Citation: R v Kirsten (a pseudonym) [2024] NSWDC 401
Court: District Court of New South Wales
Date: 9 August 2024
Judge: Haesler SC DCJ
Background
The accused, referred to by the pseudonym "Kirsten," faced trial in the Wollongong District Court on a charge of child abduction under s 87 of the Crimes Act 1900 (NSW). The prosecution alleged that in December 2022 she removed her 8-year-old child from the care of a departmental worker during an access visit, placing the child unrestrained in a van before driving away. The child had been placed under the lawful control of the Minister for Communities and Justice following Children's Court proceedings.
Kirsten declined legal representation and presented herself as a "sovereign citizen," asserting she was "a living woman" not bound by the laws or orders of any court. She refused to answer to her legal name, rejected the court's jurisdiction, and handed the care worker a document renouncing all court orders at the moment she took the child.
Over five hearing days, Kirsten repeatedly interjected, talked over the judge and prosecutor, directed personal insults at participants, harassed witnesses (including her own sons), and refused to follow directions. His Honour formed the view early in the trial that her conduct was deliberate and calculated to provoke heavy-handed action, force a jury discharge, and delay resolution of the serious charge against her.
Legal Issues
- What are the duties of a trial judge toward a self-represented accused, particularly one who refuses to cooperate with court processes?
- When and how should a trial judge respond to persistent contempt by an accused during a jury trial, including insulting conduct and deliberate disruption?
- How should a trial judge manage cross-examination by an accused who uses the process to demean or harass witnesses?
- Whether fitness to be tried was raised by the accused's behaviour.
- Whether the trial should have been adjourned at the close of the Crown case.
- Whether a jury discharge was warranted.
- Whether the accused's conduct constituted contempt of court, and the appropriate penalty.
- Whether bail should be refused following conviction.
Decision
His Honour entered a not guilty plea on the accused's behalf after she refused to do so, and empanelled a jury of twelve. Throughout the trial, the judge took a deliberately restrained approach, repeatedly cautioning the accused rather than taking immediate punitive action. He explained that this restraint was strategic: acting forcibly against her risked making her defence impossible and rendering the trial procedurally unfair, which was precisely the outcome she appeared to be seeking.
Fitness to be tried was considered but dismissed as an issue. The accused's behaviour, though disruptive, was found to be wilful and deliberate rather than indicative of any incapacity. This conclusion was confirmed by her own address to the jury at trial's end, in which she described her conduct as a deliberate "performance."
At the close of the prosecution case, Kirsten applied for an adjournment, which was refused. The judge then particularised the contempts, gave her an opportunity to seek legal advice, and warned her of the consequences of continued misconduct. When she persisted with abusive and disruptive behaviour, he found her guilty of contempt of court. She was removed from the courtroom and permitted to appear by video link from the cells under the Evidence (Audio and Audio Visual Links) Act 1998 (NSW), s 5BA. The trial then proceeded to verdict and she was convicted of the child abduction charge.
On the contempt findings, the judge imposed the penalty of detention until the rising of the court, describing this as appropriate in all the circumstances. Sentencing on the principal charge was adjourned to 18 December 2024. A prosecution detention application was granted: because a full-time custodial sentence on the principal charge was considered inevitable, no basis existed under s 22B of the Bail Act 2013 (NSW) to grant bail, and no special or exceptional circumstances were demonstrated.
Orders Made
- Not guilty plea entered on the accused's behalf.
- Accused found guilty of contempt of court; penalty of detention until the rising of the court imposed.
- Accused removed from the courtroom and directed to appear by audio-visual link from the cells for the remainder of the trial.
- Detention application granted; bail refused.
- Sentencing on the principal conviction adjourned to 18 December 2024, with the accused to appear by video link.
Key Takeaways
- A trial judge's duty to a self-represented accused is to ensure they have a fair trial and can make effective choices about the exercise of their rights, but does not extend to directing them how to exercise those rights.
- Deliberate and persistent disruption by an accused does not automatically require a jury discharge or adjournment. The District Court here found that measured restraint, combined with clear and documented cautions, better served procedural fairness than forcible intervention that could have made the accused's defence impossible.
- Where an accused's disruptive conduct is wilful rather than indicative of mental incapacity, fitness to be tried is not necessarily raised. The court assessed all available conduct, including the accused's own explanations, before reaching that conclusion.
- Under s 22B of the Bail Act 2013 (NSW), where a full-time custodial sentence is the inevitable outcome of a conviction, bail must be refused in the absence of special or exceptional circumstances.
- Adoption of "sovereign citizen" ideology, including rejection of the court's jurisdiction and refusal to accept legal identity, does not diminish the court's authority to proceed. An accused retains the right of appeal even while asserting the court has no jurisdiction over them.
Legislation and Cases Referenced
Legislation
- Bail Act 2013 (NSW), ss 22B, 50
- Crimes Act 1900 (NSW), s 87
- Criminal Procedure Act 1986 (NSW)
- District Court Act 1973 (NSW)
- Evidence Act 1995 (NSW)
- Evidence (Audio and Audio Visual Links) Act 1998 (NSW), ss 5BA, 5BB
- Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW)
- Children (Criminal Proceedings) Act 1987 (NSW)
Cases
- Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163
- Bradley v The Crown [2020] QCA 252
- Maher v R [2021] NSWDC 212
- Mahmood v Western Australia [2008] HCA 1; (2008) 232 CLR 397
- Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337
- MacPherson v The Queen [1981] HCA 46; (1981) 147 CLR 512
- Lewis v Judge Ogden [1984] HCA 28; (1984) 153 CLR 682
- Crofts v The Queen [1996] HCA 22; 186 CLR 427
- Kenny v Ritter [2009] SASC 139
- Mohareb v Palmer [2017] NSWCA 281
- Amagwula v R [2019] NSWCCA 15
- Michel v The Queen [2009] UKPC 41; [2010] 1 WLR 879