Citation : HEDLEY -v- SPIVEY [2011] WASC 325

Criminal law - Application for leave to appeal against conviction - Summary dismissal for abuse of process - Turns on own facts

Criminal Appeals Act 2004 (WA), pt 2, s 9, s 18

Supreme Court (Court of Appeal) Rules 2005 (WA), r 32

Glew Technologies Pty Ltd v Department of Planning and Infrastructure [2007] WASCA 289

Glew v City of Greater Geraldton [2012] WASCA 94

Glew v Frank Jasper Pty Ltd [2010] WASCA 87

Glew v Frank Jasper Pty Ltd [2012] WASCA 93

Glew v Shire of Greenough [2006] WASCA 260

Glew v Shire of Greenough [2007] HCA Trans 520

Glew v The Governor of Western Australia [2009] WASC 14

Hedley v Spivey [2011] WASC 325

Krysiak v Hodgson [2009] WASCA 114

O'Connell v The State of Western Australia [2012] WASCA 96

Shaw v Jim McGinty in his capacity as Attorney General [2006] WASCA 231

1 McLURE P: On 1 May 2012 this court ordered that the appellant's application for leave to appeal be refused and the appeal dismissed. These are my reasons for joining in those orders.

2 The appellant is a litigant in person. He is one of a number of self-represented litigants, in this and other State courts, who continue to rely on eccentric legal theories relating to the authority of State courts and State judicial officers. Ordinarily, their oral court submissions are made in the presence of their supporters.

3 After a four-day trial in the Magistrates Court the appellant was convicted of obstructing a police officer in the execution of his duty and was sentenced to a conditional release order.

4 The prosecution case at trial was that on 29 April 2010 the appellant and a female were in the back of court no 1 of the Kalgoorlie Magistrates Court which had been closed due to the disorderly behaviour of another person. The presiding magistrate had left the court. Various police and court security staff were attempting to gain control of, and to get people to leave, the court. The appellant intervened in the arrest of another person and was asked to step back. It was alleged that he shoved a senior constable in the chest with a briefcase, not particularly hard. The constable stepped forward to deal with the appellant and was punched by him. Another police officer came to the constable's assistance and the appellant resisted arrest, trying to grab the officer's firearm.

5 The appellant appealed against his conviction in the Magistrates Court to a single judge of the Supreme Court under pt 2 of the Criminal Appeals Act 2004 (WA) (CAA). His grounds of appeal were that the magistrate was wrong in law and in fact:

1. When he refused to sit under ch III of the Commonwealth of Australia Constitution 1901;
2. When he failed to swear his oath of allegiance to the Crown in accordance with the third schedule of the Commonwealth of Australia Constitution Act 1901; and
3. When he refused to state where in the Commonwealth of Australia Constitution 1901 his authority to sit in the court comes from without having sworn an oath of allegiance to the Crown.

6 It is difficult to provide a coherent summary of the appellant's contentions. A few excerpts from a document filed by the appellant in the single judge appeal entitled 'Presentation for Scott Hedley in Summation' (the summation) conveys something of their flavour:

1. [T]he State Government of Western Australia is a company with the ABN 66 012 878 629,
2. [B]oth the State Government of Western Australia and the Attorney Generals Office of Western Australia are subsidiary companies of the Commonwealth of Australia which is registered as a corporation with the US Securities and Exchanges Commission number 00 00 80 51 57,
3. [T]here are no courts in Australia at this time that sit under and comply with Chapter III of the Constitution of Australia except the High Court of Australia,
4. [N]o decision of any court in Australia is valid because there is no separation of powers between the governments and the courts,
5. [N]o court in Australia can make rules of court and apply them with any force to stop the Sovereign people exercising their rights or will as would grant legislative powers to the courts contrary to s 71 of the Constitution of Australia ...

1. [Officers] of the courts, Judges and Lawyers swear an oath to the State of Western Australia and the Law Society, BUT (not the constitutionally valid oath to her Majesty Queen Elizabeth II her heirs and successors),
2. [I]n 2003 the Lion and Unicorn Royal Seal (the Royal Identifier) was replaced with the State of Western Australia Kangaroo's Emblem,
3. [B]ecause the oath of allegiance was repealed from the Supreme Court Act of Western Australia no court including the District Court and the Magistrates Court meet the requirements of Chapter III of the Constitution of Australia ...

7 On 24 November 2011, McKechnie J refused leave to appeal, correctly characterising the proposed grounds of appeal as vexatious and having no basis in law: Hedley v Spivey [2011] WASC 325 [19]. The grounds and variants thereof have been repeatedly held to be completely devoid of legal merit: Shaw v Jim McGinty in his capacity as Attorney General [2006] WASCA 231; Glew v Shire of Greenough [2006] WASCA 260 (special leave refused: Glew v Shire of Greenough [2007] HCA Trans 520); Glew Technologies Pty Ltd v Department of Planning and Infrastructure [2007] WASCA 289; Glew v City of Greater Geraldton [2012] WASCA 94; Glew v Frank Jasper Pty Ltd [2012] WASCA 93; Krysiak v Hodgson [2009] WASCA 114; Glew v The Governor of Western Australia [2009] WASC 14; Glew v Frank Jasper Pty Ltd [2010] WASCA 87; O'Connell v The State of Western Australia [2012] WASCA 96 [92].

8 McKechnie J described the appellant's trial in the Magistrates Court as getting completely out of control with the appellant attempting to question the magistrate 'wanting his constitutional rights upheld' and the magistrate trying to maintain order [8]. See also [11].

