Williamson v Johnson
[2016] WASC 232
•1 AUGUST 2016
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: WILLIAMSON -v- JOHNSON [2016] WASC 232
CORAM: CORBOY J
HEARD: 7 APRIL 2016
DELIVERED : 1 AUGUST 2016
FILE NO/S: SJA 1088 of 2015
BETWEEN: HARLEY ROBERT WILLIAMSON
Appellant
AND
DAVID JOHNSON
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram :MAGISTRATE M RIDLEY
File No :PE 112691 of 2014
Catchwords:
Criminal law - Appeal against conviction - Whether statutory scheme conferring power on a registrar of the Federal Circuit Court of Australia to make a sequestration order constitutionally valid - Section 149 of the Criminal Code (Cth)
Legislation:
Bankruptcy Act 1966 (Cth), s 52
Criminal Code (Cth), s 149.1
Federal Circuit Court (Bankruptcy) Rules 2006 (Cth), r 2.02
Federal Circuit Court of Australia Act 1999 (Cth), s 102
Result:
Application for leave refused
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant: In person
Respondent: Mr J Johnston
Solicitors:
Appellant: In person
Respondent: Director of Public Prosecutions (Cth)
Case(s) referred to in judgment(s):
Harris v Caladine [1991] HCA 9; (1991) 172 CLR 84
Ledger Acquisitions Australia MB Pty Ltd v Kiefer [2014] FCCA 2216
O'Connell v The State of Western Australia [2012] WASCA 96
Pattison v Hadjimouratis [2006] FCAFC 153; (2006) 155 FCR 226
R v Davison [1954] HCA 46; (1954) 90 CLR 353
Re Bryant; Ex parte Guarino [2001] HCA 5; (2001) 178 ALR 57
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
Shaw v Jim McGinty in his capacity as Attorney General [2006] WASCA 231
Simandl v Deputy Commissioner of Taxation [2008] FCA 451; (2008) 5 ABC(NS) 763
The Commonwealth v Hospital Contribution Fund [1982] HCA 13; (1982) 150 CLR 49
CORBOY J:
The application and the result
The appellant applies for leave to appeal against conviction for an offence against s 149.1 of the Criminal Code (Cth): that on 30 June 2014, at Perth, he obstructed, hindered or intimidated Martin Tshin Fong Jan, a public officer who was performing a function of his office as a registrar for the Federal Court.
The appellant's appeal notice proposed five grounds of appeal:
1.The Magistrate erred in law by failing to recognise that District Registrar Jan was lawfully prohibited from exercising the judicial powers of the Commonwealth by judicially dealing with s 51(xvii) of the Constitution, to the detriment of the Appellant.
2.The Magistrate erred in law by failing to recognise and implement the Commonwealth Constitution 1901, the source of the Doctrine of the Separation of Powers, by misconstruing sub-ordinate legislation as authorisation for District Registrar Jan to exercise the judicial power of the Commonwealth to the detriment of the Appellant.
3.The Magistrate erred in law as the Appellant used the correct legislation to make the arrest of District Registrar Jan as enabled through further reciprocal Commonwealth and State legislation.
4.The Magistrate erred in law and fact as the actions of the Appellant to 'hinder', 'obstruct' or 'intimidate' District Registrar Jan occurred during the process of the Appellant lawful arrest of the latter and therefore excused by law.
5.The Magistrate erred in law and fact by failing to base the decision elements provided for in s 25 of the Criminal Investigation Act 2006 (WA), titled Citizens Arrest, as the Appellant is neither a Police Officer or a Public Officer as is relevant and required for s 128 of the Criminal Investigation Act 2006 (WA), to the detriment of the Appellant.
I have concluded that none of the proposed grounds of appeal have a reasonable prospect of success on the test explained by the Court of Appeal in Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473, especially at [56]. Leave to appeal on each of the proposed grounds of appeal is refused and the appeal is dismissed for the reasons that follow.
The appellant's proposed grounds of appeal seek to raise a constitutional issue. However, I have not directed that notices be given under s 78B of the Judiciary Act 1903 (Cth) as, in my view, the matters sought to be raised are unarguable: see O'Connell v The State of Western Australia [2012] WASCA 96 [90] (a matter that is trivial, unarguable, frivolous or vexatious is not a matter arising under the Constitution or involving its interpretation) and Shaw v Jim McGinty in his capacity as Attorney General [2006] WASCA 231 [42] (if the alleged 'constitutional issue' is unarguable or vexatious, there is in truth no constitutional issue at all).
