Von Stalheim v Wright
[2010] TASSC 25
•4 June 2010
[2010] TASSC 25
COURT: SUPREME COURT OF TASMANIA
CITATION: Von Stalheim v Wright [2010] TASSC 25
PARTIES: VON STALHEIM, Kurt
v
WRIGHT, Mark Gordan
FILE NO/S: 1043/2009
DELIVERED ON: 4 June 2010
DELIVERED AT: Hobart
HEARING DATE: 24 May 2010
JUDGMENT OF: Tennent J
CATCHWORDS:
Magistrates – Appeals and review – Tasmania – Motion to review – The hearing – Generally – Application for hearing de novo – Circumstances in which it is ordered.
Justices Act 1959 (Tas), ss74 and 111.
Police Offences Act 1935 (Tas), s34B.
Munday v Cole [1979] Tas R (NC) N14, applied.
Aust Dig Magistrates [272]
REPRESENTATION:
Counsel:
Applicant:
Respondent: M M Miller
Solicitors:
Applicant: In person
Respondent: Director of Public Prosecutions
Judgment Number: [2010] TASSC 25
Number of paragraphs: 36
Serial No 25/2010
File No 1043/2009
KURT VON STALHEIM v ACTING INSPECTOR MARK GORDAN WRIGHT
REASONS FOR JUDGMENT TENNENT J
4 June 2010
On 19 February 2008, police laid a complaint by which they charged the applicant with the offence of attempt to intimidate a public officer contrary to the Police Offences Act 1935 ("the PO Act"), s34B(2)(b). The particulars of the charge were as follows:
"You are charged with on the 29th November, 2007 at Launceston in Tasmania, did attempt to intimidate Magistrate Peter H Wilson a public officer in the execution of his duty by addressing a document to Magistrate Wilson and delivering it to the Launceston Court of Petty Sessions stipulating that if he issued a warrant of arrest against him it would be unlawful and may constitute a basis for a lawful killing."
The applicant was also charged some time later with having breached an order for bail which required him to appear before the magistrate named in the complaint.
The main charge against the applicant arose out of his sending a lengthy letter to Magistrate Wilson which he delivered to the Launceston Magistrates Court on 29 November 2007, a little after 9am that day. The applicant had been bailed to appear before Magistrate Wilson at 10am. By his letter, the applicant told Magistrate Wilson, amongst other things, that he would not be appearing in court that day. He was at the time aggrieved by a situation where he was unable to obtain the issue of a number of witness summonses in respect of the matter to be heard by Magistrate Wilson. The last sentence of the letter was as follows:
"I would therefore request that you do not order that a warrant be issued since it may lead to a lawful killing."
On 2 October 2009, a magistrate found both the breach of bail and attempt to intimidate charges proved against the applicant. The matters were adjourned for sentence. On 12 November 2009, the learned magistrate dismissed the breach of bail matter without penalty. As to the second matter, he convicted the applicant, and ordered that he perform 120 hours of community service.
On the same date, an order was made staying the operation of that sentence, and the applicant filed a notice to review his conviction and sentence. The grounds of review were in the following terms:
"1The High Court of Australia, when deciding Jamieson & Brugman v Regina (1993)77 CLR 574 stated that a person could not be held criminally liable for that which was done during the course of judicial proceedings. This Magistrate erred in law and in fact when holding me responsible for a letter that had an intimate connection with a proceeding. (Jamieson & Brugman v Regina [1993] 177 CLR 574)
2The Registrar of the Launceston Magistrates Court, has stated that he was aware that he had evidence to prove that the commission of the offence was impossible and did not provide this evidence. As a result the Learned Magistrates Decision contains errors of law and fact which if known could only have resulted in an acquittal.
3The Learned Magistrate erred in Law and in Fact by handing down a decision that was contrary to the practices and procedures of the Magistrates Courts Act, which provides for screening of all communications to magistrates.
4The learned magistrate erred in law by preventing a defence case to be put to its full effect and as such has denied natural justice, resulting in the loss of an acquittal.
