Von Stalheim v Lusted
[2014] TASSC 9
•27 February 2014
[2014] TASSC 9
COURT: SUPREME COURT OF TASMANIA
CITATION: Von Stalheim v Lusted [2014] TASSC 9
PARTIES: VON STALHIEM, Kurt
v
LUSTED, Gary (Sergeant)
FILE NO: 463/2009
DELIVERED ON: 27 February 2014
DELIVERED AT: Hobart
HEARING DATE: 24 February 2014
JUDGMENT OF: Estcourt J
CATCHWORDS:
Magistrates – Appeal and review – Tasmania – Motion to review – Other matters – Intimidation of public officer – Error of law and or error relating to facts.
Police Offences Act1935 (Tas), s34B(2)(a).
Aust Dig Magistrates [1349]
Statutes – Acts of Parliament – Interpretation - Particular words and phrases – Specific interpretations - Other cases – Intimidation of public officer – Section 34B(2)(a) of the Police Offences Act 1935 - Meaning of intimidate.
Meller v Low (2000) 48 NSWLR 517; R v Manton [2002] NSWCCA 316, applied.
Police Offences Act1935 (Tas), s34B(2)(a).
Aust Dig Statutes [1115]
REPRESENTATION:
Counsel:
Applicant: In person
Respondent: M Miller
Solicitors:
Applicant: In Person
Respondent: Director of Public Prosecutions
Judgment Number: [2014] TASSC 9
Number of paragraphs: 73
Serial No 9/2014
File No 463/2009
KURT VON STALHEIM v SERGEANT GARY LUSTED
REASONS FOR JUDGMENT ESTCOURT J
27 February 2014
The appeal
The applicant moves by way of a notice pursuant to the Justices Act 1959, s107, for the review of an order of Magistrate Z Szramka of 17 April 2009, made upon finding proved against the applicant an amended complaint numbered 33925/07, for an offence of intimidating a public officer contrary to the Police Offences Act 1935, s34B(2)(a).
The particulars of the amended complaint were in the following terms:
"You are charged with on 24 October 2006 at Launceston in Tasmania you did intimidate Anita Smith a public officer exercising an authority conferred upon her by the Anti-Discrimination Act 1998 by sending an email to the Anti-Discrimination Tribunal which stated that if Anita Smith did not disqualify herself from the hearing of a complaint lodged by you under that act you would be 'in a position to lawfully kill the respondents' to that complaint."
Upon finding the amended complaint proved the learned magistrate, without recording a conviction, adjourned the proceedings against the applicant for a period of two years, on condition that he not commit any further offences under s34B(2)(a) of the Police Offences Act during that period, and ordered that he was to "come up for conviction and sentence at any time during that period if called upon".
The test to be applied on the review
Crawford CJ set out the relevant principles to be applied on a review such as this in Phillips v Arnold [2009] TASSC 43 at [46] as follows:
"46 Those principles include the following. The Justices Act, s107(4)(a), requires there to be shown an error or mistake on the part of the magistrate on a matter or question of fact alone, or of law alone, or of both fact and law. A motion to review is not of the nature of an appeal by way of rehearing and the principles of Warren v Coombes (1979) 142 CLR 531 do not apply. On a review of the conclusion of a magistrate based on the evidence, the question is whether upon the evidence the magistrate might, as a reasonable person, have come to the conclusion to which he or she did. Taylor v Armour& Co Pty Ltd [1962] VR 346 at 351; Bedelph v Weedon [1963] Tas SR 69 at 81; Benson v Rogers [1966] Tas SR 97 at 99; Richardson v Shipp [1970] Tas SR 105 at 117."
In Nilsson v McDonald [2009] TASSC 66, Blow J (as he then was) with whom Crawford CJ agreed, said at [59]:
"… it is therefore not open to a judge conducting a review under s107 to weigh the evidence and reach his or her own conclusions: Richardson v Shipp [1970] Tas SR 105 at 117; Australian Securities and Investments Commission v Hosken (No 2) [2000] TASSC 12 per Cox CJ at par7."
In Wood v Smith [1991] TASSC 12 (A39/1991), Crawford J (as he then was) said at [26] – [27]:
"26… The question for this court on an application to review a magistrate's decision on the facts is whether, as a reasonable man, he might have come to the conclusion to which he did: Taylor v Armour & Co Pty Ltd [1962] VR 346 at 351; Bedelph v Weedon [1963] Tas SR 69 at 81; Benson v Rogers [1966] Tas SR 97 at 99; Richardson v Shipp [1970] Tas SR 105 at 117. To adopt the words of Burbury CJ in Richardson v Shipp at p119 it was for the magistrate 'and not for this appellate court to determine what evidence should be accepted and what weight should be given to it'. The learned magistrate had all the advantages of observing the witnesses and of coming to a decision whether or not he found them convincing. I am at a considerable disadvantage in that regard. In these circumstances I do not feel able to conclude that the decision of the learned magistrate was not one to which, as a reasonable man, he should have come. Accordingly, the application will be dismissed.
27 There was evidence, which if accepted by the learned magistrate, justified the decision to which he came. When a decision depends very much on the credit of witnesses a reviewing court will rarely overturn it."
The grounds of review
The applicant's amended notice to review sets out 19 grounds of review. They are as follows:
"1The High Court of Australia, when deciding Jamieson & Brugman v Regina (1993) 177 CLR 574 stated that a person could not be held criminally liable for that which was done during the course of judicial proceedings. Having found that my email was sent during the course of a judicial proceeding, the learned magistrate erred in law by then finding that the charge was proven. (Jamieson & Brugman v Regina [1993] 177 CLR 574; Royal Aquarium and Summer and Winter Garden Society Ltd v Parkinson [1892] 1 QB 431; Lincoln v Daniels [1962] 1 QB 237; Trapp v Mackie [1979] 1 All ER 489)
2S 107 of the Anti Discrimination Act 1998 renders that which is said written or done in relation to a proceeding under that Act inadmissible and the Learned Magistrate erred in Law when interpreting that provision and receiving in evidence that which was inadmissible by virtue of that provision.
3When determining that Ms Anita Smith, a Judicial Officer was acting in good faith, the Learned Magistrate was exercising Jurisdiction reserved for the Supreme Court and hence was acting without jurisdiction when so determining.
4When determining that Ms Anita Smith, a Judicial Officer was intending to act in good faith, the Learned Magistrate was exercising Jurisdiction reserved for the Supreme Court and hence was acting without jurisdiction when so determining.
5When determining that Ms Anita Smith, a Judicial Officer was lawfully exercising an Authority, the Learned Magistrate was exercising Jurisdiction reserved for the Supreme Court and hence was acting without jurisdiction when determining the lawfulness or otherwise of the exercise of a power.
6The evidence before the Tribunal showed that Professional Edge Recruitment committed the conduct in question, without any apparent directions from Camerons Accountants and Advisors. The Tribunal directed that Mr O'Brien of Camerons Accountants and Advisors attend as the respondents.
a The Learned Magistrate, when determining, that Ms Anita Smith was acting lawfully in nominating Mr O'Brien or Camerons as the respondents erred in law and in fact when concluding that the respondents had been correctly identified.
b The Learned Magistrate failed to fulfil the task of examining that Ms Anita Smith was acting lawful or in good faith when requiring Camerons to act as the respondents of the complaint.
c The Jurisdiction for identifying the respondents rest with the Anti Discrimination Commissioner or Anti Discrimination Tribunal and the Learned Magistrate when identifying the respondents was acting without jurisdiction, which was restricted to the examination of the lawfulness of the identification of the respondents.
