Hubner v Erbacher[2004] QDC 345

DISTRICT COURT OF QUEENSLAND

1. [1]
   On 25 June 2003 the appellant was convicted in the Magistrates court at Atherton of the following offences:-

1. That on the 28^th day October 2002 at Yungaburra in the Magistrates Court District of Cairns in the State of Queensland he used on a road namely Gordonvale-Atherton Road, Yungaburra, a vehicle namely a motor car which was not a registered vehicle contrary to s 10 of the Transport Operations (Road Use Management – Vehicle Registration) Regulation 1999.

2. That on the 27^th day of October 2002 in the Magistrates Court District of Cairns in the State of Queensland he without reasonable excuse had in his possession a thing that purported to be but was not a number plate.

The appellant appeals to the District Court against his conviction for these offences.

2. [2]
   The trial took place on 25 June 2003 in the Magistrates Court at Atherton before His Worship Mr T Allingham, Magistrate.  At the commencement of the hearing a person by the name of Malcolm McClure purported to appear for the appellant.  After hearing extensive submissions on the point the learned Magistrate refused to permit Mr McClure to appear for the appellant.  This is one matter raised as a ground of appeal against the conviction.  I will return to consider it later.  Ultimately His Worship proceeded on the basis that the appellant pleaded not guilty to the charges.  The prosecutor called evidence from two police officers, Sgt Daniel John Erbacher and Sen Const Paul John Morley.  Evidence was also given by Maureen Bridget Forsayth, an officer of the Queensland Transport Department. 

3. [3]
   Sgt Erbacher and Sen const Morley gave evidence that they were performing road patrols on the Gillies Highway between Yungaburra and Atherton.  The evidence was that the road was also known as the Gordonvale-Atherton Road.  At about 2.10 in the afternoon the officers intercepted a Ford F250 utility which was being driven by the appellant.  The officers noticed, attached to the vehicle, what appeared to be a number plate bearing the numbers 351-F250.  It had the letters AUS printed down the side of the number plate and the words “HM ELECTORS PARLIAMENT QUEENSLAND” printed underneath the number.  Const Morley asked the appellant to produce his driver’s licence which he did and which confirmed the appellant’s identity.  Const Morley asked the appellant where he had obtained the number plate and he responded that he had bought them from a friend in Victoria for $400.00.  Morley also noticed that there was not a Queensland Transport registration sticker attached to the vehicle and when asked why, the appellant replied that he did not need a registration sticker because it is his right under the Constitution and the Magna Carta 1215 and he believed he did not need one.  Const Morley seized the registration plates and they were tendered to the Court.  The evidence was that the appellant’s home address was Park Avenue, Yungaburra.  That is consistent with all of the appeal documents filed by the respondent. 

4. [4]
   Sgt Erbacher gave evidence that the following day, 28 October 2002, he and Morley were again on patrol on the Gillies Highway near its intersection with Marks Lane.  At about 12.30 pm they intercepted the same orange Ford F250 model utility which they had seen the day before and they again observed the appellant to be the driver.  When asked to explain, the appellant once again asserted that according to the Magna Carta and the Constitution he was not obliged to have the vehicle registered.

5. [5]
   Maureen Forsayth gave evidence of having searched the Queensland Transport records. She ascertained that the orange Ford F250 utility had previously been registered to the appellant but that the registration expired on 31 July 2002.

6. [6]
   The appellant did not give evidence at the trial and nor did he attempt in any way to dispute the factual evidence given by the prosecution witnesses. In fact, he specifically told His Worship that what the prosecution witnesses had said in evidence was true (T 44 L50).

7. [7]
   As to the first offence of which the appellant was convicted s 10 of the Transport Operations (Road Use Management – Vehicle Registration) Regulation 1999 provides as follows:-

8. [8]
   As to the second offence s 76 of the Regulation provides as follows:-

9. [9]
   As I have said the appellant did not in any way attempt to dispute the prosecution evidence. He accepted that the evidence put forward in the prosecution case was true. Rather, in the court below and on appeal, he directed his arguments towards demonstrating that either the relevant regulation was not a valid law or that other legal rights, which he claimed to have, prevailed over such law. Some of the rights/freedoms which he asserted either in the court below and/or on appeal are as follows:-

