Pettet v Van der Merwe[2014] QDC 163

DISTRICT COURT OF QUEENSLAND

1. [1]
   HIS HONOUR: This is an appeal pursuant to section 222 of the Justices Act 1886 against convictions, sentences, and costs orders imposed by her Honour Magistrate Tonkin in the Caloundra Magistrates Court on the 21^st of February 2014. The appellant, Ian Edward Pettet was before the Court on two offences of failure to vote.  

2. [2]
   Firstly, it was alleged that Mr Pettet had breached section 168(1) of the Local Government Electoral Act 2001. The complaint of the respondent made under oath by complaint filed on the 24^th of October 2013 was to the effect that “between the 16^th of April 2012 and 6 pm Saturday, the 28^th of April 2012“, within the Local Government area of Sunshine Coast Regional Council in the Maroochydore Magistrates Court District in the (State of Queensland), Ian Edward Pettet, an elector for an election, did fail to vote at the election without a valid and sufficient reason in contravention of section 168(1) of the Local Government Electoral Act 2011.

Particulars

3. [3]
   That at that place and time aforementioned:

   1. Ian Edward Pettet was enrolled on the voters’ role as an elector for the electorate of Division 1 (Sunshine Coast Regional Council).
   2. A local government election was held on 28 April 2012 (“the election”).
   3. Ian Edward Pettet did not vote at any polling booth within the local government area of Sunshine Coast Regional Council or any other place where he could have voted in accordance with the Local Government Electoral Act 2011.
   4. Ian Edward Pettet advised the Electoral Commission of Queensland that his reasons for not voting were:
      1. (a)
         He does not believe that he should have to vote in elections, as parliamentarians are not required to vote on every Bill;
      2. (b)
         Any Act of Parliament proclaimed in the name of Queen Elizabeth II is constitutionally invalid, as it is proclaimed in the name of a foreign monarch;
      3. (c)
         Compulsory voting is not democratic;
      4. (d)
         It is unfair that he is being fined for not voting when informal voters do not get fines;
      5. (e)
         No penalty should be attached to not voting, as it is victimless crime;
      6. (f)
         He wishes to disenfranchise himself from the voting process, as he believes his vote does not count;
      7. (g)
         He objects to statutory obligations being imposed on him by laws that were passed before he was born;

Or words to that effect.

5. Ian Edward Pettet did not provide to the Electoral Commission of Queensland a valid and sufficient reason for failing to vote at the election.

4. [4]
   He was further charged by way of complaint of the respondent with contravention of section 186(1)(a) of the Electoral Act 1992. Relevantly, the complaint sworn by the respondent was in the following terms:

“Between 2 March and 6 pm Saturday, 24 March 2012 at Caloundra in the Magistrates Court district of Maroochydore in the said State, Ian Edward Pettet, an elector, did fail to vote at an election without a valid and sufficient excuse in contravention of section 186(1)(a) of the Electoral Act 1992“.

Particulars

5. [5]
   That at the place and time aforementioned:

   1. Ian Edward Pettet was enrolled on the electoral role as an elector for the electorate of Caloundra.
   2. A general election was held on the 24^th of March 2012.
   3. Ian Edward Pettet did not vote at that election.
   4. Ian Edward Pettet was issued with a notice of failure to vote by the Electoral Commission of Queensland pursuant to section 134 of the Electoral Act 1992.
   5. Ian Edward Pettet advised the Electoral Commission of Queensland that his reasons for not voting were:
      1. (a)
         He does not believe that he should have to vote in elections, as parliamentarians are not required to vote on every Bill;
      2. (b)
         Any Act of Parliament proclaimed in the name of Queen Elizabeth II is constitutionally invalid, as it is proclaimed in the name of a foreign monarch;
      3. (c)
         Compulsory voting is not democratic;
      4. (d)
         It is unfair that he is being fined for not voting when informal voters do not get fines;
      5. (e)
         No penalty should be attached to not voting, as it is victimless crime;
      6. (f)
         He wishes to disenfranchise himself from the voting process, as he believes his vote does not count;
      7. (g)
         He objects to statutory obligations being imposed on him by laws that were passed before he was born;

Or words to that effect.

