by or in the name of the Queen and shall be of no effect unless it has been duly assented to by or in the name of the Queen.
In Notes 1 and the Compilation table of the Criminal Appeals Act, as at 27 April 2015, printed by the Government Printer, the date of assent is stated as 23 November 2004. Pursuant to s 2 of the Criminal Appeals Act, the Act came into operation on a day fixed by proclamation. On 31 December 2004, the Criminal Appeals Act was proclaimed in the Gazette, fixing 2 May 2005 as the day on which the provisions of the Criminal Appeals Act would come into operation.[4]
[4] Gazette, 31 December 2004, page 7129.
Section 24 of the Interpretation Act 1984 (WA) relevantly provides:
Where a date appearing on a copy of an Act printed, or purporting to be printed, by the Government Printer, purports to be the date on which the Governor assented to such Act or to a portion thereof, or proclaimed in the Gazette Her Majesty's assent to such Act or portion, that date as so appearing shall be evidence that it was the date on which the Governor so assented, or made known Her Majesty's assent, and shall be judicially noticed accordingly.
For these reasons, an order should be made that the application in the appeal, lodged on 17 October 2019 be dismissed.
The appeal, the grounds of appeal and the result
Leave of the court is required for each ground of appeal.[5] Leave to appeal must not be given on a ground unless the court is satisfied that it has a reasonable prospect of succeeding.[6]
[5] Criminal Appeals Act 2004 (WA) s 9(1).
[6] Criminal Appeals Act 2004 (WA) s 9(2).
To have a reasonable prospect of succeeding, a ground must have a rational and logical prospect of succeeding or a real prospect of success.[7]
[7] Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 [56] (Steytler P, Wheeler & Roberts-Smith JJA).
The appeal notice enumerates a number of grounds of appeal, which appear to variously allege that the Magistrates Court did not have jurisdiction to deal with the charge against the appellant. Having reviewed the affidavit material lodged by the appellant in these proceedings and having read the written submissions filed on behalf of the respondent, it is clear that each one of the appellant's grounds of appeal are without any merit whatsoever and have no prospects of success.
Consequently, it is clear that orders should be made refusing leave to appeal and dismissing the appeal. These are my reasons why I have made this finding.
Ground 1 - no particulars of error
Ground 1 asserts no jurisdiction. However, grounds 2 to 7 appear to set out the particulars of the basis upon which such a finding is said to arise.
Grounds 5 and 6 - form of the oath to be taken by a magistrate not prescribed by the Commonwealth Constitution
In grounds 5 and 6, the appellant contends the Magistrates Court did not have jurisdiction because the magistrate who entered the conviction against him following the trial of the charge, had not sworn an oath under the Commonwealth Constitution.
For the reasons outlined above, clearly grounds 5 and 6 are devoid of any merit and have no prospects of success.
In any event, no form of oath is prescribed in the Commonwealth Constitution as an oath or affirmation to be taken by a magistrate. The only oath or affirmation prescribed in the Commonwealth Constitution is an oath to be taken by a Senator and a Member of the House of Representatives before taking his or her seat in the Parliament of the Commonwealth.[8]
Grounds 2, 3, 7 and 4
[8] Commonwealth Constitution s 42, sch.
In written submissions filed on behalf of the respondent, it is submitted that the remaining grounds can be characterised as falling within one or more of the following categories:
(a)the Magistrates Court did not have jurisdiction to determine the charge because Western Australia Police could not commence the prosecution under s 20(3) of the Criminal Procedure Act 2004 (WA) (ground 2);
(b)the Magistrates Court did not have jurisdiction by operation of s 49 of the Commonwealth Constitution or otherwise as a result of parliamentary privileges (grounds 3 and 7); and
(c)the Magistrates Court did not have jurisdiction because s 35 of the Magistrates Court Act 2004 (WA) is inconsistent with s 75(5) of the Commonwealth Constitution (ground 4).
Ground 2 - the prosecutor named in the prosecution notice as the WA Police authorised by the law of Western Australia
The underlying premise of this ground is that Western Australia Police was the entity that commenced the prosecution against the appellant. As counsel for the respondent points out in her written submissions, this premise is misconceived.
Pursuant to s 20(3)(a) of the Criminal Procedure Act, a prosecution for an offence in a Magistrates Court can only be commenced by certain persons, which include a police officer acting in the course of his or her duties.
The respondent, Senior Sergeant David Lea McAlpine is a police officer. His full name, service number and official title is stated on the prosecution notice as the person who issued the notice. The 'prosecutor' is stated in the notice to be the Western Australia Police Force.
