REGINA v VORHAUER

IN THE COURT OF CRIMINAL APPEAL 60466-60471/02

SPIGELMAN CJ SULLY J KIRBY J

Wednesday 27 November 2002 REGINA v Florence Amelia and Lisa Amelia VORHAUER Judgment 1 SPIGELMAN CJ: By order of Sheahan J in the Land and Environment Court of 22 March 1999 the Applicant, Florence Amelia Vorhauer was ordered to remove chickens from her property. On 14 July 1999 officers of the Tamworth Local Council and police officers attended at the property to implement the order. It is alleged in criminal proceedings against the Applicant that she resisted arrest on that day and used an offensive weapon and maliciously wounded two persons. It is alleged the Applicant threw a Molotov cocktail at the police and others and also inflicted serious injuries upon two policemen, using a Stanley knife. 2 Before the Court are six notices of motion (one of which contains four distinct matters) seeking leave to appeal against interlocutory judgments or orders of the District Court, pursuant to s5F of the Criminal Appeal Act 1912. By s5F(3), a party to proceedings may appeal to this court against an interlocutory judgment or order if this court gives leave, or if the court of trial certifies that the matter is a proper one for determination on appeal. There has been no such certificate. The issue of leave arises. 3 The Crown opposes leave in all cases. It submits that in many cases the decision made by the respective District Court judges does not have the requisite degree of finality. (See eg R v Glossop [2001] NSWCCA 165 at 18 per Sully J and the cases cited therein). In some instances this submission is correct. In other instances it is arguable. It is unnecessary to decide the case on this basis. 4 As will presently appear, in large measure, the notices of motion, both before the District Court and in this Court are based on a profound ignorance of the law. In all instances the appeals for which leave is sought are so plainly hopeless that leave should be refused on the basis of futility.