10. [10]
    What the appellant seems to have conveniently overlooked or failed to appreciate is that there is a hierarchy of laws. The supreme laws so far as Queensland and people within the State of Queensland are concerned, are the laws of the Commonwealth Parliament enacted pursuant to the provisions of the Commonwealth of Australia Constitution Act and the laws enacted by the Queensland Parliament pursuant to the Constitution Act of 1867 as amended (the Constitution of the State of Queensland).  I am indebted to Chesterman J for his judgment in the Court of appeal case of Carnes v Essenberg & Ors 1999 QCA 339 (23 August 1999).  In that case the appellant was convicted in the Magistrates Court at Kingaroy for offences against s 50 of the Weapons Act.  In that case the appellant relied expressly on the provisions of Magna Carta.  However, the reasoning which applied to the Magna Carta applies equally to any other rights which may be asserted on the basis of the common law, natural law, the Bill of rights 1688 or any other claimed source of freedom or legal right.  His Honour said:-

“Mr Essenberg has two points.  He maintains that Magna Carta was and remains a pre-eminent source of legal obligation binding on all courts and governments and that any subsequent developments of legal principle or enactments of parliament that have occurred in the last 800 years that might be thought to have diminished the force of Magna Carta are invalid.  By its terms he claimed a right to trial by jury. But the proceedings brought against him for contravention of the Weapons Act were simple offences prosecuted before a Magistrate.  Mr Essenberg has a second point.  He claims that by the Bill of Rights 1688 he as a citizen has a right to bear arms suitable for his defence.  He asserts that that right also remains untouched by 300 years of legal and political development.  He argues that the Weapons Act is invalid because it takes away that right.  Magna Carta formed part of the system of imperial laws which apply to the colonies of eastern Australian on their settlement.  So did the Bill of Rights.  The historical importance and the influence on the constitutional development in English speaking countries of those two enactments are profound.  However it is completely inaccurate to say that colonial parliaments or indeed the Parliament of Westminster could not alter, modify or even repeal the provisions of centuries old legislation.  The Australian Courts Act 1828 was enacted by the imperial parliament to allow for the establishment of an organised judiciary in the colonies and to facilitate the making of local laws.  Section 24 provided that –

 “All laws and statutes in force within the realm of England at the time of the passing of this Act shall be applied in the administration of justice in the Courts of New South Wales so far as the same can be applied within the said colonies and it shall be lawful that the governors of the said colonies respectively with the advice of legislative councils of the said colonies to make and establish such limitations and modifications of any such laws and statutes as may be deemed expedient.”

The Australian Courts Act became part of the law of Queensland upon its separate establishment in 1859.  It may be noted also that the Colonial Laws on Validity Act 1865 was passed by the Imperial Parliament to remove doubts about the extent to which Australian colonial parliaments could alter Imperial legislation as it applied to the colonies.  As Dr Lumb points out in his work on the Constitution of the Australian States, the result of that Act was that no colonial law was void on the ground that it was repugnant to the fundamental principles of English law.  The matter is made even more explicit by s 3(2) of the Australia Act 1986 which provides that no law and no provision of any law made after that Act by the Parliament of the State shall be void or inoperative on the ground that it is repugnant to the laws of England or to the provisions of an existing or future Act of Parliament of the United Kingdom.  The supremacy of parliament to make laws contrary to what had been the common law is expressly recognised by the courts.  It is enough to refer to the decision of the High Court in Kable v The Director of Public Prosecutions 189 CLR 51 at pp 73-74 in the judgment of Justice Dawson.  His Honour pointed out that that champion of the common law Chief Justice Coke had, in his institute of the laws of England in the early 17^th century accepted that Magna Carta could be altered by English Parliament.  Indeed he referred to Bills of Attainder which allowed for trial contrary to Magna Carta as being lawful enactments.  Justice Dawson went on:-

 “Judicial pronouncements confirming the supremacy of parliament are rare but their scarcity is testimony to the complete acceptance by the courts that an Act of Parliament is binding upon them and it cannot be questioned by reference to principles of a more fundamental kind.”

The passage goes on and concludes:-

 “There can be no doubt that Parliamentary supremacy is a basic principle of the legal system which has been inherited in this country from the United Kingdom.”

That is enough to dispose of the arguments that Magna Carta and the Bill of Rights are untouchable and unalterable sources of private rights or immunities.  The Criminal Code and the Justices Act of Queensland have changed the manner in which prosecutions may be brought.  The Weapons Act has abrogated the right of citizens to go armed in public.”

11. [11]
    The law making powers of the Legislative Assembly of the State of Queensland are contained in s 9 of the Constitution Act 1867 and still apply.  That power is “to make laws for the peace, welfare and good government of the colony in all cases whatsoever”.  These words have traditionally been used to confer “the widest legislative powers appropriate to a sovereign”.  See Ibralebbe v The Queen 1964 AC 900 at 923 and Union Steamship Co of Australia Pty Ltd  v King (1998) 166 CLR 1 at 9-10.  They have been held to admit of no inquiry by the courts as to whether as a matter of fact or law a particular statute is or is not a prudent exercise of the power or is calculated to attain its particular end or object.  See Reil v The Queen (1885) 10 Appeal Cases 673 at 678.