6. Ian Edward Pettet did not provide to the Electoral Commission of Queensland a valid and sufficient excuse for failing to vote at the election.”

6. [6]
   When the appeal came on for hearing this morning at 10 am, Mr Pettet did not appear. Earlier this week, he had responded to an email from the Registrar sent at my direction to the parties concerning a matter of law not raised by him in his notice of appeal. He also filed an appeal book on the 22^nd of July 2014. Yesterday, he advised the Registrar by email that all through this week he had been endeavouring to file an application in the Brisbane registry of the High Court, presumably pursuant to section 40 of the Judiciary Act, to remove these proceedings to the High Court. In none of the earlier documents to which I have referred that he forwarded this week did he make any mention of this. His email was brought to my attention this morning. The respondent also had no notice until this morning.

7. [7]
   Mr Pettet advised that he would be attending at the Brisbane registry of the High Court at 9 am today and would be late for these proceedings. This appeal had been listed for many months. The respondent appeared, represented by counsel and an instructing solicitor. The issue that he mentioned, as I’ve noted, was not raised in the documents received earlier this week. As the transcript of the proceedings below demonstrate, he deliberately removed himself from those proceedings for the same alleged reason; that is, he intended to apply to remove those proceedings to the High Court.

8. [8]
   I directed the registrar to inform him by email that the appeal would proceed as listed, but that if he wished to participate by telephone, he could. In any event, as I indicated on the record this morning in his absence, his many and varied arguments and complaints are in writing and were before her Honour and, with supplementary outlines and other documents, are before me. It was clearly an attempt to delay the appeal for no valid reason. In any event, Mr Pettet did take up my offer to appear by telephone and he did appear after a short adjournment and made some submissions. He has made the effort to appear this afternoon in person.

9. [9]
   The history of how the matters came before her Honour is complex and, to some extent, relevant to the complaints that the appellant now makes on the appeal. As I’ve indicated, the appeal is pursuant to section 222 of the Justices Act 1886. It is to be by way of rehearing on the evidence before the Magistrate. However, the Court may give leave to adduce new evidence if the Court decides that there are special grounds for giving leave:  section 223. This was not a case in which issues of credibility and reliability arose. The principles enunciated in House v the King (1936) 55 CLR 499 require that, to be successful, the appellant must establish that her Honour’s decision was wrong and resulted from some legal, factual, or discretionary error.

10. [10]
    It is accepted that it was for the complainant in the Court below to make out the elements of each offence charged in the complaints beyond a reasonable doubt. The appeal against sentence and costs is limited to the ground that the sentences and costs orders were excessive.

A brief history of the proceedings

11. [11]
    A huge volume of written material was filed in the lower Court, which was the subject of a lengthy preliminary argument before her Honour, which focused on a number of preliminary matters raised by the appellant. I am grateful to the respondent for his summary of the timeline of events for both complaints, which I adopt and annex to these reasons and maintain the marking of A and B. As those events indicate, Mr Pettet had filed a number of written documents in which he raised a number of issues. He also applied for an order that he had no case to answer, to which the respondent had, in turn, responded by way of submissions and material in writing. Before her Honour, Mr Pettet argued that the Electoral Act 1992, the Local Government Electoral Act 2011 and the State Penalties Enforcement Act 1999 were not effective laws as they were unconstitutional as they had been assented to by the Government of Queensland as “a proxy of the Queen” who is a “foreign power”. Her Honour rejected that argument and then dealt with a number of the other arguments. These are conveniently summarised at paragraphs 20 to 21 of the respondent’s outline of submissions filed on the 19^th of May 2014, and I adopt them:

20. “The appellant then brought an application to have the complaints against him dismissed on the following grounds:

1. (a)
   the complaints were made out of time;
2. (b)
   the decision by SPER to cancel the enforcement orders for his non-payment of the fines was improper;
3. (c)
   the Prosecution has made false and misleading statements and has failed to disclose material by not disclosing on the complaint that there had been previous proceedings in the Southport Magistrates Court;
4. (d)
   double jeopardy;
5. (e)
   the complainant is estopped from proceeding against the defendant as a result of earlier proceedings; and
6. (f)
   abuse of process.

