Dezi Freeman “metaphorically” arrests a Magistrate!!
There was an internet rumour being spread in facebook groups that OPCA adherent Dezi Freeman “arrested magistrate Ian Watkins” during a “civil hearing he was presiding over in the Wangaratta Magistrates Court” on Friday the 31st of May 2019.
The post in a Facebook page called Alpine Regional News, (which quite ironically, Dezi Freeman seems to be an admin and creator of, judging by the displays of his photography and OPCA content) claimed:
Dezi Freeman appears to be influenced by a self-appointed “Commonwealth Public Official” Jim Rech, who likewise follows many of the constitutional misconceptions and failed contentions perpetuated by vexatious litigants like Wayne Glew, Peter Gargan and Brian Shaw.
Dezi and Mali Freeman were in the media spotlight last year, in an A Current Affair piece “Bogans from Buffalo“ regarding their supposed neighbors from hell.
Dezi Freeman was interviewed by Mike Holt (who’s websites also invariably contain similar OPCA content) on his channel The Bloody Aussie Battler and he went over some of the details relating to the hearing.
(a) Getting to the actual alleged “event” Dezi Freeman further explains he didn’t actually handcuff the magistrate, detain him, or restrain his liberty in any way, or even touch him, but simply *told him* he was under arrest. He claims the meaning of the word “arrest” is misunderstood.
(b) According to Dezi Freeman, a Victoria Police Officer Craig Robinson, who was allegedly present in the court, refused to execute the arrest when demanded, presumably because there was no grounds for arrest.
(c) Magistrate Ian Watkins apparently adjourned to his chambers after the hearing, which Dezi Freeman and Jim Rech take as meaning he “stood down” because of his “arrest” and that “nullifies the case”. This premise is obviously based in the typical OPCA doctrine that if the magistrate “abandons the court” or “jumps ship” then the defendant is the “highest sovereign in the court” and can then dismiss their own case.
(d) The intended charges of “misprison of treason, fraud and perverting the course of justice” are vexatious in nature. Even if the magistrate erred in his decision, it is a matter to be decided by the Appeals process, and until it is held that he was not in fact acting within his judicial powers and the judgment overturned, there is no case to proceed with such fanciful accusations.
A common law arrest requires five elements
- (1) a belief an offense had been committed,
- (2) informing the person they are under arrest,
- (3) why they are under arrest,
- (4) the person understanding why they are under arrest,
- (5) physical contact or loss of liberty. (Eg. words or conduct that makes it clear to the person that they are not free to go)
(see eg. George v Rockett (1990) 170 CLR 104; Collins v Wilcock [1984] 1 WLR 1172) If an arrest fails one of these five elements of an arrest, then an arrest has not been made. (see eg. DPP v Hamilton [2011] VSC 598; Slaveski v State of Victoria [2010] VSC 411.)
The most important action that an arresting police officer must perform when placing a person under arrest, is that it must be unambiguously communicated to the suspect that they are under arrest, and the suspect is aware of this fact.
The next requirement for an arrest to be lawful is that the person must be informed of the reason behind their arrest. Again, a police officer must not be vague when giving their reasons for arresting a suspect. The importance of liberty and the depriving a person of the freedom of movement is an important aspect of the process, and why a reason must always be given to a person if they are under arrest. This is explicit in s 3ZD of the Crimes Act 1914 (Cth) for example, which states the following:
- (1) A person who arrests another person for an offence must inform the other person, at the time of the arrest, of the offence for which the other person is being arrested.
- (2) It is sufficient if the other person is informed of the substance of the offence, and it is not necessary that this be done in language of a precise or technical nature.
- (3) Subsection (1) does not apply to the arrest of the other person if: (a) the other person should, in the circumstances, know the substance of the offence for which he or she is being arrested; or (b) the other person’s actions make it impracticable for the person making the arrest to inform the other person of the offence for which he or she is being arrested.
The final element in making an arrest lawful is that an arresting officer must only use reasonable force when detaining a suspect. The use of force provisions are set out in s 3ZC of the Crimes Act 1914 (Cth) which states the police:
- making an arrest must not use more force, or subject the other person to a greater indignity than is necessary and reasonable in making an arrest
- must not do anything that is likely to cause death or grievous bodily harm, unless the police officer believes on reasonable grounds that their actions are necessary to protect life, or serious injury to another person – including the officer.
Initially, there should be a number of physical and verbal actions or statements that an arrestor must make, which can entail the physical restraining of a person, or communicating to the person that they no longer have the freedom to go about as they please (e.g. “you are under arrest) , while also making some physical contact with the suspect.
While it is true an officer doesn’t necessarily have to physically throw down a suspect and slap on the handcuffs to show that a person is under arrest. A touch on the shoulder and communicating that a person is under arrest is sufficient under the law. The physical element is not even necessary under certain circumstances, as long as the person understands they have been deprived of their liberty and freedom of movement. It isn’t necessary for a person who is arrested to be confined to a specific area, however, it should be communicated and understood that they must remain in the presence of the arrestor.
