R v Stoneman[2013] QCA 209

SUPREME COURT OF QUEENSLAND

THE PRESIDENT:  The applicant was convicted in March 2012 after a summary trial in the Kingaroy Magistrates Court of two offences of driving without a licence under s 78 Transport Operations (Road Use Management) Act 1995 (Qld) ("the Act"), and also for an offence of breaching his bail undertaking.  He appealed against each of those convictions and the sentence imposed in relation to the second driving offence under s 222 Justices Act 1886 (Qld) to the District Court.  On 30 November 2012, the primary judge dismissed the applicant's appeals.  The applicant filed an extension of time to apply for leave to appeal from those orders under s 118(3) District Court of Queensland Act 1967 (Qld).  His application was almost four months out of time.

In order to succeed, the applicant, who was self-represented in this application as he was in the District Court and in the Magistrates Court, must demonstrate two things.  The first is whether there was a good reason for the delay.  The second is whether it was in the interests of justice to grant the extension of time.  The second consideration may involve an assessment of whether the appeal appears to be viable:  see R v Tait [1999] 2 Qd R 667 at 668.

The applicant did not appear at the hearing, but he has put in detailed written material.  It is, therefore, desirable to deal with the application on the written material of the parties and the Court has proceeded on that basis this afternoon.

The applicant's only explanation for the lengthy delay in pursuing his appeal rights in this Court are contained in his application.  They are:

"Delay caused by seeking legal advice on complex matters raised during the District Court appeal.  Application should be granted to ensure justice is served and not diminished by time."

He has not produced any evidence to explain his delay.  Nevertheless, that would not be fatal to his application if he clearly demonstrated that the interests of justice warranted its granting.  In his application, he states that this Court should grant the extension of time "[t]o ensure justice is done and seen to be done".  He gives no further explanation.

The applicant has not filed a proposed notice of appeal but in his outline of argument he raised many issues.  His primary contention was that the District Court judge demonstrated bias by failing to address his arguments and by ignoring crucial facts.  He asserted that the judge erred in not accepting his claim that he had "an unalienable right (no licence required) of the private individual to use the common ways to travel as per the right to life, liberty and the pursuit of happiness".  He also emphasised his contention that s 78 of the Act prohibited only the use of a motor vehicle for commercial purposes.  In light of his allegations of bias, his rehearsal in this application of many of the arguments raised before the District Court judge, I will briefly discuss the District Court judge's reasons for refusing his appeal.

Her Honour rejected the applicant's argument that the Act did not apply to him because he was a freeman on the land and had not consented to membership of the legal fiction known as the State of Queensland, which enacted s 78.[1]  Her Honour also dismissed as senseless and unmeritorious his distinction between travelling on the public road in the exercise of a common law right and driving on a public road.[2]  Her Honour rightly identified that any common law right of freedom of movement on public roads would not be offended by a requirement for a driver to be licensed when operating a motor vehicle on a public road.[3]

Her Honour found the applicant's claim that there was a permanent and irrevocable estoppel against the Queensland Crown to be without foundation.[4]  As the relevant facts placed before the acting magistrate were not disputed and the applicant raised no lawful defence, her Honour rightly found that the charges under s 78 of the Act were proved and that his appeal against conviction in relation to them must fail.[5]

Her Honour also determined that the Magistrates Court registrar, in refusing to issue a subpoena to the former local State Member of Parliament to attend the hearing so that the applicant could question her about whether he had given his consent to her representing or governing him, was of no assistance in his appeal.[6]

As to sentence, the judge rejected the applicant's argument that the acting magistrate had wrongly sentenced him as a repeat offender, an aggravating offence under s 78(3)(h) of the Act.  Her Honour noted that the transcript showed the acting magistrate was aware he was not a repeat offender and certainly did not sentence him on that basis.  The heavier penalty of $300 for the second offence was not excessive.  It was heavier than the penalty for the first offence ($150) but this appropriately recognised the applicant's persistence in driving without a licence.[7]