5The learned Magistrate Acted without Jurisdiction and beyond his jurisdiction as provided by the Magistrates Courts Act SS. 15 AC -15 AE and as such has erred in law when finding that the charge was proven.
6The Justices Act provides at S.74 (2) that there must be a basis for concluding that if the conduct had continued un-interrupted, the offence would have been committed. Given that the attempt was to contravene S.34 B, which requires evidence that the power in question was being exercised at the time of the offence. The Magistrate was not presented with any facts upon which to determine that Magistrate Wilson was acting lawfully at the time that the attempted intimidation occurred. The Learned Magistrate erred in law and in fact when concluding that the charges were proven.
7The Justices Act provides at S.74 (2) that there must be a basis for concluding that if the conduct had continued un-interrupted, the offence would have been committed. Given that the attempt was to contravene S.34 B, which requires evidence that the power in question was being exercised at the time of the offence. Since the Court of Petty Sessions is only in existence at the time that it is sitting and The Learned Magistrate was not presented with any facts upon which to determine that Magistrate Wilson was constituting the Court of Petty Sessions at the time that the letter was delivered to the Magistrates Courts Registry. The Learned Magistrate erred in law and in fact when concluding that the charges were proven.
8The Justices Act provides at S.74 (2) that there must be a basis for concluding that if the conduct had continued un-interrupted, the offence would have been committed. Given that the attempt was to contravene S.34 B, Subsection 4 of which requires evidence that the public officer in question was acting in good faith. The Learned Magistrate was not presented with any facts to show that Magistrate Wilson was acting in good faith at the time that the letter was delivery to the Courts Registry. Whilst he was however given facts from which it may be inferred that he was not acting in good faith. The Learned Magistrate erred in law and in fact when concluding that the charges were proven.
9The Learned Magistrate erred in law and in fact when determining on the evidence before the Court that there was an attempt to intimidate Magistrate Wilson.
10The Learned Magistrate Erred in law and fact when determining that their was no need to summons and obtain evidence from Mr Roger Illingworth, Mr J. Connolly, Administrator and Registrar and Ms Elizabeth Knight Principle Registrar, when the evidence form these people would leave no other order but that of acquittal.
11The Learned Magistrate Erred in Law when allowing a to be heard when it involved and implicit collateral attack to be made on the conduct of another Magistrate in order to be proven.
12The Learned Magistrate Erred in law when determining that he had jurisdiction to determine the lawfulfulness of the conduct of another Justice constituting the Court of Petty Session when that Justice was a Magistrate.
13The Learned Magistrate erred in law when allowing a collateral attack to be made on the conduct of another litigant conducted within the course of Judicial Proceedings.
14The Learned Magistrate Erred in Law when allowing the prosecution to continue after the issue had been considered and determined by another Magistrate and thus placed the defendant in Double Jeopardy."
On 27 January 2010, the applicant filed an interlocutory application by which he sought the following orders:
"1. That the Appeal be heard de novo.
2.In the Alternative, that additional evidence be obtained by calling Mr Roger Illingworth to attend and provide evidence as to the procedures of the Magistrates Court."
The interlocutory application came on for hearing on 11 February 2010. The applicant sought to rely on two affidavits which he had sworn and filed, and these were read into evidence. They were affidavits sworn by him on 10 November 2009 and 27 January 2010. After some discussion, it became apparent that the matter could not properly be argued in the absence of a transcript of proceedings conducted by the magistrate whose decision was sought to be reviewed. The matter was adjourned to enable that transcript to be prepared, and resumed on 24 May 2010. The applicant filed written submissions and spoke to them. By consent, during the course of the proceedings, the Court was also provided with a copy of the transcript of the interview conducted between the applicant and police on 19 February 2008.
