Court of Appeal (WA)|2012-05-04|Before: Martin CJ

O'CONNELL -v- THE STATE OF WESTERN AUSTRALIA [2012] WASCA 96 (4 May 2012)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : O'CONNELL -v- THE STATE OF WESTERN AUSTRALIA [2012] WASCA 96

Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Criminal law - Application for leave to appeal against conviction and sentence - Conduct intended to incite racial animosity or racial hatred - Conduct likely to racially harass - Whether trial judge erred by failing to adjourn - Whether self-represented litigant denied procedural fairness - Whether there should have been separate trials - Whether individual sentences manifestly excessive - Whether total effective sentence offended the first limb of the totality principle

Acts Amendment and Repeal (Courts and Legal Practice) Act 2003 (WA)

Billing v The State of Western Australia (No 2) [2008] WASCA 11

Dair v The State of Western Australia [2008] WASCA 72; (2008) 36 WAR 413

Dietrich v The Queen [1992] HCA 57; (1992) 177 CLR 292

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

Glew v Shire of Greenough [2007] HCATrans 520

Glew v The Shire of Greenough [2006] WASCA 260

Love v The Queen (1983) 9 A Crim R 1

MacPherson v The Queen [1981] HCA 46; (1981) 147 CLR 512

Michael v The State of Western Australia [2007] WASCA 100

Nikolic v MGICA Ltd [1999] FCA 849

Preston v The State of Western Australia [2012] WASCA 64

R v Abu Hamza [2006] EWCA Crim 2918; [2007] 3 All ER 451

Re F; Litigants in Person Guidelines [2001] FAMCA 348; (2001) 27 Fam LR 517

Roffey v The State of Western Australia [2007] WASCA 246

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

State Bank of New South Wales v Commonwealth Savings Bank of Australia (1986) 66 ALR 129

Thompson v The Queen (1992) 8 WAR 387

Tomasevic v Travaglini [2007] VSC 337; (2007) 17 VR 100

Van Tongeren & Van Blitterswyk v The Queen (Unreported, WASC, Library No 920221, 16 April 1992)

Williamson v Hodgson [2010] WASC 95

Wilson v The State of Western Australia [2010] WASCA 82

1 MARTIN CJ: The application for leave to appeal against conviction, and the appeal against conviction should be dismissed for the reasons given by Mazza JA with which I agree. Leave to appeal against sentence should be granted, but the appeal dismissed, for the reasons given by Mazza JA with which I agree.

3 MAZZA JA: Before the court are the appellant's applications for leave to appeal against conviction and sentence.

4 By an indictment dated 21 February 2010, the appellant was charged as follows:

(1) On 2 May 2009 at South Perth Brendon Lee O'Connell, engaged in conduct, otherwise than in private, that was likely to harass Stanley Elliot Keyser as a member of a racial group namely pursuing Stanley Elliot Keyser and making a series of statements to Stanley Elliot Keyser.

(2) On a date unknown between 2 May 2009 and 11 May 2009 at Maylands, Brendon Lee O'Connell, with intent to create or promote animosity towards a racial group engaged in conduct, otherwise than in private, namely publishing on the internet a series of statements concerning the Jewish people.

(3) On a date unknown between 2 May 2009 and 11 May 2009 at Maylands, Brendon Lee O'Connell, with intent to create or promote animosity towards a racial group engaged in conduct, otherwise than in private, namely publishing on the internet a series of statements concerning the Jewish people.

(4) On or about 25 October 2009 at Maylands, Brendon Lee O'Connell, with intent to create or promote animosity towards a racial group engaged in conduct, otherwise than in private, namely publishing on the internet a series of statements concerning the Jewish people.

(5) On or about 29 October 2009 at Maylands, Brendon Lee O'Connell, with intent to create or promote animosity towards a racial group engaged in conduct, otherwise than in private, namely publishing on the internet a series of statements concerning the Jewish people.

(6) On or about 7 November 2009 at Maylands, Brendon Lee O'Connell, with intent to create or promote animosity towards a racial group engaged in conduct, otherwise than in private, namely

publishing on the intemet a series of statements concerning the Jewish people.

(7) On or about 11 November 2009 at Maylands, Brendon Lee O'Connell, with intent to create or promote animosity towards a racial group engaged in conduct, otherwise than in private, namely publishing on the internet a series of statements concerning the Jewish people.

Count 1 is an offence contrary to s 80B of the Criminal CodeI (WA). Counts 2 to 7 are offences contrary to s 77 of the Criminal Code.

5 On 28 January 2011, after a trial spanning eight sitting days, before Wisbey DCJ and a jury in which the appellant acted on his own behalf, the appellant was acquitted of count 4, but convicted of all the other charges: ts 738 - 739. On 31 January 2011, he was sentenced to a total effective term of 3 years' imprisonment with eligibility for parole.

6 Sections 77 and 80B appear in ch 11 of the Criminal Code which is entitled 'Racist harassment and incitement to racial hatred'.

Any person who engages in any conduct, otherwise than in private, by which the person intends to create, promote or increase animosity towards, or harassment of, a racial group, or a person as a member of a racial group, is guilty of a crime and is liable to imprisonment for 14 years.

Any person who engages in any conduct, otherwise than in private, that is likely to harass a racial group, or a person as a member of a racial group, is guilty of a crime and is liable to imprisonment for 3 years.

9 Section 76 is the definitional section applicable to ss 77 and 80B. Relevantly, it states:

animosity towards means hatred of or serious contempt for;

harass includes to threaten, seriously and substantially abuse or severely ridicule;

racial group means any group of persons defined by reference to race, colour or ethnic or national origins;

10 It can be seen that in order for the appellant to be convicted of any of the charges brought against him, it was necessary for the State to prove beyond reasonable doubt that Jewish people are a racial group as defined. The primary difference (although not the only difference) between s 77 and s 80B is that s 77 requires proof of a specific intention , where s 80B does not.

