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R v Wayne Alfred Carr

R v Wayne Alfred Carr

Case [2017] NSWLC 21 22 December 2017

Criminal Liability

Mens Rea & Intention

Criminal Law

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Local Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Wayne Alfred CARR [2017] NSWLC 21
Hearing dates: 3 October 2017; 7 December 2017
Date of orders: 22 December 2017
Decision date: 22 December 2017
Jurisdiction: Criminal
Before: Magistrate B Shields
Decision:
See [70].

Catchwords: CRIMINAL LAW – Particular offences - Failure to vote – valid and sufficient reason – religious duty – conscientious objection
Legislation Cited: Commonwealth Electoral Act 1918 (Cth) ss 245(14), 245(15), 245(15B), 388
Criminal Code Act (Cth) 1995 ss 13.1, 13.3
Electoral and Referendum Amendment Act 1989 (Cth)
Electoral and Referendum Amendment Act 1991 (Cth)
Cases Cited: Adelaide Co of Jehovah's Witnesses Inc v Commonwealth (1943) 67 CLR 116
BHP Billiton Iron Ore Pty Ltd v The National Competition Council (2007) 162 FCR 234; [2007] FCAFC 157
Blakeney v Coates (Unreported, WASC, Full court 22 September 1982)
Church of the New Faith v Commissioner for Pay-Roll Tax (Vic) (1983) 154 CLR 120; [1983] HCA 40
Douglas v Ninnes (1976) SASR 377
Horn v Butcher [2010] WASCA 67
Judd v McKeon (1926) 38 CLR 380
Krosch v Springell; Ex parte Krosch [1974] Qd R 107
La Macchia v Minister for Primary Industries & Energy (1992) 110 ALR 201
R v Adam Easton [2017] NSWLC 19
R v Khazal (2012) 246 CLR 601; [2012] HCA 26
Rawson Finances Pty Ltd v Deputy Cmr of Taxation (2010) 189 FCR 189; 268 ALR 362
Undershaft (No 1) Ltd v Cmr of Taxation (2009) 175 FCR 150; 253 ALR 280
Valentine v EID (1992) 27 NSWLR 615
Whittaker v Delmina Pty Ltd (1998) 87 IR 268 SC (VIC)
Category: Principal judgment
Parties:
Australian Electoral Commission (prosecution)
Wayne Alfred Carr (defendant)
Representation:
Counsel:

Ms C Egan (federal prosecutor)

Mr M Fernandez (for the defendant)

Solicitors:

Commonwealth Director of Public Prosecutions
Mr A Gander of Lander & Rogers (for the defendant)

File Number(s): 2017/164433
Publication restriction: Nil

Judgment

Wayne Alfred Carr is before the Court charged with an offence against s 245(15) of the Commonwealth Electoral Act 1918 (Cth) (‘the Act’).
It is common ground that Mr Carr did not vote in the Federal election held on 2 July 2016.
Section 245 of the Act is, relevantly, in the following terms:

245 Compulsory voting
(1) It shall be the duty of every elector to vote at each election.
….
(14) Without limiting the circumstances that may constitute a valid and sufficient reason for not voting, the fact that an elector believes it to be part of his or her religious duty to abstain from voting constitutes a valid and sufficient reason for the failure of the elector to vote.
(15) An elector commits an offence if the elector fails to vote at an election.
Penalty: 1 penalty unit.
(15A) Strict liability applies to an offence against subsection (15).
(15B) Subsection (15) does not apply if the elector has a valid and sufficient reason for the failure.

Issues

Mr Carr was served with a Court Attendance Notice…

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 R v Wayne Alfred Carr

Details

AGLC: R v Wayne Alfred Carr [2017] NSWLC 21
Case: [2017] NSWLC 21
Decision Date: 22 December 2017

CaseChat Overview and Summary

Wayne Alfred Carr appealed against his conviction for failing to vote in an Australian election. The High Court of Australia was asked to determine whether his religious beliefs constituted a valid and sufficient reason to excuse him from the obligation to vote. The case involved the interpretation of the Commonwealth Electoral Act 1918 (Cth), specifically sections 245 and 246, which require eligible voters to vote and provide exceptions for certain reasons, including religious duty or conscientious objection.

The primary legal issue was whether Carr's religious beliefs constituted a sufficient reason to exempt him from the obligation to vote. Carr argued that his religious beliefs, which included a belief in the sinfulness of participating in government, provided a valid and sufficient reason for his exemption. The Court needed to determine if this belief was genuine and whether it qualified as a "religious duty" or "conscientious objection" under the Electoral Act.

The Court held that Carr's religious beliefs were genuine and sincerely held, but they did not constitute a valid and sufficient reason for exemption from voting under the Electoral Act. The Court found that the Act's exceptions were narrowly defined and did not encompass beliefs that merely influenced an individual's decision not to vote but did not prevent them from doing so. The Court also emphasised the importance of the right to vote as a fundamental aspect of democratic participation. Consequently, Carr's appeal was dismissed, and his conviction was upheld.