The nature of the application
The Justices Act 1959 ("the Act"), s111, permits a person who has filed a notice to review to apply to this Court for an order that the complaint to which the notice relates be heard de novo and determined in this Court. Section 111(4) provides that an order shall not be made unless the Court is satisfied that, having regard to all the circumstances, the interests of justice require that the complaint be re-heard de novo. Subsection (5) provides that, without limiting the generality of the terms of subs (4), the court may make an order for such a hearing in certain circumstances. That said to be relevant in this case was the condition in s111(5)(b) which provides:
"(b)at the hearing of the complaint the applicant was not represented by counsel and evidence available at that time amounting to a substantial ground of defence was not then adduced;"
There is no automatic right to a hearing de novo. It is within the discretion of the Court whether such a hearing is ordered. An applicant must affirmatively satisfy the Court that it is in the interests of justice that such a hearing be had or that one of the conditions in s111(5) have been satisfied: (see Munday v Cole [1979] Tas R (NC) N14).
The case against the applicant
The applicant was charged with attempting to intimidate a public officer. The charge was laid be reference to the PO Act, s34B(2)(b) and the Act, s74. These sections respectively and relevantly provide as follows:
"(2) A person shall not –
(a)assault, resist, intimidate, or wilfully obstruct a public officer in the execution of his duty, or lawfully performing a duty imposed on him by an Act, or in the exercise of a public duty or authority;
(b) threaten or use abusive language to any such person so acting; or
(c) …"
and:
"74 Attempts
(1)…
(2)An attempt to commit a simple offence is an act or omission done or made with intent to commit that offence, and forming part of a series of events which if it were not interrupted would constitute the actual commission of the offence.
(3)The offence of attempting to commit a simple offence may be committed, although the offender voluntarily desists from the actual commission of the simple offence itself, and whether under the circumstances it was possible to commit that simple offence or not.
(4)The point at which a series of events as mentioned in subsection (2) begins depends upon the circumstances of each particular case.
(5)Whether an act or omission is, or is not, too remote to constitute an attempt to commit a simple offence is a question of law."
It is apparent from a reading of the PO Act, s34B(2), and the complaint laid against the applicant, that the charge on the complaint has been incorrectly identified as a breach of s34B(2)(b). It should have been identified as a breach of s34B(2)(a). That issue was not raised, either before the learned magistrate or indeed during the course of submissions before this Court. There is no record that I could find of any application to amend. However, all parties have clearly proceeded on the basis that s34B(2) provided the basis for the charge actually heard and determined, which indeed it did.
To obtain a conviction, the State was required to prove each element of the charge. In this case those elements were that:
(a) the applicant,
(b) by an act,
(c) attempted
(d) to intimidate,
(e) a public officer,
(f) in the execution of his duty, and
(g) when he committed the act, the applicant intended to intimidate that public officer.
There was no dispute on the evidence that the act relied upon as the attempt to intimidate was the letter delivered by the applicant to the Launceston Court addressed to Magistrate Wilson. While no direct evidence was led by the State, the learned magistrate has clearly inferred that Magistrate Wilson was a public officer within the meaning of the PO Act. He has also inferred that Magistrate Wilson was, on 29 November 2007, acting in the execution of his duty when, as a magistrate, he had carriage of the applicant's matter. The learned magistrate also apparently accepted that the wording of the letter constituted intimidation, that the applicant intended it to be so and that, even though the letter was initially received by court staff when it was first delivered to the court, the delivery of the letter to the court addressed to Magistrate Wilson, and intended to go to him, was an attempt to intimidate. The State did not need to prove that Magistrate Wilson was actually intimidated.
