Horn v Butcher

Case [2010] WASCA 67

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

  1. 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.

  2. 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).

  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.

  4. The appellant contended that…

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Horn v Butcher [2010] WASCA 67
Case
[2010] WASCA 67
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CaseChat Overview and Summary

In the case of Horn v Butcher, the appellant, Horn, sought leave to appeal against his conviction for failing to vote in the 2007 federal election without a valid and sufficient reason. The appeal was dismissed by McKechnie J, and Horn now appeals to the Court of Appeal against McKechnie J's decision. The central issue before the Court was whether Horn's belief that the polling booths did not comply with s 206 and s 233 of the Commonwealth Electoral Act 1918 constituted a valid and sufficient reason for his failure to vote. Horn argued that his sincerely held belief, albeit based on a misunderstanding of the law, provided a valid reason for not voting. The Court considered whether Horn's belief, despite being based on a mistaken interpretation of the law, could be considered a valid and sufficient reason under the Commonwealth Electoral Act.

The Court examined Horn's contention that he had a sincerely held belief that the polling booths did not comply with s 206 and s 233 of the Commonwealth Electoral Act. The Court noted that Horn had previously pursued this argument, including an application to the Federal Court in 2007. The Court further considered whether the magistrate erred in finding that the polling booths did provide privacy as required by the Act. The Court found that the magistrate made his own assessment of the polling booths and did not allow the Federal Court's decision to dictate his findings. Additionally, the Court reviewed the legal precedent on what constitutes a valid and sufficient reason for not voting, referencing the High Court's decision in Judd v McKeon. The Court concluded that Horn's belief, even if sincerely held, was based on a misunderstanding of the law and did not amount to a valid and sufficient reason for failing to vote.

The Court of Appeal dismissed Horn's appeal, holding that his belief, based on a mistaken interpretation of the law, did not constitute a valid and sufficient reason for failing to vote. The Court emphasized that the validity of a reason for not voting must be assessed based on the law and the circumstances, and that a sincerely held belief, even if mistaken, does not automatically qualify as a valid reason under the Commonwealth Electoral Act. The Court found that Horn's appeal did not have a reasonable prospect of success, and therefore, leave to appeal was refused. The conviction for failing to vote without a valid and sufficient reason stands affirmed.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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 compartmentsPolling 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 private1.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.

Ratio Decidendi

Legal Principle Established

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. 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. 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.