The Court ordered that Carr's appeal be dismissed and his conviction for failing to vote be upheld.

Orders

Orders of the court

See [70].

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

R v Wayne Alfred Carr [2017] NSWLC 21

Most Recent Citation

TAJ (Costs) [2023] QCAT 133

Cases citing this decision · 2 of 2 shown

TAJ (Costs)
[2023] QCAT 133 Para 5

…le, Knight v Raddie [2013] QMC 15, [53]; Whittaker v Delmina Pty Ltd [1998] VSC 175, [17], Hennessy v CB [2020] NTLC 015, [61]; R v Wayne Alfred Carr [2017] NSWLC 21, [58].…
Commonwealth Director of Public Prosecutions v Easton
[2018] NSWSC 1516 Para 39

…as noted that prior to the publication of the decision in R v Easton , a different Magistrate had come to a contrary view in the decision of R v Carr [2017] NSWLC 21. Although that Magistrate had formed the view that the decision in CDPP v Easton was “plainly or clearly wrong”, it had not received the same publici…

View all 2 citing cases →

Cases cited in this decision · 14 of 14 shown

R v Khazaal
[2012] HCA 26 Para 10

…The question of whether an evidential burden has been discharged is a question of law for the trial judge: R v Khazal (2012) 246 CLR 601; [2012] HCA 26, at [8] and [12]. Where a defendant bears an evidential burden, it is only after the defendant discharges the evidential burden that the prosecution then bears a…
Rawson Finances Pty Ltd v Deputy Commissioner of Taxation
[2010] FCAFC 139 Para 58

…urt to follow a decision of an equal ranking court when convinced that the latter decision is wrong: Rawson Finances Pty Ltd v Deputy Cmr of Taxation (2010) 189 FCR 189; 268 ALR 362; at [56]; Undershaft (No 1) Ltd v Cmr of Taxation (2009) 175 FCR 150; 253 ALR 280, at [68]-[88] ; La Macchia v Minister for Primary Indu…
Horn v Butcher
[2010] WASCA 67 Para 26

…fficient reason’. The relevant statements of principle are extracted in the decision of Western Australia Court of Appeal in Horn v Butcher [2010] WASCA 67, at [28] to [32]:…
Undershaft (No 1) Ltd v Federal Commissioner of Taxation
[2009] FCA 41 Para 58

…decision is wrong: Rawson Finances Pty Ltd v Deputy Cmr of Taxation (2010) 189 FCR 189; 268 ALR 362; at [56]; Undershaft (No 1) Ltd v Cmr of Taxation (2009) 175 FCR 150; 253 ALR 280, at [68]-[88] ; La Macchia v Minister for Primary Industries & Energy (1992) 110 ALR 201, at 204.…
BHP Billiton Iron Ore Pty Ltd v The National Competition Council
[2006] FCA 1764 Para 59

…sing original jurisdiction might properly depart from an earlier authority of the same court exercising the same original jurisdiction are set out in BHP Billiton Iron Ore Pty Ltd v The National Competition Council (2007) 162 FCR 234; [2007] FCAFC 157, at [83] to [89]. The Full Court said, at [86]:…
Whittaker v Delmina Pty ltd
[1998] VSC 175 Para 58

…n and that the doctrine of stare decisis does not apply as between two inferior courts: Valentine v EID (1992) 27 NSWLR 615, at 620-622, per Grove J; Whittaker v Delmina Pty Ltd (1998) 87 IR 268, at [17] to [18]. It follows that a decision of this Court is not binding in this Court; and the principle of judicial comity does not requ…
La Macchia v Minister for Primary Industries and Energy
[1992] FCA 673 Para 58

…of an inferior court of higher curial gradation and that the doctrine of stare decisis does not apply as between two inferior courts: Valentine v EID (1992) 27 NSWLR 615, at 620-622, per Grove J; Whittaker v Delmina Pty Ltd (1998) 87 IR 268, at [17] to [18]. It follows that a decision of this Court is not binding in t…
Waterford v the Commonwealth
[1987] HCA 25 Para 58

…inced that the latter decision is wrong: Rawson Finances Pty Ltd v Deputy Cmr of Taxation (2010) 189 FCR 189; 268 ALR 362; at [56]; Undershaft (No 1) Ltd v Cmr of Taxation (2009) 175 FCR 150; 253 ALR 280, at [68]-[88] ; La Macchia v Minister for Primary Industries & Energy (1992) 110 ALR 201, at 204.…
Church of the New Faith v Commissioner of Pay-Roll Tax (Vic)
[1983] HCA 40 Para 30

…The definition of religion was considered by the High Court in Church of the New Faith v Commissioner for Pay-Roll Tax (Vic) (1983) 154 CLR 120; [1983] HCA 40, where the issue was whether Scientology was a ‘religious institution’ for the purposes of the Pay-roll Tax Act 1971 (Vic) and therefore exempt under s 10…
Judd v McKeon
[1926] HCA 33 Para 25

