Kevin Buzzacott v The Queen

[2005] ACTCA 7

KEVIN BUZZACOTT v THE QUEEN [2005] ACTCA 7 (1 March 2005)

Supreme Court Act 1933 (ACT), s 37J
Judiciary Act 1903 (Cth), s 40
Human Rights Act 2004 (ACT), s 14
The Constitution (Cth), s 116

R v Elliott (1996) 185 CLR 250

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. ACTCA 33-2004
No. SCC 72 of  2004

Judge:  Gray J
Court of Appeal of the Australian Capital Territory
Date:            1 March 2005

IN THE SUPREME COURT OF THE  )   No. ACTCA  33-2004
  )  No. SCC 72 of  2004
AUSTRALIAN CAPITAL TERRITORY  )
  )

COURT OF APPEAL  )

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN: KEVIN BUZZACOTT

Appellant

AND: THE QUEEN

Respondent

ORDER

Judge:  Gray J
Date:  1 March 2005
Place:  Canberra

THE COURT ORDERS THAT:

1. The application for leave to appeal be dismissed.

IN THE SUPREME COURT OF THE  )   No. ACTCA  33-2004
  )  No. SCC 72 of  2004
AUSTRALIAN CAPITAL TERRITORY  )
  )

COURT OF APPEAL  )

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN: KEVIN BUZZACOTT

Appellant

AND: THE QUEEN

Respondent

Judge:  Gray J
Date:  1 March 2005
Place:  Canberra

REASONS FOR JUDGMENT

1. Kevin Buzzacott (the applicant) has been committed for trial in the Supreme Court of the Australian Capital Territory on a charge that on 27 January 2002, he dishonestly appropriated property namely, a bronze coat of arms belonging to the Commonwealth of Australia with the intention of permanently depriving the Commonwealth of that property.

1. The prosecution alleges that the applicant removed a bronze Australian Coat of Arms from a pillar at the front of Old Parliament House and took it to the Aboriginal Tent Embassy. 

The preliminary hearing

1. By way of a preliminary hearing, Connolly J heard argument on certain points of law concerning the charge.  In particular, the applicant argued that the Supreme Court of the Australian Capital Territory lacked jurisdiction to deal with the matter as the courts and governments of Australia were not entitled to exercise sovereignty over the descendents of the original inhabitants of Australia prior to European settlement from 1788.  The submission is that the Commonwealth of Australia has no lawful jurisdiction over the original peoples of geographic Australia nor over their lands and laws.  Further, the applicant sought that Connolly J disqualify himself from sitting on the matter because of his association, and indeed that of all Australian Judges, with the crime of genocide which denies jurisdiction to the government and the Australian courts in respect of the original inhabitants.  Other ancillary matters dealt with by Connolly J included a refusal to permit the intervention of persons of Aboriginal descent or to permit evidence to be given of what is alleged to be genocide.  There was also a complaint made about the refusal of the provision of transcript and documents to the applicant.

The direction appealed from

1. Connolly J was of the view that the arguments put forward had no substance and he directed that the matter should proceed in the normal manner for setting down for trial.

1. The applicant seeks leave to appeal to the Court of Appeal from that direction.

1. On the face of it, such a direction is no more than that which it purports to be namely, a matter that the proceedings continue.  As such it does not involve a final determination of any rights.  The applicant’s submissions put to me on the appeal appear to recognise this aspect arguing that the effect of Connolly J’s ruling is to put the applicant through the stress and trauma of a trial, but it will not deny him subsequently pursuing the points that he has raised concerning jurisdiction and bias by way of appeal should he be convicted of the offence charged.

Aspects concerning leave to appeal

1. Because the decision is interlocutory, as I think that it is clearly conceded that this decision is, the question of leave to appeal is a matter for a single judge (see s 37J Supreme Court Act 1933 (ACT)). The real issue is whether I should deal with the application before me sitting as a single judge or whether the question of leave should be referred by me to the Court of Appeal constituted by three judges.

1. It is important for the efficient conduct of business before the Court of Appeal that matters for which no justification can be shown to refer it to a bench of three judges, be dealt with by a single judge. The anxious consideration that I give to this matter is whether the applicant can demonstrate any justification that I should take that course rather than determining the matter in the manner that s 37J of the Act allows.

