Horn v Butcher
[2010] WASCA 67
•15 APRIL 2010
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: HORN -v- BUTCHER [2010] WASCA 67
CORAM: PULLIN JA
NEWNES JA
MURPHY J
HEARD: 25 MARCH 2010
DELIVERED : 15 APRIL 2010
FILE NO/S: CACR 101 of 2009
BETWEEN: DIETER HANS GUSTAV HORN
Appellant
AND
IAN BUTCHER
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram :McKECHNIE J
Citation :HORN -v- BUTCHER [2009] WASC 267
File No :SJA 1057 of 2009
Catchwords:
Electoral law - Commonwealth - Failure to vote - Whether valid and sufficient reason for failure to vote - Wrong view of the law - Persisting in wrong view after Federal Court decision
Legislation:
Commonwealth Electoral Act 1918 (Cth), s 206, s 233
Result:
Leave to appeal refused on all grounds
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant: Mr R L Hooker
Respondent: Mr D W L Renton & Mr D P Jones
Solicitors:
Appellant: Richard Hooker
Respondent: Director of Public Prosecutions (Cth)
Case(s) referred to in judgment(s):
Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172
Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; (2000) 203 CLR 194
Horn v Australian Electoral Commission [2007] FCA 1827; (2007) 163 FCR 585
Judd v McKeon (1926) 38 CLR 380
Samuels v State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
JUDGMENT OF THE COURT: This is an application for leave to appeal from the decision of McKechnie J who refused leave to appeal against the decision of Wheeler SM made on 18 May 2008 convicting the appellant of a charge that:
Being an elector within the meaning of the Commonwealth Electoral Act 1918 did, contrary to the provisions of s 245(15) of the said Act, fail to vote at the election held on 24th November 2007 without a valid and sufficient reason for such failure.
The appeal to McKechnie J was pursuant to s 7(1) of the Criminal Appeals Act 2004 (WA). Section 9(1) states that the leave of the Supreme Court is required for each ground of appeal. Section 9(2) provides that the Supreme Court must not give leave to appeal on a ground of appeal unless it is satisfied the ground has a reasonable prospect of succeeding. As to which, see Samuels v State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473. McKechnie J's refusal of leave to appeal on all grounds had the consequence that the appeal was taken to have been dismissed: s 9(3).
Section 16(2) of the Criminal Appeals Act states that a party aggrieved by a decision made in the appeal by a single judge of the Supreme Court, sitting in its General Division, refusing leave to appeal, may appeal to the Court of Appeal against the decision. Section 18, in effect, applies s 9 (with necessary changes) to and in respect of the appeal to this court.
The appellant contended that he had a valid and sufficient reason why he failed to vote at the November 2007 election, namely that s 206 and s 233(1)(a) of the Commonwealth Electoral Act 1918 (Cth) had not been complied with, or if there had been compliance, then he nevertheless had a genuine and sincerely held view that the sections had not been complied with. Those sections read:
206Separate voting compartments
Polling booths shall have separate voting compartments, constructed so as to screen the voters from observation while they are marking their ballot‑papers, and each voting compartment shall be furnished with a pencil for the use of voters.
233Vote to be marked in private
1.Except as otherwise prescribed the voter upon receipt of the ballot‑paper shall without delay:
(a)retire alone to some unoccupied compartment of the booth, and there, in private, make his or her vote on the ballot‑paper;
(b)fold the ballot‑paper so as to conceal his or her vote and:
(i)if the voter is not an absent voter - deposit it in the ballot‑box; or
(ii)if the voter is an absent voter - return it to the presiding officer; and
(c)quit the booth (s 233).
The appellant has been pursuing his argument about non‑compliance with s 206 and s 233 for some time. It is not necessary to relate the full history.
On 7 September 2007 the appellant wrote to the Australian Electoral Commission (AEC) seeking to inspect polling booths. This request was refused by a letter sent to the appellant from the AEC's chief legal officer on 18 September 2007.
In November 2007, with a federal election pending, the appellant made an urgent application to the Federal Court, which was heard by McKerracher J: Horn v Australian Electoral Commission [2007] FCA 1827; (2007) 163 FCR 585. The applicant sought a declaration that the respondent (the AEC), which was responsible for administering the conduct of federal elections, had failed to provide polling booths for use by voters that complied with s 206 and s 233 of the Commonwealth Electoral Act. The appellant contended that the polling booths were not constructed and arranged in such a manner as to screen voters from observation while marking their ballot papers, so as to allow a voter to mark his or her vote on the ballot paper in private.
