Von Stalheim v Wright (No 2)
[2014] TASSC 8
•27 February 2014
[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
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).
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
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 15 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. 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 the complaint to be heard when it involved an 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 lawfulness 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.
15That a Breach of the Rules of Natural Justice occurred when Magistrate Marron continued with his hearing after being informed that the Applicant (Defendant) was under the mis-understanding that the two charges of Breach of Bail and Attempt to intimidate would be dealt with sequentially rather than at the same hearing and therefore had not even started to consider the charge, let alone prepare a full and complete response to the charge. This ensured that the Applicant was not able to present an effective response to the charge."
Consideration of grounds 9, 4 and 15 of the notice to review
Grounds 3 and 5 were abandoned on the hearing of the motion to review. Of the remaining 13 grounds of review I have determined that 10 are wholly without substance. For the reasons that follow, however, I uphold ground 4 (in part) and grounds 9 and 15, and, as a result, I grant the applicant's motion.
Ground 9 asserts that the learned magistrate erred in law and in fact in determining, on the evidence before him, that there was an attempt to intimidate Magistrate Wilson and, as will appear, I have reached the view that Magistrate Marron, as a reasonable person, could not have reached the conclusion that the applicant had the necessary intent to commit the relevant offence.
Ground 4 (in part) and ground 15 assert, in essence, that the learned magistrate denied the applicant natural justice by continuing the hearing of two complaints, one for breach of bail and the other the attempt to intimidate a public officer, after his Honour had been informed by the applicant that the applicant was under the understanding that only the breach of bail complaint was to be heard on that day, and he had not considered the other complaint and had not prepared a full response to it.
As will appear, I have reached the view that it was procedurally unfair in the circumstances to embark upon the hearing of the complaint charging the applicant with an attempt to intimidate a public officer, and that in doing so the learned magistrate denied the applicant natural justice by not affording him a fair hearing.
Ground 9
It is convenient to commence with a consideration of ground 9 as it involves an examination of the full extent of the evidence against the applicant and of the decision of the learned magistrate, which, I observe, was egregiously brief by any standard.
Although no ground of review asserts inadequacy of reasons on the part of the learned magistrate, I will nonetheless set them out in full at this point as their brevity reinforces my view that, as a reasonable person, the magistrate could not have come to the conclusion that he reached on the evidence before him.
His Honour's decision in its entirety was as follows:
"In relation to the attempt to intimidate a public officer, the information is that – it is not contested that a letter dated 28th of the 11th, 2007, addressed to Magistrate Wilson, was delivered to the court by the defendant with the express view that that letter, which he said he wrote, and understood the contents of that letter was to go to Magistrate Wilson. In that letter, that's been referred to many times, and I won't state it again, it included references to conduct constituting a basis for lawful killing and in relation to that matter, I'm satisfied that the, that the charge is made out."
The particulars of the charge against the applicant were set out in the complaint in these terms:
"You are charged with on the 29th day of 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 document referred to in the particulars was a letter written by the applicant and addressed to Magistrate Wilson. It was hand delivered by the applicant to the registry of the Launceston Magistrates Court early in the morning of 29 November 2007 and prior to the time that the applicant was due to appear before Magistrate Wilson on that day. It was headed "RE: Lawful Non attendances, Common law defences". The first paragraph of the letter reads as follows:
"I am writing, in advance to advise you that I am lawfully refusing to attend the hearing set down for the 29th November 2007. In saying that my conduct is lawful on rely on common law defences and your lack of jurisdiction, due to your criminal conduct, to make any orders in relation to this matter. The common law defences upon which I relied will be discussed later but includes, Duress by Threat, Duress by circumstances, self defence, the prevention of crimes and Distraint of the Queen. I note that it is my intention to act lawful on the basis of my current understanding of the facts, outlined below Beckford v R [1988] AC 130; [187] 3 All ER 425. The rules of natural justice state that like case are to be treated in a like fashion and as no action was taken against others for non attendance, no action will be taken against me for the same action."
There then follows what can only be described as a five page diatribe of misconceived legal argument. The entire letter is annexed to these reasons in order to place the words particularised in the complaint into their context as part of the pseudo-legal justification which the applicant, a non-lawyer, was advancing for his refusal to attend the hearing before Magistrate Wilson.
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 faithfully
K. 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 applicant
9 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."
I respectfully adopt her Honour's assessment. Clearly, in order to prove the alleged attempt, s74(2) of the Justices Act required the respondent to prove that the applicant had written and delivered the letter with the intent to commit the offence of intimidating Magistrate Wilson. If it was established that the applicant had that intention, then the second limb of s74(3) meant that the question of whether or not it was possible that the letter would have intimidated the magistrate was irrelevant.
The critical issue for Magistrate Marron in the circumstances of the case therefore was whether the evidence before him established that the applicant had intended to intimidate Magistrate Wilson. Apart from the terms of the letter itself, the evidence going to this issue was a record of an interview of the applicant by Tasmania Police, and the applicant's own evidence on the hearing of the complaint. I will set out each in turn and then return to the question of whether the learned magistrate, as a reasonable person, could have come to the apparent conclusion that the wording of the letter constituted intimidation, and that the applicant intended it to so intimidate.
A DVD of the recorded interview of the applicant by police was tendered to the learned magistrate and taken in as an exhibit, and a typewritten 26 page transcript of that recording was handed up to the magistrate as an aide memoire. The DVD was apparently never viewed by his Honour but the transcript was, it seems, read by him during a short adjournment on the morning of the hearing before the hearing formally commenced.
I set out what, in my view, are the significant passages of the record of interview. They are as follows:
"MWYou did, so what you are saying, you declined to attend the hearing on the 29th of November?
KvSOut of my own protection, yes.
MWRight, and this document addressed your reasons for refusing to attend, is that correct?
KvSThis document explained why I was refusing to attend and also explained that I was relying on common law defences to avoid being charged.
MWI just want to, [inaudible]
Would I be correct to say that as a result of this document you did not want Magistrate WILSON to issue a warrant against you for failing to appear?
KvSI didn't want to be charged for failing to appear. The issue of a warrant was a last minute thought, which wasn't really considered but, certainly I didn't particularly want a warrant or any other actions taken other than to have the matter returned to the ordinary course of justice. And I should add that every single step I've taken in those proceedings, including appeals, have been focussed on that single outcome.
MWAlright but do you agree that in the course of the document, in particular, basics, the last page of your document you raised the issue of a warrant?
KvSYes
MWAnd as, during the opening of this interview I read the sentence to you.
KvSYes, that is correct.
…
MWSo, and again, the purpose of this interview is to basically talk to you about this, your intent in relation to making this statement. So I'll just read it again, so on, the top paragraph, last sentence, so further; given the unlawful conduct of the court, in attempt to serve a warrant would be unlawful, [inaudible] for a lawful killing. So what is your intention in making that statement there?
KvSTo draw Magistrate WILSON'S attention to the fact that it was the court which had been perpetuating criminal conduct to me; an example of which is shown in this document, authored of which this, sorry, this photo copy of a document authored by Elizabeth KNIGHT, in which my attempts to access the Supreme Court to protect myself were denied by statements made by the Registrar of the Launceston Magistrates Court. But in so far as this page is concerned my intent there was to simply point out that I was out without and indeed I might had the entire document is to point out the to court that I'd been left without any protection from the law, or of the law, whichever way is, that is to say I'm not being protected by the law. Um, and I that I genuinely believe that my actions in non attending were lawful as stated ah, in the last paragraph on the first page where I state before I proceed to state why my conduct is lawful, that is to say that I was trying to show that it was lawful and I am seeking to avoid a warrant and charges because I was acting lawful in my view.
…
KvS… Now, in so far as this last particular part is concerned, I draw your attention to the quote from Elliott and Seymour in 1999, Federal Court, Australia, 976; and the key issue I draw your attention to because it seems to focus a lot on allegations against me, is that so long as the defendant only threatens what he has the legal right to do if on safe ground and all I have done is state that I don't intend to do anything unlawful and I believe in this letter I stated that time and time again; I was not intending to act unlawfully, I was seeking to protect myself from the criminal conduct perpetuated by that court …
…
MWOk, and you go onto say that if the court, any particular; I presume that you intended that magistrate WILSON issued you, or issued a warrant that that would e unlawful?
KvSWell, um, actually I think I may well have; I think I may well have gone further than just saying the court or Magistrate WILSON, I would have referred to any justice because justices of any justices capable upon a sworn statement of issuing a warrant so it's not actually directed against magistrate WILSON.