11 Both offences concern conduct engaged in 'otherwise than in private'. For the purposes of each offence, s 80E(2) specifies that conduct is taken not to occur in private if it:

(a) consists of any form of communication with the public or a section of the public; or

(b) occurs in a public place or in the sight or hearing of people who are in a public place.

12 The defences available to an accused charged with an offence against s 80B (but not s 77) are set out in s 80G. Relevantly, that section provides:

(1) It is a defence to a charge under section 78 or 80B to prove that the accused person's conduct was engaged in reasonably and in good faith -

...

(b) in the course of any statement, publication, discussion or debate made or held, or any other conduct engaged in, for -

(i) any genuine academic, artistic, religious or scientific purpose; or

(ii) any purpose that is in the public interest;

13 On the morning of 2 May 2009, Stanley Keyser, who is Jewish and was at the time the president of the WA branch of the Australasian Union of Jewish Students, attended an IGA store in South Perth, where he had heard that a group called the Friends of Palestine were going to protest against the sale of Israeli produced Jaffa oranges at the shop. Mr Keyser attended the store in the company of a fellow Jewish student, Timothy Peach, with the plan to counter the protest by providing some literature that presented a contrary view to the Friends of Palestine. Mr Keyser took a photograph of the protest group when they arrived. After leaving the store, the appellant, who was present to observe and record the protest, approached Mr Keyser and Mr Peach. The events that followed were captured on video footage shot by the appellant at the scene. The appellant and Mr Keyser became engaged in a public and heated confrontation. The appellant made statements to Mr Keyser such as, 'You are a racist homicidal maniac,' 'You are a racist Jew,' 'You belong to a racist homicidal organisation' 'You are anti-goy ... it is in your religion and race' and 'You kill little Palestinian children and you support it' (count 1). The State alleged that the appellant's statements seriously or substantially abused or severely intimidated Mr Keyser as a member of a racial group.

14 After this incident, the appellant caught a ferry from South Perth and went to the Belltower on The Esplanade in Perth. There, in a piece to camera, he described the confrontation with Mr Keyser and made statements of a general and specific nature on the subject of the Jewish people. He accused Jews of 'continuing to kill today ... You did it in Russia, you did it to Germany, you do it to anyone who stands up to you.' He continued, 'We've had enough of you and those bells toll for you. Your days are numbered.' At one point he threatened to put Jews who do not 'speak the truth' or 'sincerely change' 'in camps' because 'we've had enough'. In the concluding section of the video he questioned what he described as 'holocaustianity' and asserted the right to question history, 'especially the received truths received by these vampires [Jews]'.

15 The video footage shot by the appellant at the IGA store and the Belltower, along with commentary and captions which he added later, were posted by him on an internet website (exhibit 1).

16 One caption referred to Mr Keyser as 'The "Perfumed Prince" of Club Death Judaica ... '. When, as recorded in the video, Mr Keyser told the appellant he went to a Jewish day school the caption is 'jewish [sic] day school where little judaicas learn how to be racist, homicidal maniacs'. At the conclusion of the video is written 'Time to get out there' and 'Time to get angry'.

17 The posting of the video footage recorded at the IGA store formed the basis of count 2, while the posting of the video footage in front of the Belltower was the basis of count 3.

18 There is no need to describe the facts with respect to count 4, as he was acquitted of that count.

19 Counts 5, 6 and 7 concern internet blogs which were written by the appellant and uploaded by him onto a website. Each was written after the appellant had been charged with offences arising out of the incident with Mr Keyser and the posting of the video material associated with that incident.

20 The blogs were shown to the jury, and a hard copy of them was tendered as one exhibit: exhibit 3. It is unnecessary to set out the blogs in full. What follows is a description of certain parts of each blog.

21 Count 5 concerns a blog dated 29 October 2009 in which the appellant wrote:

They [Jews] hate Christ and Christians. They just need our money and our support until the time is right and they then can stop pretending: exhibit 3, p 81.

22 The appellant spoke of 'the modus operandi of Jewish cryptocracies ... since the days of Queen Elizabeth [Queen Elizabeth I] using deception, blasphemy, bribery and homicide': exhibit 3, p 91. He asserted that 'the Jew runs, owns and dominates the internet': exhibit 3, p 102.

23 Later in the blog he argues that 'the "Jew" community could have at least made their lies and slander half believable, but I guess after years of inventive over-the-top "holocaust" memoirs they have gotten lazy': exhibit 3, p 118.

24 Count 6 concerns a blog dated 7 November 2009. The blog was written a day or so after a shooting by a lone gunman, who was a US Army major and not a Jew, at a US Army base at Fort Hood, Texas, in which many people were killed and wounded.

25 In this blog, the appellant alleged that 'Israeli Jews From Fanatical Orthodox Yeshiva Academy in Israel Kill US Soldiers at Texas base': exhibit 3, p 70.

26 He accused Israeli Jews of 'dancing on car roofs when the towers fell [a reference to the infamous events of 11 September 2001] ... blowing up US ships...demolishing hotels full of British soldiers...They [Jews] supply hi-tech triggering devices to the "Iraqi Insurgency", and they hand over triggering devices for nuclear bombs to Pakistan ...': exhibit 3, p 71.