1. It is not without significance that when these proceedings were in the Magistrates Court, the applicant sought their removal pursuant to s 40 of the Judiciary Act 1903 (Cth) to the High Court. The High Court refused that application and referred in particular to the court’s reluctance to disturb the hearing of criminal proceedings (see R v Elliott (1996) 185 CLR 250 at 257). No real reason has been advanced as to why a similar approach should not be taken with respect to the present application, to have the proceedings reviewed in the Court of Appeal at this stage.

1. I accept that the arguments which the applicant sought to place before me concerning the effect of the enactment by the Commonwealth Parliament of the crime of genocide and what was said to be its effect upon the sovereignty of the Commonwealth Parliament and the exercise of jurisdiction by its courts and the courts of the States and Territories was not articulated to the High Court.  Nor was the argument on what are said to be the associated question of whether the judges of all Australian Courts are tainted by bias as a consequence. However, the High Court authorities referred to by Connolly J in his judgment bind him, myself and the Court of Appeal to reject those arguments put, in so far as they assert sovereignty in the “Original Peoples of geographic Australia”. If the argument that the applicant wishes to put on this aspect is to succeed, it will only succeed if the High Court allows it. In light of that, no justification is put to me as to why the Court of Appeal should entertain the argument at this stage of the proceedings.

The proposed grounds of appeal

1. The matter proceeded before me on the affidavit of the applicant which contained the arguments put to Justice Connolly, which he did not accept.  It became apparent to me that the affidavit did not, with any precision, identify where Justice Connolly had erred in not accepting those arguments.  Accordingly, I invited Mr Lindon, counsel who appeared for the applicant, to file draft grounds of appeal so that I could see whether I might have misapprehended or overlooked any matter which might support a proper ground of appeal.  The grounds of appeal that the applicant would wish to pursue as are set out in an email that the court received prior to the last hearing of this matter on 3 February 2005. They  are in these terms,

Grounds of appeal

1.          NO JURISDICTION

2.          JUDICIAL BIAS

3.          OTHER GROUNDS

1.  NO JURISDICTION

His Honour erred in rejecting the accused’s submissions that the court has no jurisdiction to proceed to trial on this matter.

1.1   NO JURISDICTION WITHOUT CONSENT

The Supreme Court of the Australian Capital Territory of the Commonwealth of Australia lacks lawful jurisdiction to deal with the accused because:

(i)         neither “the Queen” nor “the Commonwealth of Australia” can obtain or maintain any lawful jurisdiction without the consent of the Original Peoples of geographic Australia;  and

(ii)        no such consent has ever been sought or given.

1.2   NO JURISDICTION BY GENOCIDE

Further, no lawful jurisdiction can be obtained or maintained by the criminal offence of “genocide” - - as defined in Division 268 of the Criminal Code of the Commonwealth of Australia.

[Division 268 was inserted into the Criminal Code by the Parliament of the Commonwealth of Australia by legislation entitled The International Criminal Court (Consequential Amendments) Act 2002 which entered into force on 24 September 2002.]

PARTICULARS OF GENOCIDE

(a)        The relevant acts of genocide have been committed daily since 24 September 2002 (when Division 268 entered into force) and consist of the deliberate failure, refusal and OMISSION by top government officials to obtain or even seek the freely-given fully-informed CONSENT without duress or undue influence of the Original Peoples of geographic Australia.

(b)        Overwhelming, undeniable and irrefutable evidence of the necessary genocidal “intent to destroy” exists in the official public records of the Commonwealth of Australia – particularly in the official court records of top judicial officers of the Commonwealth of Australia who have consistently ruled in court that:

(i)         no government official must obtain or even seek such consent;  and

(ii)        no court has jurisdiction to rule on the lawfulness of the continuing failure, refusal and omission to seek such consent;  and

(iii)       no court has jurisdiction to in any way allow any challenge to the purported “acquisition of sovereignty” of the Commonwealth of Australia or its claimed sovereign right to usurp the Laws of the Original Peoples of Australia and to attempt to occupy Their Lands.

(c)        The top judicial officers are clearly complicit in the crime of genocide.