7The question of whether or not the respondents exist, is a question of fact. The Tribunal has no material before it to show that the respondents actually existed or to identify who they are as a question of fact. The Learned Magistrate erred in law and fact when determining that the respondents were identified or identifiable and hence concluded that there was a basis for Ms Anita Smith having a fear that harm may be visited upon the respondents.
8Ms Anita Smith stated that she was concerned for the safety of the staff of Camerons, Yet no person contacted the Principles or staff of Camerons to warn them of a possible perceived threat to their safety and accordingly,
a The Learned Magistrate erred when determining that the evidence of Camerons and Mr S B McElwaine, which would have cast doubt on the claim that Ms Anita Smith felt concerned about the safety of staff of Camerons.
b The Learned Magistrates finding that Ms Anita Smith was intimidated was unsafe and unsatisfactory because of the known existence of evidence that would cast doubt on such a conclusion.
c The Learned Magistrates erred in law when interpreting the meaning of the word Intimidate by failing to conclude that surrounding evidence that cast doubt on the actual intimidation of a public officer is an inherent factor for the determination of the issue of intimidation.
9The Learned Magistrate erred in Law and in Fact when determining that the Anti Discrimination Tribunal has been established, when evidence existed before the Court to show that it may not have been established.
10The Learned Magistrate erred in fact when determining that the Prosecution had proven beyond all reasonable doubt that the authority in question, being the Anti Discrimination Tribunal existed.
11The Learned Magistrate denied natural Justice when refusing to receive evidence which cast doubt on whether the Anti Discrimination Tribunal existed and whether the prosecution had proven the fact beyond all reasonable doubt.
12When determining that the Doctrine of Attainder did not apply to me the Learned Magistrate exercised Jurisdiction received for the Supreme Court of Tasmania.
13The Learned Magistrate determined the issue of the Doctrine of Attainder by reference to Vikings, rather than the basis originating in feudal law, as taken over by the Crown to which I referred and by doings erred in fact.
14Where the Crown, in all its manifestations, has consistently and systematically refused to afford a person the protection of the law and has used its power to abuse oppress and support unlawful and illegal conduct against a person, the Doctrine of Attainder affords a person the protection of claiming that they are not subject to the those same law, the protection of which that person has been denied. The Learned Magistrate erred in Law and in Fact when determining that the Doctrine of Attainder no longer exists nor has an application in the modern Justice system.
15The Learned Magistrate Erred in Law and in Fact when determining that the Doctrine of Attainder no long exist or has an application to people who are denied to law
16When determining that the Doctrine of Attainder did not apply to my situation the Learned Magistrate Denied natural Justice when refusing to allow the summonsing of the evidence to show a denial of the protection of the Law.
17The Anti Discrimination Tribunal is an inquisitorial tribunal that seeks to proceed by way of adversarial procedures and hence inherently fails to act in a lawful manner, the Learned Magistrate fail to afford me natural Justice when refusing to issue the summonses necessary to prove that the Tribunal does not act according to the Law.
18The Learned Magistrate denied Natural Justice when, having stated that the defendant could provide further evidence in support of his case, he then ruled that the defence case was closed.
19The learned magistrate erred in law and in fact in concluding that he was satisfied that on the evidence before him an offence against s34(2)(a) of the Police Offences Act 1935 was proved."
Consideration of ground 19 of the notice to review
It is convenient to commence with a consideration of ground 19 of the notice to review as it involves a review of the evidence against the applicant relevant to the ingredients of the offence charged and of the learned magistrate's reasons for finding the complaint proved.
The applicant did not dispute that he sent the email of 24 October 2006 to Ms Emily Briggs at the Anti-Discrimination Tribunal expecting that it would be received in turn by Ms Anita Smith, the Tribunal member with carriage of the applicant's complaint to the Tribunal. Indeed he accepted that he wrote an email the following day apologising for his "intemperate and inappropriate comments" in the earlier email.
Leaving aside for the moment a number of other defences raised by the applicant which, to the extent they are still pursued, are replicated in other grounds of the notice to review, the central issue before the learned magistrate was the question of whether the sending and receipt of the email of 24 October 2006 amounted to intimidation for the purposes of s34B(2)(a) of the Police Offences Act.
The email of 24 October 2006 reads as follows:
"Dear Emily
As a result of the panel members intention to commit an unlawful action and her previous abuse of office, it is my intention to aspect [sic] her to disqualify herself on the basis of a lack of impartiality, intent to pervert the course of justice and general abuse of office and intent to act in a manner contrary to the constitution, in seeking to deny a person access to the courts, contrary to the Magna carta.
Given this the options are that the panel member ceases to exercise her power or I am in a position to lawfully kill the respondents.
Accordingly I would ask that the panel member restrain herself from exercising the power of her office in relation to this matter.
I will send this letter in due course.
Yours faithfully
Kurt von Stalheim"
By 2pm on that day the applicant realised that the comments in the email were, in his words, "somewhat contemptuous of the Tribunal" and that "the tenor of the comments were going much too far in the sense that [he] hadn't requested something [he'd] demanded it". He rang the Tribunal and asked if the email had gone through to Ms Smith and was told it had.
On 25 October 2006 the applicant sent the second email which reads as follows:
"Dear Madam,
I write to apologise for my intemperate and inappropriate comments of yesterday, they were uncalled for and of no assistance what so ever. I should like to take this opportunity to state that whilst I am not being afforded any protection of the law, I do not intend to kill the respondents. The comments were written in a state of anger and without any thought to what I was writing.
I did have second thoughts about the comments and sought to prevent them being conveyed to you, but by that time they had been sent on to you. I deeply regret that this should have occurred.
Unfortunately, this has occurred at the same time as Tasmania Police has once again denied me the protection of the law. It appears that any person can commit any crime or offence against me that they like without any fear of penalty. As a direct result of that the timing of the communication was such that it arrived at a time of heightened temper on my part. I am deeply sorry that they were written.
Yours faithfully
Kurt von Stalheim"
In his recorded interview with police the applicant was asked as to his intention in sending the email of 24 October 2006 and he answered, "I was getting rid of, I was actually very furious and I was getting rid of the anger. A minor explosion."
In evidence before the learned magistrate, the applicant said that he did not know that the email would cause Ms Smith "fear or apprehension" and that he was only expressing his belief, not his intention, that, because Ms Smith was, in his view, denying him access to the protection of the law, he was in the position to lawfully kill people who offend against him.
The meaning of the word "intimidates" as used in a similar statutory provision to s34B(2)(a) of the Police Offences Act, namely s60 of the Crimes Act 1900 (NSW), was considered by Simpson J in Meller v Low (2000) 48 NSWLR 517 in a passage at 519, [9] – [10], which was cited with apparent approval by the New South Wales Court of Criminal Appeal in R v Manton [2002] NSWCCA 316 at [6], and which I respectfully adopt. Her Honour said:
"With these principles in mind I turn to consider what construction ought be placed on the word 'intimidates' as it is used in s60(1). It is, first, an ordinary English word, readily understood, with no technical or complex or concealed meaning. The Oxford English Dictionary, 2nd ed and the Macquarie Dictionary are in agreement that 'intimidate' means to render timid, to inspire with fear, to overawe, to cow, or to force to or deter from some action by threats or violence or by inducing fear.