27 The blog the subject of count 7 is dated 11 November 2009. Ostensibly, it is about the charges arising out of the confrontation with Mr Keyser and the video he subsequently made and uploaded to the internet. In this blog he states: '[The] essence of so-called Judaism [is to] crush destroy, maim and slaughter all who get in you're [sic] way': exhibit 3, p 37. He asserts that Jews wish to 'dominate the planet and rule over the goy': exhibit 3, p 43. He states Jews are unable to deny that 'they are a religion, culture and tradition of racism, hate, homicide and ethnic cleansing': exhibit 3, p 43.

28 The appellant further states, 'I am vehemently ANTI-XEWISH [sic]' and 'I am most definitely anti-israel [sic] (may it be wiped from the face of the earth)': exhibit 3, p 60.

29 The prosecution case in respect of counts 2, 3, 5, 6 and 7 was that the material the subject of each charge and published by the appellant was conduct intended to create, promote or increase hatred of, or serious contempt towards, Jews as a racial group.

30 The State called a number of witnesses in support of its case.

31 Detective Sergeant Constable Timothy Paini was the principal investigating police officer. He downloaded from the internet the video made by the appellant and posted by him, relevant to counts 1 to 3: exhibit 1. Later, he downloaded the blogs.

32 Both Mr Keyser and Mr Peach gave evidence about the incident on 2 May 2009. Their evidence was largely consistent with what was shown of the incident in exhibit 1.

33 The State also called expert evidence from Professor Andrew Markus and Rabbi David Freilich about whether Jews in Australia were a racial group, that is, whether they were a group of persons defined by reference to race or ethnic origins.

34 The expertise of Professor Markus was not disputed. He has been the Professor of Jewish Civilisations at Monash University since 2001 and he has researched ethnic groups and race relations in Australia since 1971. He testified that in 2008, a comprehensive cross-national survey was undertaken in Australia of persons aged 18 and above who saw themselves as, in any way at all, Jewish. The questionnaire which was completed by 5,100 respondents was, in his opinion, representative of the Jewish community in Australia. He testified that, having regard to what he described as elements of commonality, being:

knowledge of the Holocaust;
fear or experience of anti-Semitism;

the Passover Seder;
family connectiveness;
Jewish identity;
friendship patterns; and
concern for Israel: exhibit 4, p 1 - 11,

his opinion was that Jews in Australia, whether secular or religious, could be better understood in terms of ethnicity rather than as a religious group or race: ts 453

35 Rabbi Freilich, Chief Rabbi of the Perth Hebrew congregation, testified that, from a religious perspective, Jews believe that they descended from Abraham and in this sense they were a race. He acknowledged, however, that the Jewish people are not a biological race, but have, whether religious or secular, a common culture, language, tradition and history: ts 485.

36 The appellant gave evidence in his defence and was cross-examined. He was unambiguous in his views about Judaism, Jews and the nation of Israel.

37 He testified that some time after he had given up working as a nurse, in about 2005, he began reading online political forums. He said that he 'was reading all this Jewish issue stuff': ts 535. He agreed that he had done a great deal of research in this area and had accessed a very large amount of material via the internet: ts 646. He said that he became convinced of his views as a result of his reading: ts 535.

38 The appellant was severely critical of the State of Israel and of Judaism.

39 He said the events of 9/11 were 'run by Israel for the benefit of Israel'. He was particularly critical of the State of Israel for its treatment of Palestinians in the Gaza Strip: ts 537.

40 He said that Israel does not have 'the slightest respect for human life, decency or the rule of law': ts 551. Later, he said Israel 'has no right to exist whatever. None': ts 568.

41 He described Israel and Judaism as 'sick': ts 548. He said that he considered Jews or Judaism 'generally speaking, as more an organised crime outfit than even a religion ...': ts 557.

42 He asserted 'they [Jews] were running the Anglo establishment of America through Freemasonry of which this court is a part of': ts 646. He also said that 'they [Jews] literally run the planet': ts 569; and that 'Jews have a desire for world domination': ts 651.

43 He questioned the existence and use of gas chambers in the Holocaust: ts 586.

44 The appellant plainly sees himself and other like-minded people as engaged in a struggle against Jews, Judaism and Israel, a struggle in which he 'will never surrender': ts 659 - 660.

45 The appellant alleged that he and others were being watched and vilified and were the subject of harassment by Israel: ts 548, ts 591.

46 His attitudes are exemplified by the following exchange which took place in cross-examination:

EYERS, MR: And as a result of the Internet and - and other research resources, you formed an opinion that we've heard about. And would it be fair to characterise it in this way: you feel a tremendous animosity towards Jews?---Absolutely. Until - till otherwise they - Normal Finkelstein, Max Blumenthal, Paul Eisen - - -

Yes. Well, don't just - - -?--- - - - Israel Shahak. Not them, because they've come out and spoken out. I know who they are.

But would I be fair in characterising it - and of course it's your - it's your evidence now, and the - I'd like the jury to understand your position?---Sure.

As a result of this research using open-source information and other information, you've reached the position, and you reached the position as at sort of May onwards 2009, in which you felt a tremendous animosity - - -?---Perhaps hatred even. Absolute hatred after what they did to me, my friend in America. Ripped all her floor tiles off and stacked them on a roof, ran her out of Chicago. Unbelievable what they do to people.

Okay. Now - - -?---Unbelievable. You should read in there. ADL [Anti-Defamation League].

Give - given then that that - and you make no bones about it, an absolute hatred of Jews - - -?---Absolute - no though - absolute - until otherwise: ts 647 - 648.

47 Relevantly to all counts, the appellant disputed the proposition that Jews could be considered a racial group, describing that proposition as 'garbage': ts 577.

48 With respect to count 1, the appellant denied what he said amounted to abusing or ridiculing Mr Keyser. His case was that what occurred was a vigorous street debate.

