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:

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

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.

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

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

Connolly J was of the view that…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Kevin Buzzacott v The Queen

Details

AGLC: Kevin Buzzacott v The Queen [2005] ACTCA 7
Case: [2005] ACTCA 7
Decision Date

CaseChat Overview and Summary

Kevin Buzzacott, the applicant, sought leave to appeal from a direction by Connolly J of the Supreme Court of the Australian Capital Territory that criminal proceedings against him should proceed to trial. The applicant had been committed for trial on a charge of dishonestly appropriating property belonging to the Commonwealth of Australia, specifically a bronze Coat of Arms. During preliminary proceedings, the applicant argued that the Supreme Court lacked jurisdiction over him and other Indigenous Australians, asserting that Australian courts and governments had no lawful jurisdiction over the original inhabitants and their lands. He also sought the disqualification of Australian judges, including Connolly J, on the grounds of alleged complicity in genocide, and raised ancillary matters concerning the intervention of Indigenous persons, the provision of evidence, and access to transcripts and documents. Connolly J rejected these arguments, finding them without substance, and directed that the matter proceed to trial.

The legal issues before the Court of Appeal concerned whether the applicant should be granted leave to appeal from Connolly J's interlocutory direction. The applicant contended that the direction to proceed to trial, while not a final determination, would cause him significant stress and trauma, and that his jurisdictional and bias arguments could only be pursued on appeal after a conviction. The court was required to determine if there was sufficient justification to refer the application for leave to appeal to a three-judge bench, rather than being dealt with by a single judge as permitted by s 37J of the *Supreme Court Act 1933* (ACT). This involved considering whether the applicant's proposed grounds of appeal, particularly those relating to jurisdiction and judicial bias, had any prospect of success.

The Court of Appeal, constituted by a single judge, reasoned that the applicant's arguments regarding jurisdiction and the alleged lack of sovereignty of the Commonwealth over Indigenous Australians were bound by High Court authority to be rejected. The court found that the applicant had not demonstrated any justification for disturbing the ordinary course of criminal proceedings at this interlocutory stage, noting that the High Court had previously refused to remove the proceedings. The proposed grounds of appeal, including those concerning the alleged crime of genocide, judicial disqualification, the intervention of Indigenous persons, and the provision of transcripts and documents, were considered to be without substance or to raise only procedural matters that did not warrant appellate review before a trial. The court also considered affidavits relating to human rights and freedom of religion but concluded they did not advance the applicant's case for a three-judge hearing.

Ultimately, the Court of Appeal dismissed the application for leave to appeal. The judge concluded that the proposed grounds of appeal had no prospect of succeeding and that entertaining them at this stage would constitute an unnecessary fragmentation of the criminal trial process. The court found no utility in referring the matter to a three-judge bench and therefore dismissed the application.

Orders