Horn v Butcher

[2009] WASC 267

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION:   HORN -v- BUTCHER [2009] WASC 267

CORAM:   McKECHNIE J

HEARD:   30 JUNE 2009

DELIVERED          :   30 JUNE 2009

FILE NO/S:   SJA 1057 of 2009

BETWEEN:   DIETER HANS GUSTAV HORN

Appellant

AND

IAN BUTCHER
Respondent

ON APPEAL FROM:

Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA

Coram  :MAGISTRATE M D WHEELER

File No  :PE 65312 of 2008

Catchwords:

Commonwealth election - Obligation to vote - Whether valid and sufficient reason not to vote - No reasonable prospects of success

Legislation:

Commonwealth Electoral Act 1918 (Cth)

Result:

Leave to appeal refused

Category:    A

Representation:

Counsel:

Appellant:     Mr R L Hooker

Respondent:     No appearance

Solicitors:

Appellant:     Richard Hooker

Respondent:     Director of Public Prosecutions (Cth)

Case(s) referred to in judgment(s):

Horn v Australian Electoral Commission [2007] FCA 1827

Samuels v State of Western Australia [2005] WASCA 193; (2005) 30 WAR 487

1. McKECHNIE J:  The appellant holds strong views about certain aspects of the Commonwealth Electoral Act 1918 (Cth) and its implementation, particularly where the votes are cast in secrecy. Prior to the 2007 election those views led him to take an urgent application before the Federal Court which was heard by McKerracher J and reported as Horn v Australian Electoral Commission [2007] FCA 1827. Without quoting from that decision, in short point, McKerracher J rejected the factual and legal bases that the appellant put forward and rejected them comprehensively.

2. The election was held on 24 November 2007.  It is common cause that the appellant did not vote.  In due course he was charged on complaint under the Commonwealth Electoral Act that, being an elector, he failed to vote without a valid and sufficient reason.  The matter came on for hearing and the evidence was basically that of the appellant in examination and cross‑examination, there being no real dispute as to the elements of the offence.

3. At the conclusion of the hearing, in the course of his reasons, the magistrate said: 'This whole trial has been about the words, "Without a valid and sufficient reason for such failure"'.  He noted that there was an evidentiary burden only and that it was the prosecution's task to satisfy him beyond reasonable doubt that there was no valid and sufficient reason.

4. It is clear that the magistrate was influenced by and had regard to Horn v Australian Electoral Commission.  There is nothing wrong with that.  His Honour was sitting as a magistrate in the exercise of Federal jurisdiction where the facts were similar or the same and had a binding decision of a Federal Court judge.  Precedent required the magistrate to follow that decision where it applied and he did. 

5. Not only did he do that he made findings of fact in the course of his reasons.  I drew to the attention of counsel in the course of argument this morning to several points.  The magistrate ultimately convicted the appellant and fined him $25. 

6. The appellant now seeks leave to appeal with ground 1 and a foreshadowed ground 2:

   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.

7. The appellant has been assisted considerably by the industry of counsel who filed written submissions and advanced every argument that could fairly be advanced on the appellant's behalf.

8. That said, I am completely unpersuaded that either of the grounds has reasonable prospects of success.  The magistrate did not make the errors asserted in ground 1 or 2, particularly the errors of law.  The appellant failed to establish as an evidentiary matter a valid and sufficient reason for not voting.  Even if I am wrong in that, there is no reason to disturb the magistrate's ultimate conclusion that the prosecution had proved its case beyond reasonable doubt. 

9. I am very mindful of the test in Samuels v State of Western Australia [2005] WASCA 193; (2005) 30 WAR 487 at [55], [56] but I am clearly of the opinion that there are no reasonable prospects of success on either ground. The application for leave to appeal is therefore refused.