MWSo that comment, that part of the sentence there, an attempt to serve a warrant would be unlawful. It's not directed at Magistrate WILSON? You are talking about the judicial system are you talking, is that what
KvSI'm talking about justices generally, but I'm actually talking, not so much about any particular justice, ah
…
MWBut in relation to this matter where you refused to attend, you were saying this statement is referring to any justice who may issue a warrant for your arrest for refusing to attend that hearing on the 29th of November, is that what this statement relates to?
KvSAnd it's actually refers more, not to the justice signing off on the warrant but to the actual process and the underlying legality of it.
MWOk
KvSBecause ultimately what I was seeking to avoid, as I say, was to be charged, because I believe my conduct was lawful and I was trying to act lawfully and two, I'd much rather not be arrested.
…
MWAlright, which leads to the last part of that sentence where you said, 'May constitute a basis for a lawful killing.' Can you tell me what you meant when you wrote
KvSCertainly, there are several things which were in my mind, first of all, there's a provision in the Criminal Code which says that; and I'm sorry to put this to you in this way, but it does say this; 'a police officer seeking to um, unlawfully arrest ah, sorry, that's wrong. It is not, it is, depending upon the circumstances not murder to kill a police officer who is ah, seeking to unlawfully arrest a person, the charge would be down graded to, I think it may be grievous bodily harm, but it's something like that. But equally it still depends on the circumstances and the circumstances in this particular instance are that I had no protection from the law and I genuinely believe that the law does not apply under those circumstances.
…
MWOk, now just, in saying that statement; in making that statement and may constitute basis for a lawful killing, you're referring to a police officer who may have executed an arrested warrant against you for refusing to attend court, is that what is meant?
KvSNo, it is not referring to any particular person, it is referring to a legal concept and a legal argument.
MWWho is that directed at?
KvSNo-one, I'm not
MWYou said it may constitute a basis for a lawful killing, so a lawful killing of who? Magistrate WILSON? Any Justice of the Peace or any police officers executing a warrant?
KvS It is not directed to anyone, it is a legal argument
MW Well why did you just raise the Criminal Code in relation to the defence
KvS Because
MW Of a police officer acting unlawfully?
KvSBecause you asked me what was in my mind, I told you that that was one of the things that was in my mind; the other things that were in my mind was the fact that when a person was being denied all protection of the law and they have no avenues of recourse, the law simply doesn't apply to them. It is one of the most basic and fundamental principals of constitution law. I have an obligation to the Queen to obey her laws and all the rest of it and to fulfil my lawful duties but by god, she's got an obligation to me to afford me the protection of the law and that is all I want, is the sae protection as everyone else. Now this
MW But who would that apply to? That comment; may constitute a basis for a
KvS It doesn't apply to anyone, it's a legal argument.
MWYeah, but why have you put it in there? Let's get to the crux of the matter. Why did you actually put that in there? What was your intention of writing, including that part, that
KvS It was in
MW Last part of the sentence?
KvSIt was in essence put in there to clarify the entire legal argument that I was presenting as to why, there was no threat directed at anyone.
MW So, the purpose of the, yeah, ok, let's
KvS Let me put it to you
MWLet me see if I've got this right. So, the purpose of the document was to indicate your reasons as to why you were refusing to attend court?
KvS Yes, and to indicate their lawfulness.
MWYeah, and that you were then denied natural justice and the legal system had let you down so why include a statement that basically justifies you lawfully killing someone? Why include that in the content of your document
KvSI didn't, what I said was that it may constitute a basis and the phrase 'May constitute' indicates that it may or may not be something and
MW But why include that in the document?
KvS Because it was a legal argument. I refer you to the
MW What's
KvS I refer you to following part.
MW Mm
KvSWhich I quoted earlier; so long as the defendant only threatens to what he has a right, has a legal right to do, he is on safe ground, and that's been, and that incidentally is a quote from, as I said earlier Elliott and Seymour 1999, Federal Court of Australia 976, paragraph 1:11, but it was in fact a quote where from, I think another case and possibly inaudible which has been 1898, AC1, which has been at page 121 which has been accepted on numerous occasions by numerous Australian Courts. I am not threatening anybody.
…
MWI know, but how do you get, how do you go saying why you're refusing to attend court and justifying your reasons for refusing inaudible to court. It's actually throwing us a comment like, 'It may constitute a basis for a lawful killing'. How do you get, how do you arrive at that point in your document?
KvSBecause I was arguing in that particular paragraph that in that jurisdiction to do anything. Now let me go back to the example that I was going to give; let is assume that we, that there was, for the sake of the argument that we both knew that if I didn't attend, you would be the person to arrest me, this would still not be a threat against you, because I'd rather suspect you would conduct yourself on that occasion as you in fact did and as you did today and that is to phone me up today and say, 'Right, I've got a warrant, I'm going to arrest you.' And on that particular occasion, you were very decent about timing and so on and so forth, and
…
MWby making that statement and delivering this document to the court were you trying to sway or intimidate Magistrate Wilson against issuing a warrant of arrest for failing to appear
KvSno I was simply mounting a legal argument which I hoped he would accept but I was not seeding to intimidate Magistrate Wilson …
MWthen again I will ask you again, why use the line that may cost you a basis for a lawful killing
KvSit was a legal argument
MWwhere does the killing come into it
KvSwell what I saying is this, what, I am arguing is that he didn't have jurisdiction because the Justice of the Peace acting as I put her on their unlawful direction Chief Magistrate denied jurisdiction to summons witness and issue lawful warrants before the court has created a denial of natural justice which is an error in law, ? Denning stated some one in the ? Harrow School that no court has no jurisdiction to commit a legal error and that any ah and that in fact denies a normal what I am arguing about is being denied normal jurisdiction to issue warrant and in so far as that is concerned it is legal argument that report and I quote further that given the unlawful conduct of the court in the attempt to serve a warrant would be unlawful and may cost the basis for lawful killing, now all I am saving there is a basic constitution argument, the queen does not have the right to protect me to refuse me the protection of the law, no one has the right to interfere with my case, this is what has happened, both of those things have happened and under those circumstances the legal position is stated in the magma carter, apart from the queen and in this case Magistrate Wilson who would fall in the position of the queen as a justice that is the position
…
MW… I put it to you that your intention in making this statement was to say to Magistrate Wilson, 'if you issue a warrant for failing to attend court, for refusing to attend or failing to attend ah your friend told to kill who ever police officer that executed the warrant whether it is Magistrate Wilson his self or any officer of the court or employer of the court and that was your intention to sway Magistrate Wilson or intimidating him into not making, issuing a warrant' what have you got to say about that
KvSI have no intention as a matter of fact I would actually go further and during you put in that term I was thinking about it and such an act would be contempt of court, um and that is an unlawful act and what I stated here on the first page is that I wanted to explain why my conduct is lawful, that is to say the conduct in not attending, further I refer you to the following point which out lays the fact that a person has the right to threaten by lawful means, now that simply, now what I really saying here is this, it isn't, point of fact I am pretty sure it says a person cannot be unlawfully intimidated through ah threat to do some thing which you have a lawful right to do but in consideration we may come back on but the simple fact is this, what I am referring to is lawful acts, not unlawful acts because I don't particularly wish to act unlawfully
MWbut you
KvSand all I am saying is presenting a legal argument which is supported by a decision
MWMoving on, I don't intend to regurgitate the whole document, moving onto the last page you refer to the, you make the quote 'as long as the defendant only threats to do what is legal, right to do is on safe ground' so you are referring to this are you implying that this document is threatening in its nature, referring to threats
KvSno what I am trying to do is avoid the situation which has already occurred in the underlying charge, in that situation there was an email which constitutes in my opinion a legal argument it contained a reference to what I consider to be the legal position in that particular time and that went on and went a little bit too far towards the bounds of contempt
MWso now you don't think the document is threatening
KvSno what I am trying to say
MWwhy go on to using the term threatening then
KvSbecause what I am trying to do here is to avoid the situation where I will be interviewed again in relation to another alleged threatening communication and in this particular case, put it this way what I am seeking to do is to forestall this process and forestall any charges now all 1 am saying here is that 1 have a legal right under the circumstances not to attend, I have a legal right to say that I wasn't going to attend, I have a legal right to make those comments and further I was drawing attention to this and I might add is self defence to the underlying charge
MWMoving on, moving
KvSthe other point that has to be made in my own protection is that at every stage I was not seeking to obstruct the actual hearing I was seeking to bring it back on to the legal course where I can present the case and prove my innocent, and that is what I tried to do I was not seeking to threat Magistrate Wilson