21. Magistrate Tonkin ruled:

1. (a)
   the complaints were made within time;
2. (b)
   SPER was empowered to remake its decision to withdrawn the enforcement orders;
3. (c)
   the Prosecution did not make a false and misleading particular in not disclosing on the complaint the proceedings that had taken place in the Southport Magistrates Court;
4. (d)
   there had been no double jeopardy;
5. (e)
   the respondent was not estopped from proceeding against the Appellant by virtue of the Appellant’s failed application to have the enforcement orders withdrawn;
6. (f)
   there had been no abuse of process by the Prosecution.”

12. [12]
    The summary trial had commenced prior to all these arguments being made with her Honour reading out the charges to Mr Pettet to which he pleaded not guilty. After being unsuccessful in all his applications, Mr Pettet deliberately left the courtroom despite her Honour making it clear that she would proceed with the hearing of the complaint under section 142A of the Justices Act 1886. She then proceeded to deal with both matters. She convicted him, fined him $100 for each offence (surprisingly, the maximum) and ordered him to pay $4000 in costs based on an affidavit from the lawyer employed by Crown Law who had provided an estimate of costs, including counsel’s fees which far exceeded the amounts ordered.

The appeal

13. [13]
    The notice of appeal was filed on the 21^st of March 2014. To say it is difficult to follow is an understatement. The appellant filed his outline on the 22^nd of April 2014 and a document called a “Notice of Constitutional Matters” on the 6^th of May 2014. He filed his own certificate of readiness dated the 12^th of June 2014 and an appeal book on the 22^nd of July 2014, and from all these documents, I have endeavoured to discern (with the assistance of the respondent) the grounds of appeal.

Ground 1: Her Honour should not have proceeded to hear the matters as a result of the constitutional issue.

14. [14]
    Although Mr Pettet now purports to have abandoned the constitutional argument he made before her Honour, it’s necessary for me to say that, as the timeline indicates, out of an abundance of caution, the respondent had issued notices pursuant to section 78B of the Judiciary Act 1903 (Cth) to the defendant and all Attorneys General for the Commonwealth States and Territories. None elected to respond. The appellant now claims that the notices did not properly describe his argument. I reject that contention.

15. [15]
    Paragraph 3 of the notices succinctly described the appellant’s argument below which her Honour rightly rejected as being based on a complete misunderstanding of the High Court’s decision in Sue v Hill (1998) 199 CLR 462. That case was concerned with whether a citizen of a foreign country could be elected as a Senator or Member of the House of Representatives by reference to section 44 of the Constitution.

16. [16]
    The appellant now asserts that her Honour had no power to adjudicate on constitutional matters. A Magistrate is not empowered under the Justices Act 1886 to consider whether a party has raised an argument involving interpretation of the Constitution, but is so empowered under section 39(2) of the Judiciary Act. I agree with the respondent that no matter arose in the proceedings which involved “a matter arising under the Constitution” or “involving its interpretation”. Here however, as noted above, notice had been given under section 78B out of an abundance of caution.  As her Honour noted, if correct, the argument advanced by the appellant below would invalidate all Queensland Legislation, a plainly absurd result. As the transcript reveals, when faced with the failure of his no case submission, the appellant removed himself from the proceedings threatening then to make application to remove the matter to the High Court pursuant to section 40(1) of the Judiciary Act.

17. [17]
    As the lower Court proceedings record reveals, when the respondent gave the notices under section 78B, the appellant was well aware of his right to apply “at any stage of the proceedings before final judgment” to seek an order to remove the proceedings to the High Court and did not do so. As far as I know, he still has not done so, and certainly no order has been made by the High Court. There is no substance in his complaint now that he was not given an opportunity to do so. Any application to remove in my opinion would have been doomed to fail. To use the expression used in Kosteska v Commissioner of Police [2011] QCA 266, in relation to section 78B(1) of the Judiciary Act, “the contention raised is plainly unarguable”.