Constitutional Arguments 5 A number of different arguments referring to the provisions of the Constitution were put forward. Some are common to all or most of the Notices of Motion. Others arise with respect to particular Notices of Motion. Most of them are incomprehensible. All of them are based on a complete ignorance of constitutional law. 6 With respect to each of the Notices of Motion reliance is placed on s73 of the Constitution. It is said that this has a number of effects to which I will further refer below. None of them arise. Section 73 confers appellate jurisdiction on the High Court. Whatever may be the implications arising from the content and structure of Ch III of the Constitution, s73 does not give rise to any of the implications relied upon. 7 With respect to all of the Notices of Motion the Appellant refers to s73 of the Constitution "in conjunction", she submits, with the High Court's reasoning in Coco v The Queen (1994) 179 CLR 427. It is submitted that the "combination" has the consequence that the Parliament, presumably of New South Wales, cannot amend common law rights and that nothing can be done except under legislation. 8 In Coco, the High Court referred to and applied the longstanding rule of statutory construction that Parliament is presumed not to modify fundamental rights unless it does so expressly or by necessary intendment. There is no such constitutional principle as the Applicant puts forward. The various judicial orders and other actions, specifically her arrest, to which objection is taken on this basis are not invalid by reason of a contravention of the Constitution. 9 In written submissions handed up today the Appellant particularly emphasised the allegation that it was "treason" to disobey the Constitution, specifically referring to the provisions of s73, cl 5 of the Constitution preamble and s24AA(1)(a) of the Crimes Act 1914 (Cth). She submitted that any order that she stand trial is invalid as an act of "treason". There is no basis for any part of this submission. Section 73 has no such implication. None of the matters to which she referred are capable of constituting a contravention of the Crimes Act. Even if they were, it would not necessarily invalidate the institution of proceedings, or any of the other respects referred to by the Applicant. The implication of any of these matters on the proper course of the trial, including the discretion to admit or reject evidence, is not before the Court and I make no comment about it. 10 In the alternative, the applicant relied on some "combination" of s73 of the Constitution and the High Court judgment in Plenty v Dillon (1991) 171 CLR 635. This appears to be the basis of a submission that the criminal proceedings against her were invalid because the police officers were trespassers. Plenty v Dillon was an action in trespass to land against police officers who entered private property without proper authority. It has no relevance to the validity of the criminal proceedings against the Applicant or of any of the judicial orders made in the proceedings. It may have some implication for the admissibility of evidence in those proceedings, but that is not before this Court. Section 73 has nothing to say with respect to any of the conduct complained of by the Applicant. 11 The Applicant also referred to covering cl 5 of the Constitution as binding all courts and relied on the "self-executing nature of the Constitution", for which proposition she relied on the High Court judgment in University of Wollongong v Metwally (1984) 158 CLR 447. This judgment, again "in conjunction with" s73 of the Constitution had, she said, direct effects on the validity of orders made in the proceedings, particularly by the respective District Court judges. Nothing in s73 of the Constitution has the effect of entrenching what the Appellant referred to in her Notice of Motion as "common law rights". None of the respects in which she relied on this chain of "reasoning" can be upheld. 12 In the further alternative she relied on a "combination" of s73 of the Constitution and the High Court judgment in The Queen v Apostilides (1984) 154 CLR 563. This "combination", she submitted, has the consequence that civil and criminal matters have to have the same court rules. I find this submission incomprehensible. The High Court did consider the rights and obligations of a Crown Prosecutor in Apostilides. Nothing in the judgment, nor in s73 of the Constitution, impinges upon the relationship between rules of court in civil matters and those in criminal matters. 13 With respect to the Notice of Motion 60466 the Applicant submitted that, by force of s76(i) of the Constitution, no court other than the High Court has jurisdiction to consider constitutional issues. This is plainly wrong. Section 77(iii) of the Constitution expressly states that with respect to any of the matters mentioned in either s75 or s76, the Parliament may make laws investing the courts of a State with Federal jurisdiction. That has been done by s39 of the Judiciary Act 1903 (Cth). 14 The Appellant contends that local councils are unconstitutional by reason of the failure of the constitutional referendum which would have included a reference in the Australian Constitution to local government. There is no logic in this. Local governments are created by State legislation under the respective State Constitutions. The absence of any reference to local government in the Australian Constitution is just irrelevant. 15 The Applicant referred to s114 of the Constitution which prohibits the States from raising or maintaining any military force. The New South Wales Police Force is not a military force. She submitted, on the same basis, that no one other than a Sheriff could arrest her and that, accordingly, she was entitled to ignore the steps taken to arrest her. There is valid New South Wales legislation with respect to the process leading to her arrest. Section 114 is irrelevant to the charges which she now faces, even if everyone was a trespasser. Nor does s114 constitute some kind of excuse from the conduct leading to the charges which she faces, for example, the charge of unlawfully wounding. 16 The Applicant also contends that all State laws, including the laws under which she has been prosecuted, are invalidated by s109 of the Constitution without the possibility of rectification (referring again to Metwally). The basis of this is that the States have no representative of the Queen to validate any legislation. She refers to s70, s58, s59 and s60 of the Australian Constitution. The provisions to which she refers relate to the Government of the Commonwealth of Australia and the mechanisms for Royal Assent to Bills of the Commonwealth Parliament. That has nothing to do with a State Constitution. Those constitutions, and laws made under them, are preserved by s106, s107 and s108 of the Commonwealth Constitution

Commonwealth Legislation 17 With respect to Notices of Motion 60468, 60466 and 60471 the applicant invokes s80 of the Judiciary Act for the proposition that common law rights govern all courts in both civil and criminal matters. It is unnecessary to set out that section. It refers to courts exercising Federal jurisdiction. With respect to the substantive proceedings against her, the District Court was not exercising Federal jurisdiction. Federal jurisdiction arose with respect to the constitutional issues raised. However, it was not in that respect that the Appellant relied on s80 of the Judiciary Act. That section has no application to those proceedings. Even if it did, it would not qualify in any way the statutory proceedings properly invoked against her.

Notice of Motion 60471/02 18 It is convenient to commence with the last of the Notices filed in this Court, which raises the earliest of the District Court judgments. This Notice involves what the applicant describes as a "cross-summons" which contains a number of charges against persons, including officers of the Attorney General's Department, Justice Sheahan of the Land and Environment Court, councillors of the Tamworth City Council, a magistrate, police officers and others. It is unnecessary to set out the ten charges, each of which is expressed to be an "indictment". Many are in a form that certain persons "did murder by treason" sections of the Constitution and committed contempt of s73 of the Constitution. Others allege that the Council officers and police constables themselves "used unlawful violence" or entered the property with intent to commit a felony, committed assault, and theft of property, specifically poultry. 19 On 4 and 10 October 2000, Kirkham DCJ rejected the Applicant's contention that she could rely on the so-called "cross-summons" which she purported to file pursuant to Pt 5 r 16(1) of the Supreme Court Rules 1970. On 21 July 2002, Twigg DCJ similarly rejected the applicant's contentions in this regard. Both of their Honours were plainly right. This is not merely a question of form, in terms of the reference to the Supreme Court Rules. Proceedings of the character identified in a document described as "cross-summons" cannot be brought in this manner. In any event a number of the "charges" are completely incoherent. 20 The Applicant seeks an extension of time to appeal against the orders of Kirkham DCJ, which are more than two years old. The arguments put are hopeless. There is no point in extending time. Accordingly, in my view, leave to extend time to appeal against the judgment of Kirkham DCJ should be refused. Leave to appeal in the case of the decision of Twigg DCJ should be refused.