MWright in moving on same paragraph, last sentence must followed from [inaudible] in brackets to intimidate her by threatening to do what you have a legal right to do is to intimidate by lawful means, ok,
KvSyep
MWbut I see no good reason for extending that document
KvSdoctrine
MWdoctrine which then goes back, you volunteered the work intimidate so you are basically indicating that you could lawfully intimidate
KvSno
MWso was again was that a ? of this document
KvSno I was not seeking to intimidate Magistrate Wilson the intention of the document was spelled out at the very beginning. I am writing in advance to advise you that I am lawfully refusing to attend the hearing set down for the 29th November 2007, I then go on to explain the first component of the first sentence of the last paragraph of that page before I state why my conduct is lawful, this document and dole is the other case I was referring to ? men and keepers of government of ? school. This entire document is filled by legal argument, duress by threat, that is the say threat by me, that is common law defence, duress by circumstances common law defence, self defence against criminal conduct eventuated by the court a common law defence, prevention of the commissioner of the crime, common law defence and I actually referring to the conducted that the court has committed, duress of the queen, I have been denied all protection of law including by this unlawful conduct here
MWyou indicate
KvSJurisdiction is what I am referring to in the content of this last paragraph we have been discussing, I don't say he has no jurisdiction in my view, in my view it is a legal argument to do this
MWin the context of the paragraph though enquiries in this document you agree with this though that this context that you are saying you have a legal right to intimidate
KvSno I am not saying that, what I am saying is very simple, he had no jurisdiction, I had a legal right not to attend I have a legal right to do those things, this is not unlawful, my conduct is not unlawful and I was not seeking to intimidate Magistrate Wilson
MWthe last two paragraphs ah
KvSthose two sentences
MWany threat to commit a lawful killing is lawful and giving the common law offence any action of lawful killing is lawful I there fore request that you do not order that a warrant be issued it maybe ? killing. First what is your intention
KvSI am concluding argument not particularly well but
MWhow does a killing arise
KvSah simple
MWyou are making it quite clear that if a warrant is issued it may be lawful killing on your part
KvSmay, is only may, may or may not
MWwhy do we keep coming back to you with unlawful killing
KvSbecause I have been denied all protection of the law, I am entitled to a minimum standard that every one is entitled to even people that have been convicted of crimes and offences and are in prison are entitled to it, I am being denied it, I am not asking for anything above and beyond what others are getting, I am just asking for the bare minimum and that includes
…
KvSno
MWdenied justice in your mind
KvSno it is actually it is probably if there is, I don't know if you could call it killing your self lawful at any time but that is the type furthest I would go and that is far more likely than killing another person , but what I am saying is this, I have been denied all protection of the law, he in my view was involved in it or alternately had knowledge of it, he refused to act and to prevent this occurring and getting things back to a legal course of action, that is to say where the prosecution prosecutes and they get to defend and given the surrounding circumstances which he could reasonably have no knowledge such as the attorney and your self this is how serious the matter has got, that is what I am trying to emphasise. I don't like being without protection of the law, I would much rather be able to walk through the streets the same as every one else
…
MHbut would you agree though that your opening sentence 'I am writing in advance to advise you that I am lawfully refusing to attend the hearing. The very last line was ' I would there fore request that you do not order that a warrant be issued since it may lead to a lot of killing
KvSit does not alter the fact that
MHso all your legal argument and all the other stuff that you have gone through in here you are basically making a request and a threat at the same time
KvSI am not making a threat all I am saying I may do this, I can see what, ah if you are suggesting it may lead to a lawful killing as a threat I disagree because I take you back to the previous thing
MHI think that the purpose of your letter, the first five pages I find when you get to the last page though
KvSthat is when I loose it though because I was tired
MHdo you think you went too far with that last page
KvSIt would have been preferable if it hadn't had been put in that way
MHhmm
KvSbut it was not a threat
…
MWso why not delete the last page
KvSI was unhappy, became unhappy, I don't think I actually went back and re read it actually but I wasn't angry I perhaps if I had of re read it I would have taken it out and withdrawn it, I was certainly distressed and worried, that was my emotional state but the reason I delivered it was in the hopes of convincing the court that I was in fact acting in a lawful manner
MWby refusing to attend, as I said before your first five pages refer to your right to refuse court but then you come to this issue
KvSif
MWof lawful killing people which is the reason which raises alarm bells with the courts, employees of the court and why these matters get referred to us
KvSif you are asking me to admit that that last page is going to far and ought have been deleted or at the very least re written I would agree, I was wrong
MHwhy not ask for an adjournment
KvSbecause they wont do it, I mean look at it
…
MHI guess that is sort of how the whole thing comes across that you can't get any more adjournments, you are going to be forced into the hearing on this day and basically you do what you can not to have to go to a hearing but then you don't want to be arrested on warrant
KvSI certainly didn't want to be charged or arrested and you are quite right what I was saving I was act, seeking to act lawfully in response to unlawful conduct against me I wasn't how ever seeking to threaten him, 1 was simply seeking, admittedly it was the wrong way to put it but I was simply seeking to emphasise how bad it was, I mean with the registrar of that court prevents you from going to the Supreme Court by falsely stating that an application summons people was before Magistrate Wilson will be dealt with on the 29th that is a very serious act to be faced with and further if being successful it denied me access to the Supreme Court and what was I seeking to do, well all I was seeking to do was to have the conduct of the Justices acting on some ones instructions and other people looked into considered having their reasons for not appearing taken into account and then issued for the summons to be issued. All I was trying to do was to get that matter proceeding lawfully and you get this sort of fraud, I mean that falls within the bounces of section 105, the criminal code is very clear and I should add I got this on the 29th of November and that was the hearing date and that was immediately before I handed this letter in, so if any one wants to know why it was that I was not prepared or why it was that I continued was perhaps an unfortunate action, I received that five minutes before hand, having received that the note at the underlying sentence that I was subsequently informed came from Roger Richardson ah from Roger Illingsworth and could have come from no body else I was faced with no other alternative, I had tried every thing
…
KvSand that I had absolutely no option but to write this letter, now whilst I agree that it is unfortunate, it is not threatening, it is not intimidating, it is not unlawful and I would respectfully argue that there is not constitute basis for administrative complaint but I note or my list of here is a different view and all I was seeking to do was to act lawfully …". [My emphasis.]
At the hearing before the learned magistrate the applicant gave evidence and was cross-examined by counsel for the respondent, Mr Miller. I set out what, in my view, are the significant passages of that evidence. They are as follows:
"HIS HONOUR: I think I'm across your point now. All right, what do you want to say in relation to the other charge, that's the attempting to intimidate?
WITNESS: As I understand it, your Honour, the question here – and I'm relying primarily upon the tenure of the police questions during the interview and what they've said –
HIS HONOUR: Yes.
WITNESS: – it is that – it's the final sentence:
I would therefore request that you do not order that a warrant be issued since it may lead to a lawful killing.
Now, it is -
HIS HONOUR: Well, if you're going to say that it's a conditional, a conditional threat, I think the old case in the Assize – whether something – I seem to remember a case being talked about that – but the point of that is, if you're saying it's a conditional threat, that's not the issue here. The issue here is in, intimidate, all right? Intimidate doesn't have to mean that something's actually going to occur, it's the, it's the whole emphasis of it, the fact of talking about a lawful killing, that's the way I understand it, the prosecution puts its case. Mr Miller?
MR MILLER: Yes, indeed, the defendant suggests that he had no intention to carry out the threat and the person to whom the information is relayed might be in a position where he has no idea one way or another whether it's genuine or not, but might still have concern, fear, intimidation. Yeah.
HIS HONOUR: I just wanted to understand – I'm only mentioning it, Mr Miller, so I understand that. Right, now, I'm letting you have a go. What would you like to say?
WITNESS: Oh, incidentally, that was my understanding was that the magistrate in question wouldn't have had – wouldn't have known whether or not I intended to fulfil the action and, therefore, the concern would have been the words as read by him and not as meant by me. The point I wish to make is that at the particular moment that those were written, it was something like 1.30am in the morning, at which time I was exceptionally tired, clearly wasn't thinking straight and, quite simply, didn't have an intention to intimidate and did not re-read the letter, unfortunately, the following day.
HIS HONOUR: So that is, that is exemplary material on a plea – exemplary material on a plea but you're putting that as a defence, are you?
WITNESS: Yes. There was simply no intention – it was simply, well, not thought of.
HIS HONOUR: Okay.
WITNESS: That's the easiest way to put it.
HIS HONOUR: Yes.
