In October 2021, a chiropractor from Bright in Victoria, Anthony Herman, initiated a private prosecution against Daniel Andrews for “Misprision of treason” using Brian Shaw‘s argument regarding the removal of references to the Crown in judicial oaths. After having the application rejected from several other courthouses, it was successfully lodged at the local court in Jim Rech‘s hometown of Myrtleford, and with much fanfare came up for mention at Myrtleford Magistrates Court on the 17th December 2021.
Most of the 260 page Statement of Claim was made up of recycled documents previously submitted and rejected as vexatious in Brian Shaw’s cases:
This “Misprision of treason” allegation regarding the replacing of the reference to “the Crown” in judicial oaths with a reference to “the people” of that State, (both in Victoria (the Courts and Tribunals Legislation (Further Amendment) Act 2000 (Vic) amending section 6(1)(c) of the Legal Practice Act 1996 (Vic)) and Western Australia (the Acts Amendment and Repeal (Courts and Legal Practice) Act 2003 (WA)) have been rejected by the Supreme Courts of both States as without legal merit.
Both Wayne Glew and Brian Shaw have periodically brought the allegation many times. After initiating dozens of frivolous proceedings habitually and persistently for over a decade, Brian Shaw was declared a Vexatious Litigant by Hansen J. in Attorney-General for the State of Victoria v Shaw  VSC 148. Wayne Glew likewise, declared a Vexatious Litigant by Master Sanderson in Attorney General (WA) v Glew  WASC 100.
In Attorney-General for the State of Victoria v Shaw (No. 2)  VSC 73, Beach J considered an application for leave to file a proceeding for “Fraud, Treason and Misprision of Treason“. Shaw sought to allege that by enacting the Courts and Tribunals Legislation (Further Amendment) Act 2000, the Parliament of Victoria has committed an act of treason and this act of treason had been “compounded thereafter by every judicial officer and court within the State of Victoria”. Beach J refused the application as an abuse of process. Identically in Attorney-General for the State of Victoria v Shaw  VSC 334, where Forrest J dismissed an application alleging that the Acts Amendment and Repeal (Courts and Legal Practice) Act 2003 (WA) was an illegal conspiracy, Beach J in Attorney-General for the State of Victoria v Shaw (No 5)  VSC 106 dismissed the allegation that in enacting the Courts and Tribunals Legislation (Further Amendment) Act 2000, the Parliament of Victoria had committed a treason, Rush J in The ANZ Executors and Trustee Co Ltd v Shaw  VSC 288 that numerous judges and officers of the Supreme Court were guilty of treason by reason of the removal of the oath of allegiance to Queen Elizabeth II from the Legal Profession Act, and many more.
Others have been prompted to make the same allegations, each time dismissed, such as in Victoria: Donohue v Victorian Electoral Commission  VSC 98, Sacco v The Queen  VSCA 353, Members Equity Bank Pty Ltd v Elefterescu  VSC 223, Jakaj v Kinnane  ACTSC 71, McFarlane v McFarlane  VSC 197. And in Western Australia: Wilson v White  WASCA 87, Krysiak v Hodgson  WASC 16, Williamson v Hodgson  WASC 95, Mills-Edward v Russell  WADC 9, National Australia Bank Ltd v Joyce  WASC 224, Hedley v Spivey  WASCA 325, O’Connell v The State of Western Australia  WASCA 96, Palmer v City of Gosnells  WASCA 446, Deputy Commissioner of Taxation v Aitken  WADC 18, Re Culleton  FCA 1193, Bride v Shire of Katanning  WASCA 59, Corica v Throssell  WASCA 209, Rural Bank (A Division Of Bendigo And Adelaide Bank Limited (ACN 068 049 178) v Manolini  WASC 313, Sprlyan v Wyborn  WASC 227. Strangely, the allegation was even raised in South Australia, regarding both the Western Australian and Victorian statutes: Daniels v Deputy Commissioner of Taxation  SASC 114, and Haughton v Chang  SADC 94.
As explained in Balwyn Nominees Pty Ltd v Culleton  FCA 1578:
“All previous attempts to raise this issue have equally been rejected as without any legal merit. See Shaw v Jim McGinty in his capacity as Attorney General & Anor  WASCA 231 upholding Shaw v Attorney General for the State of Western Australia & Anor  WASC 149; Glew & Anor v Shire of Greenough  WASCA 260; Glew v The Governor of Western Australia (2009) 222 FLR 416;  WASC 14. In Glew v Shire of Greenough, Wheeler JA (with whom Pullin and Buss JJA agreed) observed, at  and , that 2003 State legislation bringing about the change in terminology did not effect any change to constitutional reality. It did not attempt to alter the relationship between the Crown and the various bodies contained within the Acts amended. Her Honour said: “There is no constitutional prohibition upon the alteration of the terminology which refers to the Crown or to her Majesty. Further, the changes of terminology contained within the Acts Amendment and Repeal (Courts and Legal Practice) Act 2003 are consistent with constitutional reality.”