Notice of Motion 60466/02 21 On 9 September 2002, Payne DCJ dismissed a Notice of Motion in the District Court sitting at Tamworth in which the applicant in this Court sought the following orders: "1. The defendants seek the directions of the court, for leave to transfer the proceedings to the High Court of Australia, for determination of the Notice of Motion pursuant to s40 Judiciary Act 1903 dated 2 September 2002 and proceedings number 305 of 2002 in the High Court of Australia. 2. Stay proceedings till the determination of the High Court pursuant to Order 40 of the Judiciary Act 1903 in proceedings number 305 of 2002." 22 The Applicant does not appeal from the discretionary refusal to grant the adjournment, pursuant to Order 2 of the Notice of Motion. The proceedings before Payne DCJ, as in this Court, were conducted on the basis that an order for a stay was consequential upon the first order sought, ie, removal pursuant to s40 of the Judiciary Act. 23 Her Honour referred to s40 of the Judiciary Act and noted that that section gave the High Court power to make an order removing proceedings into that court. Her Honour concluded, plainly correctly, that she had no power under that section to transfer proceedings to the High Court. Insofar as Order 1 of the Notice of Motion is intelligible at all, her Honour was correct to interpret it in that way. Her Honour was plainly right to conclude that she had no power to make an order under s40 of the Judiciary Act 1903. 24 Leave to appeal to this Court is, in part, based on constitutional arguments which I have rejected above. 25 Leave to appeal should be refused.

Notice of Motion 60467/02 26 Also, on 9 September 2002, Payne DCJ dealt with a second Notice of Motion in which the Applicant sought the following orders: "1. The defendant seeks the directions of the court, for leave to transfer the proceedings to the High Court of Australia for the determination of the constitutional challenge pursuant to Order 73 r1 of the High Court Rules 1952 number 305 of 2002 pursuant to s 78B notice of a constitutional matter dated 2 September 2002. 2. Stay proceedings till determination of the High Court in proceedings number 305 of 2002." 27 As with respect to the previous Notice of Motion considered on this day, to which I have referred above, both in the District Court and in this Court, order 2 was seen as consequential upon order 1. Her Honour disposed of the matter briefly by indicating that s78B did not contain anything in the nature of a power enabling the District Court to transfer the proceedings to the High Court. Her Honour was plainly right. 28 In this respect also the Appellant raises certain constitutional issues which I have dismissed above. 29 In the course of the judgment, her Honour noted that a s78B notice had been served upon each Attorney General and that each had responded to the notice. Her Honour concluded that "Section 78B has been entirely complied with". 30 The materials in support of this application include a twenty-one page document dated 2 September 2002 purporting to be a "Notice of a Constitutional matter." The Attorney General of New South Wales appeared in the District Court in response to this notice. Her Honour was entitled to find that notices had been served and also to find, as she did in the alternative, that, in any event, a reasonable time within the meaning of s78B had elapsed since the giving of the notice. 31 The Appellant submits that s78B requires the District Court not to proceed. That is so when a constitutional issue has been raised, but only until the time the Court is satisfied that notice has been given to the respective Attorneys General under s78B and that a reasonable time has elapsed. Her Honour was so satisfied. She was entitled to be satisfied. 32 Leave to appeal should be refused on the basis that the Applicant's argument is hopeless.