If a police officer who informs a person that they are under arrest, and the officer simply touches the person, even if the person does not submit to the action, the arrest will still be considered valid. This final physical element consummates the arrest. As a consequence, if the person escapes or makes an attempt to escape, they may be committing an offence of attempting to escape from custody or resist arrest.
But with the above incident, even if Dezi Freeman believed an offence had been committed, and informed the magistrate he was under arrest, and why he was under arrest, he is still missing a crucial element, being deprived of his liberty and freedom of movement, either by cooperation, or physically restraining him. Without this “consummation” of the arrest, no valid arrest had occurred.
At least Harley Williamson took it one step further, walking behind the judicial bench, placing his hand on the Registrar’s shoulder and stating that he was under arrest, to which he was subsequently convicted of obstructing, hindering or intimidating a public officer in the function of his duties. (See Williamson v Johnson [2016] WASC 232)
The following paperwork was given to staff at the Wangaratta Magistrates Court on Wednesday the 19th of June 2019:
Interesting gesture no doubt, but legally moot.
A second point regarding this, is that the doctrine of judicial immunity confers immunity from criminal responsibility for acts or omissions by the judicial officer in the exercise of the officer’s judicial functions, even where an act done is in excess of authority, or an officer is bound to do an act omitted.
As High Court Chief Justice Murray Gleeson said in Fingleton v The Queen [2005] HCA 34; 227 CLR 166:
“The general principle is as stated by Lord Denning MR in Sirros v Moore [1975] QB 118, at 132:
“Ever since the year 1613, if not before, it has been accepted in our law that no action is maintainable against a judge for anything said or done by him in the exercise of a jurisdiction which belongs to him. The words which he speaks are protected by an absolute privilege. The orders which he gives, and the sentences which he imposes, cannot be made the subject of civil proceedings against him. No matter that the judge was under some gross error or ignorance, or was actuated by envy, hatred and malice, and all uncharitableness, he is not liable to an action.”
An allegation of judicial misconduct by a dissatisfied litigant often, perhaps even typically, will be accompanied by an accusation of malice or want of good faith in the exercise of judicial authority. In In re McC (A Minor) [1985] AC 528 at 540, Lord Bridge of Harwich said:
“It is, of course, clear that the holder of any judicial office who acts in bad faith, doing what he knows he has no power to do, is liable in damages. If the Lord Chief Justice himself, on the acquittal of a defendant charged before him with a criminal offence, were to say: ‘That is a perverse verdict’, and thereupon proceed to pass a sentence of imprisonment, he could be sued for trespass. But, as Lord Esher MR said in Anderson v Gorrie [1895] 1 QB 668 at 670:
“…the question arises whether there can be an action against a judge of a court of record for doing something within his jurisdiction, but doing it maliciously and contrary to good faith. By the common law of England it is the law that no such action will lie.'”
This immunity from civil liability is conferred by the common law, not as a perquisite of judicial office for the private advantage of judges, but for the protection of judicial independence in the public interest. It is the right of citizens that there be available for the resolution of civil disputes between citizen and citizen, or between citizen and government, and for the administration of criminal justice, an independent judiciary whose members can be assumed with confidence to exercise authority without fear or favour. As O’Connor J, speaking for the Supreme Court of the United States, said in Forrester v White [1988] USSC 3; 484 US 219 at 226-227, that Court on a number of occasions has “emphasized that the nature of the adjudicative function requires a judge frequently to disappoint some of the most intense and ungovernable desires that people can have.” She said that “…if judges were personally liable for erroneous decisions, the resulting avalanche of suits … would provide powerful incentives for judges to avoid rendering decisions likely to provoke such suits.
This does not mean that judges are unaccountable. Judges are required, subject to closely confined exceptions, to work in public, and to give reasons for their decisions. Their decisions routinely are subject to appellate review, which also is conducted openly. The ultimate sanction for judicial misconduct is removal from office upon an address of Parliament. However, the public interest in maintaining the independence of the judiciary requires security, not only against the possibility of interference and influence by governments, but also against retaliation by persons or interests disappointed or displeased by judicial decisions.”
Dezi Freeman was back at it again in November 2020, asserting that he has “arrested” a magistrate in the course of his duties in setting a hearing date during a directions hearing.
Dezi Freeman left the court quite angry at the outcome of a new hearing date, making the following statement.
While attending the protest outside of the Myrtleford Magistrates Court on the 17th December 2021 where a private prosecution was brought by Anthony Herman against Daniel Andrews for “Misprision of treason”, Dezi Freeman was arrested for real on sexual assault charges dating back to 2019.
Peter Little who also attended the protest, received a phone call shortly after, enquiring about his representation at Dezi Freeman’s interview on the charges.
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