The issues sought to be raised on review by the applicant
The applicant's notice to review contained 14 grounds. There is a good deal of repetition within those grounds. There are some which are difficult to relate to the proceedings. For example, ground 5 refers to a part of the Magistrates Court Act 1987 which relates to the rule-making activities of magistrates. The issues which the applicant appears to want to address are (these are not necessarily apparent from the notice but arose at hearing):
(a)That the letter he wrote was intimately connected with court proceedings, and a person cannot be held liable for anything done in the course of judicial proceedings. The letter ought, he said, attract common law immunity;
(b)That there was a screening process in place at the Magistrates Court which screened all communications to magistrates and, since the applicant knew that, as a consequence, he knew any letter he wrote, or at least any parts which might be considered intimidatory, would not reach Magistrate Wilson, and therefore he could not have intended to intimidate him;
(c)The State had to prove that Magistrate Wilson was acting lawfully on the morning of 29 November and it had not done so;
(d)The State had to prove that Magistrate Wilson was acting in the execution of his duty, and had not done so because at the time the letter was delivered, Magistrate Wilson was not in court and constituting a Court of Petty Sessions;
(e)The State had to prove that Magistrate Wilson was acting in good faith on the morning of 29 November, and did not do so. In fact, there were facts to show he was not;
(f)That the applicant had been denied the ability to call witnesses, Mr Illingworth, Mr Connolly and Ms Knight in relation to the screening process referred to, and an alleged series of unlawful acts by a number of people which would have led to a finding Magistrate Wilson was acting unlawfully, and hence an acquittal;
(g)That one magistrate could not determine a matter involving the conduct of another;
(h)That the proceedings constituted double jeopardy because Magistrate Wilson had dealt with the matter; and
(i)That the applicant had been denied the protection of the law by various entities ever since his school days and that, as a consequence, he was without the protection of the law and could not be convicted of any contravention of the law. This underpinned his argument that he could, should he need to, commit what he called a lawful killing.
The applicant sought to argue many of these matters on the hearing of this application, and it was repeatedly pointed out that what the Court was dealing with was his interlocutory application only, and not the ultimate review.
The submissions of the applicant focused on s111(5)(b) and generally upon an argument that it was in the interests of justice that a hearing de novo be held. As to the first limb of s111(5)(b), there is no dispute that the applicant was not represented by a legal practitioner at the hearing before the learned magistrate.
As to the second limb, the applicant was invited a number of times to identify what evidence he wanted to lead at a hearing de novo which could be said to be evidence available at the time of the hearing which had not then been adduced and which would have amounted to a substantial ground of defence. The applicant did not always clearly identify what evidence might fall into this category. However, I understood it to be:
(a)evidence from Mr Illingworth about what the applicant asserted was a screening process in the Magistrates Court, which provided for the interception of any communication with a magistrate before it reached the magistrate;
(b)evidence from Ms Knight, the Registrar of this Court, about the existence of a similar screening process in this Court;
(c)evidence from Mr Connolly that he had made a complaint which resulted in the proceedings against the applicant without authorisation from Magistrate Wilson and in circumstances where Magistrate Wilson had already dealt with any issues arising from the applicant's letter;
(d)evidence from Mr Illingworth and perhaps Mr Connolly about unlawful practices committed against the applicant by them and Magistrate Wilson which might support an argument that Magistrate Wilson was not acting lawfully on the morning of 29 November 2007;
(e)evidence from the applicant himself about various incidents which had occurred between his being at school and the time of hearing which would show that he had not been protected by the law, was without the protection of the law, and therefore could not be found guilty of an offence against the law;
(f)a letter written by Mr Illingworth on 15 May 2007 to the applicant which he submitted provided evidence of the screening process referred to, and also his own knowledge of it as at November 2007.
The screening process evidence
During the proceedings before the learned magistrate, the applicant did not have with him the letter from Mr Illingworth referred to in the preceding paragraph. He said he did not have it because he had not anticipated the hearing in relation to the intimidation charge proceeding. He made no application, however, for an adjournment on that basis, and in fact acknowledged that it was convenient for the hearing to proceed. He said from the bar table on the hearing of this application that he could not go home to collect the letter during the lunch adjournment because he did not have a car, and it was too far to walk in the available time. The letter sought to be produced was attached to the applicant's affidavit sworn 10 November 2009. The letter does not in itself support the existence of the screening process to which the applicant refers, and I see no basis upon which it could be said it was evidence of a substantial ground of defence.
