R v Buzzacott [2004] ACTSC 89 (17 September 2004)

Last Updated: 18 September 2004

THE QUEEN v KEVIN BUZZACOTT

[2004] ACTSC 89 (17 September 2004)

JURISDICTION - assertion that courts have no jurisdiction over Aboriginal defendant.

CONSTITUTIONAL LAW - sovereignty - court cannot question acquisition of sovereignty by Crown.

COURTS AND JUDICIAL SYSTEM - judges - bias - disqualification for bias - whether reasonable apprehension of bias.

COURTS AND JUDICIAL SYSTEM - criminal law - jury of peers - racial composition of jury.

Constitution, s 128

Criminal Code 2002 (ACT), Division 286

Mabo v The State of Queensland [No 2] [1992] HCA 23; (1992) 175 CLR 1

The State of New South Wales v The Commonwealth of Australia (Seas & Submerged Lands Case) [1975] HCA 58; (1975) 135 CLR 337

Coe v Commonwealth of Australia [1978] HCA 41; (1979) 24 ALR 118

Coe (on behalf of the Wiradjuri tribe) v The Commonwealth of Australia [1993] HCA 42; (1993) 118 ALR 193

Thorpe v Commonwealth of Australia [No 3] [1997] HCA 21; (1997) 144 ALR 677

Walker v The State of New South Wales [1994] HCA 64; (1994) 182 CLR 45

Re Thompson; Ex parte Nulyarimma (1998) 136 ACTR 9

Nationwide News Pty Limited v Wills [1992] HCA 46; (1992) 177 CLR 1

Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488

R v Rivkin [2004] NSWCCA 7

R v Badenoch [2001] VSC 409

Greer (1996) 84 A Crim R 482

Australian Capital Television Pty Ltd v The Commonwealth of Australia [1992] HCA 45; (1992) 177 CLR 106

HLA Hart, The Concept of Law (2^nd ed, 1994)

Kelsen, General Theory of Law and State (1961)

G Craven, "An Indissoluble Federal Commonwealth? The Founding Fathers and the Secession of an Australian State" (1983) 14 MULR 281

Quick & Garran, Annotated Constitution of the Australian Commonwealth (1901)

No SCC 72 of 2004

Judge: Connolly J

Supreme Court of the ACT

Date: 17 September 2004

IN THE SUPREME COURT OF THE )

) No SCC 72 of 2004

AUSTRALIAN CAPITAL TERRITORY )

THE QUEEN

v

KEVIN BUZZACOTT

ORDER

Judge: Connolly J

Date: 17 September 2004

Place: Canberra

THE COURT FINDS THAT:

1. The Court has jurisdiction to proceed to trial.

2. There is no basis for disqualification for bias.

THE COURT ORDERS THAT:

1. The matter proceed in the normal manner for setting down for trial.

1. The accused, Mr Kevin Buzzacott, has been committed to this Court for trial in relation to an allegation of theft. The indictment dated 1 June 2004 alleges that -

Kevin Buzzacott at Canberra in the Australian Capital Territory on 27 January 2002, dishonestly appropriated property, namely a bronze coat of arms, belonging to another, namely the Commonwealth, with the intention of permanently depriving the Commonwealth of that property.

2. The statement of prosecution case that has been filed with the indictment alleges that the accused removed a bronze Australian Coat of Arms from a pillar at the front of old Parliament House, and took it to the Aboriginal Tent Embassy. The accused has sought a preliminary hearing to determine certain points of law prior to his trial, and the matter was set down for argument on Monday, 23 August 2004 before me. Mr Lindon, counsel for the accused, and Mr White, counsel for the prosecution, filed written submissions before and after the oral hearing.

