R v Higgins
[2009] TASSC 26
•24 April 2009
[2009] TASSC 26
CITATION: R v Higgins [2009] TASSC 26
PARTIES: R
v
HIGGINS, David Wesley
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: ORIGINAL
FILE NO/S: 493/2008
DELIVERED ON: 24 April 2009
DELIVERED AT: Hobart
HEARING DATE: 20 April 2009
JUDGMENT OF: Evans J
CATCHWORDS:
Criminal law – Evidence – Competence and compellability – Statutory exemption applications – Leave to compel a judge to give evidence.
Evidence Act2001 (Tas), s16(3).
Criminal Procedure (Attendance of Witnesses) Act1996 (Tas), s4(a).
Aust Dig Criminal Law [2832]
REPRESENTATION:
Counsel:
Applicant/Defendant: In Person
Respondents: P A Bowen
Commonwealth: I M Arendt
Solicitors:
Applicant/Defendant: In Person
Respondents: Australian Government Solicitor
Commonwealth: Commonwealth Director of Public Prosecutions
Judgment Number: [2009] TASSC 26
Number of paragraphs: 14
Serial No 26/2009
File No 493/2008
THE QUEEN v DAVID WESLEY HIGGINS
REASONS FOR JUDGMENT EVANS J
24 April 2009
The defendant seeks leave pursuant to the Evidence Act 2001, s16(3), to compel two Family Court judges and a Federal magistrate to give evidence upon his trial on three charges of threatening to cause serious harm to a Commonwealth public official, contrary to the Criminal Code Act 1995 (Cth), s147.2(1). The particulars of each count are:
"1 …
THAT on 1 April 2008 at Hobart in Tasmania DAVID WESLEY HIGGINS did make a threat to Michelle Millhouse to cause serious harm to Magistrate Roberts and Justice Benjamin, being Commonwealth Public Officials, with the intention that Michelle Millhouse fear that the threat would be carried out, and that the threat was made because of Magistrate Roberts and Justice Benjamin's official status as a Commonwealth Public Official.
2 …
THAT on 8 April 2008 at Hobart in Tasmania DAVID WESLEY HIGGINS did make a threat to Kimbra Webb to cause serious harm to Magistrate Roberts, being a Commonwealth Public Official, with the intention that Kimbra Webb fear that the threat would be carried out, and that the threat was made because of Magistrate Roberts and Justice Benjamin's [sic] official status as a Commonwealth Public Official.
3 …
THAT on 8 April 2008 at Hobart in Tasmania DAVID WESLEY HIGGINS did make a threat to Kimbra Webb to cause serious harm to Antonia Dunne and Yvonne Malakoff, being Commonwealth Public Officials, with the intention that Kimbra Webb fear that the threat would be carried out, and that the threat was made because of Kimbra Webb and Yvonne Malakoff's official status as a Commonwealth Public Official."
The Evidence Act, s16(3), provides:
"A person who is or was a judge in an Australian or overseas proceeding is not compellable to give evidence about that proceeding unless the court gives leave."
That Act, s3, provides that:
"'judge', in relation to a proceeding, means the judge, magistrate or other person before whom the proceeding is being held."
The Criminal Procedure (Attendance of Witnesses) Act 1996 is relevant to the defendant's application. That Act, s5(1), provides that on the application by an accused, the Registrar must issue a preliminary notice in the prescribed form to any person named in the notice requiring that person to attend and give evidence at a criminal proceeding. However that Act, s4(a), also provides that the Act does not apply to any person who, under any other Act or law, may not be compelled to attend as a witness in a criminal proceeding.
On 31 March 2009, the defendant filed preliminary notices addressed to, amongst others, the following judicial officers:
Justice Mushin, Family Court of Australia,
Justice Benjamin, Family Court of Australia,
Magistrate Roberts, Federal Magistrates Court of Australia.
The Registrar declined to issue the preliminary notices, and by letter dated 6 April 2009 wrote to the defendant explaining that her reason in each case was:
"● … the judicial officer is or was a judge in an Australian proceeding and you are seeking to obtain evidence from him regarding the proceedings in which he presided;
·s16(3) of the Evidence Act 2001 provides that a 'person who is or was a judge in an Australian or overseas proceeding is not compellable to give evidence about that proceeding unless the court gives leave';
·s4 of the Criminal Procedure (Attendance of Witnesses) Act 1996 states that the Act does not apply to a person who 'under any other Act or law, may not be compelled to attend as a witness in a criminal proceeding."
On 15 April 2009, the defendant filed a document seeking leave to subpoena the judicial officers as witnesses. Two affidavits sworn by the defendant were filed in support of his application. It is manifest from his affidavits that the defendant does not seek to examine the judicial officers with a view to eliciting evidence that bears on the elements of the crimes alleged against him or his defence to those crimes. The following verbatim extracts from the affidavits demonstrate that the defendant seeks to cross-examine the officers with a view to exposing judicial corruption and criminal conduct on their part, and in order to show that their conduct is the cause of his alleged threats of serious harm, and justifies his alleged threats.