(d)        The three judge-made doctrines set out in paragraph 1.2(b) above are not specifically reflected in any legislation or statutory enactment of the Commonwealth of Australia.

(e) Further, all such judge-made doctrines are inconsistent with, and necessarily overruled by, legislation in the form of Division 268 of the Criminal Code. To paraphrase Justice Connelly [sic] (at paragraph 15 of his judgment) the enactment of the offence of genocide allows, indeed requires, an Australian domestic court to question the basis of sovereignty within Australia.

2.          DOMESTIC JUDICIAL BIAS AND INTERNATIONAL JUDGES

2.1       His Honour erred in failing to rule that non-Aboriginal beneficiaries of the continuing genocide are disqualified from sitting as judicial officers in this matter on the grounds set out in paragraphs 1.1 and 1.2 above and in the written submissions of the accused as provided to Justice Connolly.

2.2       Further, the Commonwealth of Australia is demonstrably unwilling and unable to investigate and prosecute non-Aboriginal persons for the Aboriginal genocide.

(i) Accordingly, pursuant to the International Criminal Court Act 2002, the Prosecutor or the International Criminal Court now has jurisdiction to prosecute key perpetrators in the executive, the legislature and the judiciary.

(ii)        It is important for justice for both the perpetrators and the victims that independent international judges are appointed to domestic courts in serious genocide claims such as this.

(iii)       This is a matter of fundamental human rights

- - A.C.T. Human Rights Act 2004

- - A v Secretary of State, 16 December 2004, House of Lords, [2004 UKHL 56]

GROUNDS

3.1  ABORIGINAL INTERVENORS AND WITNESSES

(a)        Justice Connolly refers in his judgement to the genocide cases brought by Wadjularbinna Nulyarimma of the Gungalidda and Isabel Coe of the Wiradjuri - - see paragraphs 13 and 14 of his judgment for example - - but erred in refusing to allow them to intervene or to give evidence of genocide.

(b)        This is typical of the continuing colonial process of denial and shows why an international judge is required for justice to be seen to be done.

(c)        Detailed arguments on intervenors and witnesses were provided in the written submissions to Justice Connolly.

3.2TRANSCRIPT

His Honour erred in refusing to direct that a copy of the transcript of the hearing be provided to the accused.

(a)        The estimated cost of transcript for the three hour hearing is $600-$800.

(b)        Clearly the accused, an elderly indigent indigenous person with health problems and a pro bono counsel, should not have to find this sum.

(c)        Further, Justice Connolly well knew this was not a routine legal argument but a fundamental and history-making shift in the legal paradigm of genocide-prevention which could well end up in both the International Criminal Court and the International Court of Justice.

(d)        Transparency and accountability requires a transcript of the hearing. Counsel for the accused should have had access to the transcript to prepare the further written submissions which Justice Connolly gave leave at the hearing to file within seven days.

(e)        A copy of the transcript is also required for the Appeal Papers.

3.3.EMAIL

His Honour erred in refusing to direct the Public Prosecutor to provide the pro bono counsel for the accused with copies of documents by email rather than post as requested by counsel for the accused for time, cost and reliability reasons as set out in writing to the prosecutor (and tendered in affidavit form at the hearing).

SUBSTANTIAL MISCARRIAGE OF JUSTICE

The matters of law and principle set out in paragraphs 1 and 2 above constitute serious errors which will cause a serious injustice to the accused - - an elderly indigenous man with health problems residing at Lake Eyre and elsewhere (a long way from Canberra) should not be forced to undergo the stress of a jury trial when all the facts needed for a determination of the legal issues of no-jurisdiction and judicial-disqualification are already before the court.

The very reasons why Justice Connollly [sic] decided to sever these issues from the actual jury trial and hear and determine them as preliminary points before any jury proceedings commence simply corroborates his view that no fact-finding on these matters will be done by the jury.

It is a substantial miscarriage of justice for the accused to have to go to jury trial on these legal issues - - if the appeal is upheld, then the jury trial will not proceed at all (no-jurisdiction) or only after some delay whilst an international judge is appointed (judicial-disqualification).