49 The appellant did not deny or resile from the statements he made to Mr Keyser during the confrontation. The appellant said, in cross-examination, that Mr Keyser was 'defending and supporting the ethnic cleansing of the Palestinian people'. He then continued, 'So I'm going to call him a racist homicidal maniac ... you bet I am and I'll say it a hundred times more': ts 607.

50 The appellant asserted that the conduct the subject of count 1 was engaged in reasonably and in good faith in the course of a statement, discussion or debate made or held in the public interest.

51 With respect to each of counts 2, 3, 5, 6 and 7, the appellant, in effect, stood by his statements. The appellant's case was that on each charge what he said or wrote was not intended to create, promote or increase animosity towards, or harassment of, Jewish people.

52 He rejected the expert evidence, calling Rabbi Freilich, amongst other things, 'a compulsive liar': ts 654.

53 The appellant did not dispute that his conduct was otherwise than in private.

54 In this appeal, the appellant has been represented by solicitors and counsel who have acted on a pro bono basis. The court is grateful for their assistance.

55 The proposed grounds of appeal against conviction set out in the appellant's case are as follows:

The trial should have been adjourned in line with s 78B Judiciary Act 1903

The learned trial Judge erred by refusing and failing to adjourn proceedings as per the requirements of s 78B Judiciary Act 1903.

The Appellant Was Not Afforded Procedural Fairness

The learned trial Judge erred in not assisting the appellant in accordance with the guidelines which created procedural unfairness throughout the trial.

Count 1 should have been severed from Counts 2 - 7

The learned trial Judge erred in not ordering that there be a separate trial of count 1 from counts 2 - 7 pursuant to each limb of cl 7(3) of schedule 1 of the Criminal Procedure Act 2004.

56 The proposed grounds of appeal against sentence were, as originally framed, not as concise. After a directions hearing where the question of leave to appeal was referred to the hearing of the appeal, the appellant's counsel accepted that the proposed grounds of appeal were to be taken as follows:

The learned sentencing judge erred in law by failing to accord the appellant procedural fairness in the sentencing proceedings.
The individual sentences were manifestly excessive in that his Honour should have imposed a suspended imprisonment order.
The total overall sentence of 3 years' imprisonment, infringed the first limb of the totality principle.

57 It was these grounds of appeal against sentence that were argued at the hearing on 13 December 2011.

58 After the hearing of the appeals was completed, an affidavit sworn by the appellant, dated 7 December 2012, arrived in the Court of Appeal office. Then the appellant sent directly to the court, without notice to his solicitors or counsel and the respondent, three lengthy letters. The first two were dated 30 December 2011 and 5 January 2012, respectively. The further undated letter which appears to have been typed on 23 January 2012, was delivered to the court.

59 These documents, most notably the letters, raised further arguments in support of the appellant's appeals and sought to rely upon material which was not before the court below. No application to reopen the appeals, adduce other evidence or add to the grounds of appeal was made.

60 The court wrote to the appellant's solicitor and counsel, giving the appellant until 21 February 2012 to file any application, failing which they were put on notice that the appeals would be decided only on the material that was before the court at the hearing on 13 December 2011. No application was filed. Therefore these applications for leave to appeal will be decided on the proposed grounds of appeal which were before the court on 13 December 2011 and on the material and evidence in the court below: s 39(1) Criminal Appeals Act 2004 (WA).

61 Leave to appeal is required in respect of each of the grounds of appeal. Leave cannot be granted unless the ground has a reasonable prospect of succeeding. If no ground reaches this threshold, the appeal is taken to be dismissed: ss 27(2) and (3) Criminal Appeals Act.

The application for leave to appeal against conviction

62 Before analysing the proposed grounds, it is necessary to say something about how the appellant came to represent himself at trial and the course of the trial itself.

63 On 28 June 2010, Mr Bougher, an experienced criminal lawyer, first appeared for the appellant at a directions hearing before a District Court judge. Prior to that, two other counsel had, on occasions, appeared for the appellant, but he had largely acted on his own. On that occasion, Mr Bougher confirmed that he was representing the appellant and that he would be ready for a trial which, by then, had been set down to commence on 16 August 2010: ts 148. That trial was subsequently adjourned for reasons which are, for present purposes, irrelevant.

64 On 27 August 2010, the trial was relisted to commence on 17 January 2011. Mr Bougher sought a directions hearing to deal with certain legal issues. On 19 November 2010, a directions hearing took place before McCann DCJ. Mr Bougher submitted that the appellant had no case to answer in respect of all the charges, pursuant to s 98(2)(a) of the Criminal Procedure Act 2004 (WA). His Honour rejected this submission: ts 209.

65 On 11 January 2011, Mr Bougher appeared before Martino CJDC and sought leave to cease acting for the appellant. Mr Bougher told his Honour that there was no acrimony between him and the appellant, but 'Mr O'Connell's just made a decision that he believes that he can best serve his own interests without legal representation': ts 220. Amongst the reasons given by Mr Bougher in support of his application were that the appellant had not given him instructions as to the witnesses he wished to call at trial, and the appellant's failure to meet Mr Bougher for appointments. The appellant said that he wished to act for himself because Mr Bougher 'could not possibly match my 10 years of research in this subject': ts 221.

66 Before his Honour were emails sent by the appellant to both Mr Bougher and the District Court. It was apparent from those emails that the appellant wished to adjourn the trial.

67 The appellant explained that he wanted an adjournment because he questioned whether the District Court was a court under Ch III of the Australian Constitution and because a pyramidal symbol at the front of the District Court building indicated that the District Court 'came under Corporate Jewish Masonic control'. He stated that he refused to be judged in such a court: ts 220.

