Lenin Limbo v John Robert Little [NTR]

• Jurisdiction: Northern Territory
• Judge: Kearney,Rice,Martin
• Judgment Date: 27 November 1989
• Court: Supreme Court
• Docket Number: Nos. 48 of 1988 and AP15 of 1989
• Date: 27 November 1989

(1989) 65 NTR 19

IN THE SUPREME COURT OF THE NORTHERN TERRITORY OF AUSTRALIA

Kearney, Rice and Martin JJ.

Nos. 48 of 1988 and AP15 of 1989

Lenin Limbo

and

John Robert Little

The appellant, L Limbo, appeared in person

Counsel for the Respondent: T J Riley QC and C R Clift

Cases referred to:

Polites v The Commonwealth (1945) 70 CLR 60

Chow Hung Ching v The King (1948) 77 CLR 449

Bradley v The Commonwealth (1973) 128 CLR 557

Simsek v MacPhee (1982) 148 CLR 636

Jago v Judges of The District Court (1988) 12 NSWLR 558

R v Loughnan (1981) VR 443

Cases followed:

S and M Motor Repairs Pty Ltd v Caltex Oil (Australia) Pty Ltd (1988) 12 NSWLR 358

Costs — Court fees and costs — Filing fees and transcript costs — Power of Magistrate to waive payment by litigant Courts and Judges — Disqualification for bias — Ascertainment of facts upon which to base application — Whether litigant may question Judge in order to ascertain facts Courts and Judges — Court proceedings — Video and audio recording — Application to record by litigant — Refusal of application — Nature of Court's decision Criminal Law — Legal resources and representation — Minimum guarantees for persons charged — Article 14(3) International Covenant on Civil and Political Rights — Power to enforce in Australia guarantees in Declaration International Law — ‘Nuremburg Principles’ — ‘War Crimes’, ‘Crimes Against Humanity’ or ‘Crimes Against Peace’ — Whether Principles impose affirmative duty on individuals to prevent commission of Crimes — Application of Principles in Australia Magistrates — Summons to witness to appear — Apprehension that person summonsed will not appear — Application for warrant to issue against person summonsed — Power of magistrate to issue warrant after issue of summons, prior to appearance date — Justices Act ss 23–25

Magistrates — Disqualification for bias — Ascertainment of facts upon which to base application — Whether litigant may question Magistrate in order to ascertain facts Magistrates — Powers — Court fees and costs — Filing fees and transcript costs — Power of Magistrate to waive payment by litigant Practice and Procedure — Court proceedings — Video and audio recording — Application to record by litigant — Refusal of application — Nature of Court's decision — Whether appellable

ORDER

Appeals dismissed.

Applications refused.

JUDGE1

1 I have had the benefit of reading the opinion of Martin J. I respectfully concur in his Honour's conclusions and the orders he proposes, for the reasons he has stated, and have nothing to add.

JUDGE2

1 The question posed for consideration on a reference to the Full Court by Nader J. in its amended form is:-

‘Whether a judge or magistrate has an obligation to answer questions of a litigant concerning matters which may disqualify him if the litigant knew about them, for example military, defence or intelligence connections.’

2 In my judgment, the answer is simply, ‘No’. That is not to say, however, that a judge or magistrate is entitled to sit back where the circumstances might possibly indicate that a perception of bias is present, and not make appropriate disclosure in order to remove any suggestion of bias. It is the fundamental duty of a judge or magistrate to do so, consistent with the oath of office which is based on the concept of judicial integrity. It requires no reaffirmation since the complete absence of bias is inherent in the judicial role. In my opinion, it would be an affront to judicial integrity for a judge or magistrate to be subjected to any obligation to answer questions of a litigant. This proposition is so fundamental that no authority is needed to support it.

3 A litigant remains protected against any abuse of this principle by the power of an appellate court to review and remedy the conduct of any judge or magistrate who might transgress it.

4 In my opinion it would undermine the administration of justice for a judge or magistrate to be subject to questioning by a litigant on this or, indeed, any other topic.