Matters arising from the proposed grounds of appeal

1. On the question of jurisdiction it can be seen that apart from the basic assertion of error on the part of Connolly J, the proposed grounds of appeal do not offer any reason why Connolly J was in error in concluding as he did,

This court cannot bring into question the basic principle of law underlying its own existence that there is but one sovereignty over the geographic entity of Australia and that the exercise of that sovereignty is governed by the Constitution of Australia so that in the case of an offence allegedly committed within the Australian Capital Territory this court has jurisdiction to try the case no matter what the racial or ethnic origin of the accused.

Indeed, as I have earlier said, his Honour was bound, just as the Court of Appeal would be bound by principle and by decisions of the High Court in respect of such principles to so conclude.

1. Further, the grounds proffered for disqualification of Connolly J and any other non-Aboriginal persons in respect of what was put as the case for bias are dependant upon the arguments that have been put forward as to why the Court should not exercise jurisdiction in this matter. References that are made in the proposed grounds of appeal to the International Criminal Court and to fundamental human rights do not provide grounds for demonstrating that Connolly J erred in rejecting the arguments that were put to him on this aspect.

2. Each of the other matters relied upon in the proposed grounds of appeal that concern the Aboriginal intervenors and witnesses, the provision of transcript and the email service of documents, are not matters which raise any question of substance and are interlocutory matters of an essentially procedural character. No good reason has been advanced why they should be the subject of appellate review and, in my view, to do so would be an unjustifiable interference in the conduct of the trial. Should it be shown that their resolution would result in a miscarriage of justice, the ordinary appeal procedures are available but no material has been put to me to suggest that what Connolly J has done or might do in respect of these matters would lead to such a result.

3. I take the matters referred to in the proposed grounds of appeal under the heading “substantial miscarriage of justice” as predicated upon the premise that the Court of Appeal will uphold the applicant’s contentions on jurisdiction and disqualification of non-Aboriginal judicial officers. As I have said, no persuasive reason has been advanced as to why these contentions would succeed in the Court of Appeal. As well, in my view, the assertions made do not disclose any matter which might lead to a substantial miscarriage of justice in circumstances where the accused is being offered a fair trial in respect of the issues concerning the alleged offence.

The resumed hearing of the application for leave to appeal

1. On the resumed hearing of this matter on 3 February 2005, Mr Lindon submitted two affidavits of Wadjularbinna Nulyarimma, dated 2 February 2005 and 13 June 2003, which were received by myself for the purposes of determining their relevance to the current proceedings. Mr Lindon requested that the information contained within the stated affidavits be kept secret as they contained sacred information which was yet to be approved for public dissemination by the Gungalidda elders and further that the material be sealed and viewed only by myself and Mr White. Accordingly, I ordered that the information be sealed and placed in an envelope marked not to be opened except by my express order and, subject to Mr Lindon informing me at any later stage, that it can in fact be made public if necessary. I further directed that Mr White be given access to the sealed material when required.

2. Mr Lindon then made submissions and referred to the Human Rights Act 2004 (ACT) particularly the provisions in s 14 as to freedom of thought, conscience, religion and belief. He also referred to s 116 of the Constitution and the restriction on the Commonwealth legislating to prohibit the free exercise of any religion. Whilst the affidavits that I received may have relevance to these issues, I do not consider that the issues themselves advance the applicant’s case to have the matter considered by three judges rather than by me.

3. I have received the material and I respect its content. However, I do not consider that it is material upon which I can act in determining the application that is now before me. Accordingly, the material should be returned to Mr Lindon.

Conclusion

1. In my view, the proposed grounds of appeal have no prospect of succeeding before the Court of Appeal. In any event, for the appeal to proceed on the matters sought to be agitated, it would constitute an unnecessary fragmentation of the criminal trial process. In such circumstances, I see no utility in referring the matter to a court comprised of three judges to further consider the question of leave.  I dismiss the applicant’s application for leave to appeal.

   I certify that the preceding twelve (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.

   Associate:

   Date: 1 March 2005

Counsel for the Appellant:  Mr L J Lindon
Counsel for the Respondent:  Mr J White
Solicitor for the Respondent:  Commonwealth Director of Public Prosecutions
Date of hearing:  3 February 2005
Date of judgment:  1 March 2005