Regina v Hughes

[2003] NSWCCA 105

CITATION:	Regina v Hughes [2003] NSWCCA 105 revised - 15/04/2003
HEARING DATE(S):	4 April 2003
JUDGMENT DATE:	4 April 2003
JUDGMENT OF:	Grove J at 1; Simpson J at 15; Hidden J at 16
DECISION:	APPEAL DISMISSED; LEAVE TO ADDUCE FRESH EVIDENCE REFUSED
CATCHWORDS:	ATTEMPT TO INTIMIDATE COMMONWEALTH OFFICER - INGREDIENTS OF OFFENCE - TRIAL - APPROPRIATE DIRECTIONS TO JURY - UNTENABLE GROUNDS OF APPEAL - NO SPECIAL POINT OF PRINCIPLE
LEGISLATION CITED:	Crimes Act (Commonwealth) s76(1)(b) and s7
PARTIES :	Regina v David Zero Population Growth Hughes aka David Roy Hughes
FILE NUMBER(S):	CCA 60040/02
COUNSEL:	In person (Applicant) G.J. Bellew (Crown)
SOLICITORS:	- Commonwealth Director of Public Prosecutions

LOWER COURTJURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	01/11/0306
LOWER COURT JUDICIAL OFFICER :	Finnane DCJ

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60040/02

GROVE J
SIMPSON J
HIDDEN J

Friday 4 April 2003

REGINA v DAVID ZERO POPULATION GROWTH HUGHES aka DAVID ROY HUGHES

JUDGMENT

1 GROVE J: This is an appeal following conviction of the appellant after a trial upon indictment asserting that he did intentionally and knowingly attempt to intimidate the Hon Justice Brian Tamberlin, a person exercising power under a law of the Commonwealth. Upon conviction the appellant was sentenced to imprisonment for eleven months and fifteen days, to be released upon recognisance after serving seven months and fifteen days.

2 The appellant was duly released after expiry of the last mentioned term and in fact the entirety of the term is now expired. He was represented by solicitor and counsel at trial, but has appeared for himself in this appeal.

3 Pursuant to directions by the Registrar, he has filed formal grounds of appeal, some fifteen in number, to which is attached a document under the heading “Arguments”. That document contains an extract from a book called “The Pill” and an extract from a publication by a columnist in The Australian newspaper. These extracts relate to some background, which led to the appellant’s appearance before the Federal Court, but are manifestly irrelevant to the jurisdiction of this Court. The grounds specified by the appellant are scheduled hereto.

4 The background facts can be quickly sketched. Proceedings were commenced against the appellant by the Australian Consumer and Competition Commission. Certain orders were made for amendments to a website under the control of the appellant and there was non compliance with those orders. In due course Tamberlin J made orders that the appellant be imprisoned for two weeks, but he directed that the relevant warrant lie in the office for a period.

5 Further proceedings came before the Court on 9 March 2001. Towards the end of the proceedings in the Federal Court the appellant was seen to take from a backpack a white metal box. Ultimately this led to an exchange between the appellant and the presiding judge in these terms:

“APPELLANT: It’s a bomb.

HIS HONOUR: Yes, is it?

APPELLANT: Hmm, send me to jail and it’ll go off.

HIS HONOUR: Yes, alright, you’ll get it too Mr Hughes.”

6 Those circumstances led to the indictment the terms of which I have mentioned. It is obvious that a central issue at the trial was whether or not the appellant had the relevant intention. He had himself given evidence at trial and specifically asserted that he had no intention of intimidating Tamberlin J.

7 In his charge to the jury, which was both oral and supplemented in writing, the presiding judge (Finnane DCJ) told them that it was necessary for them to be satisfied beyond reasonable doubt that the appellant had the requisite intention and he reminded them that if the appellant’s intention was merely to annoy court officials, or even the judge, that that would not establish that he intended to attempt to intimidate him. The issue was found by the jury against the appellant.

8 At the hearing today, the appellant has repeated his contention that he had no relevant intention but it is not within the scope of the jurisdiction of this Court to make findings of fact contrary to those that were properly determined by the jury.

9 The grounds of appeal lodged by the appellant in response to the Registrar’s direction can be dealt with in groups. Grounds 3, 4, 5, 6 and 8 relate to fresh evidence, and the Court has already declined an application for leave to call fresh evidence of the nature indicated by those grounds. Reasons are attached.

10 Grounds 9, 10, 11, 13 and 15 all relate to events that are post conviction, and again it is beyond the jurisdiction of this Court to investigate those matters. Ground 12 relates to litigation which is before the Federal Court and manifestly it is something that cannot be dealt with within the ambit of this appeal. Nor has the Court any jurisdiction to make an order for damages such as is contemplated by ground 15.

11 Ground 1 makes a simple statement that the trial was political rather than criminal. It is apparent that it was indeed a criminal trial and the indictment was brought pursuant to s76(1)(b) of the Crimes Act (Commonwealth) and s7, which makes “attempts” punishable as principal offences.

12 The 7th ground of appeal refers to the appellant’s intention. As I have already indicated, he seeks merely to re-argue an issue of fact found against him by the jury at trial.

13 The final ground is numbered 2, and refers to the sentence. The appellant seeks leave to appeal against sentence on the basis that it is excessive. The maximum prescribed penalty for the offence was two years imprisonment. As I have indicated he was sentenced to approximately half the maximum. The appellant had been on remand for some time prior to sentence and the effect of his Honour’s order was to lead to his release approximately six weeks after the conclusion of the trial. I am unable to assess the sentence assessed by his Honour as exceeding the sound exercise of his sentencing discretion. There appears no legal error in his approach to the issue.