McKerracher J recorded the appellant's argument concerning the proper construction of the Act. It was, in effect, that the two sections required a secret ballot. It was submitted that this meant preserving secrecy about how a vote had been exercised, but also that no‑one should be able to observe the voter while voting, even if an observer could not see how the vote itself was being exercised. His Honour disagreed with the argument. He said:
In my view s 206 is not intended to prevent the voter from being observed in all ancillary and preparatory steps to making the ballot … [67]
and that 'in private', where referred to in s 233(1)(a):
relates to concealing the way in which the voter has voted on the ballot paper as also referred to in s 233(1)(b). Consistently with this … the screening of voters from observation referred to in s 206 is intended to ensure privacy of the way in which voters have marked the ballot paper (68).
McKerracher J also made findings of fact about whether voting compartments which were described to him and which will be referred to below, afforded such privacy. On 23 November 2007, the appellant's application for a declaration was dismissed. The election was held on 24 November 2007 and the appellant failed to vote.
On 18 February 2008, the AEC served a notice on the appellant concerning his failure to vote. The notice gave the appellant three options:
(1)if the appellant did vote, to provide details, so that the AEC's records could be amended; or
(2)if the appellant did not vote, to provide, if there was one, a valid and sufficient reason in writing to the Divisional Returning Officer, who would determine the adequacy of the reason and inform the appellant of his decision; or
(3)pay the $20 penalty for failing to vote to the AEC by 14 March 2008.
The appellant chose the second option. On 18 March 2008, he wrote to the Divisional Returning Officer stating that he had a valid reason for not voting at the November 2007 Commonwealth election. The appellant contended that he failed to vote because at the Manjimup Town Hall where he went to vote on 24 November 2007, he 'was not screened from observation' while marking his ballot paper; and that he was unable to 'retire alone' to an unoccupied voting compartment to mark his ballot paper in private. The appellant claimed that he then drove to Walpole and when he arrived at 5.50 pm, he observed the same polling booths were set up with open ended voting alcoves as he had witnessed in Manjimup. The letter further claimed that s 206 of the Commonwealth Electoral Act required that polling booths have separate voting compartments so as to screen the voters from observation and that s 233(1) required the provision of compartments where voters could retire to mark their ballot in private. The letter claimed that the polling booths that he saw at Manjimup and Walpole did not comply with these provisions, and therefore he had a valid reason for not voting at the November 2007 election.
The appellant is charged
On 24 March 2008 the appellant was charged with failing to vote at the election on 24 November 2007 without a valid and sufficient reason. The prosecution tendered documents at the trial before Wheeler SM on 18 May 2008, which established that the appellant was an elector and that he failed to vote at the election held on 24 November 2007.
The appellant's evidence
The appellant gave lengthy testimony at trial about the fact that he was born near Berlin, that he saw the occupation of Germany after the war, saw the construction of the Berlin Wall, that he visited relatives in East Berlin and gained information about the Stasi and the fact that they spied on people, that he could not recall voting while he lived in Germany, that voting in Germany was not compulsory, and that when he came to Australia he held the view that it was fundamental that there should be free elections with secret ballot voting. He testified that on 24 November 2007 he observed voting compartments at Pinjarra, Waroona, Donnybrook, Manjimup and Walpole. In his view, none of the voting compartments at these locations complied with s 206, in effect because he would not be screened from observation while he was in the compartment. He also expressed the view that s 233 had not been complied with because he could not mark his ballot paper in private if the compartment did not have a door to close behind him. He testified that, in his view, McKerracher J was 'wrong'. The appellant tendered three polling compartments which became an exhibit.
The magistrates reasons for decision
The magistrate found that it had been proved beyond reasonable doubt that the appellant was an elector, that he failed to vote at the election held on 24 November 2007, and that the 'whole trial' had been about whether it had been proved that the failure was without 'valid and sufficient reason'. His Honour correctly observed that the only burden the appellant bore was an evidential burden, and that the legal burden of proof remained on the prosecutor to establish that there was no valid and sufficient reason for failing to vote.
His Honour referred to the evidence that the appellant gave about his life in Germany and to the appellant's evidence that voting was not compulsory in Germany. In response to that evidence, his Honour, perhaps apprehending that the appellant's evidence that he thought elections should be 'free' meant that elections should not be compulsory, referred to s 245(1) of the CommonwealthElectoral Act, and observed that it imposed a duty on electors to vote at each election.