Affidavit filed 15 April 2009
"● It has been alleged by the defendant that the cause of any alleged wrongdoing on the defendant's part was cause by the deliberate criminal conduct of the judges in the secret and opaque processes of the family court in a deliberate abuse of the defendant in order to deliberately support the agenda of the other party by means of actions taken in bad faith, and to cover up the collusions and corruptions that were occurring and had occurred, and to punish the defendant by misuse of process for his allegations of corruption and bias in the family court processes he was involved in.
●If it can be determined in the cross examination of the witnesses by the subpoenaing and cross examination of themselves as witnesses in conjunction with the raw audio of the court proceedings and other court documents that there was indeed a systematic betrayal of justice in the process as well as the committing of the crimes of
a Judicial corruption
b Maintenance
c Suppressing Evidence
d Perjury
Then any subsequent view of the defendant and his alleged actions whether they be considered proven to have occurred or not, is grossly different to the view of the defendant if the court processes after cross examination are viewed to have not been biased or unfair or included any criminal or potentially criminal conduct.
As such fairness can ONLY occur if the extreme and outrageous bias is demonstrated to the court at the trial.
●The jury and the judge need to see that the family court has systematically engaged in crimes and bias, and having viewed the extreme extent of that abuse will see me in the light that is real in this matter. I am in fact the victim, not the criminal. The criminals are judges and that is a very serious situation. Victim is not a role I like or ever play for its own sake and benefit; it is just true in this case.
I think it is important for justice that the cross examinations by me are done in public with the media present as it is in the broader public interest for the matter of judicial corruption in the secrecy of family courts and its terrible effects on our community to be seen and debated."
Affidavit dated 16 April 2009
After referring to a document in which Mr Bowen, counsel for the judicial officers, queries the defendant's forensic purpose in calling the officers as witnesses, the defendant says:
"● The forensic purpose of the witnesses is to determine the cause of any alleged conduct, and as such the witnesses themselves are the cause of any alleged conduct and Mr Bowen would like to argue speciously as he has always done in this matter that the cause is not a forensic issue. ... My undergraduate degree is in science and I am not fooled by specious rubbish like that, and for the court to engage in supporting a notion that to seek a cause is not a forensic matter, would simply indicate that the court is more interested in games and protecting judges that are criminals over seeking truth in the forensic matter of causes. The lack of presence of the individuals who caused utterances with their criminal conduct, at the time of utterance in no way precludes them from having caused the utterances with their criminal actions.
●The Judges criminal abuses caused any utterances I have allegedly made.
●The calling of the Judges will prolong the hearing, but the forensic purpose is clear and will assist justice in the matter; the judges engaged in criminal conduct that caused any alleged utterances and the forensic demonstration of that cause is the purpose.
●The demonstration of the cause of the alleged actions is central to providing explanation and further cause of the main part of my defence (not covered here).
●Of course it is forensic and necessary. It's a logical necessity. How else can I provide my defence if I can't demonstrate the cause?
●I submit that the leave must be given to ensure the defence has the capacity to engage in the forensics of the cause of the situation for the benefit of the jury, and their capacity to fully understand what has really happened and why."
In the course of his oral submissions, the defendant acknowledged that he wanted to question each of the officers about proceedings they presided over, and he said that, specifically, he wished to examine them for the forensic purpose of having them reveal that any alleged crime committed by him was in response to the officers' egregious, calculated and systematic abuse of their role as judicial officers. He acknowledged that he did not wish to question any of the officers with a view to negativing any of the elements of his alleged criminal conduct. However, he in substance said:
· that their evidence was relevant to his defence which is that he had a mental impairment at the time of each incident and had no intention to cause fear to anyone;
· that whilst he was unable to identify specific evidence of criminal conduct on the part of the officers, he believed it had occurred and indeed was convinced it had occurred; and
· that the officers' evidence would be relevant to mitigation.
The Evidence Act, s16(3), is a statutory reflection of that which has long been the law, which is, that judges may not be compelled to testify as to matters in which they have been judicially engaged. See Hennessey v Broken Hill Pty Co Ltd (1926) 38 CLR 343, Knox CJ, Gavan Duffy and Starke JJ at 349. As explained in Duke of Buccleuch v Metropolitan Board of Works (1872) 5 LR HL 418 by Baron Cleasby at 433:
"With respect to those who fill the office of Judge it has been felt that there are grave objections to their conduct being made the subject of cross-examination and comment (to which hardly any limit could be put) in relation to proceedings before them; and, as everything which they can properly prove can be proved by others, the Courts of law discountenance, and I think I may say prevent them being examined."