12. [12]
    The Parliament of Queensland passed the Transport Operations (Road Use Management) Act 1995.  The Act received Royal Assent on 5 April 1995.  All provisions of that Act had commenced by 1 July 1995. 

13. [13]
    Section 171 of the Act so far as is relevant provides as follows:-

14. [14]
    I turn now to the Commonwealth of Australia Constitution Act.  Section 4 of the Australian Constitution preserves the law making powers of the State Parliaments subject to the provisions of the Constitution.  Section 52 of the Australian Constitution provides for a list of exclusive powers of the Commonwealth Parliament.  They did not include the power to make laws in relation to transport operations and road use management.  Chapter V of the Australian Constitution deals specifically with the States and preserves the constitution of each of the States.

15. [15]
    The appellant sought to rely on certain sections of the Australian Constitution; I will deal with them briefly in turn. Section 92 of the Constitution provides, so far as is relevant:-

“On the imposition of uniform duties of customs, trade, commerce and intercourse among the States whether by means of internal carriage or ocean navigation shall be absolutely free.”

 There is nothing inconsistent with the provisions of the Act and Regulation and s 92 of the Australian Constitution.  The provisions of the Act and Regulation dealing with transport operations and road use management and vehicle registration within the State of Queensland having nothing whatsoever to do with trade, commerce and intercourse amongst the States.

16. [16]
    Section 116 of the Australian Constitution provides as follows:-

“The Commonwealth shall not make any law for establishing any religion or for imposing any religious observance or for prohibiting the free exercise of any religion and no religious test shall be required as a qualification for any office or public trust under the Commonwealth.”

 Firstly, the Queensland Acts are not laws purportedly made by the Commonwealth.  Secondly, the Act and Regulation have nothing to do with religion.

17. [17]
    Section 117 of the Australian Constitution provides as follows:-

“A subject of the Queen resident in any State shall not be subject in any other State to any disability or discrimination which would not be equally applicable to him if he were a subject of the Queen resident in such other State.”

 In my view this section has no application.  Mr Hubner is a resident in Queensland, the relevant laws which he purports to attack are not the laws of any other State, they are the laws of Queensland.

18. [18]
    Finally, I return to the appellant’s complaint that His worship did not permit Mr McClure to appear for him during the course of the trial. So far as relevant s 72 of the Justices Act 1886 provides as follows:-

“Every complainant shall be at liberty to conduct the complainant’s case and to have the witnesses examined and cross-examined by the complainant’s counsel or solicitor and every defendant shall be admitted to make the defendant’s full answer and defence to the charge and to have the witnesses examined and cross-examined by the defendant’s counsel or solicitor.”

There is no scope within this section giving the appellant any right to have Mr McClure appear for him.  It was not disputed that Mr McClure was neither counsel nor solicitor.  Nevertheless it would have been open to His Worship to exercise his discretion to permit Mr McClure to appear for the appellant or even to act as a “Mackenzie friend”.  See Mackenzie v Mackenzie (1971) p 33.  I also point out that there is no right under Australian law to have a Mackenzie friend in a criminal proceeding, which this was.  A defendant in a criminal proceeding has a right to a fair trial.  Under some circumstances this may require the court to permit the defendant to have a Mackenzie friend to assist him.  However, it is ultimately for the discretion of the court trying the case and an appellate court will not interfere with the exercise of a discretion unless it can be demonstrated that a defendant has not received a fair trial.

19. [19]
    So far as the facts of the case are concerned the appellant can make no complaint about the fairness of the trial. The evidence was relatively brief and as he pointed out he accepted the truth of it. He therefore needed no assistance in cross-examining the prosecution witnesses or in giving any evidence himself. It seems to me that the only assistance which Mr McClure was likely to give the appellant was in the presentation of the unrealistic and unmaintainable arguments which I have dealt with above. I point out that if Mr McClure’s assistance was critical the appellant has had many months to enlist the aid of Mr McClure in the preparation of written submissions which could have been put before the court. In fact I detect that he may well have received some assistance from Mr McClure in the compilation of his outline of argument. In the end therefore I am not at all satisfied that the failure to permit Mr McClure to either represent the appellant or act as his Mackenzie friend in any way undermined the fairness of the trial.

20. [20]
    In conclusion in my view there is no merit at all in the appeals and they should be dismissed. I will hear any submissions in relation to the costs of the appeals.