Oberle v Queensland Department of Primary Industries and Fisheries
[2006] QDC 334
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- Oberle v Queensland Department of Primary Industries and Fisheries[2006] QDC 334
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Oberle v Queensland Department of Primary Industries and Fisheries[2006] QDC 334
Oberle v Queensland Department of Primary Industries and Fisheries[2006] QDC 334
DISTRICT COURT | Appeal No D4 of 2006 |
APPELLATE JURISDICTION
JUDGE DODDS
TERENCE JOHN OBERLE | Appellant |
and
QUEENSLAND DEPARTMENT OF PRIMARY INDUSTRIES AND FISHERIES | Respondent |
KINGAROY
DATE 11/08/2006
JUDGMENT
HIS HONOUR: This is an appeal from a Magistrate.
On the 23rd of February 2006 in the Magistrates Court at Toowoomba the appellant was dealt with for four offences of breaching a duty of care to an animal contrary to section 17 of the Animal Care and Protection Act 2001 (the Act). He was fined and ordered to pay Court costs and professional costs, in default levy and distress.
When the matter was called on on the 23rd of February 2006 before the Magistrate the appellant appeared in person and entered a plea of not guilty. Having done that he informed the Magistrate that he was “not obliged to consent to this Magistrates Court hearing this matter because we believe we have a right under the Constitution to a trial by jury.”
There then followed an exchange between the appellant and the Magistrate. The appellant continued to assert a right to a trial by jury calling in support the Australian Constitution, the Magna Carter and his Christian faith. The Magistrate informed him that the matters before him were summary offences and that they would be tried by him, not a Judge and jury.
Eventually the appellant again informed the Magistrate he did not consent to be tried in the Magistrates Court. The Magistrate told the appellant that he would proceed with the trial, the appellant could leave if he wished and he would then proceed in his absence. The appellant departed and the Magistrate then proceeded.
Section 178 of the Act provides:
“(1) An offence against this Act is a summary offence.”
The Magistrate proceeded in the appellant's absence pursuant to section 142A of the Justices Act 1886 which makes provision for proceeding in the absence of a defendant to a matter of complaint.
The notice of appeal gives notice of appeal against conviction and sentence. The grounds of appeal are diverse but may, I think, be distilled as:
the Magistrate and Prosecutor were in breach of the Statute Law of Queensland in not acceding to the appellant's request to trial by jury. Sections 242 and 259 of the Supreme Court Act 1995 are called in aid of this ground;
the Magna Carter is in force in Queensland and supports the appellant's assertion he had a right to a trial by Judge and jury and the Magistrate had no jurisdiction to try him summarily;
a number of imperial statutes were in force in Queensland because of the provision of the Imperial Acts Application Act 1984 Queensland and supported the assertion he had a right to a trial by Judge and jury and the Magistrate had no jurisdiction to try him summarily;
the Magistrate was “a member of an illegal monopoly created by the State of Queensland, from lawyers, entitled The Magistrates Court”;
he had a claim of right under section 22 Criminal Code 1899 (Queensland) and section 9.5 Criminal Code Act 1995 (Commonwealth) “and the Magistrate who pretended to be two Justices of the Peace had never had jurisdiction in such a case”;
the Criminal Code Act 1995 (Commonwealth) defines the State of Queensland as a Commonwealth authority “and its attempt to leave the Commonwealth of Australia has been defeated”;
there was a denial of his Christian right under section 116 of the Australian Constitution to put his “trust in Jesus Christ and a jury of 12, and the State of Queensland has imposed a Jewish or Islamic form of justice-----”;
Christianity demanded two justices, a grand jury of 25, or a jury trial by 12, and all other forms of trial are illegal. The Supreme Court Act 1995 makes this clear.
The appellant's outline of argument and his response to the respondent's outline of argument made general reference to the grounds of appeal and went beyond them in producing, for instance, parts of New Testament scripture, human rights and equal opportunity legislation and the international covenant on civil and political rights.