68 Martino CJDC refused Mr Bougher's application to withdraw, in the hope the appellant would change his mind about acting for himself. His Honour also dismissed the application for the adjournment.

69 On 14 January 2011, the appellant filed in the District Court a document, dated 13 January 2011, entitled 'Applicant's notice of constitution matter under s 78B of the Judiciary Act 1903 (Cth)' (the s 78B notice). In that document, the appellant purported to give notice to the Attorneys-General of the States and Territories of matters 'arising under the Constitution of the Commonwealth of Australia or involving its interpretation'. I will refer later in these reasons to the matters said to arise under the Constitution or involve its interpretation. It is sufficient to say at this point that the matters raised in the notice were completely devoid of merit.

70 On 17 January 2011, prior to the empanelment of the jury, Mr Bougher again sought leave to withdraw. Mr Bougher confirmed that the appellant had instructed him that he wished to act on his own behalf. Mr Bougher advised his Honour that if the appellant wished to seek advice from him, before or after court, he was available for that purpose. Mr Bougher said that he had explained to the appellant in detail the procedure in a criminal trial and his rights in relation to jury challenge, cross-examination of prosecution witnesses and to give evidence himself. Mr Bougher said:

[I have] basically gone through the entire trial procedure with him and I think he understands all those things: ts 233.

71 After the appellant confirmed to the trial judge that he did not wish Mr Bougher to represent him, counsel was given leave to withdraw: ts 234. At no stage did the appellant voice any disagreement with anything Mr Bougher had said.

72 The appellant then referred to the s 78B notice and sought an adjournment of the trial to await any response from the Attorneys-General.

73 His Honour said that he did not propose to adjourn the trial because there was no legal merit in the submissions contained in the notice: ts 235.

74 The appellant did not accept his Honour's ruling. Instead, he accused his Honour of committing treason. His Honour ignored this and asked the appellant whether he understood his right of jury challenge. He replied, 'Your Honour, could we just get your neck size for the treason charges?': ts 236.

75 From then on and throughout the trial, the appellant treated his Honour and the trial process with complete disrespect.

76 There are many examples of the appellant's disrespectful and insulting behaviour towards his Honour and the court during trial. The flavour of his behaviour can be gauged from the following examples:

He said to his Honour, 'I wish to get your neck size so we can go straight to the gallows for treason': ts 280.
When referring to his Honour, the appellant often called him 'adjudicator'. On other occasions, the appellant referred to his Honour as 'Captain Pugwash': ts 682, 'De Fuhrer' and 'Comrade Stalin'.
He referred to the court as 'a kangaroo court': ts 261. To emphasise the point, he sang the theme song to the well-known children's television program 'Skippy': ts 662, and made references to Skippy, at other times during the trial.
He insulted his Honour, saying, at one point, 'Shut up, you old fool': ts 683; and at another point, 'Were you paid or do they have something on you?': ts 733.

77 Throughout the trial, the appellant refused to accept or acknowledge the authority of the court. At various times in the trial, when he was addressed by his Honour he made a speech in similar terms to the following:

Just to clarify the jury - for the jury, my name is Brendon Lee - Brendon Lee of the family O'Connell. I am a sovereign subject of Queen Elizabeth II, her heirs and successors. I'm a free man. This court does not sit under Ch 3 of the Australian Constitution - if you're that bored you can leave - sit under Ch 3 of the Australian Constitution, nor does it sit under 1903 Judiciary Act. This whole court is a farce. It's an insult to Skippy. But I'll continue on with this farce, this comedy. Absolute comedy. Here under duress: ts 321.

See also ts 384, ts 424, ts 515, ts 530, ts 636, ts 642, ts 666 and ts 707.

78 The appellant used his opening address to the jury to claim that his Honour, and the District Court generally, had no jurisdiction to try the case under the Constitution. When asked by his Honour if he would state his defence, the appellant replied:

I don't have to give you a defence, adjudicator, because you can't sit. You're in a kangaroo court: ts 264.

79 The appellant refused to question the first prosecution witness, Detective Senior Constable Paini. During the detective's evidence, when his Honour asked the appellant if he had been given a particular part of the prosecution brief, the appellant replied:

I'm sorry, adjudicator, I'm still waiting for the court to sit under common law under section - chapter III of the Australian Constitution and the Judiciary Act of 1903. When that happens - - -

WISBEY DCJ: The jury - - -

THE APPELLANT: When that happens, we can talk business. Till then, I'm just staring at the ceiling: ts 271.

80 Apart from Detective Senior Constable Paini, the appellant cross-examined, at some length, the witnesses called by the prosecution. The appellant was frequently argumentative with, and insulting to, witnesses. On occasions, he used cross-examination as an opportunity to make speeches and, from time to time, sought to embark upon irrelevant religious and political discourse.

81 The appellant disrupted the prosecutor's closing address to the jury and his Honour's summing up, to the point where he had to be removed from the courtroom and placed in a remote courtroom from where he could see and hear the proceedings: ts 684, ts 712.

82 It is no exaggeration to characterise the appellant's behaviour as seriously defiant, disrespectful and, on many occasions, contemptuous.

Ground 1: The s 78B notice

83 Sections 78B(1) and (2) of the Judiciary Act 1903 (Cth) provide:

(1) Where a cause pending in a federal court including the High Court or in a court of a State or Territory involves a matter arising under the Constitution or involving its interpretation, it is the duty of the court not to proceed in the cause unless and until the court is satisfied that notice of the cause, specifying the nature of the matter has been given to the Attorneys-General of the Commonwealth and of the States, and a reasonable time has elapsed since the giving of the notice for consideration by the Attorneys-General, of the question of intervention in the proceedings or removal of the cause to the High Court.