One thing common to the ordinary notion of intimidation, and to all the dictionary definitions given is that the act that constitutes the intimidation has an effect on another person. 'Intimidate' is a transitive verb. While particular behaviour may be intimidatory in its nature without causing actual fear or apprehension, there is no intimidation unless and until the behaviour has affected its object in the required manner, that is, by inducing fear or affecting conduct. Behaviour may have a capacity to intimidate, it may be intended or designed to intimidate, but it does not intimidate until it has worked its effect in the person to whom it is directed. Intimidation does not exist in the air. It does not occur until the effect is created. The concept is twofold: intimidation necessarily consists both of a particular form of conduct and the effect the conduct has on another person. There is no intimidation until another person has been intimidated." [My emphasis.]
On the issue of intimidation, Ms Smith gave evidence before the learned magistrate as follows:
"Thank you. Could the witness be shown P01 please? Now then do you recognise that document or the contents of it at least?....Yes that is the email that I was referring to before as the two or three paragraph email with the request that I not exercise my – or not entertain the application for security for full costs or otherwise the respondent – sorry Mr Von Stalheim would think he was in a position to kill the respondents.
Now what did you do when you received that from Ms Briggs?....I – I think to the best of my recollection I spoke to her by telephone and indicated I thought it was a very serious matter and that I would refer it to the chair-person and the registrar – so the chair-person of the tribunal and the registrar of the Court, Mr Jim Connolly.
You referred to it as a serious matter – do you recall what your reaction to it was?.....I – on receiving this I had very – I had not obviously convened a directions conference yet with Mr Von Stalheim. I had no way of judging whether he was capable of carrying out that threat or not and I thought that it was an extremely provocative response to what was really a procedural matter in simply alerting the parties that I would hear that application. So before even I had an opportunity to hear the application I – I received something that mentioned that I – the words 'kill the respondents' – I thought that was rather frightening indeed.
Did you make a complaint to the police yourself in relation to this matter?....No I simply referred it through to Mr Connolly. My recollection is he got back to me before the end of the day and said that he had – or very soon – within days – and said that he'd been in contact with police CIB and offered things like drive-bys past my house over the weekend so it seemed that he had made a referral to the police at that stage." [My emphasis.]
The learned magistrate in careful and detailed written reasons, dealt with the issue of intimidation in the following terms:
"I now deal with the evidence in respect of the charge.
The evidence of Ms Smith is that she was appointed as a Tribunal member by the Attorney General Ms Judy Jackson, and there is no issue in respect to this.
The sending of the emails is not in issue.
The receipt of the emails, P1, P2, is not in issue nor that it was meant by the defendant to be received by Ms Smith.
How Ms Smith regarded the first email, PI was: 'No way of judging if he would carry out the threat. I though it was provocative. I thought if frightening indeed.' She went on in cross-examination, "I was determined not to be intimidated as a result of the email; it's not that I did'nt feel threatened; It can be interpreted as a threat to kill someone; It seems like a very threatening statement, I've never read anything quite so directly threatening to any party.'
It cannot be said that this was not a reasonable response to the expressions in P1, and matters were put in train which led to the charge being laid. The defendant's grievance is in substance that he was misunderstood; no forbearance was applied to this intemperate statement which was, according to him, dashed off by him just after reading the letter from Ms Smith advising that she had received an application from Mr O'Brian for permission to have legal representation and that she was going to entertain the application on the 21st of December, and it is Ms Smith's behaviour which caused him to behave in the way he did. That was the thrust of his position during cross examination of her, notwithstanding his admission that he sent the email of 24/10 because he misread the letter to him.
Although no application for security for costs had at that stage been received by Ms Smith, in his own evidence the defendant explained his behaviour as being in frustration with the further delay caused by the adjournments, and his concern that the application for security for costs, which he believed would be made and granted, would prevent him from pursuing justice once again, having made his original claim against Camerons in 2000. That's as may be, but the application that the Tribunal member was dealing with was referred to her on the 16th of August 2006, she having no previous dealing with the defendant as a member of the tribunal. She had appointed a day for the first directions conference, which was to be adjourned, and the defendant was advised of this, and the defendant asked that the next day set for a directions conference be adjourned. He was subsequently advised of the adjourned date and of the application by Mr O'Brian for separate legal representation. It was this letter he reacted to in the way he did in P1. Up to that stage it is not apparent that there was anything Ms Smith had done or said to the defendant that rationally fuelled the defendant's perceptions. From his own evidence, his response to the letter was fuelled by his anxieties and stress.
There is no issue that the defendant believes that he has not been able to get the justice from the justice system that he feels he entitled to obtain. Although the genuineness of this belief is not in dispute, in respect to the charge, the defendant demonstrates a conflation and confusion of fact and suspicion for his allegations and claims. He demonstrates little ability for self examination or sense of proportion, or restraint in the baseless claims he makes. At one stage he claimed that Ms Smith had done nothing for 9 months, which he resiled from when it was pointed out that there was approximately only 3 months from the time she was seized of the claim to the scheduling of the first suitable directions conference held on the 21st of December, the 2 scheduled previously being adjourned on the application of Mr O'Brian and the defendant respectively. There are no endless delays by Ms Smith evident in this record as claimed by the defendant. Although at one level he blames Ms Smith for the email he sent, P1, he admits that he misread the letter he received from the tribunal dated 23rd of October, and said he believed that she had granted the application by O'Brian for legal representation. He claimed he tensed up about what she was going to say due to prior experience. He had stressful matters coming together, and was stressed due to the uncertainty of what she was going to do. He thought that she was delaying it and he would be denied the enquiry that he'd waited 6 years for. As I understand his evidence, he was furious and angry when he wrote the email, P1, as he was of the view that she had a statutory duty to perform and she was getting out of it, behaving unlawfully and dishonestly. He added, he forgot to say in the email that he was going to make an application to her to disqualify herself. There was, it seems, no need for him to forget to do that as that was the object of the ultimatum in the email. Later that day, on second thoughts he says, he realised that his comments may have been contemptuous of the tribunal. The defendant demonstrates some confusion as to his motives and the causes of why he sent the offending email.
He added, that the second email was the result of cooler consideration and he tried to prevent the first email being sent to her.
Although he claimed that he didn't intend P1 to be threatening, he conceded that the words in the second paragraph of the offending email were precise as chosen by him, from which I infer that he intended to write them and intended them to carry the meaning that could reasonably be given them, words which the defendant shortly later considered ought to be stopped being sent to Ms Smith.
The defendant's claim that the offending words were just the expression of his belief is unbelievable. Nor do I accept his claim that the words used were not meant to threaten her and that he was going to apply to her to disqualify herself, but had forgotten to mention it in the email. One would have thought if that were so he could have expressed it clearly and not expressed himself in a way that not unreasonably could put someone in fear. His own response the following day of sending an email apologising for the one sent the previous day puts a lie to the claim of what his intention was in sending the email of the 24 of October. In the email of the 25th of October, he admitted that PI was unhelpful and conceded it was sent in anger.