…
HIS HONOUR: Is there anything else you want to say about the preparation and the presentation of the letter?
WITNESS: Well, the preparation of the letter – the letter was prepared primarily to show the court that I believed I was acting lawfully. I'd actually sat down and I'd read the law ever since the police – on these points, ever since the police had refused to take the complaints and ever since the Attorney-General had said no on the 27th and by that time I had realised that the court, the Supreme Court was not going to allow me the appeal so that I could get the summonses. Sorry, the Justices Act contains a provision that allows you to appeal a decision of a Justice of the Peace to refuse to grant summonses and that was the appeal I was seeking because I still wanted the summonses and I still wanted to present my defence and I still wanted to appear in the court. But it had reached the point where, quite simply, it was simply too late and I'd been reading the common law defences. I'd read the defence relating – that is quoted in here – I had read the part contained on page 4, saying that all people have a duty at law to prevent the commission of crimes, as outlined in the Criminal Code. That is what I was seeking to do. I'm seeking to act lawfully. And I actually wrote the letter in order to explain to the court that whilst I was sorry that I wasn't attending, these are the reasons. The only reason I was attending – was not attending was the crimes being committed against me and I believed he was – that the magistrate was aware of it and allowing it to happen.
HIS HONOUR: Yes, all right. Well, thank you.
…
MR MILLER: (Resuming) Yes thank you your Honour. Mr Von Stalheim what did – why did you write the letter of 28th November?.....I was seeking to show Magistrate Wilson that I was seeking to act or attempting to act lawfully in the face of the circumstances that I perceived to be presented with.
Okay, you didn't wish the proceeding to go on that day did you?.....I wished the proceeding to proceed under conditions that I would be subjected to either criminal conduct or the consequences of criminal conduct perpetuated by others, that's the only thing.
You could have come along and applied for an adjournment could you not?.....I could have and I doubt that I would have obtained it.
And if you hadn't obtained it you could have appealed that decision either at that time or after a hearing?.....At that time I didn't believe I could appeal because my appeal that was currently before the Supreme Court was proceeding nowhere. Remember I had an appeal before the Supreme Court at that time and that was the only evidence I had about appeals, was the evidence that I had lodged an appeal, I had to seek a waiver of costs, the waiver wasn't granted.
Mr Von Stalheim you had other things in mind in writing the letter, other than just explaining your position?.....No it was primarily to explain my position, partly as a matter of courtesy and partly also because failing to attend is a serious matter, you are being contemptuous of the court's authority and a court ought, at the very least have advance notice of the reasons.
Mr Von Stalheim do you have the letter in front of you?.....Yes.
Can I take you to the final page of the letter?.....Yes.
You state at the top that:
Any attempt to issue a warrant against me would be contrary to the rules of natural justice.
.....Yes.
Further given the unlawful conduct of the court an attempt [I presume that means] to serve a warrant would be unlawful and may constitute a basis for lawful killing.
.....That's what it says.
You didn't really believe that you had circumstances that could give rise to a lawful basis for a killing did you?.....Yes. The Queen has denied me all protection of the law, that was the position I was in, I'd sought to go to the Supreme Court, I'd sought to have the problems here corrected, I had sought to approach the Attorney-General for her intervention and I had sought to go to Tasmania Police.
So on that basis who did you believe that you could lawfully kill?.....I didn't have anyone in mind, I was merely making an argument – making an observation in the course of this letter and it remains a legal argument.
Well it was intended to convey more than a legal argument Mr Von Stalheim, that's apparent from the final sentence is it not?.....No.
Can you read the final sentence to me?.....I'll read it. Which part of the sentence, that paragraph?
Final sentence of the letter?.....Thank you.
I would therefore request that you do not order that a warrant be issued since it may lead to a lawful killing.
Okay.....That is a correct statement of the law.
You make a request of Magistrate Wilson, you agree with that?.....Whereabouts?
In that final sentence, you request him not to issue a warrant?.....Yes.
You don't want him to issue a warrant?.....Well apparently not according to that but it was 1.30 in the morning when that was written, I can't remember.
HIS HONOUR: Mr Miller the record of interview is pretty comprehensive and there's a pretty good explanation in relation to what he says –
MR MILLER: Well your Honour, with respect I don't believe there is –
HIS HONOUR: No, no just in terms of what he says. But if you want to go beyond that comprehensive record of interview.
MR MILLER: If I could just finish this point your Honour. (Resuming) The record of interview that his Honour has referred to focused or at least Insp Wright endeavoured to keep focusing on your intent, would you agree with that?.....Yes.
And you kept on saying well you were just expressing your view in relation to a lawful position and you weren't intending to make a threat?.....That's correct. Mr Miller yes that's correct but let me – it may assist both you and the court if I make this observation. If I can just read out the last line or part of the last paragraph:
For the reasons stated above I lawfully decline to attend the court on the 29th November 2007.
That was originally meant to be the final paragraph subject to one neat closing little bit. The rest of this page here was written in an attempt, somewhat tired attempt, to find a nice closing bit before yours faithfully. That's all it was meant to do. The fact that here in the cold light of retrospective day I clearly failed and made things abysmally worse.
Well Mr Von Stalheim if I could stop you there, you're talking about the cold light of day and how tired you were. You knew at the time you wrote that letter that that's sort of threat could be viewed as a breach of section 34B did you not?.....No I didn't. I realise the point you're making that I was facing a charge for making a similar sort of comment and that I was subject to a charge of it but I did not and do not accept the correctness of that view and I should also add for the sake of completeness and accuracy that having gone as far as I have there is a ground contesting the conclusion.
Mr Von Stalheim you make a request not to issue a warrant?.....Yes.
Yes. You tell Magistrate Wilson what may happen if he doesn't comply with your request, if he does, in fact, issue a warrant?.....That's correct.
And that might be a lawful killing?.....That is correct. And I have read a case that says that may be a basis for lawful killing.
HIS HONOUR: Yes thanks Mr Miller. And no further cross-examination." [My emphasis.]
From the passages from the applicant's record of interview and his evidence at the hearing as set out above, it can be seen that at the close of the applicant's case the learned magistrate had nothing by way of an admission by the applicant that he intended to intimidate Magistrate Wilson. On the contrary, Magistrate Marron had before him repeated denials of such an intent and repeated assertions that, albeit poorly or unwisely expressed, the purport of the letter was the making of a legal argument.
The learned magistrate did not rely upon any lack of credit on the part of the applicant for reaching the conclusion he did, and it follows that he must have relied on the terms of the letter itself as evidencing the necessary state of mind to prove the charge against the applicant of attempt to intimidate a public officer.
Such reasoning is in fact suggested by an exchange between his Honour and the applicant during the course of the applicant's submission of no case to answer on the charge. It was as follows:
"MR VON STALEHIM: Now the no case submission is this your Honour. They still have to prove certain elements even if they put it at no more than you've just expressed it. First of all they have to produce evidence to show an intent to intimidate and they've produced evidence showing, they produced evidence –
HIS HONOUR: They don't have to show subjective intent.
MR VON STALEHIM: Subjective intent?
HIS HONOUR: They don't have to show, they don't have to prove that you knew that it was an attempt, that it was an attempt, they can show that in fact that in an objective view that this would be seen to be conduct that would be intimidatory."
That, to the extent that I can understand it, is not, with respect, a correct statement of the law as to the intent required to be shown to prove an attempt to commit a summary offence, and it does not reflect the terms of s74(2) of the Justices Act.
What I think his Honour was meaning to imply was that the prosecution did not need to prove an admission on the part of the applicant that he intended to intimidate Magistrate Wilson, and could rely upon the terms of the letter itself as evidencing such an intention.
However, for reasons to which I will return shortly, I am of the view that, as a reasonable person, the learned magistrate could not have reached the conclusion he apparently did as to the applicant's intent based on the letter itself, either taken alone or in conjunction with any of the other evidence before him.
The jurisprudence of attempt is notoriously difficult. The law as set out in s74 of the Justices Act is expressed in substantially similar terms to the Criminal Code, s2. The case law relevant to s2 is contained in this State in Haas v R [1964] Tas SR 1 per Crisp J at 14, 15 and 22 - 25, McGhee v R [1994] TASSC 28 (Judgment No 18/1994) per Zeeman J at 14 - 15 and Nicholson v R (1995) 14 Tas R 351. One thing that is clear however, is that, whatever the guilty intent required for the completed offence may be, on a charge of attempt heard by a magistrate, the magistrate must decide, as a question of fact, whether the defendant committed the relevant act or acts with the intention of committing the particular offence.