The Challenge to Jurisdiction

3. The accused's principal argument is that this Court lacks jurisdiction to deal with him because of his status as an Aboriginal Australian. In argument it was put by Mr Lindon that the use of the term Aboriginal Australian was itself potentially racist and offensive, and that the accused should be properly referred to as an Arabunna man, being a reference to his origins in the area surrounding what is referred to by non-Arabunna people as Lake Eyre in South Australia. I note, however, that throughout his submissions Mr Lindon uses the terms "Aboriginal" and "non-Aboriginal", and I will do the same.

4. The argument that this Court lacks jurisdiction to deal with an allegation of criminal conduct occurring within the geographic boundaries of the Australian Capital Territory due to the aboriginality of the accused person is based on an assertion that the courts and governments of Australia have no sovereignty over persons of aboriginal origin, and that the occupation of Australia by European settlers from 1788, and indeed the assertion of British sovereignty over Australia since 1770 have not been effective to deny the sovereignty that Aboriginal Australians have exercised and, it is asserted, continue to exercise, over all of the lands within Australia. The assertion is succinctly summarised in par 2.4 of the accused's submissions, where it is stated -

The Commonwealth of Australia has no lawful jurisdiction over the Original Peoples of geographic Australia nor over Their Lands and Laws.

5. Whilst this is an argument that I have no doubt is sincerely held by the accused and his counsel, it is an argument that has been repeatedly rejected by Australian Courts. It is an historical fact that much of the original occupation and dispossession of Aboriginal Australians from their original lands was supported by the legal doctrine of terra nullius, a legal fiction, clearly offensive both to Aboriginal Australians and Australians of non-Aboriginal descent, that European settlement occurred by a peaceable occupation of empty, unoccupied waste lands. The High Court in Mabo v The State of Queensland [No 2] [1992] HCA 23; (1992) 175 CLR 1 abandoned this approach, Brennan J stating at 42 that -

The fiction by which the rights and interests of indigenous inhabitants in land were treated as non-existent was justified by a policy which has no place in the contemporary law of this country. ...

Whatever the justification advanced in earlier days for refusing to recognise the rights and interests in land of the indigenous inhabitants of settled colonies, an unjust and discriminatory doctrine of that kind can no longer be accepted. The expectations of the international community accord in this respect with the contemporary values of the Australian people.

6. While Mabo established the basis for continuing native title claims under Australian law, it clearly stands as authority contrary to the proposition that there is some form of continuing "sovereignty" contrary to the sovereignty vested in the Commonwealth of Australia over the whole of the geographical entity of Australia, and indeed the surrounding seas. This was established by Gibbs J in The State of New South Wales v The Commonwealth of Australia (Seas & Submerged Lands Case) [1975] HCA 58; (1975) 135 CLR 337 at 388 where his Honour said -

The acquisition of territory by a sovereign state for the first time is an act of state which cannot be challenged, controlled or interfered with by the courts of that state.

This statement was expressly adopted by Brennan J in Mabo, who added (at 31) that it -

precludes any contest between the executive and the judicial branches of government as to whether a territory is or is not within the Crown's Dominions.

7. An assertion of Aboriginal sovereignty was sought to be made in Coe v Commonwealth of Australia [1978] HCA 41; (1979) 24 ALR 118. In that case Gibbs J stated at 128 -

The annexation of the east coast of Australia by Captain Cook in 1770, and the subsequent acts by which the whole of the Australian continent became part of the dominions of the Crown, were acts of state whose validity cannot be challenged: see New South Wales v Commonwealth and cases there cited. If the amended statement of claim intends to suggest either that the legal foundation of the Commonwealth is insecure, or that the powers of the Parliament are more limited than is provided in the Constitution, or that there is an aboriginal nation which has sovereignty over Australia, it cannot be supported.

8. His Honour continued at 129 -

The aboriginal people are subject to the laws of the Commonwealth and of the States or Territories in which they respectively reside. They have no legislative, executive or judicial organs by which sovereignty might be exercised. If such organs existed, they would have no powers, except such as the law of the Commonwealth, or of a State or Territory, might confer upon them. The contention that there is in Australia an aboriginal nation exercising sovereignty, even of a limited kind, is quite impossible in law to maintain.