Pursuant to s 23 and cl 3(2)(a) of sch 1 of the Criminal Procedure Act, if a prosecution is commenced by a police officer it is sufficient for a prosecution notice to name the WA Police as the prosecutor.
For this reason, ground 2 is devoid of merit, and has no prospect of success.
Grounds 3 and 7 - the parliamentary privilege grounds have no basis in fact nor law
The gist of the appellant's contentions in grounds 3 and 7 are that in some way he should not have been called upon to answer the charge for which he was convicted in the Magistrates Court because his actions were protected by operation of s 49 of the Commonwealth Constitution.
It is a matter of public record that the appellant is a former Senator of the Commonwealth Parliament.
Section 49 of the Commonwealth Constitution provides that members of the Senate of the Commonwealth Parliament enjoy the powers, privileges and immunities of the House of Commons in the United Kingdom Parliament, as at the establishment of the Commonwealth on 1 January 1901, subject to the power of the Commonwealth Parliament to declare such powers, privileges and immunities.
The appellant was not a Senator at the time he committed the offence for which he now seeks leave to appeal against the conviction. The appellant provided to the court a copy of a notation made by the Deputy of the Governor‑General on 30 August 2016 that the appellant was sworn as a member of the Senate.
The offence for which the appellant was convicted occurred between 13 March 2015 and 11 June 2015.
Consequently, the appellant's offending could not be found to be connected to his parliamentary office, the conduct having occurred before he was elected a Senator of the Commonwealth Parliament.
In any event, the Commonwealth Parliament has declared such privileges by the Parliamentary Privileges Act 1987 (Cth). The Parliamentary Privileges Act only recognises that a Senator is protected from criminal liability that might arise out of statements made in the course of parliamentary debates or proceedings, or from the publication of the document laid before a House of Parliament.[9] There is no basis in the Parliamentary Privileges Act for the broader proposition that a Commonwealth Senator, or a former Senator, has full protection from criminal liability for any conduct, including conduct unrelated to their parliamentary office.[10]
[9] Parliamentary Privileges Act 1987 (Cth) s 11(1) and s 16(1); Bill of Rights 1688 (UK), article 9.
[10] See R v Theophanous [2003] VSCA 78; (2003) 141 A Crim R 216.
For these reasons, grounds 3 and 7 are devoid of merit and thus have no prospects of success.
Ground 4 - establishment of the Magistrates Court not repugnant to s 75(v) of the Commonwealth Constitution
In ground 4, the appellant contends that the Magistrates Court Act cannot be used to establish a lawful court as it is repugnant to s 75(v) of the Commonwealth Constitution.
Section 75(v) of the Commonwealth Constitution provides that in all matters in which a writ of mandamus, prohibition or injunction is sought against an officer of the Commonwealth, the High Court shall have original jurisdiction.
However, s 75(v) has no application to this matter. Firstly, s 75(v) only applies to officers of the Commonwealth. A magistrate who constitutes the Magistrates Court of Western Australia cannot be said to be an officer of the Commonwealth when solely exercising the powers conferred upon the Magistrates Court by the laws of Western Australia, that is, by a law of the Western Australian Parliament and not a Commonwealth law.
In the trial before the magistrate in this matter, her Honour did not exercise any jurisdiction pursuant to any law made by the Commonwealth Parliament. Section 378 of the Criminal Code applied to the appellant to impose criminal liability on him as a law of the State of Western Australia at the time of his offence and at the time of his conviction of the offence.
Further, an appeal against conviction sought to be instituted pursuant to s 10 of the Criminal Appeals Act, is not an application for judicial review of a magistrate's decision by way of writ of mandamus, prohibition or injunction.
For some inexplicable reason, the appellant refers in ground 4 to s 35 of the Magistrates Court Act as being repugnant to s 75(v) of the Commonwealth Constitution. Section 35 of the Magistrates Court Act provides that a writ of mandamus, prohibition or certiorari may not be issued in respect of or directed to a court officer. Clearly, no inconsistency arises, but in any event, as the respondent counsel points out in her written submissions, even if it could be said that s 35 impaired a court's institutional integrity contrary to Chapter III of the Commonwealth Constitution, to the extent that it excludes the specified prerogative writs, this court would be the relevant court affected, not the Magistrates Court, as it is conferred with supervisory jurisdiction of the Magistrates Court, pursuant to s 36 of the Magistrates Court Act.
Section 36 provides a broader statutory alternative to the common law writs of mandamus, prohibition or certiorari against court officers.[11]
[11] Rayney v AW [2009] WASCA 203 [27] (McLure P, Buss & Newnes JJA agreeing).
For these reasons, ground 4 is devoid of merit and thus has no prospect of success.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
NM
Research Orderly to the Honourable Justice Smith26 JUNE 2020
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