Posts Tagged ‘[2017] NSWSC 533’

Adrian Ashley of the House of Cooper

May 3, 2017

One day, Adrian answered a knock at his front door.  He was seized by two men.  Adrian said they were assaulting him; they said they were policeman (which, though in plain clothes, they were) arresting him on a bench warrant for failure to attend court in relation to a charge for possession of cannabis.

Adrian called out to Izabella-marie, who was in the house.  She phoned Keith for help.  Keith talked on the phone to the police but was ineffective in dissuading them from taking him to Newtown Police Station.  Keith (and maybe Izabella-Marie) went to the Newtown Court House.  Keith’s account of what happened there is as follows:

(18)   We [Keith] 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 [Keith] 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.

On 26 April Keith went to the Supreme Court seeking a writ of habeas corpus for Adrian’s release.  He said (to paraphrase):

  • Adrian was a loyal subject of the Queen who believes the St James Bible to be the only law and has not consented to be governed by the laws of this state (having delivered a declaration to that effect to the police);
  • Possession of cannabis could not be a crime, citing Genesis:
    “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 arrest was unlawful because (1) the police did not have the warrant with them; and (2) because it was effected violently.

None of these points succeeded before Justice McCallum, sitting as the duty judge.  As the application (which was procedurally irregular in many respects) had been brought outside usual sitting hours, she dismissed it and reserved her reasons, now published as Application of Adrian Ashley of the House of Cooper [2017] NSWSC 533.

As to the Genesis argument, McCallum J couldn’t resist a bit of judicial humour (at [10]):

The point might have been made in response to the petitioner’s [Keith’s] submission that, according to those words, if it is God who supplies cannabis to man, it is for nutritional rather than recreational purposes.

but seriously, folks:

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 Act1985 (NSW), which prohibits the possession of cannabis in a number of forms, regardless of its origin.

She held that is not necessary for police to be in possession of a warrant to effect an arrest under it.

The “Hutt River Province” argument was manifestly hopeless.  As she concluded [these numbers should start at 24]:

  1. I did not think it was reasonably arguable that the applicant’s [Adrian’s] affirmation and proclamation were effective to relieve him of the constraints imposed upon him by the law.
  2. Unsurprisingly, the petitioner concluded his submissions by citing Magna Carta (version not identified).
  3. 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.
  4. 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.

Oh, everything is so civilized in the Supreme Court, even if it is only on the surface.  Of course it didn’t get Adrian out of gaol.  Nevertheless, Justice McCallum heard Keith and allowed him to make his application at length, outside normal court hours, and even gave a little bit of judicial advice.

I wonder if things were all so sweet when, next morning, assuming the police delivered him up, Adrian was brought out of the cells to appear before Magistrate Greg Grogin at the Central Local Court.

Maybe they weren’t.  The charges in the Local Court are listed for mention on 11 May, again at the Central Court, which is the one set up best to deal with people already in custody.