9. This assertion of aboriginal sovereignty rejected in Coe was again raised in Coe (on behalf of the Wiradjuri tribe) v The Commonwealth of Australia [1993] HCA 42; (1993) 118 ALR 193. It was there argued that the original decision was incompatible with the law as set out in Mabo [No 2]. However, Mason CJ stated at 200 that -

Mabo [No 2] is entirely at odds with the notion that sovereignty adverse to the Crown resides in the Aboriginal people of Australia. The decision is equally at odds with the notion that there resides in the Aboriginal people a limited kind of sovereignty embraced in the notion that they are a "domestic dependent nation" entitled to self- government and full rights (save the right of alienation) or that as a free and independent people they are entitled to any rights and interests other than those created or recognised by the laws of the Commonwealth, the State of New South Wales and the common law. Mabo [No 2] denied that the Crown's acquisition of sovereignty over Australia can be challenged in the municipal courts of this country.

10. A challenge to sovereignty was again raised in Thorpe v Commonwealth of Australia [No 3] [1997] HCA 21; (1997) 144 ALR 677, and was again unsuccessful. Kirby J cited the line of authorities referred to above, culminating in Coe [No 2] and said at 683 that -

the attempt to establish a notion of sovereignty adverse to the Crown was found not to be one which an Australian court could uphold.

To the extent that Mr Thorpe, by his proceedings in this case, urges similar notions upon the court, he obviously encounters the same difficulties. By seeking to invoke the jurisdiction of this court he can only expect it to apply the law which governs it. For relief of a different kind, based upon other law, he must go elsewhere.

11. The accused has been charged with an offence contrary to Commonwealth law, and argues that there is no jurisdiction due to his Aboriginality. A similar argument, that a person of Aboriginal descent could not be subject to State criminal jurisdiction, has been made and rejected by the High Court. In Walker v The State of New South Wales [1994] HCA 64; (1994) 182 CLR 45 Mason J said at 48 -

The legislature of New South Wales has power to make laws for the peace, welfare and good government of New South Wales in all cases whatsoever. The proposition that those laws could not apply to particular inhabitants or particular conduct occurring within the State must be rejected. As Gibbs J (with whom Aickin J agreed) said in Coe v Commonwealth: "The aboriginal people are subject to the laws of the Commonwealth and of the States or Territories in which they respectively reside". In that case all the justices on appeal upheld the view which I had taken at first instance rejecting the plaintiff's claim that sovereignty resided in the Aboriginal people. There is nothing in the recent decision in Mabo v Queensland [No 2] to support the notion that the Parliaments of the Commonwealth and New South Wales lack legislative competence to regulate or affect the rights of Aboriginal people, or the notion that the application of Commonwealth or State laws to Aboriginal people is in any way subject to their acceptance, adoption, request or consent. Such notions amount to the contention that a new source of sovereignty resides in the Aboriginal people. Indeed, Mabo [No 2] rejected that suggestion.

12. Mr Lindon acknowledged that these authorities were contrary to the proposition he was advancing, but he argued that these authorities were distinguishable because, he said, the enactment by the Commonwealth Parliament of those parts of the Criminal Code establishing in Australian domestic law the offence of genocide (see Division 286 of the Criminal Code 2002 (ACT)) meant that any acquisition of sovereignty by the Crown by reason of past or continuing genocide was amendable to challenge in an Australian court.

13. It is said that the creation by the Parliament of the offence of genocide under Australian law amounts to an acknowledgement by the Parliament that Australian sovereignty may be challenged. It is certainly correct that, until this enactment, genocide was not an offence known to domestic law (see Re Thompson; Ex parte Nulyarimma (1998) 136 ACTR 9) although there were of course many provisions of Australian law, ranging from the offence of murder downwards, that would be relevant to any claimed acts of genocide.