When the appeal was called on for hearing today the appellant provided further written submissions. They included:
Further reference to section 22 Criminal Code (Queensland) and section 9.5 Criminal Code Act 1995 (Commonwealth) and the assertion that this legislation gives to every person the right to claim freedom of religion under Queen Elizabeth II;
reference to the coronation oath which it is said incorporates the gospels into the law of Australia by the Australian Courts Act 1828, therefore, no Parliament has power to legislate to force a person to worship the State and repudiate Jesus Christ;
reference to various passages of New Testament scripture.
All of these, it was asserted, demonstrate the Queensland Government was acting illegally by imposing summary jurisdiction on Australian subjects of Her Majesty;
additionally, it was asserted section 10.5 Criminal Code Act 1995 (Commonwealth) excuses criminal responsibility for an offence if conduct constituting the offence is justified or excused by another law; section 43 Crimes Act 1914 (Commonwealth), which provides that attempting in any way not especially defined in the act to obstruct, prevent, pervert, or defeat the course of justice in relation to the judicial power of the Commonwealth is an offence, guarantees to everyone due process of law irrespective of the laws of the State; the invention of summary trial by States offends due process of law; section 43 Crimes Act is another or superior law to State law.
Before addressing the diverse grounds of appeal and submissions I will consider the record of proceedings before the Magistrate.
The four charges were contained in one complaint. Section 43 of the Justices Act provides for this in a case, as this case was, where the matters of complaint are or form part of a series of offences or matters of complaint of the same or similar character. No objection was taken to the joinder, nor when the evidence is considered could there have been any valid objection. It could not be said the appellant would have been prejudiced or embarrassed in his defence by the joinder.
Each complaint was in respect of a particular animal although the evidence before the Magistrate related to a large number of stock, all according to the evidence, in poor condition.
The evidence put before the Magistrate consisted of documentary material:
an animal welfare agreement dated 18 December 2002 between the appellant and animal and plant health service inspectors of the Department of Primary Industries. It acknowledged there was not sufficient existing pasture on “York Stud” “for the needs of the number of stock I have on the property”. It acknowledged a management plan both short and long term to provide for the nutritional needs of the stock. The evidentiary purpose of the agreement was to establish that the appellant was aware of his obligations to care for stock;
statements by a scientist (pasture agronomy) and a veterinarian detailing an inspection of York Stud on the 23rd of June 2004, they demonstrated completely inadequate feed for stock and the generally debilitated state of cattle and horses on the property. Photographs supplemented the written statements. One of the horses had a wound on its right front leg circumscribing the leg with the bottom and top skin edges as much as 75 millimetres apart. The horse was moderately lame. Fluid had seeped from the wound and congealed. The surrounding tissues had swollen to approximately twice normal size. Granulation indicated the wound had not been treated at least on a regular basis whereas such a wound should have been treated daily. This animal was the subject of the third complaint. The first complaint related to a young wet cow with a two to three day old calf, high risk due to increasing lactation needs and poor nutrition. The second complaint related to a horse three years of age or thereabouts in very poor condition and at risk. It required quality digestible food. Further documentary material in evidence before the Magistrate included a copy of animal welfare directions dated the 30th of June 2004 given to the appellant;
statements by a veterinarian regarding his observation of stock and pasture on a property “Kenmore”, where the appellant's stock were being agisted, made on the 20th October 2004. Some photos were taken on the visit and were also admitted into evidence. The stock were in very poor condition. Pasture was of poor quality and insufficient. Insufficient supplements were provided. The stock were seized. The fourth complaint related to this visit and related to an approximately two-year-old heifer which had been down for one and a half days and could not rise when assistance was given. It had to be destroyed. This heifer was only slightly worse off than other adult cattle seen in the herd on Kenmore.
The material received by the Magistrate plainly supported a conclusion that the breaches had been proven. Although the record does not show the Magistrate formally announced he was satisfied beyond reasonable doubt the breaches were proven and that he convicted the appellant, he proceeded on the basis the appellant was convicted. The material before him admitted of no other conclusion than the matters of complaint was proven beyond a reasonable doubt.