His Honour then turned to the appellant's view that he held concerning s 206 and s 233 of the Act and noted that the argument put before him was the same argument which had been put before McKerracher J, concerning the construction of the two sections. His Honour correctly concluded that he was bound by McKerracher J's view of the law.
His Honour then turned to the description of the booths which were the subject of the proceedings before McKerracher J. His Honour had referred, in his reasons, to the measurements of the depth, width and height of the compartments, and found that the compartments permitted a person to vote in private. The compartments tendered as exhibits in the proceedings before the magistrate were examples of those used at the election. The magistrate found, in effect, that they corresponded with the compartments described by McKerracher J. The magistrate referred to McKerracher J's finding that the combined effect of the measures usually taken during elections and the use of the voting compartments was that there was little risk that a voter taking ordinary steps to mark the ballot paper, could have the marking viewed by another person. The magistrate said that 'having seen the actual booths' he 'wholeheartedly' agreed. The magistrate also found on the facts that in the circumstances prevailing at the Manjimup polling booth the appellant would have been able to vote in private, and that the appellant had not voted because he had fixed his position and 'was going to be intractable and not budge'.
The magistrate also noted that the appellant contended that McKerracher J's decision was 'wrong'. His Honour found that the appellant did not have a valid and sufficient reason for his failure to vote.
The appeal to the General Division of the Supreme Court
The grounds of appeal the appellant foreshadowed if leave to appeal were granted by McKechnie J were:
1.The primary court erred in law in failing properly to apprehend the Appellant's reasons for not voting at the Commonwealth election of 24 November 2007, and accordingly in failing to make any, or any sufficient, findings of fact about those reasons in light of the statutory scheme under the Commonwealth Electoral Act 1918 (Cth) (the Act), which failures deprived the Appellant of a reasonable chance of an acquittal.
In particular, the primary court:
1.1Failed to construe, properly or at all, the statutory provisions that the Appellant reasonably contended were at material times breached by the Respondent, and/or the Executive Government of the Commonwealth, namely ss.206 and 233(1) of the Act (which reasonable contentions of statutory breach were relevant to whether the Appellant had a valid and sufficient reason for failing to vote).
1.2Misconstrued the Act in that it:
(a)wrongly approached its task of fact-finding on the basis that an elector has a 'duty' to vote, unqualified by any recognition of the range of reasons that may give rise to a 'valid and sufficient reason' for failing to vote; and
(b)failed to recognise that a sincerely held and consistently pursued position concerning the absence of a secret ballot, including the assertion of breaches of ss.206 and 233(1) of the Act, is capable of giving rise to such a 'valid and sufficient reason'.
1.3Failed properly to make findings concerning the voting compartments tendered in evidence in light of the Appellant's contention that the compartments (which were materially the same as the compartments in use at the Commonwealth election of 24 November 2007) do not facilitate a secret ballot.
1.4Allowed an extraneous and irrelevant matter to guide it, namely the decision of McKerracher J in Horn v Australian Electoral Commission [2007] FCA 1827; (2007) 163 FCR 585, when that decision, and the factual findings of McKerracher J, did not absolve the primary court from making its own factual findings on the evidence before it as to whether the Appellant had a valid and sufficient reason for failing to vote.
1.5Despite having initially adverted to the operation of the burden of proof, failed properly to recognise and apply the legal burden of proof on the Respondent to negative beyond reasonable doubt the existence of a valid and sufficient reason (the Appellant having met the evidential burden on him in relation to that excuse).
2.The primary court erred in fact in failing to find that the voting compartments in use at the Commonwealth election:
(a)were not constructed so as to screen voters from observation while they are marking their ballot papers; and
(b)did not allow voters to, in private, mark their votes on their ballot-papers
or, alternatively, that an elector might reasonably reach the conclusions at (a) and (b) and thereby have a valid and sufficient reason for not voting.
McKechnie J refused leave to appeal because his Honour was 'completely unpersuaded that either of the grounds had reasonable prospects of success' (s 9(2) Criminal Appeals Act); and failed the test of Samuels [55]-[56]. His Honour held that the trial magistrate had not made the errors asserted by the appellant in grounds 1 and 2 set out above. Further, McKechnie J held that even if he was wrong, there was no reason to disturb the finding by the trial magistrate, that the prosecution had proved its case beyond reasonable doubt, that the appellant did not have a valid reason for not voting at the November 2007 election.