The offence
Section 149.1 of the Criminal Code provides that:
(1)A person commits an offence if:
(a)the person knows that another person is a public official; and
(b)the first‑mentioned person obstructs, hinders, intimidates or resists the official in the performance of the official's functions; and
(c)the official is a Commonwealth public official; and
(d)the functions are functions as a Commonwealth public official.
(2)In a prosecution for an offence against subsection (1), it is not necessary to prove that the defendant knew:
(a)that the official was a Commonwealth public official; or
(b)that the functions were functions as a Commonwealth public official.
(3)For the purposes of this section, it is immaterial whether the defendant was aware that the public official was performing the official's functions.
…
(6)In this section:
function:
(a)in relation to a person who is a public official - means any authority, duty, function or power that is conferred on the person as a public official; or
(b)in relation to a person who is a Commonwealth public official - means any authority, duty, function or power that is conferred on the person as a Commonwealth public official.
The dictionary for the Code defines the term ‘public official’ to include a 'Commonwealth public official'; an officer or employee of the Commonwealth or a State or Territory and a member of the executive, judiciary or magistracy of the Commonwealth or of a State or Territory. The term 'Commonwealth public official' includes a 'Commonwealth judicial officer'. The term 'Commonwealth judicial officer' is defined to include 'a judicial registrar, registrar or other officer of a court created by the Parliament'.
The physical element of s 149.1 comprises the acts of obstructing, hindering, intimidating or resisting. The section does not specify a fault element for that physical element. Accordingly, intention is the fault element: s 5.6 of the Code. Section 149.1 also requires proof that the accused knew that the other person was a public official. However, the prosecution is not required to prove that the accused knew that the other person was a Commonwealth public official who was performing functions in that capacity. Further, s 9.3 and s 9.4 of the Code provide that a person can be criminally responsible for an offence even if, at the time of the conduct constituting the offence, he or she is mistaken about, or ignorant of, the existence or content of an Act or subordinate legislation that directly or indirectly creates the offence or directly or indirectly affects the scope or operation of the offence.
The appellant's defence and the magistrate's findings
The facts found by the presiding magistrate are not in issue. Bendigo and Adelaide Bank Ltd sought a sequestration order against the appellant. The application was listed for hearing in the Federal Circuit Court of Australia on 30 June 2014 before Registrar Jan. The appellant appeared in person at the hearing. There was an exchange between Registrar Jan and the appellant in response to the appellant inquiring whether the court was a 'chapter III' court. The appellant stated that the court was not a Ch III court and that he would arrest Registrar Jan if the hearing proceeded. There were further exchanges in which the appellant reiterated that he would arrest Registrar Jan if the matter proceeded. At some point, the appellant left the bar table and walked behind the judicial bench at which Registrar Jan was sitting, placed his hand on the Registrar's shoulder and stated that he was under arrest. The appellant then returned to the bar table and stated that he would call the Federal Police. He accused Registrar Jan of being in criminal contempt of the High Court.
The prosecutor identified five acts by the appellant that were said to constitute obstruction, hindering or intimidation for the purpose of s 149.1. The appellant did not deny that he had committed the acts identified by the prosecutor or that his conduct had interrupted the proceedings. He admitted that this had been his intention. However, the appellant contended that he was authorised by s 25 of the Criminal Investigation Act 2006 (WA) (CI Act) to arrest Registrar Jan and that he was justified in acting as he had as Registrar Jan was committing a criminal contempt.
Section 25(2) of the CI Act provides that any person may arrest another person (referred to as 'the suspect') if he or she reasonably suspects that the suspect has committed or is committing an 'arrestable offence'. An 'arrestable offence' is defined by s 25(1) to mean 'an offence the statutory penalty for which is or includes imprisonment'. The appellant suggested that Registrar Jan was guilty of impersonating a 'judicial officer' and criminal contempt. Section 148.1 of the Code makes it an offence, punishable by imprisonment, to impersonate a Commonwealth public official.
The magistrate held that the appellant's acts were not authorised, justified or excused by law and that each of the elements of the offence created by s 149.1 had been proved beyond a reasonable doubt. That is, her Honour found that Registrar Jan was a Commonwealth public official who was exercising functions in that capacity in hearing and determining the application for a sequestration order and that the appellant had obstructed, hindered and intimidated the Registrar in the performance of those functions.