Such an admission impugns his claim that he chose his words carefully. He was not able to advance any historical or legal reference to support his so called belief of attainder, as he describes it. To the extent he referred to Magna Carta, it did not support his claim. If he was expressing it as his belief in P1 one might expect him to mention it in P2. In his video interview he does not advance the cool reason that was motivating his expression in the email P1, an expression of his belief in the doctrine of attainder, but admitted that it was the product of a 'minor explosion'. When he drafted and sent the email P1 I find the defendant was frustrated and angry and furious, as he became convinced that the cause of his complaint was going to be frustrated. In his anguished state of mind he no doubt wanted to express forcibly the consequences (however misconceived), of the members highhanded and unlawful action, and that is reflected in the forceful and disturbing words he used. A person engaged in judicial functions could not unreasonably be shocked at reading someone's expressed intention to assert the right to a lawful killing, unless she did as he demanded. I find he wanted to shock and rattle Ms Smith by his email, to do what he demanded of her. The plain words he used unmistakably convey the meaning intended for them, that if she did not desist in exercising her power, he would be lawfully entitled to kill the respondents. Although the words do not directly express any intention to carry out any killing, they unmistakably and disturbingly assert the legal right to do so, if she did not disqualify herself. They are words of menace, not so obliquely conveying the possibility of what he claims to have a legal dispensation to do if she does not desist. In the ordinary course of human affairs, an emphatic claim to a lawful right to do something imports the real possibility that it might be done, especially when coupled as it was here with the contingency that gave rise to that entitlement. It is the way that the defendant expressed himself in the email PI that leads to the inference that it could not reasonably be taken as only an idle speculation, an academic statement of belief.
I do not accept his claim that he didn't know it would cause her fear and apprehension, that he hadn't thought to intimidate her, as I find that is what he intended to achieve by P1.
Listening to defendant I concluded that he displayed a tendency to be quick to form negative judgements about the motives and conduct of others where his own aims were perceived by him to be frustrated, and displayed a tendency to rationalise his own behaviour in the best light, to make light of his own responsibility for events, to blame others for his actions, and to reconstruct his memory self-servingly. His claim that he had a lawful right to kill someone who had offended against him seems somewhat eccentric. Nor do I accept that he held such a belief at the time of writing the email PI, reasonably or unreasonably or honestly. It harkens to a state of chaos and self redress in Viking times when no customary redress was available (see Icelandic Sagas, Nialls Law. Penguin Edn).
Although the defendant apparently had read the Criminal Code Act 1924, he overlooked s11(2), which abolished resort to attainder. If he seriously held such a view at the time, he would have found no difficulty expressing it clearly, especially if he chose his words with the care he claims. He would have had no reason to stop P1 going to her or apologising for it later. I'm satisfied beyond reasonable doubt that he meant to rattle her and affect her with the language chosen and in most vivid terms to impress upon her his disapproval of what he perceived she was dishonestly and unlawfully doing., by frustrating his just claim. The words are the product of a furious and angry person, and are words of violence. They were not written to convey to her his alleged belief, but demanding and imperious, and threatening. The words of the email were, following some outrageous allegations, 'Given this the options are that the panel member ceases to exercise her power or I am in a position to lawfully kill the respondents. Accordingly I would ask the panel member restrain herself from exercising the power of her office in relation to this matter'. Their intent was unmistakable. The words speak for themselves. He is giving her an ultimatum.. The defendant felt compelled to reconsider their import, notwithstanding his attempt to make light of them in court. He felt the need to tell her that he did not intend to kill the respondents, as that is what the words he used conveyed. He explained himself in the email P2 sent on the 25th October, as only having written the words in a state of anger, without any thought to what he was writing, and attributing them to 'his heightened temper' at the time. I find his claim that he did not intend to put Ms Smith in fear is a self-serving rationalisation and I do not accept it.
I find the words used by the defendant in the offending email are capable of amounting to intimidation under the section. See Lance John Manton [2002] NSWCCA, a decision of the Full Court where the court held 'if the officer was put in fear by the offender's intentional conduct, then it is not necessary to establish that the officer was overborne to the extent he or she was influenced or deterred from some action or otherwise corrupted in the execution of duty'.
The defendant's argument that the public officer cannot be intimidated unless he or she is overborne to the extent of being deterred from a course of conduct is not supported by the authorities. See also Mellor v Low,
I have considered all the submissions of the defendant and of prosecution counsel, and to the extent I have dealt with the applications for summonses to witnesses in these reasons, I also adopt my previous reasons given in respect to those applications.
I have no reason to doubt Ms Smith's evidence of how she was affected by the words of the offending email.
I find as a fact that Ms Smith was put in fear by the defendant's email P1.
After considering all the evidence I am satisfied beyond a reasonable doubt that the charge is proved."
I am wholly unable to see any error of law or fact in that analysis or in the conclusion by the learned magistrate. Having carefully considered the applicant's submissions to the contrary and the authorities upon which he relies, I am nonetheless satisfied that it was open to the learned magistrate to find that Ms Smith was "put in fear".
As already noted, on a review of the conclusion of a magistrate based on the evidence, the question is whether upon the evidence the magistrate might, as a reasonable person, have come to the conclusion to which he or she did. In my view the learned magistrate's conclusion was well open to him. As I pointed out to the applicant during his oral submissions, it is not permissible for me to weigh the evidence and reach my own conclusion.
Whether s34B(2)(a) requires an intention to intimidate or whether, as might be argued in reliance on R v Manton (above) at [19], that all that the tribunal of fact need be satisfied of is that the public officer was put in fear by the "offender's intentional conduct", the evidence of the contents of the two emails and of Ms Smith's reaction to the first of them, was more than sufficient to have permitted the learned magistrate, as a reasonable person, to have reached the conclusion he did. That the second email of 25 October 2006 contained an apology for the first, in the particular circumstances of this case adds nothing to the question of intent. Nor does the telephone call to the Tribunal at 2.00pm on 24 October 2006. At best the telephone call and the second email are equivocal on the facts of the case, and at worst they could be construed as an admission of guilty intent.
The applicant clearly intended to, and his intentional conduct did in fact, "inspire fear" in Ms Smith. That his conduct did not cause Ms Smith to be overborne to the extent that she was influenced to or deterred from some particular action is irrelevant: R v Manton (above) at [19].
It must also be remembered, as earlier noted, that when a decision depends very much on the credit of witnesses, a reviewing court will rarely overturn it: Wood v Smith (above) at [27].
In the present case the learned magistrate, as appears from the reasons for decision set out above, based his conclusion very much on the credit of the applicant. The learned magistrate concluded, from having listened to the applicant, that he "displayed a tendency to rationalise his own behaviour in the best light, to make light of his own responsibility for events, to blame others for his actions, and to reconstruct his memory self servingly."
Ground 19 fails.
Consideration of ground 1 of the notice to review
Ground 1 invokes common law immunity from criminal prosecution in respect of words used by a party in the ordinary course of judicial proceedings. The applicant asserts that the email sent to Ms Briggs was in the course of judicial proceedings, and that the learned magistrate therefore erred in holding him criminally responsible for its contents. He relies on Jamieson v R (1993) 177 CLR 574.
The ground is entirely misconceived, as are the applicant's submissions as to it. Jamieson v R is authority only for the proposition that the mere service upon a defendant, by the plaintiff, of an unverified statement of claim filed in an action for damages for personal injury cannot of itself constitute the required act for the criminal offence of attempting to obtain money by deception, even if, to the knowledge of the plaintiff, the statement of claim contains a false material assertion.
To the extent that the High Court in that case applied the early authorities of R v Skinner (1772) Lofft 54 at 56 [98 ER 529 at 530] and Dawkins v Lord Rokeby (1873) LR 8 QB 255 at 264, which established the general common law principle of immunity from criminal prosecution, it did so on the basis that the principle was subject to an exception in cases akin to the present.
In Jamieson, Deane (as he then was) and Dawson JJ said, at 582:
"The general proposition, enunciated by Lord Mansfield in R v Skinner [1772] Lofft 54, at p 56 [98 ER 529, at p 530], that 'neither party, witness, counsel, jury, or Judge, can be put to answer, civilly or criminally, for words spoken in office', must be qualified by a number of well-established exceptions. In particular, in so far as criminal proceedings are concerned, it must be qualified as regards substantive administration of justice offences (such as perjury, contempt of court and, depending upon the circumstances, perverting the course of justice) and offences associated therewith (such as conspiracy and attempt)."
