Von Stalheim v Wright (No 2)

Case [2014] TASSC 8

[2014] TASSC 8

COURT:  SUPREME COURT OF TASMANIA

CITATION:               Von Stalheim v Wright (No 2) [2014] TASSC 8

PARTIES:  VON STALHEIM, Kurt
  v
  WRIGHT, Mark Gordan (Acting Inspector)

FILE NO:  1043/2009

DELIVERED ON:  27 February 2014
DELIVERED AT:  Hobart
HEARING DATE:  25 February 2014
JUDGMENT OF:  Estcourt J

CATCHWORDS:

Magistrates – Appeal and review – Tasmania – Motion to review – Other matters – Attempting to intimidate a public officer – Error of law and or error relating to facts – Denial of natural justice.

Von Stalheim v Wright [2010] TASSC 25; Streets v Lucas [2013] TASSC 45, considered.
Police Offences Act1935 (Tas), s34B(2)(a).

Aust Dig Magistrates [1349]

Statutes – Acts of Parliament – Interpretation - Particular words and phrases – Specific interpretations - Other cases – Attempting to intimidate a 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.
Justices Act 1959 (Tas), s74(2), 74(3).
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 Prosecution

Judgment Number:  [2014] TASSC 8
Number of paragraphs:  82

Serial No 8/2014

File No 1043/2009

KURT VON STALHEIM
v ACTING INSPECTOR MARK GORDAN WRIGHT (NO 2)

REASONS FOR JUDGMENT  ESTCOURT J

27 February 2014

The appeal

  1. The applicant moves by way of a notice pursuant to the Justices Act 1959, s107, for the review of an order of Magistrate R Marron of 12 November 2009, convicting the applicant of an offence of attempting, on 29 November 2007, to intimidate a public officer, Magistrate P Wilson, contrary to the Police Offences Act 1935, s34B(2)(a).

  2. The complaint on which the applicant was convicted of that offence described the charge as one of "attempt to intimidate a public officer" but specified the breach as one of s34B(2)(b) of the Police Offences Act. Nothing turns on this in view of the provisions of s31 of the Justices Act and the absence of any arguable prejudice occasioned by the defect: D v Cordwell [2002] TASSC 90 at [11] – [19]; Wickham v Cole [1957] Tas SR 111 at 114; Ex parte Parkinson (1909) 9 SR (NSW) 174 at 178.

The test to be applied on the review

  1. 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.…

Continue reading Von Stalheim v Wright (No 2)

Sign in free to access the full text

Details
AGLC
Von Stalheim v Wright (No 2) [2014] TASSC 8
Case
[2014] TASSC 8
Decision Date

CaseChat Overview and Summary

In the matter of Von Stalheim v Wright (No 2), the applicant sought a review of a decision made by the Tasmanian Magistrates Court. The applicant, Karl von Stalheim, was charged with attempting to intimidate a public officer. This charge stemmed from a letter von Stalheim sent to Magistrate Wilson, which the court interpreted as an attempt to intimidate the magistrate in the execution of his duties. The primary legal issues in this case revolved around whether the applicant's actions constituted an attempt to intimidate a public officer under the Police Offences Act, and if there were any procedural errors or denials of natural justice during the original proceedings.

The court examined the specific sections of the Police Offences Act that pertained to the charge, notably sections 34B(2)(a) and 74. It was determined that the charge should have been based on section 34B(2)(a) rather than section 34B(2)(b), though this discrepancy did not affect the outcome of the original decision. The court also reviewed the elements necessary for a conviction under the charge, including the intent to intimidate and the public officer's role in executing their duties. The court found that the magistrate's decision to convict von Stalheim was supported by the evidence, particularly the content of the letter which was interpreted as an attempt to intimidate Magistrate Wilson.

Ultimately, the court rejected von Stalheim's application for a review, finding no substantial miscarriage of justice or procedural error that warranted intervention. The reasoning behind the decision was that the elements of the charge were adequately met, and the magistrate's findings were justified based on the evidence presented. Consequently, the court upheld the original conviction and dismissed the application for review.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

I do set out, however, at this point, the whole of the final page of the letter as it is necessary to understand at once the words used by the applicant of which the "stipulation", referred to in the particulars set out above, is but an inadequate paraphrase. The final page of the letter reads as follows: "I note that no warrant has been issued against those who have previously failed to attend and hence any attempt to issue a warrant against me would be contrary to the rules of natural justice. Further, given the unlawful conduct of the court and attempt to serve a warrant would be unlawful and may constitute a basis for a lawful killing.For the sake of completeness a statement that a person will commit a lawful act, has be found not to be a crime Elliott v Seymour [1999] FCA 976, as stated in this decision, at para [111]'The tort of intimidation consists in a threat by the defendant to commit some unlawful act thereby causing loss to the plaintiff. The unlawful act may be a separate, substantive tort, a breach of contract, or a criminal offence. Where the threat has been directed against the plaintiff and not a third party, the plaintiff must have complied with the demand. In Rookes v Barnard [1964] AC 1129 Lord Reid observed, at 1168:"So long as the defendant only threatens to do what he has a legal right to do he is on safe ground. At least if there is no conspiracy he would not be liable to anyone for doing the act, whatever his motive might be, and it would be absurd to make him liable for threatening to do it but not for doing it. But I agree with Lord Herschell (Allen v Flood [1898] AC 1, 121; 14 TLR 125, (HL(E)) that there is a chasm between doing what you have a legal right to do and doing what you have no legal right to do, and there seems to me to be the same chasm between threatening to do what you have a legal right to do and threatening to do what you have no legal right to do. It must follow from Allen v Flood (supra) that to intimidate by threatening to do what you have a legal right to do is to intimidate by lawful means. But I see no good reason for extending that doctrine".'Any threat to commit a lawful killing is lawful and given the common law defences any action of lawful killing is lawful.I would therefore request that you do not order that a warrant be issued since it may lead to a lawful killing.Yours faithfullyK. von Stalheim" [My emphasis.] In Von Stalheim v Wright [2010] TASSC 25, in the course of a decision dismissing an application for a hearing de novo of the complaint the subject of the present motion, Tennent J set out the case against the applicant before the learned magistrate, as follows:"The case against the applicant9 The applicant was charged with attempting to intimidate a public officer. The charge was laid by 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.'10 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. 11 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.12 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."

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.