The appellant's argument
The appellant's argument in the appeal involved the following propositions:
(a)R v Davison [1954] HCA 46; (1954) 90 CLR 353 established that the making of a sequestration order involved the exercise of judicial power and it was beyond the legislative power of the Commonwealth Parliament to authorise any person or body to make such an order except a court constituted under s 71 and s 72 of the Constitution;
(b)the doctrine of the separation of powers meant that the judicial power of the Commonwealth could only be exercised by a member of the judiciary and not by a person who formed part of the executive;
(c)Registrar Jan was not a member of the judiciary but was a 'functionary of the executive';
(d)'subordinate' legislation could not confer judicial power on Registrar Jan in respect of bankruptcy matters and proceedings;
(e)accordingly, Registrar Jan was 'prohibited from acting judicially in the Commonwealth sphere, by exercising the judicial power of the Commonwealth when dealing with s 51(xvii) of the Constitution as no legislation can usurp the Constitution, including Chapter III';
(f)the appellant was empowered to make an arrest under s 25 of the CI Act, having regard to the Commonwealth Places (Application of Laws) Act 1970 (Cth) and the Commonwealth Places (Administration of Laws) Act 1970 (WA);
(g)Registrar Jan was purporting to exercise judicial power unlawfully and contrary to the Constitution and accordingly, the appellant was not hindering, obstructing or intimidating the registrar, but was acting to prevent an unlawful exercise of power and the consequent damage to the appellant's interests.
Chapter III of the Constitution
Section 71 of the Constitution provides that the judicial power of the Commonwealth shall be vested in the High Court and in such other federal courts as the Commonwealth Parliament creates and in such other courts as it invests with federal jurisdiction. Section 72 provides for the appointment of justices of the High Court and other courts created by Parliament. Sections 75 and 76 define the original jurisdiction of the High Court and s 77 provides that the Parliament may make laws defining the jurisdiction of any federal court other than the High Court. Section 79 provides that the federal jurisdiction of any court may be exercised by such number of judges as Parliament prescribes.
R v Davison
As the appellant submitted, the High Court held in R v Davison that a deputy registrar of the Federal Court of Bankruptcy did not have power to make a sequestration order. Section 24(1)(a) of the Bankruptcy Act 1924 (Cth) (the 1924 Bankruptcy Act) purported to confer power on a registrar to make such an order but the High Court held that registrars and deputy registrars were not officers of the court under the Act and could not, accordingly, exercise judicial power by making an order that was judicial in nature.
However, it should be noted that the 1924 Bankruptcy Act conferred a power on 'The Court' (defined to mean any Court having jurisdiction in bankruptcy or a Judge thereof) to delegate to a registrar 'such of the powers of an administrative nature vested in the Court (except this power of delegation) as the Court deems expedient to be delegated to him' (emphasis added) (s 23). Prior to the decision in R v Davison, sequestration orders were made by registrars and deputy registrars purportedly exercising delegated power.
Harris v Caladine
The issue in Harris v Caladine [1991] HCA 9; (1991) 172 CLR 84 was whether a rule of the Family Court delegating certain powers and functions to the registrars of the court was valid. The rule was made pursuant to s 37A(1) of the Family Law Act 1975 (Cth) which empowered the judges of the Family Court to make rules delegating all or any of the powers of the court to its registrars. A further rule provided that the court could review an exercise of power by a registrar. The review was to be conducted as a hearing de novo.
The High Court held that the rule delegating functions and powers of the Family Court to its registrars was valid. The issue that was determined by the High Court, and the basis upon which it was determined, was identified in the opening passage of the joint judgment of Mason CJ and Deane J:
Over the years some Justices have expressed the view that functions which, when undertaken, are essentially and invariably exercises of judicial power cannot be undertaken in conformity with s 71 of the Constitution by officers of federal courts such as masters and registrars and must be undertaken by judges appointed to those courts in accordance with Ch III: Le Mesurier v Connor (1929) 42 CLR 481, per Isaacs J at 511; Starke J at 523; Victorian Stevedoring and General Contracting Co Pty LtdandMeakes v Dignan (1931) 46 CLR 73, per Evatt J at 116; Kotsis v Kotsis (1970) 122 CLR 69, per Windeyer J at 91‑92. This view has never been confirmed by a decision of this Court. Nor has it ever won general or majority acceptance. In Reg v Davison ... Dixon CJ and McTiernan J regarded the question whether certain duties falling upon a Ch III court could be executed, subject to judicial confirmation or review, by an officer of the court as being open: at 365. Subsequently, in The Commonwealth v Hospital Contribution Fund (1982) 150 CLR 49 ('the HCF Case'), Mason J said (at 64) that the vesting of judicial power in a federal court 'should not necessarily exclude the exercise of some jurisdiction and powers by a master or registrar of the Court ... provided that the exercise is subject to review or appeal'. In the same case Murphy J considered that, in respect of any federal court, 'Parliament may authorize the exercise of its jurisdiction by officers or others who are not justices provided that these are under the real supervision and control of the justices of the court': at 66.