14. There is nothing in the legislation or the second reading speeches or explanatory memoranda that would lend any support to the assertion that by enacting the offence of genocide into Australian law the Parliament was seeking to overturn the common law doctrine that sovereignty may not be challenged in an Australian court. The established legal doctrine is that the acquisition of sovereignty by the Crown is not subject to challenge in a domestic court. It is a proposition both of clear authority and logical necessity. Any legal system is based on a fundamental proposition that establishes the authority of the law. HLA Hart, in The Concept of Law (2^nd ed, 1994) refers to a rule of recognition. Kelsen, a doyen of continental jurisprudence, refers in his General Theory of Law and State (1961) to a "grundnorm". The underlying concept is the same - in any legal system there must be a starting point that cannot itself be challenged within the system. In our system the starting point is the sovereignty vested by the people in "the Crown" and set out in the Constitution of the Commonwealth of Australia. It is clearly not possible, in a court established pursuant to the constitution, being a court created to exercise part of that sovereignty vested in the Crown (in this case, being the sovereignty inherent in an assertion of criminal jurisdiction relating to an alleged theft occurring within the geographical jurisdiction of this Court) to challenge the sovereignty of the court. That much is established by Coe, Coe (on behalf of the Wiradjuri tribe) and Mabo, and from the basic principles.

15. Not only is there no support in the text of the legislation, or the Parliamentary Debates for the proposition that the enactment of the offence of genocide overturns Coe and Mabo and allows an Australian domestic court to question the basis of sovereignty within Australia, there would be a real question, it seems to me, as to whether such a law could be validly passed by the Parliament. The Constitution of the Commonwealth of Australia was enacted pursuant to the Commonwealth of Australia Constitution Act, which by its preamble refers to the people of the then colonies agreeing to "unite in one indissoluble Federal Commonwealth". The sovereignty vested in the indissoluble Federal Commonwealth, it may be argued, cannot be divested by a mere enactment of the Parliament, and may only be affected by way of a Constitutional referendum pursuant to s 128 of the Constitution (G Craven, "An Indissoluble Federal Commonwealth? The Founding Fathers and the Secession of an Australian State" (1983) 14 MULR 281. See also the discussion in Quick & Garran, Annotated Constitution of the Australian Commonwealth (1901) of the origins of the phrase "indissoluble Federal Commonwealth" in the context of the American civil war, which only preceded the Federation movement by some 30 years.)

16. Whatever argument the accused may have as to whether or not the conduct of policy towards Aboriginal Australians by successive governments, Commonwealth State or Territory, amounts to genocide, whether as understood under international law or as established now as a domestic offence under a law of the Commonwealth, this Court cannot bring into question the basic principle of law underlying its own existence that there is but one sovereignty over the geographic entity of Australia and that the exercise of that sovereignty is governed by the Constitution of Australia, so that in the case of an offence allegedly committed within the Australian Capital Territory, this Court has jurisdiction to try the case no matter what the racial or ethnic origin of the accused.

17. It should be noted that, although traditionally legal doctrines relating to the acquisition of sovereignty in Australia refer to the acquisition of sovereignty by the Crown, more recent pronouncements of the High Court make it clear that the ultimate source of the sovereignty is the consent of the people of Australia. In Australian Capital Television Pty Limited v The Commonwealth of Australia [1992] HCA 45; (1992) 177 CLR 106 Mason CJ stated at 138 that -

Despite its initial character as a statute of the Imperial Parliament, the Constitution brought into existence a system of representative government for Australia in which the elected representatives exercise sovereign power on behalf of the Australian people. Hence, the prescribed procedure for amendment of the Constitution hinges upon a referendum at which the proposed amendment is approved by a majority of electors and a majority of electors in a majority of the States (s 128). And, most recently, the Australian Act 1986 (UK) marked the end of the legal sovereignty of the Imperial Parliament and recognized that ultimate sovereignty resided in the Australian people.

See also Nationwide News Pty Limited v Wills [1992] HCA 46; (1992) 177 CLR 1 at 70 per Deane and Toohey JJ that -

all powers of government ultimately belong to, and are derived from, the governed.

