HER HONOUR: On 26 April 2017, an application was brought before me as Duty Judge for a writ of habeas corpus. The proposed defendant, who does not appear to have been given notice of the application, was the Commissioner of Corrective Services. The application related to a person who has been arrested by police and refused bail. I refused leave to file the applicant's petition in court. As the application had been brought outside the Court's usual sitting hours, I reserved my reasons. This judgment records my reasons for refusing leave to file the petition in court.
The application was brought on behalf of a man described as "Adrian Ashley of the House of Cooper". He was purportedly represented by a man who describes himself as "Keith Charles of the House of Haffey" as "petitioner". The petitioner objected when I addressed him as "Mr Charles", asserting that "Mister" is a military title and that he is not in the military. Without acceding to the correctness of that contention, I will refer to him (as a matter of respect) as the petitioner. The petitioner indicated that Adrian Ashley also objects to the title "Mister" on the same basis. I will refer to Adrian Ashley as the applicant.
The application raised two threshold procedural issues. First, it was brought in circumstances where proceedings have not been commenced. The petitioner sought to make the application on behalf of the applicant by presenting a petition in court. Ordinarily, a party seeking relief as a plaintiff may not take any step in proceedings unless he or she has filed an originating process (either a statement of claim or a summons): see r 6.1(1) of the Uniform Civil Procedures Rules 2005 (NSW). In the case of proceedings on an application for a writ of habeas corpus ad subjiciendum, a summons is required: r 6.4(2) of the UCPR. The usual method of filing an originating process is to file it in the Registry. However, the rules provide that the court may make orders in an urgent case on the application of a person who intends to commence proceedings, including any order in the nature of a writ of habeas corpus: rr 6.1(2) and 25.2(1) of the UCPR. Accordingly, I took the view that I should entertain the application, notwithstanding the fact that no originating process had been filed in the Registry.
The second procedural issue was the fact that the applicant was not legally represented and, for obvious reasons, was not before the Court in person. Rule 7.1 of the UCPR contemplates that proceedings may be commenced and carried on either in person or by a solicitor. The petitioner informed me that he is not a legal practitioner and is not legally trained. However, in circumstances where it was alleged that a man was being unlawfully detained, I took the view that I should hear from the petitioner, at least to the extent necessary to determine whether there were reasonable grounds for the application (in which case it might have been appropriate to allow the petitioner to carry on the proceedings on the applicant's behalf, at least to the point of having the applicant brought to Court to make his claim in person).
In taking that approach, I was mindful of the nature of the relief sought. As explained by the Earl of Birkenhead in Secretary of State for Home Affairs v O'Brien [1923] AC 603 at 609, the writ of habeas corpus affords "a swift and imperative remedy in all cases of illegal restraint or confinement". His Lordship described the writ as one "of immemorial antiquity, an instance of its use occurring in the thirty-third year of Edward I" and said it "has through the ages been jealously maintained by courts of law as a check upon the illegal usurpation of power by the executive at the cost of the liege".
In Potier v General Manager & Governor, MRRC [2007] NSWSC 1031, Rothman J explained that the writ of habeas corpus is a prerogative writ "used to bring an individual before a court usually to assess the lawfulness of detention, and, if considered unlawful, to order the individual's release".
Accordingly, I invited the petitioner to address the material relied upon to establish a basis for the order sought.
The petitioner presented a number of witness statements and other documents to the Court. He also addressed the Court orally and provided additional information in response to questions asked by me. As best I was able to ascertain from the information provided, the application was based on a number of grounds. I will address those grounds in the order I consider logical rather than the order in which they were presented in the material relied upon by the petitioner.
First, it was suggested that the applicant was arrested for conduct which is incapable of amounting to an offence. The petitioner explained that the applicant was charged after being found in possession of cannabis. The petitioner contended that all plants were given to man by God, citing Genesis 1:29 of the King James Version Bible 1611, which states:
And God said, Behold, I have given you every herb bearing seed, which is upon the face of all the earth, and every tree, in the which is the fruit of a tree yielding seed; to you it shall be for meat.