(2) For the purposes of subsection (1), a court in which a cause referred to in that subsection is pending:

(a) may adjourn the proceedings in the cause for such time as it thinks necessary and may make such order as to costs in relation to such an adjournment as it thinks fit;

(b) may direct a party to give notice in accordance with that subsection; and

(c) may continue to hear evidence and argument concerning matters severable from any matter arising under the Constitution or involving its interpretation.

84 There is no point in setting out the full terms of the appellant's s 78B notice. It is confused, contradictory and largely incomprehensible. It does not clearly identify any relevant matter arising under the Constitution or involving its interpretion.

85 The appellant's written submissions, apart from making a bare assertion that the s 78B notice raised a constitutional issue, were silent as to the identity of that issue.

86 In his oral submissions, the appellant's counsel identified two issues.

87 The first is that the passage of the Acts Amendment and Repeal (Courts and Legal Practice) Act 2003 (WA) (which, in broad terms, changed references to the Crown or her Majesty in a large number of statutes, including the District Court Act 1969 (WA), to the Governor or the State) 'purported to dissolve the indissoluble Federal Commonwealth under the Crown of the United Kingdom by removing the Sovereign': appeal ts 16.

88 The second issue is that the appellant asserts that, as the Department of the Attorney General has an Australian Business Number (ABN), the courts in this State have effectively become corporations. Thus, it is said the judiciary is no longer a separate and independent arm of government: appeal ts 18, 19.

89 The appellant's counsel submitted, in effect, that no matter what the trial judge's view was of the merit of the matters contained in the s 78B notice, he was obliged to adjourn the proceedings to give the Attorneys-General the opportunity to intervene, if they so wished.

90 The purpose of a s 78B notice is to give Attorneys-General an opportunity to intervene in proceedings and, if desired, to seek removal of the cause, or part of the cause, into the High Court: Nikolic v MGICA Ltd [1999] FCA 849 [7]. To invoke the application of s 78B, it is necessary to show that there is some matter arising under the Constitution or involving its interpretation. A matter which is trivial, unarguable, frivolous or vexatious is not a matter arising under the Constitution or involving its interpretation: State Bank of New South Wales v Commonwealth Savings Bank of Australia (1986) 66 ALR 129, 130; Nikolic v MJICA Ltd [8], [11]. As Wheeler JA put it in Shaw v Jim McGinty in his capacity as Attorney General [2006] WASCA 231 [42]:

If the alleged 'constitutional issue' is unarguable or vexatious, then there is in truth no constitutional issue at all;

91 The first issue identified by the appellant's counsel is totally devoid of merit. The identical argument has been decided in this court in a number of cases including Glew v The Shire of Greenough [2006] WASCA 260; and Glew Technologies Pty Ltd v Department of Planning and Infrastructure [2007] WASCA 289. An application to the High Court for special leave to appeal against the first of those decisions was refused: Glew v Shire of Greenough [2007] HCATrans 520 (6 September 2007).

92 As these cases make clear, the Acts Amendment and Repeal (Courts and Legal Practice) Act did no more than change the terminology used in many statutes and did not alter the relationship between the Crown and the various bodies contained within the Acts it amended. The Act does not have, and could not have, the constitutional effects asserted by the appellant. The submission is frivolous and vexatious.

93 The submission concerning the ABN can be similarly described. An ABN is required for any organisation or individual who carries on an enterprise with a GST turnover over a certain sum. Further, anyone who wishes to claim GST credits or fuel tax credits needs an ABN. An ABN holder may be an individual, a corporation, a partnership or government entity. A person or entity does not become a corporation simply because that person or entity has an ABN: Williamson v Hodgson [2010] WASC 95 [44] - [45].

94 Assuming that the Department of the Attorney General has an ABN, this does not:

(i) change the character of any court in this State;

(ii) affect the independence of the courts and the judiciary; or

(iii) offend the doctrine of the separation of powers.

95 Finally, for the sake of completeness, the appellant, on many occasions during the trial, asserted that the District Court was not a court constituted under Ch III of the Constitution. This argument is completely misconceived. The offences for which the appellant was tried are State offences, not Commonwealth offences. Chapter III of the Constitution was never engaged. The case fell to be determined solely by the laws of Western Australia.

96 None of the matters raised by the appellant in the s 78B notice are in truth matters arising under the Constitution or involving its interpretation. His Honour was entirely correct in refusing to adjourn the proceedings. Ground 1 is hopeless and has no reasonable prospect of succeeding.

Ground 2: Did his Honour fail to accord the appellant procedural fairness?

97 The appellant's written submissions assert that, as a self-represented litigant, the appellant was denied procedural fairness by his Honour. The submissions further assert that this procedural unfairness was exacerbated by the conduct of the prosecutor.

The learned trial judge erred in not assisting the appellant in accordance with the guidelines which created procedural unfairness throughout the trial: white AB 11.

99 The guidelines referred to in this submission are the guidelines set by the Family Court of Australia in Re F; Litigants in Person Guidelines [2001] FAMCA 348; (2001) 27 Fam LR 517.

100 The written submissions do not state how, assuming that these guidelines apply to a criminal trial, they were breached in this case. Nor do the written submissions say how the prosecutor 'exacerbated' any procedural unfairness caused by his Honour.