Procedural Challenges at this hearing

18. At the opening of this hearing Mr Lindon indicated that a number of persons wished to "intervene" in the proceedings. There is no basis in Australian law for an "intervener" in a criminal proceeding, and I did not give leave. He then indicated that he wished to call evidence from a number of persons of Aboriginal descent concerning claimed acts of genocide, both in the past and ongoing. This evidence, it was said, would go to support the proposition that the enactment of those parts of the Commonwealth Criminal Code creating the offence of genocide allowed the sovereignty of the Crown to be called into question in an Australian Court, at least where it was asserted that that sovereignty was acquired by genocide.

19. It seemed to me that the real question here was the legal question of whether, even if the asserted genocide could be established, that would alter the legal position as laid down in Coe and Mabo. I thus did not permit evidence to be lead, and indicated that I would approach the legal question on the basis that the accused could prove what he said he could prove in relation to claimed genocide. It seems to me, however, that this legal question is capable of only one answer, that being that it is established law that the original sovereignty of the Crown cannot be called into question in a domestic court. The consequence is, as Gibbs J held in Coe, that a person of Aboriginal descent is subject to the jurisdiction of this Court in respect of an alleged crime committed within the confines of the Australian Capital Territory in the same manner as any other person.

Bias

20. It was further asserted that this trial could not proceed if presided over by any judge of this Court because no non-Aboriginal Australian judge could proceed to hear the matter without bias. It was asserted that an international judge should hear the case. Apart from the obvious point that the only judge who can exercise jurisdiction in an Australian court is a judge properly appointed to exercise the commission of a judge of that court, the claim is wholly inconsistent with the established law of Australia in relation to disqualification of a judicial officer for bias. The claim is essentially that only a person of the same racial background of an accused person can preside over that person's trial. So stated, it is clearly offensive, carrying with it overtones of a system of separate laws (in Affrikaners, apartheid) and the implication that no judicial officer, despite the oath of office to "do right to all manner of people according to law" is capable of doing justice other than to persons of the same racial or ethnic origin as themselves.

21. The test of bias to be applied in Australia is the well known test of apprehended bias long established in English law, and restated by the High Court in Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 at 492 per Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ as -

whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide.

22. What is important in this test is that it is an objective test, based on what a "fair-minded lay observer might reasonably apprehend". It is not a subjective test. In his submissions the accused, through his counsel, asserted that -

All the judicial officers of the High Court and the ACT Supreme Court are white men (non-Aboriginal males).

All non-Aboriginal judicial officers are - like all non-Aboriginal residents of geographic Australia - beneficiaries of the continuing Aboriginal genocide.

23. While this may well be a sincerely held view of the accused, it does not entitle him to a judicial officer of his choosing. An apprehension of bias must be based on reasonable grounds. As the New South Wales Court of Criminal Appeal said in R v Rivkin [2004] NSWCCA 7 at [111]-

While the test is one of possibility rather than probability, the determination of the relevant question by reference to the impression of a "fair-minded lay observer" which involves an objective test, is an important consideration. As was made clear in Webb & Hay v R [1994] HCA 30; (1994) 181 CLR 41 at 52, it is the Court's assessment of the public view, and not its own view, that is determinative. Further, the court must be satisfied that the test is met, not that it might be met. Moreover, the element of reasonableness needs to be stressed.

24. It seems to me that the accused's submissions on the question of bias are really based on a view, which I do not question is sincerely held, that there is an inherent inability of non-Aboriginal Australians to understand or comprehend issues of importance to Aboriginal Australians. It cannot follow from this view, however, that no non-aboriginal person may sit in any judicial proceedings involving such a person.