Appeal to this court
The appellant now appeals to the Court of Appeal against the decision of McKechnie J. The grounds of appeal read:
1. The learned primary Judge erred in law in failing to find that the trial Magistrate erred in failing properly to apprehend the appellant's reasons for not voting at the Commonwealth election of 24 November 2007, and accordingly failing to make any, or any sufficient, findings of fact about those reasons in light of the statutory scheme under the Commonwealth Electoral Act 1918 (Cth), which failure deprived the appellant of a reasonable chance of acquittal;
and in particular, erred in law in failing to find that the trial Magistrate:
1.1misconstrued the Act in that he:
(a)wrongly approached its task of fact-finding on the basis that an elector has a 'duty' to vote, unqualified by any recognition of the range of reasons that may give rise to a 'valid and sufficient reason' for failing to vote;
(b)failed to recognise that a sincerely held and consistently pursued position concerning the absence of a secret ballot, including the assertion of breaches of ss 206(1) and 233(1) of the Act, is capable of giving rise to such a 'valid and sufficient reason'.
1.2Failed to properly make a finding concerning the voting compartments tendered in evidence in light of the appellant's contention that the compartments (which were materially the same as the compartments in use at the Commonwealth election of 2007) do not facilitate a secret ballot.
1.3Allowed an extraneous matter, namely the decision of McKerracher J in Horn v Australian Electoral Commission [2007] FCA 1827; (2007) 163 FCR 585 to dictate the outcome of the proceedings before him, when that decision, and the factual findings of McKerracher J, did not absolve the trial Magistrate from making his own factual findings on the evidence before him as to whether the appellant had a valid and sufficient reason for failing to vote.
2.The learned primary judge erred in law in failing:
2.1properly to make findings of fact about the voting compartments in use at the Commonwealth election in light of the appellant's reason advanced for not voting; and
2.2 to find that the trial Magistrate erred in fact in failing to find that the voting compartments in use at the Commonwealth election:
(a)were not constructed so as to screen voters from observation while they are marking their ballot papers; and
(b)did not allow voters to, in private, mark their votes on their ballot papers
or, alternatively, that an elector might reasonably reach the conclusions at (a) and (b) and thereby have a valid and sufficient reason for not voting.
The grounds are difficult to follow. When converted into allegations of errors of law or fact, as required by r 32(4)(b)(i) of the Supreme Court (Court of Appeal) Rules 2005 (WA), there appear to be four points raised, and they are:
(a)that the magistrate erred in law in concluding that because the appellant had a duty to vote, he did not have a valid and sufficient reason for failing to vote (ground 1.1(a));
(b)the magistrate erred in law by failing to make a necessary finding, namely whether the compartment facilitated a 'secret ballot' (grounds 1.2, 2.1 and 2.2);
(c)the magistrate erred in law by allowing the decision of McKerracher J concerning whether the compartments afforded privacy when voting, to dictate the finding the magistrate should make, rather than the magistrate making his own decision on the facts before him (ground 1.3); and
(d)that the magistrate erred in law in finding that a sincerely held and consistently pursued position concerning the absence of a secret ballot, based on an assertion about there being breaches of s 206(1) and s 233(1) of the Commonwealth Electoral Act, was not capable of giving rise to a valid and sufficient reason for failing to vote (ground 1.1(b)).
In relation to each of these grounds, the contention was that McKechnie J erred by concluding that the ground had no reasonable prospect of success. The recast grounds are referred to below as the grounds of appeal.
Ground (a)
The magistrate did not reason that because the appellant had a duty to vote, that he did not have a valid and sufficient reason for failing to vote. Instead, the reference to the appellant's duty to vote was to deal with the appellant's lengthy evidence about his life in Germany and the fact that in Germany there was no compulsory voting. It is quite clear that once the magistrate had disposed of that point, he went on to consider the other arguments raised. This ground has no reasonable prospect of success.
Ground (b)
The contention that the magistrate erred by failing to make a necessary finding, namely whether the compartment facilitated a 'secret ballot' must be dismissed. The magistrate did not fail to make a finding on the point. He made a finding that the compartment did allow voting in private, as required by the CommonwealthElectoral Act (as construed by McKerracher J).