At 594 Gaudron J, the remaining member of the majority in Jamieson, said:
"The best known statement of the privilege on which the appellants rely for their primary argument is that of Lord Mansfield in R v Skinner (1772) Lofft 54, at p 56 [98 ER 529, at p 530] 'neither party, witness, counsel, jury, or Judge, can be put to answer, civilly or criminally, for words spoken in office.' That statement has been accepted as authoritative on many occasions, see, eg, Kennedy v Hilliard (1859), 10 ICLR 195, at pp 207, 222; Dawkins v Lord Rokeby (1873), LR 8 QB 255, at p 264; Munster v Lamb (1883), 11 QBD 588, at pp 604, 606; Royal Aquarium and Summer and Winter Garden Society v Parkinson, [1892] 1 QB 431, at p 451; Hargreaves v Bretherton, [1959] 1 QB 45, at p 51, but it must be remembered that, so far as the criminal law is concerned, it is subject to a number of clear exceptions. Thus, perjury, contempt, perverting the course of justice and their associated offences are exceptions to or stand outside the privilege, they being offences which may, and usually do, involve statements made in the course of legal proceedings."
An assertion to be entitled to kill a party to proceedings before a tribunal such as the Anti-Discrimination Tribunal, allegedly made in order to cause a Tribunal member to cease to exercise the power of her/his office, quite clearly involves an offence against public authority of a kind that falls within an exception to the general rule as to immunity from prosecution.
Ground 1 fails.
Consideration of ground 2 of the notice to review
Ground 2 asserts that the learned magistrate erred in interpreting s107 of the Anti-Discrimination Act 1998 as not rendering the evidence of his communications to the Tribunal inadmissible.
Section 107 provides:
"107 Admissibility in other proceedings
Except for the purposes of this Act, anything said, written or done in relation to any proceedings under this Act is not admissible in any other proceedings."
In a written ruling on the applicant's no case to answer submission, handed down by the learned magistrate on 8 September 2008, his Honour ruled that "to exclude the application of the criminal law, by virtue of s107, to things said, written or done in relation to proceedings, would lead to an absurd result which Parliament could not have intended".
In his written reasons for decision delivered on 17 April 2009, the learned magistrate returned to the question of the reach of s107, as the applicant had renewed his argument as to that section in his final submissions. His Honour said:
"The defendant renewed his argument that his offending communication was either the subject to immunity or privilege, at common law or under s107 of the Anti-Discrimination Act (the Act). I had already dealt with the ambit of s107 of the Act in my ruling on the no case submission. The defendant in respect to the argument of privilege or immunity applying to his email, referred to 2 cases which are of no assistance to him. Page v McGovern, (TASSC 13) 2008, dealt with the issue of communications in the course of legal proceedings being privileged from actions for defamation and not with the application of the criminal law to things said written and done in the course of legal proceedings. Jamieson & Brugmans v R, 1993 HCA 48, involved the application of the criminal law to things said or written in the course legal proceedings. The privilege attached to words spoken or written in pleadings in the 'ordinary course of such proceedings', according to Deane and Dawson JJ. Toohey and McHugh JJ were of the view that the immunity applied to things done in the course of such proceedings, but all noted that things fell outside privilege, nor according to Toohey and McHugh JJ, was the matters of exclusion from privilege closed. However expressed, those matters that fell outside privilege were those that attacked the integrity of the judicial process. The defendant's words in his email could not be described as protecting the integrity of the judicial process. He said he was shocked by the relevant paragraph. He claimed that if he thought about it he would never have written them. He himself has conceded that they may have been contemptuous, and he took steps to stop the email being forwarded to Ms Smith. The court in Jamieson & Brugmans cited with approval Lord Mansfield's dictum in R v Skinner (1763) Eng R 29, that 'neither party, witnesses, counsel, jury or Judge, can be put to answer, civilly or criminally, for words spoken in office,' and their honours said that so far as the criminal law was concerned, such as perjury, contempt, perverting the course of justice and their associated offences, they are exceptions and stand outside privilege. These exceptions to privilege are offences that protect the integrity of the judicial process. To the extent that s107 of the Act may reflect the common law, the reasoning of Jameson & Brugmans supports my ruling on the no case submission on the ambit of s107 of the Act, namely s107 applies to what is ordinarily to be expected to be said, written and done in such proceedings, and certainly not to those matters that are of a criminal nature. The defendant's email of the 24th of October 2006, could not be considered as something in the ordinary course of such proceedings, or as something that might be ordinarily expected in such proceedings. His remarks were beyond the pale and, to the extent they are of a criminal nature, stand outside privilege. Section 34B(2)(a) can only be seen as allied offences to the exceptions to privilege referred in Jamieson & Brugmans, that protect the integrity of the judicial process. The public policy reasons expressed in the judgements in Jameson & Brugmans underpinning the operation of the common law privilege compels an interpretation of s107 of the Act to be subject to the criminal law, as it protects the integrity of the judicial process. However the defendant submits that s34B(2)(a) does not apply to judicial proceedings like those of the Act, due to the rule of construction that in the absence of express words or a clear legislative intent to that effect, a statute is not to be construed as abrogating important common law rights, privileges or immunities. I am of the opinion that there is no consideration of public policy that would justify excluding liability for conduct before the tribunal that would fall within that proscribed by s34B(2)(a). The section is plainly of broad application, does not impede the integrity of the judicial proceedings, and is analogous to the common law offences that protect the judicial process, and it would make a mockery of the criminal law if its protection did not apply to the proceedings of a statutory tribunal like the Anti-Discrimination Tribunal: see Toohey and McHugh JJ in Jamieson & Brugmans."
I can find no error in that analysis. Indeed, I would respectfully agree with the learned magistrate's reasons for rejecting the applicant's submission that s107 rendered evidence of his communications with the Tribunal inadmissible in a criminal prosecution from which he was not otherwise immune. I also reject that submission.
Ground 2 fails.
Consideration of grounds 3, 4 and 5 of the notice to review
Grounds 3, 4 and 5 of the notice to review involve a contention that the learned magistrate lacked jurisdiction to examine whether the conduct of a member of the Anti-Discrimination Tribunal is lawful or in good faith.
That contention and the applicant's submissions on these three grounds are, quite simply, without any legal substance in the context of the proceedings against the applicant that were before his Honour.
Moreover, to the doubtful extent, that any question of the lawfulness of Ms Smith's conduct, or whether it was in good faith was relevant to any issue in the proceedings before the learned magistrate, there was no evidence to suggest otherwise than her relevant conduct was both lawful and in good faith.
Grounds 3, 4 and 5 fail.
Consideration of grounds 6 and 7 of the notice to review
Grounds 6 and 7 and the applicant's submissions in support of them, seek to make something of the claim that the conduct, the subject of the applicant's complaint to the Anti-Discrimination Tribunal, was conduct on the part of "Professional Edge Recruitment" and not "Camerons Accountants and Advisors", or a Mr O'Brien, and that this required the learned magistrate to examine whether Ms Smith was acting lawfully and in good faith "in nominating Mr O'Brien or Camerons" as the respondent, and also raised the question of fact "of whether or not the respondents exist".
Grounds 6 and 7 and the submissions in support of them have no substance.
Who the proper respondents to any proceedings before the Tribunal were and whether the proper respondents exist were considerations wholly irrelevant to any of the issues before the learned magistrate. There were identified respondents in the proceedings before Ms Smith and she doubtless understood or believed them to exist. The applicant claimed to be in a position to lawfully kill those identified respondents if Ms Smith did not cease to exercise the power of her office and she found that ultimatum frightening. The learned magistrate was entitled to conclude as he did.