In the case before the learned magistrate the relevant acts were the writing of the letter by the applicant and the delivery of it by him. The relevant offence that must thereby be proved as the offence he intended to commit was one of intimidating a public officer in the execution of his duty.
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.]
The proof required in the present case to make out the charge against the applicant of attempting to intimidate Magistrate Wilson was, relevantly, proof that by writing and delivering the letter addressed to the magistrate, the applicant intended to deter him from issuing a warrant by threat or by inducing fear.
I am of the view that no magistrate could, as a reasonable person, have concluded that the terms of the letter proved such an intention, or displaced the otherwise uncontradicted evidence of the applicant's repeated denials that he had any such intention, and his assertions that he was simply mounting a legal justification for his non-attendance at court on 29 November 2007.
In reaching that view I do not engage in any impermissible exercise of weighing for myself the evidence before the learned magistrate. I concern myself only with an objective assessment of the conclusion to which the magistrate, as a reasonable person, could have come, on that evidence.
The words in the applicant's letter identified in the particulars of the charge set out in the complaint, taken in the context of the balance of the applicant's misguided and misconceived tirade, could not, in my view, reasonably have led the learned magistrate to a conclusion that the applicant actually intended to deter Magistrate Wilson from issuing a warrant by threatening to kill him, or anyone else, or by inducing in Magistrate Wilson a fear that he or someone else would, or might be, killed. Nor could those words reasonably have led to a conclusion that the applicant's otherwise uncontradicted denials and his explanations for his, admittedly bizarre behaviour, as given by him to police and in evidence at the hearing, were false or disingenuous.
I add that, although not in any way pivotal or dispositive, it also assists to bear two things in mind.
The first is that the learned magistrate knew that the charge against the applicant which had been before Magistrate Wilson was itself one contrary to s34B of the Police Offences Act which would, as alluded to by the applicant in his cross-examination set out above, tend to contraindicate an intentional repetition of similar unlawful conduct.
The second is that it was common ground before the learned magistrate, and before me, that when the applicant was arrested and taken before Magistrate Wilson for failing to appear, Magistrate Wilson, a very experienced magistrate, having then been shown the applicant's letter, called him, in effect, an "idiot" and admitted him to fresh bail. (In pointing this out, I am in no way to be taken as suggesting that it was necessary for Magistrate Wilson to have been actually intimidated in order to make out the charge of attempt against the applicant. I merely suggest that Magistrate Wilson's reaction to the letter should perhaps have caused Magistrate Marron to pause for thought.)
In my view, the only reasonable conclusion open to the learned magistrate was that he could not be satisfied beyond reasonable doubt that the applicant was, by references to a "lawful killing", doing anything more than instancing the extreme degree of his entirely unsubstantiated belief as to the legal effect of Magistrate Wilson's alleged unlawful conduct and, instancing, not threatening to exercise, the full extent of the unlimited lawful entitlements thereby vested in him as an "outlaw" by virtue of "the common law defence" of "Distraint of the Queen".
The learned magistrate should, reasonably, have concluded only that the applicant was, in writing the letter he did, in his own mind, making out a legal case – a legal argument postulating the (entirely fanciful) high degree of rectitude of his own perceived entitlement not to appear before Magistrate Wilson, and postulating the extent of his (wholly nonsensical) belief as to his outlaw's immunity from arrest for any such non-appearance. It was not reasonable to conclude that the applicant intended to intimidate Magistrate Wilson in the relevant sense. I have considered but I do not accept the submissions to the contrary by counsel for the respondent, Mr Miller.
I am satisfied that ground 9 of the notice to review is made out and that, as a result, the applicant's motion should be granted, and the order of conviction sought to be reviewed be quashed.
Grounds 4 and 15
As already noted, ground 4 (in part) and ground 15 involve an assertion of a breach of the rules of natural justice occurring as a result of the learned magistrate proceeding with the hearing of the charge against the applicant of attempting to intimidate a public officer when the applicant had not understood that the hearing of that charge was to proceed on that day, and was not able to present a full defence to that charge.
As was recently noted by Pearce J in Streets v Lucas [2013] TASSC 45, the Magistrates Court is by virtue of the Magistrates Court Act 1987, s3A(2), a court of record, and in the absence of any statutory provision to the contrary a magistrate has an obligation to comply with the rules of natural justice. As to the relevant obligations his Honour observed at [26] – [28]:
"26 The content of natural justice varies from case to case. In Clarence City Council v South Hobart Investment Pty Ltd [2007] TASSC 16 the Full Court dealt with the obligation of a council to afford natural justice. The lead judgment was written by Underwood CJ. At [27] his Honour referred to Russell v Duke of Norfolk [1949] 1 All ER 109 where Tucker LJ at 118 said:
'The requirements of natural justice must depend on the circumstances of the case, the nature of the inquiry, the rules under which the tribunal is acting, the subject matter that is being dealt with, and so forth.'
27 In Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group (1969) 122 CLR 546, the High Court said at 553:
'It is plain that when it is necessary to consider a question of fairness in relation to a tribunal the whole of the circumstances in the field of the inquiry are of importance. The nature of the jurisdiction exercised and the statutory provisions governing its exercise are amongst those circumstances.'
28 With respect to the exercise of a power conferred by statute the nature and extent of the obligation to provide procedural fairness depends on and will fluctuate according to the nature of the statutory power, the purpose and requirements of the statute and the interests of the individual; Kioa v West (1985) 159 CLR 550 per Mason J at 584 and Brennan J (as they then were) at 612, Re Minister for Immigration and Multicultural Affairs; ex parte Miah (2001) 206 CLR 57 per Kirby J at 115; White v Ryde Municipal Council (1977) 36 LGRA 400, Reynolds JA at 413; National Companies and Securities Commission v The News Corporation Limited (1984) 156 CLR 296 per Brennan J at 326."
In the present case the questions are whether it was procedurally fair for the learned magistrate to press on with the hearing in the face of the applicant's claim that he was taken by surprise and was unprepared, and conversely whether in proceeding as he did, the learned magistrate denied the applicant a fair hearing.
The transcript of the proceedings before the learned magistrate discloses the following material relevant to these questions:
"MR VON STALHEIM: Yes there's just one point which I'm somewhat puzzled about your Honour. I understood today's proceedings would be in relation to the charge of breach of bail, failing to appear –
HIS HONOUR: No no. We're just dealing with these two applications first. So do you want to respond to Mr Miller?
MR VON STALHEIM: Which charge am I dealing with?
HIS HONOUR: You're dealing with both your applications for permanent, for stay applications. Now you've put your affidavit in, I've read that. Mr Miller's responded to that. Do you wish to respond to anything Mr Miller's said.
MR VON STALHEIM: Well since apparently I'm dealing with both your Honour I, I'm um, I'll commence with the charge of the Bail Act. I don't have the papers in relation to the other one because I didn't know that matter was to be here for anything other than mention, so I'm unprepared for it but I'll –
…
MR VON STALHEIM: … The other one I simply reiterate is a plea which is entered, and that was the one that I was simply not prepared to deal with because it requires much more detailed argument and to be perfectly honest it may in fact be argument that ought to be mounted in the Supreme Court. That's the point I was making about, when I was saying that I thought I was here to deal with a failure to attend and only a failure to attend. One charge at a time in sequential order. It's how I understood that the procedures went.
HIS HONOUR: No.
MR VON STALHEIM: Ah. Well in that case that's my error. That being so I'll refer you, I'll move straight on to the next one. If I can remember the basis upon which I was going to enter that plea, it was as follows. …
…
HIS HONOUR: All right well perhaps cryptically the issue is here is to which matter proceeds first. So what would you be, you'd say they'd be dealt with together.
MR MILLER: Well yes.
HIS HONOUR: Yes, so I heard you on that. So what do you say in relation to the application to hear both matters together?
MR VON STALEHIM: Your Honour my understanding was that those applications, these two matters or complaints would be dealt with separately and sequentially. I proceeded upon that basis. The only material I have brought and the only thing I've prepared for is the charge of section 9 breach of Bail Act. If these matters proceed together clearly I don't even have the material relating to the charge of attempting to intimidate Magistrate Wilson and can present no defence case.
…
HIS HONOUR: That's why I asked you before whether or not you brought your application for a stay in relation to both are ruled on that so in relation to the matter of the attempt to intimidate a public officer, are you ready to proceed on that?
MR VON STALEHIM: No your Honour.
HIS HONOUR: What information, what information, why is the reason for that?
MR VON STALEHIM: Well first of all because as I understand it the only charge to be dealt with was the breach of bail.
