Kevin Buzzacott v The Queen

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.