Grounds 6 and 7 fail.
Consideration of ground 8 of the notice to review
Ground 8 alleges errors on the part of the learned magistrate in finding that Ms Smith was intimidated. Those errors are predicated on the proposition that "Ms Anita Smith stated that she was concerned for the safety of the staff of Camerons, yet no person contacted the principals or staff of Camerons to warn them of a possible perceived threat to their safety".
That proposition does not rise above a submission as to Ms Smith's credit. There was evidence from Ms Smith that she found the applicant's email of 24 October 2006 frightening. That evidence was evidence that the applicant had induced fear in Ms Smith and that was all that was needed to make out the ingredient of intimidation required by s34B(2)(a) of the Police Offences Act: Meller v Low (above) at 519, [9] – [10]. That evidence was quite sufficient to allow the learned magistrate to conclude as he did.
Ground 8 fails.
Consideration of ground 9, 10 and 11 of the notice to review
Grounds 9, 10 and 11 of the notice to review assert errors on the part of the learned magistrate in reaching the conclusion that it had been proved that the Anti-Discrimination Tribunal existed.
As to this question his Honour said in his reasons for decision:
"Another prong of his submission in respect to the charge, and to base applications for summonses to witnesses is that the Anti-discrimination Tribunal does not exist, it cannot be proved to exist, and I can't be satisfied beyond a reasonable doubt that it does exist and there fore she could not lawfully be said to be exercising a duty or authority imposed upon her by an Act, nor is there any basis for the exercise of a public duty or authority by her. As I understand the defendant's submission, referring to the position of a police officer under s 34B (1), the authority or duty must lawfully exist in respect to ss2(a), and ss4 of s34B.
The prosecution bear the onus of satisfying the court of the elements of this charge, (including the establishment of the tribunal, according the requisite standard, and argue that they have done so. I do not understand the prosecution to be relying on any chain of instruments to establish the creation of the Tribunal. They readily admit that the chain of ministerial instruments cannot be established, but rely upon the presumption of regularity, which Wienberg J in Commonwealth of Australia v Anti-Discrimination Tribunal (Tasmania) [2008] FCAFC 104 opined can operate against an accused in a criminal case. Such proof does not involve proof beyond argument or certainty beyond any doubt. Another group of summonses relate to gaining evidence to state what is in substance conceded by the prosecution, that there is no formal evidence of the Tribunal exists. The defendant wishes to obtain evidence to undermine the prosecution reliance on that presumption. It is another fishing exercise, but is with respect to the defendant a red herring. He referred to Commonwealth of Australia v Anti-Discrimination Tribunal (Tasmania), to base his submission that there is no evidence that the tribunal exists. This is a misreading of the judgements of Weinberg and Kenny JJ.
The defendant concedes that Ms Smith was appointed as a Tribunal member under the Act, which is consistent with the evidence. The prosecution in it's reliance on the presumption of regularity rely upon her appointment as a Tribunal member by the Minister and from the reasons of Kenny J that is sufficient to prove the establishment of the Tribunal. The defendant presses the lack of formal evidence of the existence of the Tribunal, as without the establishment of the Tribunal Ms Smith is not exercising any duty or authority according to law, and by extension, no offence has been committed by him. The defendant illustrated his point by analogy to police officers under S34B (1). Although the Tribunal member's authority rests with her exercising her duty or authority as a public officer under s34B (2)(a), I do not understand the prosecution to be arguing that such duty or authority does not need to lawfully exist. For reasons given it is unnecessary for me to decide whether S34B (4) permits the inclusion as a public officer someone who may be exercising a duty or authority in good faith even where such duty or authority does not lawfully exist. However the evidence is compelling that Ms Smith acted in good faith in the execution or intended execution of an Act, public duty or authority. I do not understand the defendant to be contending that Ms Smith did not believe she was exercising her duty under the Act at the relevant time. There is no evidence that she was not doing so in good faith.
With respect, I adopt the reason of Kenny J as to the establishment of the Ant- Discrimination Tribunal, in Commonwealth of Australia v Anti Discrimination Tribunal (Tasmania) where at page 63 he examines the evidence in respect to the exisistance of the Tribunal. It is apposite to note for the purpose of his honours reasoning that there is no dispute regarding the appointment of Ms Smith by the Attorney General as member of the Anti-Discrimination Tribunal
He says,
'In the circumstances disclosed by the evidence and having regard to section 12 of the Anti-Discrimination Act, I conclude that the Minister has established the Tribunal pursuant to S12, and in the alternative that he established the Tribunal, to which body the chairperson and members have been duly appointed.
First, let it be assumed the s12 (1) (a) confers discretion (as opposed to a duty) on the Minister to establish the Tribunal. This discretion is at large. Neither s12 nor any other statutory provision stipulates any criterion by reference to which a decision is to be made. Neither s12 nor any other statutory provision specifies the manner in which a decision is to be made or recorded. There is no requirement that the decision to establish the tribunal be recorded in formal instrument or even in writing. If the act of establishing the Tribunal is properly regarded as separate from the first appointment of a member or members (to which I doubt) then the act is complete when the Minister turns his mind to the question whether or not he should establish the Tribunal and determines that he should. If the Court were to hold that the Minister cannot be taken to have made a decision to establish the Tribunal unless the decision is recorded in writing (or that there is some other perquisite), it would be adding an unwarranted gloss on s 12. If this is so, then s 12(1) in substance confers a binary discretion to appoint members and they establish the Tribunal or not appoint members and thereby not establish the Tribunal. Put another way, the act of first appointment encompasses the act of establishment. In substance, the act of appointing members (and a chairperson) was also the act by which the minister established the Tribunal. That the discretion to establish and appoint has this binary character, with the result that the acts of establishing and appointing are in truth indivisible under s 12(1) of the Anti-Discrimination Act, is supported by the use of the word "and" after s12(1)(a) and s12(1)(b).
The alternative is it seems to me, to regard the acts of appointing members as presumptive evidence that the Tribunal had already been established under s12 (1) (a) of the Anti-Discrimination Act.'
To the extent that this reasoning applies to the issue the defendant sought summonses for witnesses, there is no relevant admissible evidence that they could provide.
As evidence of the formal establishment of the Tribunal is not necessary to underpin the prosecution case, the defendant's concern to obtain evidence of the non establishment of the tribunal is irrelevant. His endeavours in this are either fishing or for some impermissible purpose.
I am satisfied beyond a reasonable doubt that the Anti-Discrimination Tribunal was established, and that Ms Smith was appointed to the tribunal, and that she was at the relevant time executing her duty, or lawfully performing a duty imposed upon her under the Act, or in the exercise of a public duty or authority as a member of that Tribunal."
I find no relevant appealable error in the learned magistrate's reasoning or in his conclusion and I reject the applicant's submission that he was denied natural justice on this issue.
Because of the conclusion he reached, his Honour found it unnecessary to decide whether s34B(4) of the Police Offences Act had application in the event that the Tribunal did not exist, but Ms Smith was nonetheless exercising an authority in good faith, where such authority did not exist.
In my view that subsection plainly would apply in such circumstances. Section 34B(4) provides as follows:
"(4) In this section, public officer includes any person acting in good faith in the execution, or intended execution, of an Act or a public duty or authority." [My emphasis.]