Underlying the view that a function involving the exercise of federal judicial power could not be entrusted to an officer of a Ch III court was the proposition that a court is composed exclusively of its judges as distinct from any of its officers. The next step was to say that, when s 71 ordains that the judicial power is vested in the courts which it describes, the judicial power is exercisable by the judges, and not the officers of those courts (90 ‑ 91).
Their Honours noted that The Commonwealth v Hospital Contribution Fund [1982] HCA 13; (1982) 150 CLR 49 was consistent with the view that s 79 of the Constitution did not require the entire federal jurisdiction of a Ch III Court to be exercised by a judge. However:
The legislative power of Parliament to authorize the exercise by officers of the Family Court of part of its jurisdiction, powers and functions is subject to some limitation, as is the power of the Court to delegate some part of its jurisdiction, powers and functions, whether in the exercise of its rule‑making power under s 123 of the Family Law Act 1975 (Cth) … or in the exercise of its inherent jurisdiction. The limitation is that the legislative power and the power of delegation cannot be exercised in a manner that is inconsistent with the continued existence of the Family Court as a federal court constituted under Ch III. … Because a Federal Court, in common with other courts, may be organized or structured in a variety of ways for the purpose of the exercise of its jurisdiction, it does not follow that all the jurisdiction, powers and functions of the Family Court must be exercised by a judge or judges of that Court. But the requirement does mean that the judges of the Court do effectively control and supervise the exercise of its jurisdiction, powers and functions by participating in the hearing and determination of cases and otherwise by having the capacity to review the decisions of officers of the Court and other persons to whom jurisdiction, powers and functions may be delegated (94).
Their Honours considered that it was necessary for various conditions to be satisfied for a delegation of some part of the jurisdiction, powers and functions of the Family Court to be consistent with the control and supervision of the court's jurisdiction by its judges. First, the delegation must not be so extensive that, in a practical sense, the judges no longer constituted the court. Second, the delegation must not be inconsistent with the obligation of a court to act judicially. Third, the decisions of the officers of the court, in the exercise of their delegated jurisdiction, powers and functions, must be subject to review or appeal by a judge or judges of the court.
The effect of the decision in Harris v Caladine was to reject the notion that judicial power vested in federal courts could only be exercised by the judges of those courts. By extension, the decision confirmed the validity of amendments made to the Bankruptcy Act 1966 (Cth) (the 1966 Bankruptcy Act) which delegated certain judicial powers to registrars of the Federal Court of Bankruptcy, including the power to make a sequestration order. The amending provisions (which came into operation in March 1987) included a power of review: s 31A(6) and s 31A(7).
The Federal Circuit Court of Australia
The Federal Circuit Court of Australia is a court created by the Federal Circuit Court of Australia Act 1999 (Cth) (the FCC Act); that is, it is a court created by the Commonwealth Parliament. Accordingly, the judicial power of the Commonwealth is vested in the Federal Circuit Court pursuant to s 71 of the Constitution and the court is a Ch III Court.
Section 8 of the FCC Act provides that the court known immediately before the commencement of the Act as the Federal Magistrates Court continues in existence as the Federal Circuit Court. The court is constituted as a court of record and as a court of law and equity.
The power to make a sequestration order
The statutory scheme
The 1966 Bankruptcy Act was amended in 1996 to vest jurisdiction in bankruptcy in the Federal Court and to abolish registrars in bankruptcy. The role previously performed by registrars in bankruptcy was assumed by the registrars of the Federal Court. Section 31A was repealed (see the Bankruptcy Legislation Amendment Act 1996 (Cth)). However, registrars continued to make sequestration orders exercising delegated power. The Act was further amended in 1999 to vest jurisdiction in bankruptcy in the Federal Court and the Federal Magistrates Court and again, in 2013 to vest jurisdiction in bankruptcy in the Federal Court and the Federal Circuit Court: s 27.
Section 52 of the 1966 Bankruptcy Act provides that 'the Court' may make a sequestration order at the hearing of a creditor's petition on being satisfied with the proof of certain prescribed matters. The term 'the Court' is defined by s 5(1) to mean a court having jurisdiction in bankruptcy under the Act. Accordingly, the Federal Circuit Court may make a sequestration order on the presentation of a creditor's petition.