The maximum penalty for a breach of section 17 of the Act was 300 penalty units or one year's imprisonment. The Magistrate imposed one fine of $2,500 for the four offences. It could not be said such a penalty was manifestly excessive.
I turn now to the grounds of appeal and the submissions.
Section 178 of the Act, as I have indicated, provides that an offence under the Act is a summary offence and section 44 of the Acts Interpretation Act of Queensland provides that for a summary offence the proceeding is a summary proceeding under the Justices Act 1886. Section 22A of the Justices Act provides that Magistrates Courts have civil, criminal and other jurisdiction conferred on them by the Justices Act and other Acts. A single Justice has power to do certain things. See part 3 division 3 of the Justices Act. A hearing must, absent an Act authorising otherwise, be before two or more Justices. Section 27 Justices Act. A Stipendiary Magistrate is empowered to do alone whatever may be done by two or more Justices. Section 30 Justices Act.
Sections 242 and 259 of the Supreme Court Act 1995 Queensland are contained in a part of that Act the purpose of which is to provide for a uniform system of law in all Courts of justice. See section 240. Section 242 provides that:
“the several rules of law enacted and declared by this part shall be enforced and receive effect in all Courts whatsoever in Queensland so far as the matters to which such rules relate shall be respectably cognisable by such Courts”.
Section 259 enacts that it is the duty of a jury to answer any question of fact that may be left to them by the presiding Judge at trial and preserves the right of a party to the proceeding to have the questions submitted and left by the Judge to the jury with “a proper and complete direction to the jury upon the law and as to the evidence applicable to such question”.
Section 259 provides what must occur in a trial with a jury. Neither section 259 nor section 242 say anything about when there is to be a jury as the fact-finding tribunal.
In his outline of submissions the appellant has referred to section 51 of the Supreme Court Act 1995 as supporting his contention that he was entitled to demand the complaints be tried by a jury. It is sufficient to say that the section offers no support to the contention. The section deals with parties to a cause consenting to an issue of fact being left to the decision of the Court. It does not deal with any right to a jury.
The Imperial Act Application Act 1984 provides in section 5 that each Imperial Act in the schedule “shall continue to have the same force and effect (if any) as it had in Queensland immediately prior to the commencement-----”.
The Acts in schedule 1 which the appellant calls upon, referring to them by their short title, are the Magna Carta, due process of law, statute of monopolies, criminal and civil justice.
Due process of law so far as it appears to be relied upon by the appellant provides against penalising a citizen except by due process of law. Due process of law includes summary proceedings for summary offences unless the provision for summary proceeding is beyond the power of the enacting parliament.
The statute of monopolies so far as it seems to be relied upon by the appellant says nothing at all remotely relevant to the mode of trial of a complaint of a breach of duty. A person appointed as a Magistrate and the Magistrates Court has not offended against the provisions of this ancient Act of the Imperial parliament. It is perhaps sufficient to say that the parliament of Queensland is amply empowered to make laws within its jurisdiction providing for conduct and duties of citizens and for modes of trial of complaints of breach of duties within its jurisdiction.
The criminal and civil justice so far as it seems to be relied upon by the appellant provides for the freedom of persons and property except by due process of the law. It has no effect on parliament's provision of a summary proceeding for a summary offence.
Regarding the Magna Carta, attempts to call in aid the Magna Carta is not a novel approach in Courts in Australia in challenging the jurisdiction of a Court. It is sufficient, I think, to refer to the decision of the Court of Appeal of Queensland in the Queen v. Essenberg (2002) QCA 4. The Court consisting of McPherson and Williams JA and Ambrose J dealt with a submission similar to that here. In the judgment of McPherson J referring to the submission, his Honour said:
“The first is that the applicant did not receive a trial by jury which is said to be contrary to provisions of Magna Carta. I suppose it will help no-one to be told that as a matter of history Magna Carta did not guarantee trial by jury because at the time Magna Carta was introduced there was no such thing as a jury. But that is history and is really, in a sense, beside the point. The simple fact is that it is enough to say here that the legislatures of the Australian States and in particular of Queensland, because it is the one involved here, have complete power to repeal Magna Carta, to amend it either expressly or by passing legislation like the Weapons Act 1990 that is or may be inconsistent with it.