It follows that, in the doubtful event that there was error on the part of the learned magistrate in his reasoning or conclusion, or a denial of natural justice on this issue, I would apply the proviso contained in s110(2)(ab) of the Justices Act. That section is as follows:
"(ab) in a case where the court considers that no substantial miscarriage of justice has occurred even though the cause or matter raised by the motion might be decided in favour of the applicant, dismiss the motion."
Grounds 9, 10 and 11 fail.
Consideration of grounds 12 to 16 of the notice to review
These five grounds all rely, by analogy, upon what the applicant refers to as the "Doctrine of Attainder".
They are wholly without merit, as is the applicant's allied submission relying upon Magna Carta.
The applicant contends that:
"Where the Crown, in all its manifestations, has consistently and systematically refused to afford a person the protection of the law and has used its power to abuse oppress and support unlawful and illegal conduct against a person, the Doctrine of Attainder affords a person the protection of claiming that they are not subject to those same law, the protection of which that person has been denied. The Learned Magistrate erred in Law and in Fact when determining that the Doctrine of Attainder no longer exists nor has an application in the modern Justice system."
This so called doctrine, as the applicant casts it, has never existed in law.
As a result of a confession, verdict, inquest, conviction, or judgment of or for any serious capital offence, a person was, in medieval and renaissance times, "attained" and the law thereafter had no concern for that person but to execute him or her. That person was said to suffer "corruption of blood". Moreover, as pointed out by counsel for the respondent, Mr Miller, attainder meant that a person was stripped of the protection of the law; it did not mean that they were not subject to the law.
In any event, attainder for felony and treason, and therefore corruption of blood, was abolished in the United Kingdom by the Forfeiture Act 1870, and in Tasmania the Criminal Code Act 1924, s11, dealt with both attainder and outlawry in the following terms:
"11 Outlawry, attaint, and forfeiture abolished
(1) After the passing of this Act no proceedings in outlawry shall be taken, and no judgment of outlawry shall be pronounced, against any person.
(2) No confession, verdict, inquest, conviction, or judgment of or for any treason, felony, or other crime, shall hereafter cause any attainder or corruption of blood or any forfeiture or escheat other than any fine or penalty imposed by the sentence of the Court."
Grounds 12 to 16 fail.
Consideration of ground 17 of the notice to review
Ground 17 of the notice to review asserts that the learned magistrate failed to afford the applicant natural justice when refusing to issue summonses necessary for the applicant to prove that the Anti-Discrimination Tribunal "does not act according to the law".
The learned magistrate gave detailed written reasons for refusing to issue the 95 summons to witnesses applied for by the applicant after he had given evidence on the hearing of the complaint against him. I set them out in full:
"Following the ruling that there was a case for the defendant to answer in respect to the charge under 34B(2)(a) of the Police Offences Act 1935, the defendant chose to give evidence, and thereafter made an application to issue 95 summons to witnesses to give evidence in these proceedings, I infer, on his behalf.
Some of the applications I ruled upon in the course of submissions, but these reasons apply to all the applications. Some of the applications were duplicated, that is applications were made for some persons on a number of grounds. Most applications were contended for on a wide front.
In perusing his applications the defendant broadened his attack on the charge against him, and made submissions that touched on what might be regarded as properly made as final submissions. As consideration of the applications requires a court to determine the likely issues that are before it, I have regard to what he said for the purposes of these applications but will give my reasons on those matters pertaining to final submissions when those submissions have been concluded.
In considering these applications, I take into account the evidence in the proceedings on the charge, the defendant's evidence, together with his submission on these applications as well as the submissions and exchanges that took place with the defendant throughout.
He listed the proposed witnesses under a number of heads, these being;
·Denial of the protection of the law-Attainder.
·Allegations of attempting to pick up two nine year old girls (Paedophilia)
·Good faith, acting and intention (do they know how to act lawfully)-refusal when exercising Tribunal powers.
·Similar communications (by him)
·Quantum of Discrimination complaint.
Despite this categorisation, the defendant conceded that he could have put them all within each category and this was reflected in the nature of most of the arguments the defendant advanced in respect to the applications.
The summonses were sought in time, from the first magistrate who dealt with him for the charge of 'wilful and obscene behaviour' in 1987, from which he asserted all his subsequent problems stemmed, to persons involved with him after the alleged offence with which he stands charged. After consideration, he withdrew his application in respect to that magistrate.
Much of the defendant's submissions were underpinned by an attack upon the Anti- Discrimination Tribunal in not having done its job, especially Ms Smith, in not investigating his complaint before that Tribunal, and he endeavoured to obtain evidence in respect to that, in an attempt to bolster his submissions of lack of good faith which was intermingled with his assertions that they did not know how to do their job.
Most of the submissions consisted of a recitation of past grievances and injustices at the hands of police officers, Judicial officers, and the Anti-Discrimination Tribunal members, and that he has been denied access to Justice from the courts. The moving basis for the issue of summonses in respect to the witnesses resulted submission that were sometimes confused and circular.
It was apparent that none of the witnesses he sought to summons could give relevant and admissible evidence in respect to the matters at issue in the proceedings, and that the applications were based in the hope that the proposed witnesses might give evidence to support his case and defences, relevant from his own perspective, and to excuse or justify the alleged conduct.
I adopt, with respect, the elements of the charge that I would need to be satisfied beyond reasonable doubt as outlined by Porter J in Attorney General for the State of Tasmania v Kurt Van Stalheim, namely,
-the defendant;
-intimidated;
-a public officer:
-in the execution of her duty, or lawfully performing a duty imposed on her by an Act, or in the exercise of a public duty or authority.
Theses elements provide the touchstone for what is likely to be relevant in respect to the charge against the defendant.
The defendants complaints and reasons for the application for his array of summonses was to obtain, in substance, evidence as, to how Ms Smith and others had conducted themselves towards him.
Underscoring the defendant's applications is the belief that his reputation as paedophile is so widely known that it has coloured the judgement of police officers, judicial officers, public officers and administrative personal and civilians in their attitude towards him and this has been instrumental in the motivations of these persons not giving him fair treatment, justice and service. Stemming from this is his claim that the prosecution of the charge, the subject to these proceedings, was wrongfully motivated to preclude him from pursuing his claims before the Anti- Discrimination Tribunal, and hence his attempt to question the relevant parties to glean any evidence in support of that assumption.
Listening to the defendant's submissions it was difficult to avoid the impression that the defendant seeks the summons for some purpose other than what may be relevant and admissible in these proceedings, which is something that is not permissible.
The courts power to issue the summonses under s 41 and s 44 of the Justices Act 1959 is a, discretionary one, that is, it must be exercised according to law. In respect to the applications, the proposed witness must be able to give relevant and admissible evidence in respect to the issues before the court arising out of the charge; R v Hove Justices , ex Parte Donne (1967) 2 AER 1253 and Witness v Marsden (2000) 49 NSWR 429.
In addition, the court has the implied powers that are reasonably necessary for the court to exercise the jurisdictions conferred upon it, and to control its proceedings, including the power to prevent an abuse of its process. See Grassby v R, (1989) 168 CLR per Dawson J at 16-17. Also Porter J in The Attorney General For The State of Tasmania V Kurt Van Stalheim.
Considering all the material before me, it is impossible to see how any of the persons proposed to be summonsed is able to give any relevant and admissible evidence bearing upon the issues this court must decide in respect to the charge before it. The summonses reflect a broad fishing expedition to obtain evidence not relevant to these proceedings , and an attempt to vindicate the defendant's long standing perceived grievance, against public officials, judicial officers, members of the courts administration, police officers, and others, that he is not receiving fair and impartial or lawful treatment. I have no reason to think that these perceptions are not genuinely held by the defendant, but they form no proper bases for the issue of the summonses sought.