The point might have been made in response to the petitioner's submission that, according to those words, if it is God who supplies cannabis to man, it is for nutritional rather than recreational purposes. In any event, I took the view that the matters contended for by the petitioner would not afford a defence to an offence against ss 10 or 23(1)(c) of the Drug Misuse and Trafficking Act 1985 (NSW), which prohibits the possession of cannabis in a number of forms, regardless of its origin.
The second basis for the application revealed by the material put before the Court by the petitioner was that the manner of the applicant's arrest was unlawful. The petitioner presented a witness statement by a person described as "Izabella-marie, a living soul (woman) of majority in age". She stated that the applicant answered a knock on the door one morning. She heard him calling for help and went to the front patio where she saw "two casually dressed strangers assaulting Adrian" (they were later identified to be police officers). The applicant asked her to call the petitioner in his capacity as "Occupant of the Office of Special Executor for the Cooper, Adrian Ashley, Estate", which she did.
At the petitioner's suggestion, she asked the strangers why they were arresting the applicant. The strangers said they were arresting him "for not appearing at a court hearing". According to the statement, the applicant was arrested forcefully and assaulted by police.
The petitioner also provided his own statement, headed "Testimony to the facts". As noted in the statement of Izabella-marie, the petitioner was not present at the premises when the applicant was arrested but spoke to her and to police by telephone throughout the incident. In order to make sense of the petitioner's statement, it is necessary to understand that he adopts the curious practice of referring to himself variously in the third person singular, as "One", and in the first person plural, as "We". He stated:
(12) Throughout the time we were communicating it was also made known that One is the Occupant of the office of Commonwealth public official (Crimes Act 1914 - Section 13), common law notary public and Special Executor of the Cooper, Adrian Ashley, Estate, and that they had not followed due process of law and were assaulting Adrian without warrant and had made a false arrest and if they were to now take him from the property it could be seen as abduction and kidnap and as they were armed with guns, armed kidnap in company, and they were reminded at one point that ignorance of the law is no excuse.
(13) Despite being made aware of these above facts, they forcefully removed Adrian against his will, and took him to Newtown Police Station, which to our knowledge of the law is false imprisonment. As the men stepped out of their alleged office when they first laid hands on Adrian without following due process of law to which Adrian is fully entitled, along with his unalienable freedoms/liberties and rights.
Following the applicant's arrest, the petitioner went to Newtown Police Station "with the intention to get Adrian out of custody". The petitioner said:
(18) We went into the court room, where the presumed magistrate (her office/title was undisclosed) was made aware that We believe the Man called by Adrian may be under false arrest due to the fact that due process of law to which Adrian was deprived and was not followed, as such the officers may have committed assault, abduction and kidnap in company without warrant.
(19) One was asked by the Magistrate if we wanted to apply for bail.
(20) We made her aware that we wanted him released immediately due to the failure of the police officers to follow due process of law.
(21) The Magistrate then asked "Mr Cooper" if he wanted bail? One informed her that Adrian was not a Mister as this is a military title and that he is not in the military and that the man known as Adrian uses no titles.
(22) The Magistrate said "bail is refused" and left the court, knowing we were there to get Adrian released as we believe the Police officers may have exceeded the alleged authority which would be misfeasance of their office and therefore also committing a wrong/tort in their private capacity under common law.
As I understood the petitioner's arguments, those events were said to give rise to two further grounds on which a writ of habeas corpus might be granted. First, it was submitted that the alleged violence surrounding the circumstances of the applicant's arrest made his ongoing detention unlawful. It is clear, however, that the authority for the applicant's detention was in the first instance the execution of a warrant issued upon his failure to appear at Court and, following execution of the warrant, the refusal of bail by the Magistrate.