9 The appellant filed an appeal to this court from the decision of McKechnie J. His grounds of appeal are in these terms:

10 The coram Justice J McKechnie was wrong in law and fact:

(a) When he failed to acknowledge and rule on all the inherited law;

(d) All references to the Commonwealth of Australia Constitution Act 1900; and

11 The submissions in support of the grounds are in the following terms:

I attended at the court on 24 November 2011 before Justice J McKechnie and made submissions into all the following issues:

(a) He refused to acknowledge inherited law

(b) He refused to accept Imperial Acts and Letters Patent

(c) He refused to accept all statute law put to him,

(d) He refused to abide by all references to the Commonwealth of Australia Constitution Act 1900

(e) He ignored all decisions of the High Court of Australia put to him.

Verbal submissions to the above will be put forward in Court by the appellant on the date this issue is heard.

12 The appellant's grounds of appeal and written submissions are unintelligible. They do not comply with the requirements in the Supreme Court (Court of Appeal) Rules 2005 (WA), r 32(4) and r 32(5).

13 In an appeal to this court, leave to appeal on each ground is required: s 9(1) read with s 18 CAA. Leave must not be granted unless this court is satisfied that the ground has a reasonable prospect of succeeding: s 9(2) read with s 18 CAA.

14 Based on a review of the papers (which included McKechnie J's reasons, documents filed by the appellant in the single judge appeal, including the summation, and the respondent's written submissions) it appeared to the court that none of the grounds of appeal had a reasonable prospect of succeeding. Accordingly, a leave hearing was scheduled.

15 On 1 May 2012 the court convened to hear the appellant's application for leave to appeal. The appellant's conduct during the hearing followed a familiar course. It started this way:

McLURE P: Mr Hedley, you are appearing for yourself this morning?

THE APPELLANT: Ma'am, the first thing we need to address is I'm not Mr Hedley. I'm not a legal fiction and I'm not a corporation, ma'am. My name is Scott McKenzie Hedley of the Hedley family, ma'am.

16 The appellant acknowledged that he had filed and signed an appeal notice in the name 'Scott McKenzie Hedley' but continued:

I'm not Mr Hedley. Please do not call me by that name. All right? That is a legal fiction and I'm not a corporation.

17 After the court attempted to explain to the appellant the requirement and test for the grant of leave to appeal and his failure to comply with the Supreme Court (Court of Appeal) Rules, the appellant responded:

First of all, ma'am, we need to establish is this a jura court sitting under the Crown, before we even hear what you're saying, ma'am. Is the jurisdiction of you three judges sitting in a crown court - is this a jura court? I served you a notice yesterday, right, to clarify your standing. Is this a jura court or are you a corporation?

18 The notice to which he refers is a written notice addressed to each member of the coram as 'respondent' requiring sworn evidence from them to assist him in determining 'whether you act as a public servant or a corporate entity'.

19 When asked on a number of occasions during the hearing as to whether or not he wanted the court to consider his appeal, the appellant responded with his demand that the coram first answer his question 'is this a jura court or is this a corporation court'. The appellant was advised that the coram would not be answering the question. The following exchange then occurred:

McLURE P: Mr Hedley, we have responded to your request or demand, however you want to describe it. We're not going to accede to it. We are here to consider the documents you filed in this court to appeal from a decision---

THE APPELLANT: We're not going forward, ma'am, until you answer the question. It's very simple. Is this a jura court and are you a public servant in the capacity as a crown officer, and by your silence, a tacit agreement, means that you're not.

McLURE P: Just one moment, Mr Hedley. Mr Hedley, I don't want you to be under any misapprehension here. I have asked you a number of times whether you want us to proceed to hear your application for leave in CACR 191 of 2011. On each occasion you have said no. I'm going to ask you one more time and if you say no again, I'm going to order that leave be refused and your appeal dismissed. I'm asking you again---

THE APPELLANT: No, ma'am, I'm not accepting your authority or consent, ma'am.

McLURE P: ---do you wish us to continue with the hearing of your application for leave to appeal in CACR 191 of 2011?

THE APPELLANT: First of all we have to clarify if you are a jura court.

McLURE P: Yes or no, Mr Hedley? Yes or no?

THE APPELLANT: I need you to clarify, ma'am, are you a jura court and you have already agreed with a tacit agreement that you are a corporation sitting here masquerading as judges. Now, I've informed you of that and that carries serious penalties, ma'am. Once we form a jura court you will be facing criminal charges. I can assure you of that because I asked you to clarify---

McLURE P: The court is unanimously of the opinion that leave to appeal should be refused and the appeal dismissed and we will now adjourn.

20 To provide a substantive response to the appellant's demand that the members of the coram answer his questions would be to give credence to

the long discredited legal contentions on which he relies. It was apparent from the appellant's submissions in the Magistrates Court, the single judge appeal and in this court that he does not accept the authority of State courts or their decisions that the contentions on which he relies are frivolous and vexatious. The appellant's appeal and his conduct at the leave hearing constitute an abuse of process of the court. Summary dismissal was the only appropriate course.

21 A formal record of the orders made at the hearing was signed by the registrar on 1 May 2012. The Certificate of Conclusion of the Criminal Appeal is signed and dated 7 May 2012. As the appeal is finalised, no action will be taken on any of the documents which the appellant has subsequently lodged with the court. If the appellant wishes to challenge the orders made on 1 May 2012, he will need to seek relief in the High Court.

22 BUSS JA: I agree with McLure P. For the reasons given by her Honour, I joined in making the orders made by the court on 1 May 2012.