As to the breach of bail, her Honour noted that the applicant claimed to have signed his bail undertaking under duress; that it was implicit in the police officer's behaviour towards him that unless he signed the bail undertaking he would not be released.  Her Honour rightly held that the proper use of legal process could not constitute duress.  The police arrested the applicant on the second occasion he was found to be driving without a licence to prevent the continuation of that offence and to ensure his appearance in court.  This was a lawful arrest without warrant under s 365 Police Powers and Responsibilities Act 2000 (Qld).  The arrest was undertaken in circumstances where the applicant was refusing to take the notice to appear in relation to the first offence of unlicensed driving.  The police officer was entitled to conclude that it was reasonably necessary to arrest the applicant to prevent the continuation of the offence of unlicensed driving.  Once arrested, the applicant could be released on bail only after giving an undertaking.  This was a statutory requirement and not a matter within the police officer's discretion.  There was no evidence of any unlawful action by the arresting officer in either arresting the applicant or in granting him bail.  The applicant did not contest that he failed to appear in accordance with his undertaking.  His appeal against his conviction for breach of bail, her Honour found, must fail for those reasons.[8]

The applicant has not demonstrated that her Honour's reasons are anything other than patently correct.  The applicant, insofar as he rehearses in this application the arguments raised before the primary judge, must fail as he has not demonstrated any error on the part of the primary judge.

I turn now to his allegation in his written material that the District Court judge was biased in ignoring crucial facts and failing to address his arguments.  The applicant's outline of argument in this respect was not easy to comprehend.  Her Honour was certainly not bound to answer every incomprehensible contention raised by him when the unremarkable proposition that he was bound by the statutory law of Queensland was a complete answer to all his claims.  Her Honour, however, made a commendable effort to answer all his remarkable contentions.  No fair-minded lay observer could reasonably apprehend that her Honour did not bring an impartial and unprejudiced mind to the resolution of the matters before her.  The fact that her Honour received some support in her conclusions from decisions in other cases and jurisdictions is the application of the doctrine of precedent and not an indication of bias.  This ground of appeal is not made out.

He claimed that the District Court judge did not deal with his assertion that he was acting under a mistake of fact.  He had, he stated, an honest and reasonable belief that he did not need to ask for permission to drive his vehicle and did not knowingly and intentionally contravene any law.  This belief provides no defence.  Any such mistake was a mistake of law and not a mistake of fact, and does not undermine the correctness of any of his these convictions.

The applicant next contends that the District Court judge did not deal with his submission that the acting magistrate did not read his submissions.  This probably refers to the acting magistrate's statement in his reasons that the applicant had raised issues that he did not propose to address as they were irrelevant to the charges, and that he raised many matters but not in a way that one could attempt to address them all and comments of that ilk.[9]  The applicant has not demonstrated that the magistrate was wrong in that assessment or that any of the applicant's incomprehensible submissions before the magistrate could have resulted in different orders.  The evidence against him in respect of all three convictions was overwhelming.

The applicant contended hat he was not given notice of the requirement that he appear in Magistrates Court as the letter was sent to the wrong address through the negligence of the clerk of the court.  The applicant has not produced any evidence to support those assertions.  He also contended it was unnecessary for the police officer to arrest him to prevent him continuing to commit an offence because the police officers had seized his only car prior to arresting him.  They could have effectively served the notice to appear in respect of the first offence, he claimed, by placing it in his vicinity or by sending it by registered post under s 56 Justices Act.  Those contentions were not raised before the acting magistrate and it is not proper that they be raised for the first time in this application for an extension of time for leave to appeal from the refusal of his appeal to the District Court.

In conclusion, the applicant has not demonstrated any reason for his delay in bringing this application.  More importantly, he has not demonstrated in any of his many unpromising contentions that if an extension of time were granted he would have any prospect of having his application for leave to appeal granted as any proposed appeal is without prospects of success.  In my view, the application for an extension of time should be refused.

FRASER JA:  I agree.

ATKINSON J:  I agree.

THE PRESIDENT:  That is the order of the Court.