5 The appellant was given a free rein to ventilate his grievances before the Full Court and the Court of Appeal. He was allowed every indulgence to put his case without the usual stringencies of procedural adherence. In my view, it was important that an appellant so imbued with the cause he was championing so dedicatedly, should be accorded every opportunity of airing his grievances as he perceived them. It soon became apparent during the proceedings before us, however, that the appellant was intent upon using the judicial process as a means of courting national as well as international publicity in aid of his fervent belief that global nuclear destruction was close at hand. His broad challenge to the impartiality of those whose decisions might be adverse to him on the ground of their ‘military, defence or intelligence connections’ was, in my opinion, symptomatic of the fervency of his beliefs. A zealot, no less than any other person, is entitled to give vent to the free expression of opinion without the intervention of bias or prejudice.

6 Martin J. has dealt extensively with the multifarious matters which have made their way to the Full Court, and the Court of Appeal. I am in agreement with everything he has said, including the orders he proposes.

JUDGE3

Background

1 There are before the Full Court and the Court of Appeal, constituted by the same bench, a large number of issues. They were either referred to the Full Court under s. 21 of the Supreme Court Act, or are the subject of applications for leave to appeal to the Court of Appeal. It was agreed by both parties that all issues would be dealt with at the one hearing, which lasted 5 days. All of the matters for consideration arose at the instance of the appellant, who calls himself by the name given in these proceedings. For some other purposes he is known as Leonard John Lindon. He is a qualified legal practitioner, admitted to practise in that name in South Australia, and is upon the roll of practitioners of the High Court of Australia. He appeared unrepresented.

2 On 19 October 1987 he was charged under s. 89(1) of the Crimes Act (Commonwealth) for that on that day he did without lawful excuse trespass upon prohibited Commonwealth land, namely the Joint Defence Space Research Facility, an establishment near Alice Springs, commonly known as ‘Pine Gap’.

3 On 14 April 1988, he was convicted of that offence by the Court of Summary Jurisdiction sitting at Alice Springs and fined $250. From that conviction he appealed to the Supreme Court, which allowed the appeal in March 1989 and remitted the matter to the former Court for re-hearing. The appeal was allowed upon the ground that the appellant had not had a fair hearing. The appellant then set about securing the attendance of witnesses before that Court upon the re-hearing, which was set down for 2–4 August 1989. It is largely the decisions made in the course of that exercise that gave rise to these proceedings. During the course of various preliminary applications other questions arose and they also found their way to the Full Court and the Court of Appeal. In the Full Court the appellant raised a number of preliminary matters.

4 Because of the number of issues, the manner in which they arose and the considerations applying to them, it is difficult to prepare these reasons in an orderly fashion. The best approach is to proceed in chronological order.

The Kerr Warrant

5 On 28 March 1989 the appellant arranged to have issued summonses to appear at the August re-hearing, directed to the Prime Minister, Peter Woodruff, (who it is alleged is the ‘Australian Deputy-Head of Pine Gap’) and Glen Kerr (‘U.S. boss of Pine Gap’). I do not decide the question, which is not before the Full Court, as to whether service of those summonses was effective. In any event, on 30 March 1989, the appellant applied to Mr Hook, Stipendiary Magistrate, for the issue of a warrant for the arrest of Mr Kerr upon the ground that it was probable that Mr Kerr would not attend to give evidence on the date specified in the summons. The appellant gave evidence upon oath as to the service of the summons and as to his belief that Mr Kerr was about to leave Australia, and his grounds for so believing. The application was refused by the learned Magistrate upon the ground that he had no power to order that a warrant for arrest issue in those circumstances. He so found by reference to the relevant provision of the Justices Act. The following day that application was renewed, the appellant indicating that he had further evidence going to Mr Kerr's intended departure. I note in passing that His Worship had already held that he had no jurisdiction to issue such a warrant, and, if he was right, then it would not matter what further evidence might be available on that point.

6 It was on this occasion that the appellant sought to address the Magistrate on ‘the question of the Nuremberg Principles’. His Worship declined to hear him on that, or to entertain his application unless it was brought by the ‘proper procedure’, referring to the Justices Act and Regulations in a general way. There is no prescribed form for an application such as the appellant sought to make. Later on that day he did, however, file an application in writing which sought orders that a warrant be issued, that the summons be withdrawn, and that Mr Kerr be brought before the Court for contempt in permanently leaving the jurisdiction after being served with a summons, and for costs. Those applications were also dismissed, as best I can make out because of the provisions of the Justices Act, and because there was no evidence, or proposed evidence, that Mr Kerr would not attend on the return date of the summons even if it were shown that he was about to leave Australia.

7 The appellant filed a Notice of Appeal against those decisions. It is doubtful that an...