14 None of the grounds of appeal are made out. I would propose that:

1. Appeal against conviction be dismissed.

2. Leave to appeal against sentence refused.

15 SIMPSON J: I agree.

16 HIDDEN J: I agree.

17 GROVE J: The orders of the Court therefore will be as I have proposed.

SCHEDULE

1. It was always a political trial not a criminal one.

2. I did 10 months on remand before trial when the maximum penalty was two years. Very dodgy.

3. The younger usher was “conveniently” on holiday at the time of the trial.

4. My lawyers refused to call the younger usher who was told and understood that the “bomb” was a weather computer data logger. You can’t claim that a piece of fruit is an orange when you have already told people it is an apple. I wish to subpoena the younger usher.

5. My lawyers – snivelling forelock tuggers all – refused to call Federal Judge Tamberlin who saw me wink at him, understood I was being sarcastic, and responded with a sarcastic “joke” of his own. I wish to subpoena Judge Tamberlin.

6. Judge Tamberlin was and is hiding behind privilege to uphold the honour and mystery of the judiciary. But it brings the judiciary into public disrepute for a senior public officer to hide away like a coward and suppress evidence while a citizen rots in prison.

7. You can’t be guilty of making a bomb threat if in your own mind you do not INTEND to make a bomb threat. I intended to make a black desperate joke. Insufficient evidence of my internal mental landscape was heard in the trial.

8. I intend to call unjaundiced private psychiatric evidence as to my mental state then and now. From Dr Davies Wollongong.

9. While I was in custody, the Federal Police in Perth stole my ute from their parking lot as an “abandoned vehicle” and sold it to one of their own for $1050 (value - $8000).

10. While I was in custody, the Federal Police in conjunction with Corrective Service Officers at Silverwater fraudulently used my Mastercard, which they held, to run up $17,000. Westpac have demanded full repayment from me and have listed me on the Credit Reference Association making it impossible for me to get credit on phones or utilities or to rent cars or domestic or commercial premises for the next seven years.

11. While I was in custody, the AFP Sydney raided and trashed and stole computers from an office I maintained above the Regent Theatre in Wollongong. The AFP and the AGS were the only people to know of that “secret” office existence. I kept another “public” office at 23/157 Crown St Wollongong, which incidentally was also trashed and thieved while I was in custody.

12. The ACCC Trade Practices case was finally heard before Justice Allsop on or about 2 August 2001. I was in custody on the “bomb threat”, bail refused by repeated lies from the DPP. With no access my records and the internet, was forced to defend myself in the federal court with both hands tied behind my back. Funny that.

13. While I was in custody on remand, the NSW Health Department commenced criminal actions against me. NSW Health used force to break into my Crown St office without a warrant and stole $55,000 worth of oral contraceptives in November 2000. The Wollongong Magistrate eventually ordered that I held those Pills legally, but NSW Health then proceeded to steal them a second time from the court room. They remain stolen. I wish to subpoena these crooks.

14. When I was released from Long Bay jail on 11 March 2002 after serving my full remand and sentence, I was given no rehabilitation, not even a bus fare.

15. I seek substantial damages for a sordid miscarriage of justice.

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60040/02

GROVE J
SIMPSON J
HIDDEN J

Friday 4 April 2003

REGINA v DAVID ZERO POPULATION GROWTH HUGHES aka DAVID ROY HUGHES

JUDGMENT ON APPLICATION TO RAISE FRESH EVIDENCE

1 GROVE J: On the matter being called at 10 am the appellant did not appear. For my part, I accept his explanation for delay. The first matter he has raised is the question of possible fresh evidence and references to this can be found in grounds 3, 4, 5, 6 and 8 of the document which he has filed.

2 Grounds 3 and 4 relate to an usher who was present in the Federal Court on 9 March 2001 who, it is asserted by the appellant, was told that the item subsequently identified by the appellant to the presiding judge as a bomb was in fact a weather computer data logger. The usher was said to be on holiday at the time of the trial although a statement had been taken from him previously.

3 I am unable to see that evidence from the usher could touch upon the essential issues in the ingredients of the charge being tried. The circumstance that the appellant may have told something to the usher could not affect the state of mind of the appellant in his contact with the presiding judge.

4 The second “witness” referred to by the appellant is the judge himself. As the grounds set out, he wishes to assert that the judge knew that he was joking and therefore was not intimidated. The terms of the indictment were that the appellant intentionally and knowingly attempted to intimidate the judge, and it was therefore not to the point whether or not the judge was in fact intimidated.

5 As the jury were told in written directions, the essential issue was whether or not the appellant had the requisite intention of intimidating and they were told, specifically, that if it was the appellant’s intention merely to annoy court officials or even the judge, that would not establish that he intended to attempt to intimidate him. It seems to me evidence from the judge could not assist the appellant in any way.

6 The third matter referred to by the appellant is mentioned in ground 8. He has candidly told the Court that he has not in fact seen a psychiatrist but it is something that he would like to put before the Court if he had that material.

7 In all the circumstances I am of the view that leave to call fresh evidence in respect of any of those matters should be refused, and I propose that we so order.

8 SIMPSON J: I agree.

9 HIDDEN J: I agree.

10 GROVE J: The consequence is that leave to adduce fresh evidence is refused.

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Last Modified: 04/15/2003