Buchanan JA

A benevolent Court and the hopeless application

A friend forwarded me this entertaining demonstration of the unwavering patience shown by our courts to litigants in person who allege the existence of secret masonic conspiracies -- particularly when, as in this case, an interesting (if obscure) point of criminal procedure is raised. This judgment of the Full Court concerns an ex parte application to summon a grand jury pursuant to s 354 of the Crimes Act 1958 (Vic), a procedure (one of the few on the books still to refer to 'men') which has been repealed in all other Australian law areas. As to the construction of that section, the Court overruled a previous decision of the Full Court, instead holding that the Court retains discretion whether to order the summoning of a grand jury.

However, the real fun begins at paragraph 15, where the Court makes fairly extensive comments about the 'highly unusual facts of this case' (at [14]) (emphasis added):

[15]... Mr Shaw explains that he has concealed his address because every Freemason has taken an oath to maim or kill. Although his Honour is not named as one of the alleged offenders for the purposes of the present application, the material alleges that one judge of the Supreme Court and his associate have committed a criminal offence by attempting to pervert the course of justice. ...

[16] The exhibits to the affidavits in support of the application are numerous and most varied. Sometimes they are themselves copies of affidavits. At times they consist of extracts from an Act of Parliament. Sometimes they contain long passages from the Scriptures ... One affidavit of Mr Shaw, comprising, with exhibits, some 50 pages, deals with the prosecution of a woman ... last May on a charge of speeding. ... Matters which he attempted to debate included whether the 1855 Constitution was lawful and ... whether the statutes of this State were invalid by reason of the invalidity of that Constitution ... With the assistance no doubt of Mr Shaw, [the woman] unsuccessfully tried to appeal to the Supreme Court against her conviction and fine, basing herself either on the Constitution of 1855 or -- it is not clear -- the supposed invalidity of that Constitution. ...

[22] The material contains a large collection of what are in some sense said to be Masonic oaths. ... Most of the oaths are notable for the imprecation with which they conclude. The taker of the oath asks that if he should violate it his tongue be torn out by the root and buried in the sand of the sea at low water mark or a cable's length from the shore; or that he "incur the fearful penalty of having my eyeballs pierced to the centre with a three-edged blade"; or that his left breast be laid open and his heart torn therefrom and given to the ravenous birds of the air or devouring beasts of the field as a prey; or that the wine he now drinks become a deadly poison to him, as the hemlock juice drunk by Socrates, and that the cold arms of the skeleton -- a role played "convincingly" by a costumed colleague -- should forever encircle him. These are all very colourful, but it is, if we may say so, childish to imagine that a man who takes an oath of this kind -- if indeed men do so nowadays -- is, by reason of the colourful images in the imprecation, to be regarded as a potential murderer or a potential victim of murder.

Unsurprisingly, the application was unsuccessful:

[24] There are several reasons why this application must fail. One or two of the defects are, or may be, capable of being cured, but we should make it clear that in our view there is no reason for supposing that the papers ever would or ever could be put into a state which would warrant the summoning of a grand jury. There is a wide range of deficiencies. Most of the affidavits fail to state the deponent’s place of residence. … In addition, the affidavits are objectionable by reason of the way in which they put before the Court a hotch-potch of documents and assertions, inadequately identified and sourced. No-one would wish to see an applicant in person suffer as a result of inability to assemble and verify material as a lawyer would, but benevolent indulgence cannot be stretched to the point of accepting what has been put forward in this case. Quite apart from questions of proper form and admissibility, even applicants in person cannot expect a court to wade through material of the present kind in the hope that there may be found “a grain or two of truth among the chaff”. What, for example, are we expected to make of the vicissitudes of Mr Fyffe, said to be currently lodged in Port Phillip prison for threatening to kill, or those which have beset Ms McKinnon in her attempts to defeat her prosecution for a traffic offence? …  Read more »

Citation: Application by Shaw [2001] VSCA 175 (12 October 2001)
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