25. I should note that there has been a further basis argued for me to disqualify myself from hearing this matter set out in supplementary written submissions. In these submissions the accused, through his counsel, argued that I have displayed actual bias on the basis that I ruled against him on evidentiary matters during the oral hearing. These arguments do not reflect well on counsel. It is absurd to argue that, because a judicial officer rules against a party, that judicial officer displays bias. This went so far as to assert that I displayed bias by refusing to direct that a copy of the transcript of the hearing be provided to the accused. In fact, as was explained to Mr Lindon in correspondence from my associate, it is not general practice in this Court to order a court copy of the transcript of an oral hearing where evidence is not called. This Court must itself pay commercial rates for any transcript ordered from the commercial entity that provides transcript in this Court. In accordance with normal practice, I did not order a transcript. Some days after the hearing, Mr Lindon requested, through my associate, a free copy of the transcript. Upon being told that no court transcript had been ordered, but that he could of course order and pay for the transcript on the same basis that the court would order and pay for it, he asserted in his supplementary submissions that -

Connolly J further showed bias by refusing to direct that a copy of the transcript of the hearing be provided to the accused because it would incur "an unjustified cost to the ACT Ratepayer.

A jury of his peers

26. The accused submitted that -

The only persons who can lawfully become jurors in this trial are Aboriginal Elders. Given the level of ignorance of Aboriginal Justice issues in the non-Aboriginal community - and the level of hatred of Aboriginal Rights in the non-Aboriginal community - and the nationwide saturation media publicity on the coat of arms theft shock horror by the non-Aboriginal community, it will be impossible for Kevin Buzzacott, Arabunna, to receive a fair trial from a jury of non Aborigines.

27. The right to trial by a jury of ones peers does not mean that an accused person can demand that the jury panel be comprised solely of persons of a particular racial, ethnic, social or gender group. A jury panel is assembled by a random choice of persons enrolled on the electoral roll within the Australian Capital Territory. The usual rights of challenge, both peremptorily and for cause, will apply to the accused when the jury for his trial is assembled. A similar question arose before Coldrey J in R v Badenoch [2001] VSC 409 where it was claimed that a jury panel was objectionable because it did not contain any aboriginal persons for the trial of a person of aboriginal descent. His Honour there held that it was not open to an accused to in effect seek to challenge the composition of a jury panel selected in accordance with the normal random process for choosing jurors based on the ethnic, racial or social background of the jurors so selected. This was consistent with the view of the West Australian Court of Criminal Appeal in Greer (1996) 84 A Crim R 482.

28. It would be entirely inappropriate, and indeed unlawful, for me to make any directions so as to ensure a particular racial or ethnic composition of the jury panel that will form the basis for the jurors selected to serve in the accused's trial.

Issue of Subpoenas

29. In his written submissions the accused raised the perceived need for him to issue subpoenas to a range of persons in relation to this trial. It is apparent from the submissions that he will wish to canvass general issues concerning his belief that there has been ongoing genocide, that there has been a failure to prosecute such matters, despite his own involvement in attempts to prosecute, inter alia, most members of the Commonwealth Parliament, and that there has been a deliberate and discriminatory failure by the Commonwealth to prosecute any person for attacks of arson on the Aboriginal Tent Embassy. No specific applications for subpoenas were made, but it is appropriate that I indicate at the outset that the issue of any subpoenas for this trial will be properly confined to the issues legitimately and properly arising from the trial on the indictment of 1 June 2004. That is to say, the evidence will need to be relevant to the issues going to the allegation in that indictment, and it will not be open to the accused to issue subpoenas generally to agitate more widespread political grievances however sincerely held.

Conclusions

30. The submissions by the accused that the court has no jurisdiction to proceed to trial on this matter have no substance. The submissions by the accused that I should be disqualified for bias in this matter likewise have no substance. The matter should now proceed in the normal manner for setting down for trial.

I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Connolly.

Associate:

Date: 17 September 2004

Counsel for the Prosecution: Mr J R White

Solicitor for the Prosecution: Commonwealth Director of Public Prosecutions

Counsel for the Accused: Mr L Lindon

Date of hearing: 23 August 2004

Date of judgment: 17 September 2004