The legal system in WA: one big conspiracy?

Courts in Western Australia in the past few years have been subjected to a plague of self-represented litigants who are taking up the time of judges and magistrates in defending themselves against (mostly minor) charges with a barrage of unfounded conspiracy theories – where socialists are removing the Queen and God by covert means and courts and local governments are “unconstitutional”.

The removal of the references to “God” and “the Queen” in State legislation seem particularly to incense the litigants but they are also keen to preserve what they see as their rights as landowners and citizens.

Despite a number of decisions refuting the various arguments raised by these litigants, a significant number continue to believe in the theories and there is no doubting the role of the internet in disseminating the idea.

The litigants, possibly inspired by similar movements overseas, refuse to recognise the authority of the Magistrates and District Courts who, they say, are unable to administer the law in WA after the Acts Amendment and Repeal (Courts and Legal Practice) Act 2003(WA) removed references to “the Crown” or “the Queen” and replaced them with “the State” or “the Governor”. The protests against this Act have resulted in defendants refusing to recognise the Court’s authority, or alleging that the Court is in fact a Corporation to which they are not subject. Accordingly, they argue, they cannot be found guilty of speeding, or assault, unlawful development etc.

It is not clear what the litigants mean by “corporation”, although according to one internet writer “When Western Australia removed the Crown, they excluded Almighty God and embraced both Socialism and Secularism and at the same time aborted the Constitution of the Commonwealth of Australia and traded themselves into the secret world of the Corporation of the City of London…” ¹ This Corporation is alleged to be in charge of “all law and finance” and it “manipulates the Constitution via the Lawyers, Judges and Courts” in Australia.²

The following passage is from Hedley v Spivey [2012] WASCA 116:

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

‘First of all, ma'am, we need to establish is this a jura court sitting under the Crown, before we even hear what you're saying, ma'am. Is the jurisdiction of you three judges sitting in a crown court - is this a jura court? I served you a notice yesterday, right, to clarify your standing. Is this a jura court or are you a corporation?’“ ³

The court, having declined to answer the question, refused Mr Hedley leave to appeal against his conviction for obstructing a public officer. He had done so on the grounds that the magistrate erred in fact and law:

1. “ When he refused to sit under ch III of the Commonwealth of Australia Constitution 1901;
2. When he failed to swear his oath of allegiance to the Crown in accordance with the third schedule of the Commonwealth of Australia Constitution Act 1901; and
3. When he refused to state where in the Commonwealth of Australia Constitution 1901 his authority to sit in the court comes from without having sworn an oath of allegiance to the Crown.”⁴

The litigants also often refuse to answer to their given names, insisting that names are a “legal fiction” – Mr Hedley again:

“The appellant acknowledged that he had filed and signed an appeal notice in the name 'Scott McKenzie Hedley' but continued: ‘I'm not Mr Hedley. Please do not call me by that name. All right? That is a legal fiction and I'm not a corporation.’” ⁵

In the case of Krysiak -v- McDonagh [2012] WASC 270 Justice Heenan recounts the attendance of Mr Krysiak before Magistrate Calder:

“When the case was called a person, presumably the applicant, came forward but upon being asked to identify himself he refused, preferring instead to make submissions to the effect that he reserved all his rights and again refusing to identify himself, saying, 'I reserve all my rights and I am best described as the authorisation to the accused with limited liability'. His Honour refused to allow this person to speak further unless and until he clearly identified himself and directed him to sit in the back of the court. Again, but with some protest, the person who had come forward did so. Then his Honour, having observed that there was no person in the court who had identified themselves as having the name Krysiak and being the accused, directed that the case should proceed in the absence of the accused under s 55 of the Criminal Procedure Act 2004 (WA), it having been established that notice to the accused had been given under s 75.

“At this point, his Honour announced, obviously speaking to the person at the back of the court, that if he were Tadeusz-Edmund Krysiak and identified himself as that person he could participate in the proceedings but, if not, he would not be allowed to participate and the matter would be dealt with under s 55. At this point, Mr Krysiak identified himself and when asked who he was said, 'I am commonly known as Tadeusz-Edmund Krysiak' and when asked if that was his name he said, 'I don't have a name, sorry, your Honour' and at that point his Honour decided to proceed under s 55 as previously proposed.”

In his appeal, Mr Krysiak cited the Magna Carta and the Bill of Rights 1689, as well as the Commonwealth Constitution, in his grounds of appeal.

As well as the Courts, local governments too are “unconstitutional” because they are nowhere referred to in the Commonwealth Constitution (and the WA Constitution Act of 1889, which does refer to them, is dismissed by the litigants), so the litigants refuse to pay rates or accede to planning or other legislation in which the local government prosecutes.

However, thanks to the persistence of these litigants, there is now a significant body of case law in WA which means that the courts can more quickly deal with these litigants’ cases by refusing them leave by deeming that the grounds of appeal have no “reasonable prospect of success” (under s9(2) of the Criminal Appeals Act 2004).

Two recent cases particularly give cause for hope that the slew of actions may subside, thanks to Wayne Kenneth Glew (“I am a Commonwealth Public Official no 481861701013 my name is Wayne Kenneth of the family Glew, a sovereign subject of and a sworn officer of Her Majesty Elizabeth the second lawful sovereign of Australia, Queen of England and Northern Ireland”). ⁶

In Glew v White [2012] WASCA 138 the full court referred Mr Glew to the Attorney General, inviting an application to have Mr Glew declared a vexatious litigant, given his long history of bringing and defending cases on extraordinary grounds (Glew v Shire of Greenough [2006] WASCA 260; Glew Technologies Pty Ltd v Department of Planning and Infrastructure [2007] WASCA 289; Glew v The Governor of Western Australia [2009] WASCA 123; Glew v Frank Jasper Pty Ltd [2010] WASCA 87; Frank Jasper Pty Ltd v Glew [No 2] [2010] WASC 24 and Glew v City of Greater Geraldton [2012] WASCA 94). ⁷

In Glew v the City of Greater Geraldton, the Court awarded indemnity costs against Mr Glew - an unusual step where a party is self-represented. The Court noted in that case that: “The grounds of appeal have no prospect of success. Some regurgitate grounds that have been dismissed by this court before and the rest are manifestly hopeless. The appeal is an abuse of process and it is an appropriate case for an order that the appellant pay the respondent's costs on an indemnity basis.”

It is to be hoped that the precedents now created on the matters of law and of costs, together with the use of preliminary “leave hearings” to determine the question of leave to appeal before any substantive hearing of an appeal under s9 of the Criminal Appeals Act 2004, will mean that such litigants will not feature so strongly in WA’s courts in future.

Footnotes

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