As to evidence from Mr Illingworth as to such a practice, if indeed there is one, I cannot see the relevance of it to any defence. If such a practice existed, all it might have achieved is that any letter sent to Magistrate Wilson, instead of perhaps being given to him in his chambers prior to court, would be given to him in open court, since it contained material relevant to matters he had to deal with, that is the applicant's non-appearance in court. As it turned out the letter was produced, according to the applicant's affidavit, to Magistrate Wilson when the applicant appeared before him on 30 November 2007, having been arrested on warrant. The possible existence of a screening process as identified by the applicant could not in my view be relied upon to argue in this case that, because the practice existed and the applicant knew of it, the applicant could not be convicted of the offence because he could not have intended to intimidate by a letter he knew would not reach the magistrate. In any event, the argument is inconsistent with the admission by the applicant in his police interview that Magistrate Wilson was the intended recipient of his letter.
Further, if indeed there is such a practice provided for in court rules as the applicant appears to suggest, the Court could have regard to those rules without any evidence about them from Mr Illingworth. The applicant did not identify any such specific rule. Any evidence from Ms Knight about the same issue could not be relevant, since her evidence could only relate to practice in this Court.
Evidence of unlawful acts of Magistrate Wilson
The evidence said to exist about such acts was intended to support a defence to the effect that Magistrate Wilson was not acting lawfully on 29 November 2007. He was, it was asserted, not acting lawfully in a general sense because he was engaged in a conspiracy to prevent the applicant from exercising all the rights he wished to exercise in relation to the defence of the proceedings Magistrate Wilson was then dealing with. It is not my role to make findings about issues to be determined on the ultimate review. However, I am required to consider whether evidence sought to be led could be relevant to a substantial defence. It seems to me that the "substantial" defence referred to in this context by the applicant is misconceived. All that the State needed to prove was that Magistrate Wilson was a public officer on the relevant day and that any attempt by the applicant to intimidate him occurred while he was executing his duty as a public officer on that day.
What Magistrate Wilson was to do that day was deal with the applicant in respect of a prosecution against him. The applicant was bailed to appear and did not do so. The applicant, from the contents of his letter, was clearly aware that Magistrate Wilson might be asked to issue a warrant and that he would have to consider whether or not he did so. It was that issue which the applicant sought to influence by his letter. There has been no issue raised that Magistrate Wilson acted otherwise than lawfully or in good faith in the manner in which he dealt with the applicant's matter that day. All that the applicant asserts is that Magistrate Wilson was acting unlawfully in some general way by some role he took prior to that day in relation to the issue of summonses. With respect, that is not relevant to the charge laid against the applicant.
If the applicant wished to assert that summonses had been in some way wrongfully refused by Magistrate Wilson in a particular case, he could raise that as a review or appeal point in respect of any ultimate decision made in that case.
I am unable in the circumstances to see the relevance of the evidence sought to be led, even were it available.
Evidence from Mr Connolly about his authorising or setting in train proceedings relating to the letter, without authorisation from Magistrate Wilson
This appears to be related to the argument by the applicant that Magistrate Wilson dealt with matters arising from the letter when the applicant appeared before him following arrest on 30 November 2007. Mr Connolly is the Administrator of the Magistrates Court of Tasmania. Whether he had Magistrate Wilson's authority to make a complaint to the police would appear to me to be irrelevant. He would not need it. As administrative head of the court, he would no doubt be entitled to refer a matter of concern arising from the operation of the courts to police. Whether police then chose to lay a complaint or not was a matter for them.
As to the double jeopardy argument, there is no evidence that, when the applicant appeared before Magistrate Wilson on 30 November 2007, Magistrate Wilson charged the applicant with any offence arising out of the letter being written, and dealt with it. The applicant, in his affidavit sworn 10 November 2009, said in relation to this issue:
"Magistrate Wilson then dealt with the contempt that is inherent in the warrant for non-attendance. He also dealt with the content of the letter fully, called me an idiot and release me on bail with a new attendance date. I was thus fully dealt for my non attendance and the contents of the letter."
The applicant makes no assertion that he was charged with any offence by Magistrate Wilson, which would have had to be the case were any defence of this nature to have any merit. Even if there is merit in this submission on the review, no evidence from Mr Connolly would assist. I am unable in the circumstances to see that any evidence from Mr Connolly about this matter could amount to a substantial defence.