Wheeler JA also stated: “When we talk of the Crown in the context of Australian government in the late twentieth century, we refer to a complex system of which the formal head is the monarch. We do not refer to a replica of sixteenth century English government, where real power was vested in and exercised by the monarch personally. Rather, we mean that collection of individuals and institutions (Ministers, public servants, a Cabinet, the Executive Council, a Governor or Governor-General, and statutory agencies) which exercise the executive functions of government”. (See Hanks & Cass, “Australian Constitutional Law: Materials and Commentary”, 6th ed (1999) at [7.1.6])
It is well established that references to “the Crown” do not mean the monarch in a personal capacity, but that of the body politic. This notion began with Re Stepney Election Petition; Isaacson v Durant (1886) 17 QBD 54 in which Lord Coleridge CJ overturned the previous ratio in Calvin’s Case. He said (at 65-66): “…as the statutes referred to the Crown and not the sovereign, allegiance was due to the King in his politic, and not in his personal, capacity.”
In relation to this case, on page 386 of the The Constitution of New South Wales, Anne Twomey notes that: “At that time, allegiance was to the king or queen in their personal capacity, rather than as a body politic. However, notions of allegiance have since changed. In 1886 in Isaacson v Durant, it was held that allegiance was owed not to the monarch in his or her personal capacity, but rather to the Crown as a body politic. As the body politic was a creation of law, then allegiance could be changed by a law-making authority.”
Isaacson v Durant is also reviewed in Singh v Commonwealth of Australia  HCA 43, in relation to the definition of allegiance: (at 165) “These duties or obligations, whatever their content, are said to be due to the Crown in the “politic” not the “personal capacity” of the sovereign.”
Sue v Hill  HCA 30 details how the expression “the Crown” is used in constitutional theory from 83: “The writings of constitutional lawyers at the time show that it was well understood in 1900, at the time of the adoption of the Constitution, that the term “the Crown” was used in several metaphorical senses. “We all know”, Lord Penzance had said in 1876, “that the Crown is an abstraction”, and Maitland, Harrison Moore, Inglis Clark and Pitt Cobbett, amongst many distinguished constitutional lawyers, took up the point.”
According to Oxford Australian Law Dictionary 2010 Edition, “the Crown” is an “abstract metonymic concept” that “represents the legal embodiment of the executive government”.
Generally, references to the Crown is taken as that of the body politic, so whatever allegiance is owed, is to the body politic of the particular State or Nation, not to the Queen in a personal sense, a point highlighted by Wheeler JA in Glew & Anor v Shire of Greenough  WASCA 260 (from 16), that the change in terminology is entirely consistent with constitutional reality.
Turning to the administrative matters of conducting a private prosecution, it is a policy of the Director of Public Prosecutions for Victoria that the Department of Public Prosecutions will in most cases take over a private prosecution, whether the case has legal merit or not. (see page 19) The prosecutor will take over and discontinue a private prosecution if there is no reasonable prospect of a conviction, or the prosecution is not in the public interest. The prosecutor will also take over and conduct the private prosecution if there is a reasonable prospect of a conviction, and the prosecution is in the public interest, and there is a need for the DPP to conduct prosecution.
It is noted (at 60) that a private prosecution will not be in the public interest if it is vexatious, malicious or an abuse of process, which the particulars in the Statement of Claim most definitely are, having already been rejected in Brian Shaw‘s previous cases in the Supreme Court of Victoria, decisions which are binding on the Myrtleford Magistrates Court.
Anyone in Victoria who pays the $85.70 filing fee can initiate a private prosecution, which is why the process needs certain safeguards to protect against vexatious or frivolous charges which are an abuse of the processes of the court. Most such ridiculous claims are routinely rejected from filing by the Registrar, but occasionally one gets through to the mention stage, where it is simply discontinued by the prosecutor.
In Standing in Public Interest Litigation  ALRC 27 the Australian Law Reform Commission noted that private prosecutions brought by individuals were open to such abuse by frivolous and vexatious litigants against public officials.
Victoria’s Chief Magistrate Lisa Hannan, similarly had a frivolous private prosecution brought against her early in 2021, of one count of perverting the course of justice. The matter was likewise taken over by the prosecutor and promptly withdrawn. The Age: Private prosecutions: the realm of the whacky or power abuse safeguard?:
In Anthony Herman’s case, the administrative matter was more simple. Daniel Andrews had not been served a Notice to Appear, and hence the case could not proceed any further. While the magistrate has the discretion to adjourn for another mention to ensure service of documents, given the charges on their face demonstrate no reasonable prospect of a conviction and are vexatious, chose not to waste further court time on the case. Court Reporter Karen Sweeney:
While attending the protest outside of the Myrtleford Magistrates Court, Dezi Freeman was arrested on sexual assault charges dating back to 2019.
Anthony Herman later claimed the magistrate and staff of Myrtleford Local Court perverted the course of justice by not hearing his oral submission, and vowed to likewise charge each one with “Misprision of treason”.
Brian Shaw also made a speech at the protest outside of the Myrtleford Magistrates Court repeating claims he had made since before he was declared a vexatious litigant, highlighting the fact that he had coached Anthony Herman through his matter.
The Common Law Court also heard charges of treason against Premier Daniel Andrews and Chief Health Officer Brett Sutton. They were indicted by the Common Law Court on the 3rd July 2021, and found guilty of a range of offences by a full jury of their peers on the 24th of November 2021, and subsequently sentenced to imprisonment for life, stripped of all assets, solitary confinement and a variety of other penalties.