See also Zanatta v McCleary (1976) 1 NSWLR 230 where Street CJ said, at 234:
"The correctness or regularity of proceedings before [the judge] is not examinable in the light of subjective evidence from the judge who heard the case. There are in my view strong considerations of public policy in denying to any party the freedom to elicit from a judge evidence of this character. Nor is it without significance that no such case can be found where such evidence has been tendered and admitted."
The defendant says that he will elicit evidence from the judicial officers that is relevant to his defence that he had a mental impairment when he made the alleged threats. He also asserts that their conduct caused his mental impairment. The judicial officers do not have the expertise to give evidence about whether the defendant was suffering from a mental impairment and, if so, as to its cause. This evidence could only come from an appropriately qualified expert witness. In reality, it is only the defendant who can provide the factual basis for expert evidence about his mental state. The focus of a determination about the defendant's mental state is his observations and beliefs, not those of others. Whilst the judicial officers could provide some confirmatory evidence about particular incidents involving the defendant, the primary source of that evidence must be the defendant himself. Insofar as it might assist the defendant to obtain supporting evidence about any incident, it is likely that this evidence could be obtained from a variety of sources other than a judicial officer involved in the incident. It could be obtained from others who were present, recordings of proceedings, transcripts, reasons for decision, and the like.
Evidence of the cause for the defendant's alleged threats is relevant to establishing whether the threats were made. The motive for conduct is almost always relevant to establishing whether it occurred. However, the defendant does not seek to elicit evidence from the judicial officers about the cause of his alleged threats in order to prove that the threats were made. He says he was ranting and raving when the alleged threats were made and has no recall of making any direct threats. He seeks to elicit evidence from the judicial officers about the cause of his alleged threats with a view to establishing that if he made the threats, he was justified in doing so. Evidence of this nature could not justify the defendant's conduct, that is, raise any defence. It could not be used to that end on his trial. Evidence of the defendant's belief about the manner in which the judicial officers conducted proceedings referable to him may be a factor in mitigation if the question of penalty arises. It would only become relevant to that end in the event that the defendant was convicted of any of the charges.
The defendant says that evidence he will elicit from the three judicial officers is relevant to whether he had an intention to cause fear to anyone. It is not an element of the charges faced by the defendant that any of the judicial officers feared that the defendant's alleged threats would be carried out. The element of each charge in relation to fear is that the defendant intended that the person to whom he made the threat would fear that it would be carried out. The alleged threats were not made to any of the judicial officers and there is no suggestion that any of them were present when an alleged threat was made. The defendant did not explain how the evidence of any of the judicial officers would have any bearing on what the defendant's intention was at the time that he made the alleged threats, and I am unable to conceive of any basis upon which their evidence could be relevant to this issue.
In pressing his application, the defendant has assumed that if he calls the judicial officers as witnesses, he will be able to cross-examine them. That is not correct. As with all other litigants, the defendant would only be allowed to cross-examine a witness he calls in the circumstances provided for by the Evidence Act, s38(1). Nothing put before me provides any basis for concluding that if any of the judicial officers were called to give evidence by the defendant, it is likely that he would be given leave to cross-examine them.
As it has not been demonstrated that any evidence that the defendant hopes to elicit from the judicial officers is capable of bearing on, or negativing, any element of the charges brought against him, or of supporting any defence he has foreshadowed, it would be futile to compel the judicial officers to attend the Court to give evidence on the defendant's trial. Moreover, a number of matters indicate that the defendant seeks to compel the judicial officers to give evidence for the collateral purpose of fishing for evidence to support his conviction that they have colluded against him and been involved in criminal conduct. The defendant as good as says that this is his purpose in his affidavits, and he has acknowledged that he is unable to identify specific evidence of criminal conduct on the part of the officers. Another matter that suggests that this is so is his application to compel Justice Mushin to give evidence. That judicial officer is not the subject of any of the alleged threats that are the basis of the charges against the defendant, and there is no suggestion that that officer was a witness to anything that is relevant to the charges. There is accordingly reason to conclude that in applying to compel Justice Mushin to give evidence, the defendant is motivated by a purpose unrelated to the charges brought against him. It is an abuse of process to endeavour to compel a witness to give evidence in order to fish for evidence and this would be particularly so when the evidence was not sought for a legitimate purpose in relation to the proceedings in question. See Botany Bay Instrumentation & Control Pty Ltd v Stewart [1984] 3 NSWLR 98, Powell J, at 99 – 100, Witness v Marsden (2000) 49 NSWLR 429, Heydon JA, par51, and Commissioner of Police (NSW) v Tuxford [2002] NSWCA 139, Brownie AJA, agreed with by Spigelman CJ and Ipp AJA, pars18 -20. In these circumstances the defendant's application is dismissed.
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