101 What emerged in the appellant's counsel's oral submission were a number of complaints about his Honour's conduct of the trial that allegedly gave rise to an unfair trial and a miscarriage of justice. Dr Walsh drew this court's attention to some remarks made by his Honour in the course of the trial and alleged that his Honour acted like a prosecutor rather than as an impartial judge. Dr Walsh did not go so far as to allege actual or ostensible bias on his Honour's part. He also submitted that his Honour should have advised the appellant to take an oath rather than an affirmation before he testified in his own defence. Counsel further submitted that the appellant was not given the opportunity to present his case. Counsel put this last point in this way:

The essence is that Mr O'Connell did not have the opportunity to present, as he would wish, the full evidence that would go to his state of mind: appeal ts 31.

102 In order to deal with these submissions, it is necessary to say something about the nature of a trial judge's obligation to ensure a fair trial and then to examine the specific instances which the appellant submits gives rise to the conclusion that his trial was unfair.

103 It is trite to say that a fundamental obligation of a trial judge is to ensure a fair trial according to law. The concept of a fair trial means fairness to the accused and to the prosecution. It is the duty of a trial judge to conduct the trial in accordance with due process, fairly and impartially: Michael v The State of Western Australia [2007] WASCA 100 [69] (Steytler P).

104 It is necessary that a trial judge control the proceedings. For example, a trial judge may intervene in order to prevent irrelevant matters being raised and pursued, and any unnecessary delays or disruptions. A trial judge should protect witnesses from being required to answer irrelevant, embarrassing and scandalous questions and to prevent questions becoming speeches or statements to the jury: Michael v The State of Western Australia [65] and [68], s 26 Evidence Act 1906 (WA). It is also the trial judge's duty to ensure that the court's processes are not abused. A trial should not be allowed to be used as a soapbox for some irrelevant social, religious or political cause.

105 Generally, if not almost always, an accused person who is unrepresented will be at a disadvantage when compared with someone who is represented by counsel. As Wickham J pointed out in Love v The Queen (1983) 9 A Crim R 1, 3:

... trial by jury is a sophisticated process involving the application of rules of procedure and of evidence highly honed over the centuries for the purpose of reducing to a minimum the chance of error. It also requires a grasp of legal logic and of law beyond the usual capacities of a lay [person].

The burden on a trial judge to ensure a fair trial is almost always heavier when an accused is unrepresented. The absence of representation can also cause difficulties for the prosecutor: Love v The Queen (3), (4). A difficult task is made even harder when, as in the present case, an unrepresented accused deliberately adopts a defiant and uncooperative stance.

106 A criminal trial is an adversarial process. It is not the role of the trial judge, when faced with an unrepresented accused, to play the part of his or her advocate and give the advice, guidance and representation which counsel would have provided: Dietrich v The Queen [1992] HCA 57; (1992) 177 CLR 292, 334 - 335 (Deane J). However, consistent with a trial judge's duty to ensure a fair trial, he or she is under an obligation to give an unrepresented accused such information and advice as is necessary to ensure that he or she has a fair trial: MacPherson v The Queen [1981] HCA 46; (1981) 147 CLR 512, 534 (Mason J). There is no limited category of matters of which a judge must advise an unrepresented accused: MacPherson v The Queen, (524) (Gibbs CJ and Wilson J). The scope of the assistance to be given depends on the particular litigant and the nature of the case. The touchstones are fairness and balance: Tomasevic v Travaglini [2007] VSC 337; (2007) 17 VR 100 [14] (Bell J).

107 A prosecutor is bound to act fairly towards the accused, but cannot tell the accused how to conduct his or her defence: Dietrich v The Queen (354) (Toohey J).

108 The DPP's Statement of Prosecution Policy and Guidelines 2005 provides, at par 119:

Particular care must be exercised by a prosecutor in dealing with an accused person without legal representation. The basic requirement, while complying in all other respects with these guidelines, is to ensure that the accused person is properly informed of the prosecution case so as to be equipped to respond to it, while the prosecutor maintains an appropriate detachment from the accused's person's interest.

109 An unrepresented accused cannot deliberately take advantage of this position to conduct him or herself in a way that would not be acceptable from defence counsel. Being unrepresented is not a free pass to misbehave, flout the legal or procedural rules, ignore the law of evidence or to treat the trial judge and witnesses with disrespect or contempt. Where an unrepresented accused acts or attempts to act in any of these ways, a trial judge must fairly and, if necessary, firmly deal with such behaviour. The extent to which a trial is regarded as fair will be examined in the light of the accused's own conduct: Hon Justice Dean Mildren, 'Don't give me any LIP' (1999) 19 Aust Bar Rev 30.

110 The guidelines set by the Family Court in Re F; Litigants in Person Guidelines were intended to apply to in litigants in person appearing in trials before the Family Court. They were never intended to be guidelines for criminal trials and should not be applied by analogy to criminal trials. In the context of a criminal trial, it is appropriate to have regard to what was said by the High Court in MacPherson v The Queen and Dietrich v The Queen.

111 The appellant's counsel identified four occasions in the trial where it was said that the trial judge took on the role of a prosecutor.

112 The first impugned passage came during the appellant's cross-examination of Mr Keyser at ts 397 and ts 398:

ACCUSED: Mr Keyser, I put to you you just deliberately set me up to get me charged under racial vilification?--- Okay. If that's what you think.

Thanks. I know.

WISBEY DCJ: Well, just respond "yes" or "no"?---No, it was definitely not. I just got abused and I just felt very threatened when someone told me my religion was racist, so I thought it was the right thing to get your name so, yes, when I go home I can go to the police.

ACCUSED: Yeah. And I gave you my name straight up, didn't I? Stand by everything I say?---If I was on a soccer field and someone told me to go back - go back to the gas chambers - - -

WISBEY DCJ: No, don't worry about - - -

THE WITNESS: - - - I would go to the police.

ACCUSED: Please?---It's the exact same thing.

Please, Mr Keyser. You defame the dead with that throwaway line.