Section 102 of the FCC Act enables the Federal Circuit Court or a judge of the court to direct that certain powers may be exercised by a registrar. The specified powers include 'a power of the Federal Circuit Court of Australia prescribed by the Rules of Court' (s 102(2)(i)). Rule 2.02 of the Federal Circuit Court (Bankruptcy) Rules 2006 (the Bankruptcy Rules) provided that, for the purpose of s 102(2)(i) of the FCC Act, a registrar could exercise a power of the Federal Circuit Court under the 1966 Bankruptcy Act mentioned in sch 2 to the Bankruptcy Rules if the Court so directed (the Bankruptcy Rules have been repealed as of 1 April 2016). The powers prescribed by sch 2 included the power to make a sequestration order. The Bankruptcy Rules were 'Rules of Court' for the purpose of s 102 of the FFC Act; that is, they were rules made under the Act (see the definition of 'Rules of Court' in s 5).
Section 104 of the FCC Act provides that a party to proceedings in which a registrar has exercised any of the powers of the Federal Circuit Court under s 102(2) may apply to the Court for a review of the exercise of the power. The hearing must proceed by way of a hearing de novo: r 20.03 of the Federal Circuit Court Rules 2001 (Cth).
A corresponding scheme is created by the Federal Court of Australia Act 1976 (Cth) and the Federal Court (Bankruptcy) Rules 2005 (Cth): see s 35A(1) and s 35A(6) of the Federal Court of Australia Act and r 2.02 of the Federal Court (Bankruptcy) Rules.
The power exercised by Registrar Jan
As has been noted, s 52 of the 1966 Bankruptcy Act confers power on the Federal Circuit Court to make a sequestration order. Section 102 of the FCC Act permits the Federal Circuit Court or a judge of the Court to direct that the powers of the Court prescribed by the Rules of Court may be exercised by a registrar. Rule 2.02 provides that a registrar may exercise the powers prescribed by sch 2. The rule constituted a direction for the purpose of s 102.
Registrar Jan is, and was as at 30 June 2014, a registrar of the Federal Circuit Court of Australia (exhibit 2). Accordingly, he was a 'Commonwealth judicial officer' and a 'Commonwealth public official' within the meaning of those expressions as defined by the Code.
The Chief Judge of the Federal Circuit Court issued a direction directing that Registrar Jan could exercise the powers mentioned in sch 2 (exhibit 3). The direction was dated 12 April 2013.
Consequently, Registrar Jan was exercising a power conferred by r 2.02 of the Bankruptcy Rules, read with sch 2 to the Rules, in hearing and determining the application for a sequestration order against the appellant. He was exercising a power vested in the Federal Circuit Court at the direction of the Court and was performing a function in his capacity as a Commonwealth public official.
The constitutional validity of the statutory scheme
The scheme created by the 1966 Bankruptcy Act and the FCC Act by which a registrar of the Federal Circuit Court is empowered to make orders in bankruptcy proceedings, including a sequestration order, is based on the reasoning of the High Court in Harris v Caladine. The exercise of powers by registrars is at the direction of the Federal Circuit Court and its judges (through rules made by the Court and at the direction of the Chief Judge) and is subject to review by way of a hearing de novo. The statutory scheme does not deprive the Federal Circuit Court of its essential character as a federal court comprised by its judges. Accordingly, the conferral and exercise of some of the Court's powers and functions in bankruptcy to its registrars remains subject to the supervision of the Court. The statutory scheme satisfies the requirements for constitutional validity identified in Harris v Caladine.
That conclusion is consistent with the decision of the Full Court of the Federal Court in Pattison v Hadjimouratis [2006] FCAFC 153; (2006) 155 FCR 226 and see also, Ledger Acquisitions Australia MB Pty Ltd v Kiefer [2014] FCCA 2216. It is also consistent with authorities that have considered similar challenges to the exercise of delegated powers by registrars - see, for example, Re Bryant; Ex parte Guarino [2001] HCA 5; (2001) 178 ALR 57 and Simandl v Deputy Commissioner of Taxation [2008] FCA 451; (2008) 5 ABC(NS) 763.
The disposition of the appeal
Each of the appellant's proposed grounds of appeal rested on the assertion that Registrar Jan was purporting to exercise a power that he did not possess in hearing and determining the application for a sequestration order and accordingly, that he was committing a criminal offence for which he could be arrested under the CI Act. That assertion was based on a mistaken view of the constitutional validity of the statutory scheme by which the Registrar exercised power to hear and determine the application by making a sequestration order.
As has been noted, there was no issue on the appellant's evidence about his intention in acting as he did or that he did not know that Registrar Jan was a public official. Accordingly, the appellant had no defence to the charge alleged against him.
2
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