Notice of Motion 60468/02 33 On 9 September 2002, Payne DCJ was asked to order that the Crown file a Notice of Discontinuance with respect to proceedings previously brought against the daughter of the Applicant, Ms Lisa Amelia Vorhauer. Her Honour was informed that the Crown had indicated in correspondence to Ms Vorhauer that there would be no further proceedings taken against her in the District Court. That was confirmed before Payne DCJ. Her Honour rejected the application for an order that a Notice of Discontinuance be filed. 34 I dealt above with the so-called constitutional arguments advanced in this regard. 35 Part 53 of the District Court Rules is concerned with criminal procedure. There is nothing in that Part which refers in any way to a Notice of Discontinuance. The reference to such a notice is found in Pt 18 of the Rules. The notice there referred to relates to civil claims in the court. 36 The application is entirely misconceived. Leave to appeal should be refused.

Notice of Motion 60469/02 37 On 10 September 2002, Payne DCJ disposed of four Notices of Motion in which four distinct orders were sought by the Applicant. The four Notices of Application for leave to appeal in this Court with respect to these four judgments were all given the same number, i.e. 60469 of 2002. 38 The first matter dealt with by Payne DCJ sought an order: "That the Registrar of the District Court Criminal Division comply with High Court Rules order 69 rule 1 and issue a Summons for an indictment dated 29 July 2002." 39 Her Honour indicated that order 69 did not require a summons in the case because that order applied only to the High Court and not to the District Court. Her Honour was plainly right. 40 Certain constitutional issues were raised in this regard and I have rejected them above. 41 Once again, the application before the District Court judge was based on complete ignorance of the law and was without any foundation whatsoever. Leave should be refused. 42 In the second Notice of Motion dealt with on 10 September the Applicant sought an order pursuant to s78B of the Judiciary Act to transfer the proceedings to the High Court with a consequential stay of proceedings in the District Court. This was, in substance, the same as the notice dismissed on the previous day, which is the subject of Notice of Motion 60467 discussed above. Her Honour held that neither s78B of the Judiciary Act 1903 nor s76 of the Australian Constitution 1901 gave her Honour power to make the order sought. Her Honour was plainly right. 43 Leave to appeal should be refused. 44 The third matter raised under this Notice of Motion number is an oral application to the District Court that Ms Baker, the solicitor appearing for the Attorney General, be removed from the court because she did not have a right of appearance. Ms Baker was appearing on behalf of the Attorney pursuant to s78A of the Judiciary Act in response to s78B notice issued by the applicant. Her Honour was plainly right in deciding that this was a proper basis for her appearance. 45 The Notice of Appeal by the Applicant suggests that persons do not have rights to make submissions on constitutional matters except in the High Court of Australia. This is plainly wrong. Jurisdiction with respect to constitutional matters is invested in State courts. 46 Once again I would refuse leave. 47 The fourth matter raised pursuant to this Notice of Motion was the rejection by Payne DCJ of an application for witnesses to be made available to her and for a consequential order that the trial date be vacated pending compliance with that order. 48 In this context the Appellant raised a number of constitutional issues with which I have dealt above. 49 The witnesses sought included a number of members of the Tamworth City Council, a number of persons who attended the premises on a day subsequent to the day of the alleged offences, and a number of judges of the District Court. 50 Her Honour indicated that, in her judgment, the witnesses were of no relevance whatsoever to the proceedings before her. With respect to certain other witnesses, they had already been the subject of an earlier judgment in this regard by his Honour Judge Bell on 23 August 2001. This included certain police officers who were present on the relevant date. 51 The reasons given by her Honour appear to me to be correct. Leave should not be granted on this basis. However, in the usual case, a decision of the kind made by Payne DCJ would not, in my opinion, be an interlocutory order or judgment within the meaning of s5F. It does not have the requisite degree of finality. (See eg R v Glossop). The constitutional points raised have been rejected above. Leave to appeal should be refused in part on the basis of futility but, also, expressly in this case, on the basis that this was not an interlocutory order or judgment within the meaning of s5F.

Notice of Motion 60470/02 52 This Notice of Motion raised constitutional issues which I have dealt with above. The basic proposition is that the State judiciary has no authority to hear constitutional matters. In the judgment of 11 September 2002, Payne DCJ rejected this submission and the consequential stay pending the High Court's determination of applications to that court. The appeal to this Court is limited to the particular proposition that the Court has no authority to hear constitutional matters. I have rejected this submission above. 53 Leave to appeal should be refused. 54 SULLY J: I agree entirely with the orders proposed by the Chief Justice and his Honour's reasons for those orders. 55 KIRBY J: I also agree. **********

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