If authority is needed for that it is enough to refer to the recent High Court decision in Durham Holdings Pty Ltd v. The State of New South Wales (2001) 75 ALJR 501. There are other decisions of Courts to similar effect including one in the English Court of Appeal entitled Queen (Bancoult) v. Secretary of State (2001) 2 WLR 1291.
The Weapons Act, in conjunction no doubt with the Justices Act, provides for a summary hearing of cases of this kind and in so far as that is in any way inconsistent with Magna Carta, it overrides it.”
The appellant has also made reference to the Australian Constitution and the Criminal Code Act 1991 Commonwealth, section 9.5. He has also asserted he has a defence of claim of right without intention to defraud pursuant to section 22 of the Criminal Code of Queensland and section 9.5 of the Commonwealth Code and that, therefore, the Magistrate's jurisdiction was ousted. He has cited Clarkson v. Aspinall (1950) STRQ 79 as support for a proposition that a claim of right ousts the jurisdiction of Justices.
Regarding that, the rule 66 to ouster of jurisdiction applied when a claim to title to property was raised as Justices had no authority to inquire into any case involving title to real property. No such claim was involved in this case. Apart from that and with reference to section 22 of the Criminal Code, the first thing to notice is that there was no evidence before the Magistrate remotely raising section 22 for consideration. Secondly, evidence before a fact-finding tribunal which raises section 22 of the Criminal Code Queensland for consideration does not oust the jurisdiction of a Magistrate.
With particular regard to the Criminal Code Act 1995 Commonwealth, that Act applies to the laws of the Commonwealth. It does not apply to breaches of duty pursuant to Queensland legislation.
Section 80 of the Australian Constitution provides:
“The trial on indictment of any offence against any law of the Commonwealth shall be by jury----- ”
The section does not apply to offences according to state law. See the decision of the High Court in Byrnes v. R (1999) HCA 38 paragraph 70. Nor does it prevent the parliament providing that an offence may be punishable on summary conviction. See R v Archdall and Roskruge (1928) 41 CLR 128. In that case it was the Commonwealth parliament which had provided for an offence to be punishable on summary conviction.
The references to section 116 of the Australian Constitution, which established freedom of religion without discrimination, human rights legislation, the international covenant on civil and political rights and passages of scripture referred to in the various of the appellant's outlines of argument do not advance the appellant's core contention that he was entitled to have these complaints for breaches of duty under the Act tried before a Judge and jury. They were summary offences according to the Act and were, according to law, to be tried summarily before a Magistrate or two Justices.
Regarding the additional submissions which the appellant provided this morning at the hearing of the appeal, I have considered these. It is, I think, sufficient to repeat that it was entirely lawful and within the power of the Queensland parliament to provide that certain offences or breaches of duty within its jurisdictional reach were summary offences to be dealt with summarily.
None of the additional submissions advances the appellant's core contention that is, establishes that the appellant had any right according to the law to a trial by jury for these matters of complaint.
The appellant this morning asked that the matters be returned to the Magistrates Court for committal proceedings. Such an order is entirely inappropriate for these offences.
The appeal is dismissed.
Anything further?
HIS HONOUR: I order the appellant pay the respondent's costs of the appeal set at $1800.
Mr Oberle, I don't suppose there is any point in saying this to you but I will say it anyway. You really sensibly should obtain some legal advice before you try taking this matter any further otherwise you may continually increase the amount of costs ordered against you. There is no point pursuing a hopeless cause. It is a matter for you.