I was of the view that the matters identified in the evidence, if established, might sound in other remedies but would not render the applicant's ongoing detention, following the execution of a warrant, unlawful.
Secondly, the petitioner submitted that the applicant's arrest on a warrant for failure to appear could not be lawfully effected unless police presented the original warrant at the time of arrest. According to the statements before the court, the original warrant was not held by police but was said to be "back at the police station". The petitioner appeared to accept that the warrant was shown to the applicant after he arrived at the police station.
No authority was cited for the proposition contended for by the petitioner. Police officers in fact have an express statutory power to take action to arrest a person in accordance with a warrant whether or not the warrant is in their possession at that time: s 101 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW).
Finally, as best I understood the argument, the petitioner contends that the applicant cannot lawfully be detained for an offence because he is not bound by the laws and usages of this State. Police are said to have been on notice of that fortuitous status as a result of having been served with documents in December last year. The documents were sent to Gladesville Police Station by registered mail and their receipt was acknowledged by a constable of police. What he or she made of them is a matter of speculation.
The documents were provided under cover of a letter from the petitioner. Again, in order to make sense of the letter, it is necessary to understand that the petitioner refers to himself in the third person singular and the first person plural. The letter opened with a peaceful greeting and an explanation of the purpose of the correspondence, as follows:
As per our conversation on Thursday 8th December (Mathew), One was going to be in Sydney today, Friday, but due to weather at Sydney Airport the flight was cancelled thus One is unable to attend your office to discuss this matter with you.
As your office was made aware yesterday, One has been asked by the man called by Adrian-ashley, to investigate possible indictable offences against the Laws of The Commonwealth of Australia (de jure/non corporate) by police officers under your command that take oath or affirmation to serve the Queen.
The letter asserted, in effect, that the applicant is beyond the reach of the criminal law:
Adrian-ashley is a national of the Commonwealth of Australia and not an Australian citizen, therefore the statute/legislation that is being forced upon him does not apply as he is a self-governing man who does not consent to be governed, and has only complied to police demands under duress so as to remain neutral and not be construed as belligerent.
The letter concluded by expressing the hope that the attached documents "make clear to all those concerned the position Adrian-ashley holds as a loyal subject of The Queen and his belief that the King James Version Bible 1611 as the supreme law" [sic].
The documents attached with the letter included an "Affirmation of Truth" and "Testament to Will by Proclamation" each signed by the applicant. Those documents were evidently calculated to achieve or record the applicant's status as a self-governing person who is not bound by the law of any Sovereign State. An aspect of the position adopted by the applicant is that he expressly does not accept "any benefits or privileges of any Sovereign State". It was not explained how, consistently with that position, he can invoke the jurisdiction of this Court.
I did not think it was reasonably arguable that the applicant's affirmation and proclamation were effective to relieve him of the constraints imposed upon him by the law.
Unsurprisingly, the petitioner concluded his submissions by citing Magna Carta (version not identified).
After hearing from the applicant at length, I formed the view that no reasonable basis for a writ of habeas corpus was disclosed and, indeed, that the application was manifestly hopeless. In that circumstance, I did not consider it appropriate to grant the relief sought or to make orders for any further step to be taken in the proceedings.
I wish to record that, during the hearing, I informed the petitioner on a number of occasions that it remains open to the applicant to make a release application under the Bail Act 2013 (NSW). The petitioner appeared to reject that proposition, evidently taking the view that a release application is only appropriate in circumstances of lawful detention, whereas he contends the applicant's detention is unlawful. The petitioner's view is misconceived in that respect and he potentially does the applicant a disservice in adhering to it. It is to be hoped that the applicant is aware of his entitlement (notwithstanding his stated position of eschewing the benefits and privileges conferred upon him by the State) to bring a release application under the Bail Act. Any such application is likely to be better received without the embellishment of insistence upon medieval modes of address or ill-informed incantation of God's law and Magna Carta.
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Decision last updated: 16 April 2018