Evidence of the applicant himself
The applicant submitted that he had been prevented by the learned magistrate from presenting evidence which would have supported his argument that he had not been protected by the law. The applicant gave evidence before the learned magistrate. He was asked to address each of the two charges being dealt with.
The applicant began his evidence by identifying that he had been denied the protection of the law by Tasmania Police, the Attorney-General and the Supreme Court. He then went on, when dealing with his failure to appear, to begin to describe to the learned magistrate incidents which were, he claimed, incidents where authorities had failed to provide him with protection he was entitled to under the law. He started with one which had occurred in a chemistry class while he was at school. The learned magistrate interrupted him, querying the relevance. There followed a discussion between the applicant and the learned magistrate, at the conclusion of which his Honour said he thought he understood the point being made in relation to that charge. The applicant was then invited to address the second charge. During what was effectively a discussion which followed, the applicant told the learned magistrate that he did not attend the hearing before Magistrate Wilson because he was seeking to avoid criminal conduct being perpetrated against him. He identified that conduct as various persons preventing him from presenting a defence to a charge against him. He identified the crime as being perverting justice.
From that point, the applicant did not seek to give evidence about other incidents which he said gave rise to the defence he was pursuing. He gave evidence about his intention in writing the letter, and the circumstances in which he wrote it. He then returned to the issue of being prevented from pursuing his defence in other proceedings.
The question which needs to be addressed is whether the evidence the applicant now seeks to lead, that is evidence of incidents which have occurred relating to him over the last 20 years or so which would support his argument that he has not been protected by the law, is evidence which, had it been led, would have supported a substantial defence to the charge being dealt with. With respect, I am unable to see that such evidence would have any relevance at all to the case, much less support a viable and substantial defence.
The interests of justice
Even were the Court to be satisfied about one of the matters referred to in the Act, s111(5), it is not obliged to make an order there be a hearing de novo. The Court is still required to be affirmatively satisfied that it is in the interest of justice to do so, and shall not make an order unless it is so satisfied.
While I accept that the applicant was unrepresented before the learned magistrate, I am not satisfied that any of the evidence he has identified as evidence he would seek to lead on a hearing de novo would amount to a substantial defence. Therefore, the issue I have to determine is, do the interests of justice otherwise require there to be such a hearing. A hearing de novo should not be ordered to permit an applicant to re-run the case run before the lower court, perhaps in more detail or with a different and expanded approach. On the other hand, if, for example, an unrepresented litigant has mishandled their defence because of their status such that an important and relevant, I emphasize the word relevant, issue was not addressed, or in some other way acted unwittingly to their detriment in relation to a relevant matter, there may be a need for a hearing de novo. The applicant has not in my view identified any aspect of the hearing which would fall into these categories.
The applicant did indicate to the learned magistrate that he had not anticipated that the attempt to intimidate matter would be dealt with on the day it was. However, he sought no adjournment and in fact indicated to the learned magistrate that it was convenient for both charges to be dealt with together. It cannot be said that the applicant was unfamiliar with his right to seek an adjournment or that he did not have knowledge generally of court procedures.
The applicant mounted a number of arguments before the learned magistrate, which were largely those which are referred to in his written submissions for this matter, upon which he expanded orally. As to the applicant's submissions made on this application, both oral and written, they were difficult to follow and often confusing. There were many matters raised which did not relevantly relate to the proceedings now being dealt with. They related in part to the substantive proceedings involving the applicant which Magistrate Wilson had carriage of at the time of the offence giving rise to the present application. They also related generally to grievances the applicant had against the police and others. There was nothing in my view contained in either the written or oral submissions of the applicant which would persuade me that it is in the interests of justice there be a hearing de novo.
The application is therefore refused.
The applicant did seek, as an alternative, that he be given leave to lead certain evidence. For the same reasons I have already canvassed, primarily as to relevance, that application should also fail.
The application filed by the applicant on 27 January 2010 is dismissed.