Ground 2

18. [18]
    The matter now raised in the appellant’s notice pursuant to section 78B filed 6^th of May 2014 is difficult to discern. It appears to revert back to the decisions made by SPER on the 13^th of September 2013 in relation to two enforcement notices issued by SPER to the appellant to suspend his driver’s licence until the amount owing was paid or compliance otherwise entered into. As the affidavit of Sheeree Nitkiewicz, manager with SPER, which was filed before her Honour in the preliminary argument attests, SPER advised the appellant of his right to apply to cancel the notice pursuant to section 56 of the SPER Act.

19. [19]
    This affidavit, as I note, was before her Honour in the preliminary legal argument of the proceedings below because the appellant had applied to join SPER in the proceedings which he abandoned on the basis of the information contained in the affidavit.

20. [20]
    The Registrar cancelled the appellant’s applications and deferred enforcement to allow him further time to confer with the Electoral Commission. The appellant then advised SPER that he wished to have the matters the subject of the enforcement notices heard by a Court. As the timeline indicates, he actually made application to a Magistrate in Southport for a full hearing on the issue of compulsory voting, a stay of the enforcement notice, and the opportunity to raise “constitutional” matters. Not surprisingly, that application was unsuccessful, essentially, for procedural reasons.

21. [21]
    On the 13^th of September 2013, Ms Nickowtiz reviewed the whole file. She effectively decided to give him his day in Court, as he had sought. She then “remade” the decision to cancel his application to cancel the enforcement orders by approving the application, which had the effect of referring the original infringement notices back to the Electoral Commission. In doing this, she relied on section 24AA of the Acts Interpretation Act 1954. The appellant was advised of the decision by letter dated 13^th of September 2013.

22. [22]
    It is this decision that the appellant now seeks to impugn as “an exercise or purported exercise of so called judicial power by the SPER Registrar”. This is not an argument he made below, nor is it articulated clearly as a ground of appeal. It is raised in his section 78B notice.

23. [23]
    The point is entirely unmeritorious. The Registrar exercised power given to her under the SPER Act as interpreted (correctly in my view) by reference to section 24AA of the Acts Interpretation Act, which is not the exercise of judicial power: Huddart, Parker & Co Pty Ltd v Moorehead (1909) 8 CLR 330 at 357. The appellant also appears to contend that he was denied procedural fairness by the Registrar. As the whole affidavit of Ms Nitkiewicz indicates, SPER not only complied with its statutory decision-making powers, it bent over backwards to be fair to the appellant and ultimately to give him the chance to test his contentions in Court, which he had sought on many occasions. The consideration of an application to cancel an enforcement order may be done in the absence of an applicant:  s 57(3) of the SPER Act.

Ground 3

24. [24]
    This ground relates also to issues raised in ground 2. The appellant contends that SPER was not empowered to remake its decision to withdraw the enforcement orders. One of his arguments before her Honour (rightly rejected by her) was that the summonses issued by the complainant were issued out of time. This is a reference to section 52 of the Justices Act 1886 which provides a limitation period of one year “from the time when the matter arose”. The appellant’s argument below was that  as the “matter arose” when he failed to vote, for example, in the Local Government election on the 28^th of April 2012 and the 24^th of March 2012 in relation to the State Election, and the complaint was not made until the 23^rd of October 2013, therefore, both were out of time.

25. [25]
    As her Honour, in her succinct reasons observed, section 52(1) provides for the time limit “unless some other time is limited for making complaint by the law relating to the particular case”;  and in this case, section 60(4)(c) of the SPER Act provides for exactly that. It states (relevantly): 

(4) “... if a relevant enforcement order is cancelled –

... (c) the period of limitation within a which proceeding for the offence to which the order relates may be started for the matter  starts on the day the order is cancelled.”

26. [26]
    For the reasons expressed by her Honour at 1-37, line 28 to 1-38, line 14 of the transcript, I agree that the registrar was empowered to remake the decision to cancel the application made by the appellant and to approve his application, which resulted in a referral back to the Electoral Commission and to the appellant having his day in Court. His contention that there is a second application which grounded the 13 September decision is not grounded in any fact. There is no merit in this ground.