I am also satisfied that the applications for the summonses amount to an abuse of the courts process.
The applications are refused."
I can see no error in the exercise by the learned magistrate of his discretion. I reject the applicant's submissions to the contrary.
Ground 17 fails.
Consideration of ground 18 of the notice to review
Ground 18 asserts that the learned magistrate denied the applicant natural justice by having told the defendant that he could provide further evidence in support of his case and then ruled that the defence case was closed.
The relevant passages from the transcript of the hearing before the learned magistrate are as follows:
"THE COURT RESUMED ON 19TH MARCH 2009
HIS HONOUR: Thank you. Application for summons witness. I refused all applications and I publish my reasons, thank you.
DEFENDANT: Your Honour, I was, in fact, intending, I think I indicated on the 8th or 9th, to give evidence in support of the applications. Does this preclude that or is this –
HIS HONOUR: Finished.
DEFENDANT: Thank you, your Honour.
HIS HONOUR: And unless you have another application?
DEFENDANT: For other summonses, well I'd have to think about that, your Honour.
HIS HONOUR: Well, the point about it is that matter's now, sort of being dealt with and I need to sort of set the matter down for final submissions, it seems to me.
…
HER [sic] HONOUR: The other point you made is that you said that you understood that you were supposed to be giving evidence on these summonses. That's not my understanding. I thought the arguments were put and I asked for considerable material, which I did and I did, that's and you arguments were fairly full, I though.
DEFENDANT: Yes, it was more a question of –
HIS HONOUR: And you had given evidence and cross-examined it and you canvassed a great deal in your evidence and so in what respect did you consider giving evidence in respect of these summonses. What wasn't canvassed in your evidence in chief and cross-examination and your various submissions?
DEFENDANT: Well, it's very restricted, your Honour, there's, it was only in support, primarily of the Chairperson at the Tribunal and the Registrar of the or administrator of the Magistrate's Court, Mr Connelly because –
HIS HONOUR: Well, what's it, was it evidence or just more submissions that you want to make?
DEFENDANT: Well, it's going to be evidence to the effect that, when under oath and I can quote what Anita Smith said now, when under oath, Ms Smith said,
I are to the best of my recollection that I spoke to her, Ms Briggs, by telephone indicating that I thought that it was a very serious matter and that I would be referring it to the Chairman and the Registrar sorry, the Chairperson of the Tribunal and the Registrar of the Court, Mr Jim Connolly.
She also indicated in her evidence, your Honour, that she'd had discussions with them about, in part 4 as it happens, at 18 minutes 56 seconds, that she'd had discussions with Mr Connelly and Mrs Wood and that Mr Connelly came back to Anita Smith to understand and indicated that he'd been in contact with CIB, presumably Hobart, that she said that she couldn't remember ordering them and the other issue was the issue of drive bys – if I can have a moment?
HIS HONOUR: What issue was that?
DEFENDANT: Yes –
HIS HONOUR: Well, so you wish to – just alert me to that aspect of the transcript in relation to which issue was that?
DEFENDANT: Apparently, here we are, Anita Smith claimed that she simply referred the subject or the subject matter of the content of the email through to Mr Connelly and her recollection was that before the end of the day – and she corrects herself – or very soon after he, he apparently said that he'd been in contact with police and CIB and they had offered things like drive-bys past her house over the weekend, four days later, so it appeared that it made the referral to the police at that stage. What I was really seeking to get to in terms of their evidence was whether or not that, in fact, happened because my initial understanding was, as I said under oath, that the complaint had been made by Mr Connelly with permission of Ms Wood, sorry, Mrs Wood, and there's that contradiction.
HIS HONOUR: So, that's in relation to Mr Connolly, is it?
DEFENDANT: Yes.
HIS HONOUR: Okay.
DEFENDANT: And also Mrs Wood because she gave authority and then there's the question as to whether she had the authority. Now, the only other issue, I suppose was, relates directly to intimidation. In her evidence Ms Smith indicated that she was very concerned about the words and felt apprehension about the safety of Cameron's and this goes to the heart of two further witnesses, Mr O'Brien, who was representative of Cameron's and Mr McElwaine and in relation to Mr McElwaine's evidence, he knew nothing of it before, I think it was the 21st or 19th of January 2007 and he asked why he hadn't been informed because obviously, the obvious inference I draw from that is that he would have been informed by his clients which is the inference I automatically would have arrived at and accordingly that brings in Mr O'Brien, was in fact deformed. I'll just see if I can find the actual reference.
HIS HONOUR: The one in the transcript, you mean?
DEFENDANT: Yes, these.
HIS HONOUR: I'll want Ms Smith's evidence in chief and cross-examination, is that right?
DEFENDANT: I should be able to direct you to the part and the time – it will only take a moment. I haven't.
HIS HONOUR: I'm mindful, I'm across her evidence and the cross-examination.
DEFENDANT: Yes, so, what it comes down to is this. If she was intimidated, a reasonable man exercising a reasonable level of judgment and being a lawyer as she was conscious of her duty to warn, would have actually ensured that Cameron's knew. The point I make about Mr Connelly and it is in his letter to Tasmania Police, I believe, is that he said that he was concerned about them. One would have expected him to warn Cameron's and it doesn't appear that anyone did. That's (inaudible) all of her evidence.
HIS HONOUR: So, that's in relation Mr Connelly, Mrs Wood, Mr O'Brien and Mr McElwaine, is that right?
DEFENDANT: Also left with me the issue of Ms Anita Smith and Ms Briggs and since it seems that I'm in the position where I have to push myself I probably won't seek the evidence of Ms Briggs because I'm not entirely sure that she can add anything to the issues that are being narrowed down and I'm not entirely sure that I wish to recall Ms Smith because she can take pot shots at me.
HIS HONOUR: Okay.
DEFENDANT: It wouldn't help my case. Of course, just to go back to the Cameron's one, the inference I'd ask the Court to draw if I am, in fact, correct I expect to be shown to be correct, by the evidence is that if she was truly intimidated, she would have told me, in short that thing about duty and the inference the Court can draw from the lack of that advice is that she wasn't feeling intimidated.
HIS HONOUR: Okay, thank you. I note that here, in respect of the further submissions in respect of the issue of the summonses and in respect of Mr Connelly, Ms Wood and Mr O'Brien or Mr McElwaine, having heard the submissions it doesn't, there's nothing, I suppose knew in it which would cause me to review and the decision I made refusing those applications, the summonses, thank you. We'll adjourn this matter then to what date?" [My emphasis.]
In my view, it is clear from those passages that the learned magistrate did not "rule the defence case closed" until after he had heard from the applicant an outline of the nature of the limited further evidence the applicant wished to give. I see no unfairness amounting to a denial of natural justice in the learned magistrate declining, as he did, to allow the applicant to give the further foreshadowed evidence on oath.
Ground 18 fails.
Were I to be in error as to my conclusion as to this ground, I would nonetheless apply the proviso under s110(2)(ab) of the Justices Act and dismiss the applicant's motion on the basis that any error on the part of the learned magistrate as asserted did not give rise to a substantial miscarriage of justice. There was ample evidence before his Honour to justify finding the complaint proved beyond reasonable doubt, and to the extent that what the applicant wished to do was give further evidence on oath, as opposed to making submissions about matters stated from the bar table, the evidence he foreshadowed was, for reasons already given, not relevant to any issue in the proceedings.
Disposition
None of the grounds of the notice to review having succeeded, the motion is dismissed.
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