HIS HONOUR: Well how are you embarrassed otherwise or prejudiced by me proceeding with the other matter.
MR VON STALEHIM: Well I don't have any material from the prosecution on that.
HIS HONOUR: What material were you requesting?
MR VON STALEHIM: I don't have the fact sheet. I don't have the proof of evidence. I haven't had access to the video recording because I haven't sought it because I understood it to be dealt with later.
HIS HONOUR: Well now Mr thank you, I'll hear from Mr Miller on this point. Mr Miller you said before I think that a request had been made and that the facts sheet, complaint facts sheet, access to the video and had been provided is that right?
MR MILLER: Yes.
HIS HONOUR: When was that done.
MR MILLER: Well your Honour I must confess that I've assumed that things have flowed in that I saw an application, I gave advice about it face to face to the officer and the officer left me to comply. Perhaps if I could have a short adjournment and ring the officer concerned I could have the relevant letter faxed.
HIS HONOUR: 16 mentions on the first one. 19 on the other.
MR MILLER: Your Honour.
HIS HONOUR: I know you're last on the rank in relation these things but I would have imagined now I don't want this matter to go off. I will stand it down.
MR MILLER: Oh no your Honour if I can just explain the history of it in that regard that if they've just continued to be put off whilst another matter was dealt with. So all but say one of those mentions have been whilst an older matter was dealt with and the application referred to, the FOI application has only been made in the last month or so.
HIS HONOUR: That's Mr – and it's his application in the last month.
MR MILLER: Yes.
HIS HONOUR: All right, how was the record of interview, has it been transcribed?
MR MILLER: Yes, it's about an hour and ten minutes.
HIS HONOUR: All right have you got a copy of that transcript.
MR MILLER: Yes, yes.
HIS HONOUR: I'll have a look at that. Have you got a copy for defence?
MR MILLER: Yes I have and I have an exhibit copy as well.
HIS HONOUR: Okay. All right I'm going, I'll stand it down you can provide that material to the defendant and I'll come back. Have we got anything else to deal with? We'll come back at well 11.30, give him time to read it all and I'll read it as well.
MR MILLER: Yes, thank your Honour.
HIS HONOUR: And otherwise–
MR MILLER: Sorry does your Honour have a copy of the letter that has been –
HIS HONOUR: No, oh yeah I'll have a copy of that too thanks. Thank you.
THEN FOLLOWED A SHORT ADJOURNMENT
…
UPON RESUMPTION
HIS HONOUR: Mr von Stalheim have you had a chance to read the documents that were handed to you?
MR VON STALHEIM: I've had a chance to read the transcript of the recorded interview your Honour. That's the document I have.
HIS HONOUR: And were you handed a copy of the statement of prosecutional facts?
MR MILLER: I thought that was handed over early this morning.
MR VON STALHEIM: Sorry. No I –
MR MILLER: That was my fault your Honour I understood he was just to read the interview.
HIS HONOUR: I think I wanted him to have everything you had. So that we wouldn't waste any time.
MR MILLER: Sorry your Honour, the facts really add nothing to the complaint.
HIS HONOUR: I know. But it's a document and as you know he doesn't have it, then a request would be made and we'd have to stand it down, that's all.
MR MILLER: Your Honour I adjourned under the belief that he had already been provided.
HIS HONOUR: I think we decided that belief and guesswork weren't to be dealt with in this case. Just give him everything. Make sure he's got everything. Anyway I'll just give him a moment to read that single page. Okay?
MR VON STALHEIM: Yes thank you your Honour. Can I just request and this is going to seem odd, but as I've already indicated I came here, um, not expecting to deal with this charge. Can I have a request that I be provided with a copy of the charge at some stage?
HIS HONOUR: Charges? Yes.
MR VON STALHEIM: Just the complaint made before
HIS HONOUR: Yes you can get a copy of that. Have you got a spare copy? I'll give him these ones?
MR MILLER: I'll have my copy your Honour, would already have been served upon him. I should note for the purpose of the record your Honour that the facts for the prosecutor form no part of the prosecution case.
HIS HONOUR: Yeah that's, can I just say let's put our practical hats on. It's a cute argument. Give him the documents and we'll be here for a lot less time right. We always know that a summary is just a summary, it's not a formal document. But let's not get cute about it I don't want to hear any more about it all right.
MR MILLER: It wasn't intended to be a cute argument. I was noting it for the record in the expectation as to where these proceedings might end up your Honour.
HIS HONOUR: Well they'll go quicker if we just get on with it.
MR MILLER: Thank you your Honour.
HIS HONOUR: Now. Right. Have you got a copy of that?
MR VON STALHEIM: Yes your Honour.
HIS HONOUR: Call your first witness.
MR MILLER: Well your honour before I call my first witness in accordance with the agreement, that the prosecution have with the defendant, I call upon him to formally admit as a fact that he was bailed to appear in court for appearing –
HIS HONOUR: Well let me just ask him this question. Is there any objection to the admissibility of the record of interview?
MR VON STALHEIM: No your Honour.
HIS HONOUR: Yeah. That answers all those questions. Thank you.
MR MILLER: I call Detective Inspector Wright."[My emphasis.]
A number of observations need to be made about the matters disclosed by the transcript.
The first is that the learned magistrate was clearly aware that the applicant was unprepared to deal with his defence of the charge of attempting to intimidate a public officer in circumstances where the applicant wished to make a preliminary application for a stay of proceedings in respect of that charge, and where there was the probability of a later submission of no case to answer, or a legal argument as to reasonable doubt if the preliminary application and no case to answer submission were unsuccessful.
The second is that the magistrate was told by the applicant that he had not brought with him to court such papers as he did have, relevant to the charge of attempting to intimidate a public officer.
The third is that the magistrate was aware that the applicant had not been provided with either a copy of a DVD of his record of interview with police or a transcript of that interview.
The fourth is that the magistrate appeared to wish to press on with the hearing notwithstanding the applicant's difficulties, as can be seen from his Honour's requirement of counsel to then and there provide the applicant with relevant documents, and his granting of a short recess to allow the applicant time to read the 26 page transcript of his record of interview. I acknowledge that the applicant had the benefit of the luncheon adjournment before he gave evidence but that adds little to the equation in my view.
In all of those circumstances I am of the view that it was procedurally unfair of the learned magistrate to go ahead with the hearing. It is true that the applicant did not make an application for an adjournment, but he protested his apparently quite genuine embarrassment on several occasions, and the magistrate should have suggested the possibility of adjourning the hearing of that particular charge. I have considered but I do not accept Mr Miller's submission that the record of proceedings of 22 July 2009 and the transcript of the proceedings of 2 October 2009 should cause me to doubt the veracity of the applicant's claim that he had not expected the charge of attempting to intimidate a public officer to be heard on that latter date.
I am also of the view that the applicant was not afforded a fair hearing. It is obvious from my reasons for upholding ground 9 that the applicant's interview with police contained material that had significance for the applicant's defence. Very arguably, he should have been afforded the opportunity to view the DVD of the interview. But, in any event, in my view, unarguably, the applicant should not have been required to proceed to deal, at such short notice, with the relevance that the contents of the record of interview may have had in terms of his preliminary stay application, or the cross-examination of the interviewing police officer, or any no case to answer submission, or his own evidence and, ultimately, in terms of any submission that the charge against him was not proven beyond reasonable doubt.
Ground 4 (in part) and ground 15 of the notice to review are upheld. There is no substance to the remaining part of ground 4. Were they the only grounds to be upheld I would have set aside the order of the learned magistrate sought to be reviewed and ordered that the complaint be re-tried by another magistrate. They are not, of course, the only grounds upheld.
Consideration of the remaining grounds of the notice to review
Ground 1 seeks to invoke the 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 letter to Magistrate Wilson was in the course of judicial proceedings, and that the Magistrate Marron therefore erred in holding the applicant criminally responsible for its contents. The applicant relies on Jamieson v R (1993) 177 CLR 574 as making out ground 1.
This ground is entirely misconceived and I reject the applicant's submissions as to it. Jamieson 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 Jamieson 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, the court did so on the basis that the principle was subject to an exception in cases such as 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 ER 35; [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 QBD 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 alleged threat to kill, said to be made in order to deter a magistrate from issuing a warrant for the arrest of a person bailed to appear before the magistrate who was refusing to appear, would, quite clearly, however charged, involve an offence of a kind that falls within an exception to the general rule as to immunity from prosecution.
Ground 1 fails.