WISBEY DCJ: But - - -

ACCUSED: Legitimate suffering of Jews - - -

WISBEY DCJ: - - - comments like that are not only inappropriate, they're pathetic, Mr O'Connell. Please - - -

ACCUSED: Pathetic? I say throwing - - -

WISBEY DCJ: Please - please - - -

ACCUSED: - - - a "gas chamber" line - - -

WISBEY DCJ: Please - please - - -

ACCUSED: - - - out to the audience is pathetic.

WISBEY DCJ: Please desist from them.

ACCUSED: That was low. Legitimate suffering of Jews. A toss-away line. (emphasis added)

113 The second part of the trial record that the appellant's counsel drew to the court's attention was during the appellant's cross-examination of Rabbi Freilich at ts 495:

ACCUSED: Could you give me a clarifying quote, if it's - if I can ask this - would you consider Judaism, as you practise, a religion of peace and tolerance to all people including non-Jews?---Could I ask you what the relevance of this is to the expert evidence?

WISBEY DCJ: What - - -

ACCUSED: Can I ask you would - is my statement that Judaism is a religion of peace and tolerance to all people including non-Jews? Would that be an accurate statement?

WISBEY DCJ: I think what - what the witness is saying and perhaps he - I should say, beforehand - - -

ACCUSED: Excuse me, but shouldn't the - shouldn't counsel be providing the - providing the objection, not yourself? You're an adjudicator of the law, you shouldn't be providing objections? Surely the counsel - - -

WISBEY DCJ: Well, that's very kind of you to tell me that but the position is that it is not relevant.

ACCUSED: Excuse me - - - (emphasis added)

114 The next part of the trial record that the appellant's counsel drew to our attention was during the appellant's cross-examination of Rabbi Freilich at ts 507.

ACCUSED: And seeing as no one could possibly ever know their true origin so far back or even back several hundred years is extremely difficult. But what I'm stating is you would have to take, as a matter of faith, as a matter - even if you were descended from a Jewish mother, you can't go that far back, you would have to take, as a matter of faith, that you were a descendant of Abraham, Isaac and so on and so forth. Is that not so?---Certainly spiritually, but I - I - I will - I will say this to you. That 4,000 or 4,500 years ago is not so far back. We - we have ancient history regarding the Egyptians. Now - now, we accept Egyptian culture and history as it's handed down and that is only - you know, we're talking about a few thousand years ago now. Judaism as 4,500 years ago, that is not so far back to actually to determine and - and to - to - to actually feel that some - some authenticity on - on what has - what has been handed down during that time.

Are you saying there's - - -?---It isn't that far back.

- - - a stone tablet somewhere in ancient Judea or Samaria with your ancestor's name on it?

WISBEY DCJ: No, he's not saying that and it's - - -

ACCUSED: Well, what relevance does that have to your descent?

WISBEY DCJ: - - - pathetic to put the proposition to him. (emphasis added)

115 The fourth instance that the appellant's counsel drew to the court's attention was also during the appellant's cross-examination of Rabbi Freilich at ts 510:

ACCUSED: I'll clarify that on Monday, thanks. Moving right along, if I was to say, "I am a proud white European, and I would like to marry within my race," would that be something that would be well received in Perth, do you think?

WISBEY DCJ: Well, whether it would or whether it wouldn't is not relevant to the matter that the jury have to determine.

ACCUSED: Rabbi, in your opinion do only Jews have the right to marry amongst their own to preserve their culture, their race and their heritage, or can others also be proud of their race, their culture and their heritage and wish to marry amongst their own?

WISBEY DCJ: And don't bother to answer that, thank you, rabbi. (emphasis added)

116 In each of the four examples relied upon by the appellant's counsel, his Honour's intervention was justified.

117 In the appellant's cross-examination of Mr Keyser, the comment, 'You defame the dead ...', made by the appellant in response to Mr Keyser's answer was inappropriate. The position is the same with the appellant's question of Rabbi Freilich, at ts 507, 'Are you saying there's a stone tablet somewhere in ancient Judea or Samaria with your ancestor's name on it?' His Honour did not 'object' as counsel would have it at ts 495. He intervened to prevent the introduction of irrelevant evidence. The question put by the appellant to Rabbi Freilich, at ts 510, raised matters which were entirely irrelevant.

118 His Honour's characterisation of the appellant's comments at ts 397 and the question at ts 507 as 'pathetic', although strongly worded, did not indicate that his Honour had taken on a role as prosecutor.

119 There is no merit to the submission made on behalf of the appellant that his Honour should have advised the appellant 'that it's far better to take an oath than an affirmation, particularly if you're proceeding from a religious perspective': appeal ts 25.

120 There is no factual basis upon which it may be concluded that a jury will look more favourably upon evidence given on oath than on affirmation. The appellant chose to affirm. That was his choice. It could not conceivably give rise to any miscarriage of justice.

121 His Honour correctly told the appellant that if he chose to testify he was required to make an oath or an affirmation: s 97 of the Evidence Act 1906 (WA), read with ss 4 and 5 of the Oaths, Affidavits and Statutory Declarations Act 2005 (WA): ts 524. It was not his Honour's duty to advise the appellant whether to take an oath or affirmation.

122 The submission that the appellant did not have the opportunity to present, as he would wish, the full evidence that would go to his state of mind is without merit.

O'CONNELL -v- THE STATE OF WESTERN AUSTRALIA [2012] WASCA 96 (4 May 2012)

At a glance

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Judgment (318 paragraphs)

O'CONNELL -v- THE STATE OF WESTERN AUSTRALIA [2012] WASCA 96 (4 May 2012)

Legislation Cited (8)

Cases Cited (11)