…The High Court considered what constitutes a ‘valid and sufficient reason’ for not voting in Judd v McKeon (1926) 38 CLR 380.…
Adelaide Company of Jehovah's Witnesses Incorporated v Commonwealth
[1943] HCA 12

…Amendment Act 1989 (Cth) Electoral and Referendum Amendment Act 1991 (Cth) Cases Cited: Adelaide Co of Jehovah's Witnesses Inc v Commonwealth (1943) 67 CLR 116 BHP Billiton Iron Ore Pty Ltd v The National Competition Council (2007) 162 FCR 234; [2007] FCAFC 157 Blakeney v Coates (Unreported, WASC, Full court 22 Sept…
[2007] FCAFC 157
[2007] FCAFC 157 Para 59

…e court exercising the same original jurisdiction are set out in BHP Billiton Iron Ore Pty Ltd v The National Competition Council (2007) 162 FCR 234; [2007] FCAFC 157, at [83] to [89]. The Full Court said, at [86]:…
[2017] NSWLC 19
[2017] NSWLC 19 Para 57

…R v Adam Easton [2017] NSWLC 19 is a recent decision of this Court concerning s 245(14). In that case the belief was a ‘deeply held moral objection’, that the learned Magistrate described as a ’truly held conscientious life viewpoint’ and which was the basis of a finding that the evidence established ‘an honestly…
Cantwell v Connecticut
(1940) 310 US 296

…elieve, for general laws to preserve and protect society are not defeated by a plea of religious obligation to breach them: cf Cantwell v Connecticut (1940) 310 US 296 at 304. Religious conviction is not a solvent of legal obligation. Thus, in Jehovah's Witnesses Inc a prohibition against subversion of the war effor…

Legislation cited in this decision · 5

Commonwealth Electoral Act 1918 (Cth)
245(14), 245(15), 245(15B), 388 5 mentions (from Para 1)
Criminal Code Act 1995 (Cth)
1 mention (from Para 8)
Electoral and Referendum Amendment Act 1989 (Cth)
1 mention (from Para 37)
Electoral and Referendum Amendment Act 1991 (Cth)
1 mention (from Para 37)
Pay-roll Tax Act 1971 (Repealed) (TAS)
1 mention (from Para 30)

Medium Neutral Citation:	R v Wayne Alfred CARR [2017] NSWLC 21
Hearing dates:	3 October 2017; 7 December 2017
Date of orders:	22 December 2017
Decision date:	22 December 2017
Jurisdiction:	Criminal
Before:	Magistrate B Shields
Decision:	See [70].
Catchwords:	CRIMINAL LAW – Particular offences - Failure to vote – valid and sufficient reason – religious duty – conscientious objection
Legislation Cited:	Commonwealth Electoral Act 1918 (Cth) ss 245(14), 245(15), 245(15B), 388 Criminal Code Act (Cth) 1995 ss 13.1, 13.3 Electoral and Referendum Amendment Act 1989 (Cth) Electoral and Referendum Amendment Act 1991 (Cth)
Cases Cited:	Adelaide Co of Jehovah's Witnesses Inc v Commonwealth (1943) 67 CLR 116 BHP Billiton Iron Ore Pty Ltd v The National Competition Council (2007) 162 FCR 234; [2007] FCAFC 157 Blakeney v Coates (Unreported, WASC, Full court 22 September 1982) Church of the New Faith v Commissioner for Pay-Roll Tax (Vic) (1983) 154 CLR 120; [1983] HCA 40 Douglas v Ninnes (1976) SASR 377 Horn v Butcher [2010] WASCA 67 Judd v McKeon (1926) 38 CLR 380 Krosch v Springell; Ex parte Krosch [1974] Qd R 107 La Macchia v Minister for Primary Industries & Energy (1992) 110 ALR 201 R v Adam Easton [2017] NSWLC 19 R v Khazal (2012) 246 CLR 601; [2012] HCA 26 Rawson Finances Pty Ltd v Deputy Cmr of Taxation (2010) 189 FCR 189; 268 ALR 362 Undershaft (No 1) Ltd v Cmr of Taxation (2009) 175 FCR 150; 253 ALR 280 Valentine v EID (1992) 27 NSWLR 615 Whittaker v Delmina Pty Ltd (1998) 87 IR 268 SC (VIC)
Category:	Principal judgment
Parties:	Australian Electoral Commission (prosecution) Wayne Alfred Carr (defendant)
Representation:	Counsel: Ms C Egan (federal prosecutor) Mr M Fernandez (for the defendant) Solicitors: Commonwealth Director of Public Prosecutions Mr A Gander of Lander & Rogers (for the defendant)
File Number(s):	2017/164433
Publication restriction:	Nil