Grounds 2 and 10 assert error on the part of the learned magistrate arising on the basis that the "practices and procedures" of the Magistrates Court (to the prior knowledge of the applicant), provided for "screening of all communications to magistrates" and that his Honour erred in failing to issue summonses to obtain evidence as to that screening process from Mr Roger Illingworth, the Registrar of the Launceston Magistrates Court, Mr J Connolly, the then Administrator and Registrar of the Magistrates Court of Tasmania and Ms Elizabeth Knight, the then Principal Registrar of this Court.
The applicant's argument runs that, as a result of his knowledge of this screening process, gained from Mr Illingworth, the applicant was aware, in advance of delivering the letter addressed to Magistrate Wilson, that any attempt to intimidate a magistrate was an impossibility.
There is no substance to these grounds and there is no substance to the applicant's submissions in support of them. I accept Mr Miller's written submissions on these grounds.
To the extent that it is suggested by these grounds that the applicant could prove that he knew and expected that the letter would never come to the attention of Magistrate Wilson, and therefore he could never have had the requisite intention to intimidate, such suggestion is wholly at odds with the applicant's own evidence as to his "lawful" reason for writing and delivering the letter.
To the extent that it is somehow contended that the applicant cannot be convicted of an attempt to intimidate Magistrate Wilson because the completed offence was impossible, such a contention is defeated by the operation of the second limb of s74(3) of the Justices Act.
To the extent that it is argued that the applicant was entitled to say whatever he liked in a letter to Magistrate Wilson on the basis that any words used by the applicant in the letter that amounted to a breach of the criminal law would be screened by court staff, thereby absolving him from any criminal responsibility for those words, such an argument is simply nonsense.
Grounds 2 and 10 fail.
Grounds 6, 7 and 8 assert that s74(2) of the Justices Act provides that an attempt is an act forming part of a series of events which, if it were not interrupted, would constitute the actual commission of the offence, and the learned magistrate therefore erred in concluding that the charge of attempting to intimidate Magistrate Wilson was proven, when Magistrate Marron was not presented by the respondent with any facts to prove that, at the time the applicant delivered the letter, Magistrate Wilson was "acting lawfully", or was constituting the Court of Petty Sessions, or "was acting in good faith".
There is no substance to these grounds or to the submissions in support of them.
The applicant was charged with an "attempt to intimidate Magistrate Peter H Wilson a public officer in the execution of his duty". It was clearly open to the learned magistrate to be satisfied beyond reasonable doubt that Magistrate Wilson was a "public officer" at the relevant time, and the prosecution case was that the alleged attempted intimidation of Magistrate Wilson was to deter him from acting in the execution of his duty, as that duty would arise on the foreshadowed non-appearance by the applicant on the very day the letter was delivered. As Mr Miller submitted the prosecution was not required to prove that Magistrate Wilson was exercising any powers at the time the act alleged to constitute the offence was carried out. An act of intimidation, by its very nature, is directed at future conduct.
Moreover, it was not an ingredient of the offence charged that Magistrate Wilson was "acting lawfully" at any material time, or that he constituted "a Court of Petty Sessions", or that he "was acting in good faith".
It is not to the point that s34B(2)(a) of the Police Offences Act also creates another offence of intimidating a public officer "lawfully performing a duty imposed upon him by an Act", or that s34B(4) extends the definition of "public officer" to include "any person acting in good faith in the execution, or intended execution, of an Act or a public duty or authority". The applicant was not charged with that other offence and the respondent was not relying on that extended definition.
Grounds 6, 7 and 8 fail.
Grounds 11, 12 and 13 involve assertions that a magistrate does not have jurisdiction to determine the "lawfulness of the conduct" of another magistrate, or to hear a complaint that requires a "collateral attack" on another magistrate for its proof, or involves a "collateral attack" on "another litigant conducted within the course of legal proceedings".
These grounds and the arguments in support of them do not rise above the specious pseudo-legal, and they require no answer beyond the simple statement that none of the matters asserted by the applicant in these grounds arose upon the hearing, or were in any way involved in the determination of the complaint against the applicant. I accept the written submissions of Mr Miller on these grounds.
Grounds 11, 12 and 13 fail.
Ground 14 involves a contention that the learned magistrate was not entitled to proceed with the complaint against the applicant charging him with an attempt to intimidate Magistrate Wilson because the applicant had already been dealt with for the contempt inherent in a breach of bail by non-appearance when he came before Magistrate Wilson on 30 November 2007, after being arrested upon a warrant issued for his non-attendance the previous day.
There is no substance to this ground or to the applicant's submissions in support of them. No question of "double jeopardy" arises as asserted. The applicant was not dealt with by Magistrate Wilson on a charge of contempt, and was not dealt with by Magistrate Wilson for any offence committed by the applicant in writing and delivering the subject letter. Nor was there any "double jeopardy" in the conviction of the applicant by the learned magistrate of the two offences of breach of bail and attempting to intimidate a public officer. They are quite separate and distinct offences.
Ground 14 fails.
Disposition
Ground 4 (in part) and grounds 9 and 15 of the notice to review, having succeeded, the motion to review is granted accordingly.
Given that ground 9 has succeeded, the appropriate order is simply that the order of Magistrate Marron of 12 November 2009 convicting the applicant of the offence of attempting to intimidate a public officer on 29 November 2007 and the order of sentence are quashed.
ANNEXURE
"K. von Stalheim
PO Box 3096
Launceston, 725028/11/07
Magistrate Wilson
Magistrates Chambers,
Launceston Magistrates Court,
73 Charles Street,
Launceston, 7250Dear Sir,
RE: Lawful Non attendance, Common law defences
I am writing, in advance to advise you that I am lawfully refusing to attend the hearing set down for the 29th November 2007. In saying that my conduct is lawful on rely on common law defences and your lack of jurisdiction, due to your criminal conduct, to make any orders in relation to this matter. The common law defences upon which I relied will be discussed later but includes, Duress by Threat, Duress by circumstances, self defence, the prevention of crimes and Distraint of the Queen. I note that it is my intention to act lawful on the basis of my current understanding of the facts, outlined below Beckford v R [1988] AC 130; [187] 3 All ER 425. The rules of natural justice state that like case are to be treated in a like fashion and as no action was taken against others for non attendance, no action will be taken against me for the same action.
I further note that the Justices Act 1959 provides
111. Hearings de novo
(5) ...(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; or...
I note that you have conspired with the Chief Magistrate to prevent the obtaining of this evidence, by unlawfully instructing Justices of the Peace to deny jurisdiction and refuse, for no lawful reason the provision of summonses and warrants. Hence the court has refused to allow me to summons the evidence necessary to prove a complete defence to this charge.
Before I proceed to state why my conduct is lawful, I will first advise the court that if there is any attempt to dismiss, directly or indirectly, this matter. I will appeal to seek to have the matter returned to the court and outlined below I will also pursue all lawful actions against any magistrate or justice who orders that this matter be dismissed. I will take this action because I am aware of the consequences of discrimination on the basis of an imputed criminal record and the refusal of the Tribunal to deal with this attribute and hence I must pursue the Justice or Magistrate who places me under this disadvantage.
This being the case I will commence with the issue of Judicial Immunity, which in Tasmania is based on the immunity for Supreme Court Judges. This in turn is based on the Common Law immunities available to judges, the extent of which is explained in Fingleton v The Queen [2005] HCA 34, Yeldham v Radski [1989] 18 NSWLR 512 and more pertinently Floyd v Barker [1607] 77 ER 1305 @ 1306. These points are also made or expanded upon in Sirros v Moore [1975] QB 118 as relied upon in Wentworth v Wentworth & Ors [2000] NSWCA 350. The underlying principle is that Judicial Immunity is absolute for actions conducted within Jurisdiction but, as consistently stated does not apply when a person has entered into extra judicial conspiracies and sought to take them into court Floyd v Barker [1607] 77 ER 1305 @ 1306, paragraph 3 (near the end of the paragraph). This was reinforced in Sinos v Moore [1975] QB 118 where Lord Denning stated, at 132, that Of course, if the judge has accepted bribes or been in the least degree corrupt, or has perverted the course of justice, he can be punished in the criminal courts. As quoted by the Court of appeal in Wentworth v Wentworth & Ors [2000] NSWCA 350 @ paragraph 27, this court went on to note in paragraph 28, that the conduct had to be within the jurisdiction of the Magistrate for the immunity to exist. This point was reinforced in Fingleton v The Queen [2005] HCA 34 and also in Yeldham v Radski [1989] 18 NSWLR 512.