During his oral submissions, counsel for the appellant invited members of this court to examine the compartments and form their own view about whether a person could vote in private in the compartments. An appeal to this court is by way of rehearing if leave is granted, but the court may only exercise its appellate powers if it is satisfied there was error on the part of the primary decision‑maker: Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; (2000) 203 CLR 194; Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172. The submission of counsel did not assert error by the magistrate, but merely invited this court to reach a different view from the magistrate. The oral submission must be rejected. This ground has no reasonable prospect of success.
Ground (c)
The contention that the magistrate allowed the decision of McKerracher J to dictate the outcome in the case before him must be dismissed. The magistrate noted, in effect, that the compartment described by McKerracher J was a description of the compartments which were tendered as evidence in the case before the magistrate. The magistrate made his own finding that the compartments and the circumstances prevailing at Manjimup did afford privacy when voting. The magistrate did not allow the decision on the facts made by McKerracher J to dictate the finding the magistrate would make. He merely noted that he reached the same conclusion as McKerracher J and expressed his agreement with McKerracher J's conclusion. This ground has no reasonable prospect of success.
Ground (d)
Finally, there is no merit in the argument that because the appellant had a belief, opinion or position said by the appellant to be a 'sincerely held and consistently pursued position', but which was based on his wrong view of s 206(1) and s 233(1) of the Commonwealth Electoral Act, was capable of giving rise to a valid and sufficient reason for failing to vote.
What constitutes a 'valid and sufficient reason' for not voting is a matter which has been left for the courts to decide: Judd v McKeon (1926) 38 CLR 380, 389 (Higgins J). Knox CJ, Gavan Duffy and Starke JJ did not attempt to describe all circumstances which would provide a valid and sufficient reason for not voting, but they did say that the individual views of the appellant amounting to no more than an expression of an objection to the social order of the community in which he lives did not amount to a valid and sufficient reason for refusing to vote (at 389). Isaacs J did express a view about the meaning of the expression 'valid and sufficient reason', but at a very high level of generality. He said:
In my opinion, a 'valid and sufficient reason' means some reason which is not excluded by law and is, in the circumstances, a reasonable excuse for not voting. If it be an open challenge to the very essence of the enactment, it is excluded by law and not valid (386).
Higgins J, who dissented on the facts, expressed the view that:
'[V]alid' may fairly be taken as referring to the character of the reason, and 'sufficient' is referring to the strength of the reason under all the circumstances (381).
Higgins J then gave, as an example, an elector who said that he did not go to vote because his wife was ill, 'that being the character of the reason which would commend itself to most people', but that if the illness merely consisted of 'an ordinary catarrh', the reason would hardly be called sufficient.
Rich J said that:
The reason must be valid - sound in law and fact; and if valid, must be sufficient - substantial and satisfactory in the absence of countervailing answer (390).
The effect of this case is that a decision must be made on a case by case basis, whether there is a valid or sufficient reason. The cases referred to by the parties did not suggest otherwise. The words 'valid' and 'sufficient' are not terms of art, but bear their ordinary meaning.
The word 'valid' in ordinary meaning may mean 'sound, just, or well‑founded' or 'having force, weight or cogency; authoritative' or 'legally sound, effective or binding; having legal force; sustainable in law': Macquarie Dictionary (3rd ed revised, 2003). The word 'sufficient', in ordinary meaning, means 'enough or adequate': Macquarie Dictionary.
As mentioned above, the appellant holds a view that s 206 and s 233 of the Commonwealth Electoral Act are not being complied with. The view the appellant holds is contrary to law and contrary to the reasons of McKerracher J, who spelled out for the appellant why his view is wrong. There was no attempt made to argue that McKerracher J's decision was wrong and no appeal has been instituted by the appellant against that decision.
The appellant's wrong view of the law affords no valid reason for not voting. The appellant's view about the statutory provisions is unsound, not well‑founded, has no force, weight or cogency, lacks authority and is not sustainable in law. In effect, the appellant makes 'open challenge to the very essence of the enactment' which Isaacs J in Judd said was not a valid reason. The magistrate was therefore correct to find that there was no valid or sufficient reason for failing to vote. This ground has no reasonable prospect of success.
Conclusion
McKechnie J did not err when he concluded that there were no reasonable prospects of the grounds of appeal succeeding. There is no reasonable prospect of any ground succeeding in this court.
The result is that leave to appeal should be refused in relation to all grounds. The consequence is that the appeal is dismissed. See s 9(3) of the Criminal Appeals Act.
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