In this situation the Chief Magistrate has acted without authority to attempt to limit the jurisdiction of Justices of the Peace, under the cover of assigning them work, apparently under the authority of S 15 (7) Magistrates Courts Act. The Queen acting on the advice of parliament and not the Chief Magistrate determines the jurisdiction of Justices and nobody other than the Queen on Parliaments advice can restrict it. This conduct was therefore out of jurisdiction and extra judicial. Lord Denning stated in Pearlyman v Keepers and Governors of Harrow School [1979] 1 All ER 365 @ 372, The way to get things right is to hold thus: No Court or Tribunal has any jurisdiction to make an error of law on which the case depends. If it makes such an error, it goes outside its jurisdiction...' Anybody conspiring to act in this manner is equally affected by this conduct and hence without judicial immunity Floyd v Barker [1607] 77 ER 1305 @ 1306, paragraph 3 (near the end of the paragraph). I understand that you have conspired with the Chief Magistrate to commit such actions to prevent me from presenting a defence that is available to me at law. I further understand that this is common knowledge within the legal profession and that further the prejudgement to which I have been subjected is common knowledge within the community. Finally as the Justices Act notes this forms the basis of an appeal De Novo and hence you have denied jurisdiction because you have improperly rejected evidence R v Marsham [1892] 1 QB 371 @ 375. You have further compounded this by proposing to make a decision on the basis of inadequate evidence R v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co Pty Ltd [1953] 88 CLR 100 @ 120. Finally from Tasmania Police I understand that you are applying the incorrect test of both lawfulness and also good faith, a constructive jurisdictional error Ex parte Hebburn Ltd; RE Kearsley Shire Council [1947] 47 SR (NSW) 416 @ 420.
I note that I have twice asked you to make orders for summonses to ensure that this problem did not arise but you refused to consider them. It is now clear that this was done on the instructions of the Chief Magistrate. You are therefore acting without your judicial immunity and without jurisdiction.
The police have indicated that this conduct is being conducted after having conspired with them to do so.
Duress by Threat
Duress by Threat is derived from the fact that you intend to commit the crimes of trespass and false imprisonment, conspiring to pervert justice and judicial corruption, as defined by S 90 of the Criminal Code 1924. I believe that on the 1st June 2007 I heard you state that you looked forward to sending me to prison.
This threatening conduct has left me terrified for my own safety since the court has previously show that it will ·conceal any murder committed by Tasmania Police, explaining why they continue top brag about the murder of Joe Gilowitcz and the murders in the Hobart Remand centre. I have been given to understand that this is the fate that I am to be given. I also understand that the Court will find that their is no evidence of murder.
This constitutes a threat, that I will be subjected to criminal conduct if I attend and accordingly I am refusing to do so in order to avoid your criminal conduct. I have been told by Tasmania Police that since they are prosecuting me they do not have to afford me the protection of the law, further they have ensured that the criminal conduct of the court will not be investigated.
Duress by Circumstances
Duress by circumstances occurs when;
' ...There the Court acknowledged that in extreme circumstances there can be a defence of necessity. Most commonly it arises when wrongful acts put pressure upon the accused,' R V Pommell [1995] 2 Cr App Rep 607; 130 UK 25: [1995] EWCA Crim 7. '...It may continue for as long as the necessity existed In DPP v Jones (1990) RTR 33, it was held that any defence of necessity available to a driver would cease to be available if he drove for a longer period than necessary .... In our judgment, a person who has taken possession of a gun in circumstances where he has the defence of duress by circumstances must "desist from committing the crime as soon as he reasonably can" (Smith and Hogan, Criminal Law, 7th Ed, page 239). This test is similar to the test in Jones, to which we have already referred. In deciding whether a defendant acted reasonably, regard would be had to the circumstances in which he finds himself.'
In this instance I am the victim of criminal conduct being committed against me by both the court acting in collusion with Tasmania Police. This conduct is being conducted extra judicially and extra jurisdictionally and has not ceased. In point of fact the police have been given the understanding that it will continue to conviction, without even the pretext of allowing for a defence to the charge being provided.
I am therefore in the position of having to act in this manner to prevent the criminal conduct from occurring for as long as it continues. This conduct is lawful and therefore prevents the charge of contempt from being levelled against me. I note that this conduct will cease to be lawful until such time as the Supreme Court orders that I be allowed to have witnesses.
Self defence
The charge of self defence is a denial of the unlawfulness of their conduct which is an essential element of any crime, including contempt DPP v Morgan [1976] AC 1852, [1975] @ All ER 347. In this case I am defending my self against the criminal conduct being perpetuated against me by the Magistrates Courts criminal conduct in seeking to Pervert Justice so as to obtain an unlawful conviction. In Beckford v R [1988] AC 130 [1987] 3 All ER 425, it was held that a person can not be convicted of a crime is he committed the actions on a mistaken belief in facts that justified the conduct.
In this case the police and Justices have admitted that the Chief Magistrate, acting in conjunction with the magistrate in question, have admitted that I am to be denied all protection of the law and my only lawful course of self protection from this criminal conduct is to refuse to attend until the criminal conduct in question has ceased. Further the Police have admitted, via an FOI request, that they have suppressed evidence which they had a duty to supply, this is a contravention of SS 99 and 105 of the Criminal Code 1924
The prevention of crimes
All people have a duty at law to prevent the commission of crimes, as outlined in the Criminal Code 1924.
In this case the Court is committing crimes in order to protect a fellow magistrate from the lawful repercussions of her conduct in extra judicially ordering the making of a complaint against me. Ms Anita Smith is seeking to lie under oath in order to pervert justice, falsely claiming that she directed the registrar, that the complaint be made against me. In actual fact it was Magistrate Wood who directed that this complaint be made by Ms Emily Briggs, as admitted by Acting Inspector Mark Wright.
The crimes in question are perjury, suppression of evidence and pervert justice. The Chief Magistrate appears to be of the view that it is better that I be falsely convicted of an offence that did not happen than one of his magistrates be held to account at law.
In this case the police and Justices have admitted that the Chief Magistrate, acting in conjunction with the magistrate in question, have admitted that I am to be denied all protection of the law and my only lawful course of self protection from this criminal conduct is to refuse to attend until the criminal conduct in question has ceased. Further the Police have admitted, via an FOI request, that they have suppressed evidence which they had a duty to supply, this is a contravention of SS 99 and 105 of the Criminal Code 1924. The only way I have of preventing this crime is to refuse to attend. This is a lawful action on my part and I am following this action.
Distraint of the Queen
The circumstances are these I have un constitutionally been denied the protection of the law by the Attorney General, I have been denied to protection of the law by Acting Inspector Mark Wright and I have been denied the protection of the law by both the Magistrates Court and the Supreme Court. In short I am with any protection from the law and as a direct result I am an outlaw. As an outlaw I am not bound by the law. The Queen has a common law duty to afford me the protection of the law, she has failed and as a direct result I am released from my duty to obey the law until such time as I am afford the protection of the law and you are thrown in prison.
Therefore the court lacks the jurisdiction to apply any law against me until I have been afford that protection. Hence I do not have to attend the court until the Queen starts to afford me the protection of the law.
Jurisdiction
The refusal of the Justices of the Peace, acting at the unlawful direction of the Chief Magistrate to deny jurisdiction, to summons witnesses and to issue lawful warrants is before the Supreme Court. Equally an appeal against the orders of this court, to proceed with a prosecution affected by bad faith on the part of the decision-maker, collusion by magistrate to commit crimes, extra judicially, so as to obtain an unlawful conviction.
As a result this court is acting without jurisdiction, because as noted in S 110 (2)(f), the Supreme Court has the power to correct any defect in these proceedings. To continue would be to seek to prevent that court from exercising its authority and hence an act of contempt of that court.
I note that the Justice of the Peace, having colluded are denied immunity from recourse and hence as a direct result of your involvement in this collusion you are denied judicial immunity. Having Acted extra judicially, you can not now act judicially in relation to the same matter because you refused to act in a manner that bought you back into the judicial fold. As a result you lack jurisdiction to act judicially because of your own conduct.
I note that you may have ceased to be a magistrate, because your conduct would cause you to be removed from the legal profession and hence you may no longer be an eligible person for the purposes of S 8(1) of the Magistrate Courts Act, or S8(3)(b) of that Act. Accordingly you do not appear to have any jurisdiction to act as a Magistrate in this matter.
For the reasons stated above I lawfully decline to attend the Court on the 29th November 2007 and I do so in the belief, as expressed above that this conduct is a lawful course of conduct. I note that I have stated that I will cease this conduct when it either becomes unlawful or alternatively when the court choses to act in a lawful and non criminal manner.
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 faithfully
K. von Stalheim"
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