Ground 4:  the appellant was not eligible to vote in either election.

27. [27]
    I think this is what is referred to in ground 1 of the notice of appeal, as “an obvious, non-fact”. This was not raised before her Honour. Indeed, the matter proceeded below on the basis that although he was eligible to vote, he chose not to for the complex reasons portrayed in his written arguments below, essentially, however, because he is fundamentally opposed to compulsory voting. I infer that his argument arises out of the affidavits of Ms Nitkiewicz and Ms Morrison (Crown law lawyer) with carriage for the matter for the respondent, which were before her Honour in relation to the preliminary arguments.

28. [28]
    Both parties have proceeded on the basis that (to the extent relevant to the charges for her Honour), this material did not form part of the evidence for her to consider. Now, effectively, the appellant’s argument is that because he had not lived at the Landsborough address where he was enrolled to vote for some years, therefore, he was ineligible to vote. He makes an alternative argument to the effect that if despite being ineligible to vote, since the person resides elsewhere, nevertheless, the person is liable to be prosecuted for failing to vote;  somehow or other, that involves an impermissible exercise of judicial power.

29. [29]
    These arguments are baseless. I’ve read and considered the respondents’ submissions in paragraphs 75 to 100 and I agree with them. The Electoral Act clearly places the onus on the elector who is enrolled to notify the electoral registrar of any change of address. This is entirely consistent with a compulsory voting system, which the appellant is fundamentally opposed to. In the material he sent to SPER, which is exhibited to Ms Nitkiewicz’s affidavit, is material which indicates that after the appellant first came to the notice of the Commission for failing to vote in the 2009 State election, he went to the Commission’s office and refused its request to enrol as an itinerant voter. He remained enrolled to vote in the electoral districts of Caloundra and division 1 of the Sunshine Coast Council.

Ground 5: Abuse of process, errors of law

30. [30]
    Essentially, the issues raised by the appellant under this general heading have been canvassed above. I’ve read the transcript of the proceedings below and it is clear that her Honour afforded every courtesy to the appellant, and was fair but firm, ensuring that he understood the processes of the Court. There is no merit at all in any of these arguments raised by the appellant.

Section 142A point

31. [31]
    Over the weekend, I was able to read the whole of the record from the proceedings below and her Honour’s reasons, together with the voluminous material on the Magistrates Court file, and lodged on appeal. I was concerned that in proceeding pursuant to section 142A of the Justices Act, her Honour had erred, in that the correct section was section 147. I invited further submissions on this point. Both parties argued (for quite different reasons) that her Honour had proceeded under the correct section.
32. [32]
    After receiving submissions and at the commencement of the hearing this morning, I was of the fairly firm view that her Honour had erred and, as the record will show, when Mr Pettet was not present, a discussion was held between myself and Ms Galbraith as to whether or not she could tender a certificate under section 95 of the Evidence Act in relation to the breach of the Local Government Electoral Act 2011  as additional evidence, pursuant to section 223(1) of the Justices Act, or whether (instead of remitting the matter back to her Honour) I could rehear the matter pursuant to section 225(3). After further considering the matter and further oral submissions made by Ms Galbraith, I’ve come to the view that my preliminary view was wrong as a matter of law.

33. [33]
    Both sections 142A and 147 come within Part 6 of the Justices Act dealing with proceedings in cases of simple offences and breaches of duty.

34. [34]
    Relevantly, section 142A is in these terms:

“142APermissible procedure in absence of a defendant in certain cases

1. (1)
   Notwithstanding the provisions of this Act or any other Act, it shall  be lawful to adopt in respect of a complaint of a simple offence or breach of duty made by a public officer or a police officer the procedure prescribed by this section.

...

4. (4)
   Where –

1. (a)
   a complaint of a simple offence or breach of duty is made by a public officer ... ;  and
2. (b)
   the defendant is required to appear at a time and place fixed for the hearing of the complaint –

…

3. (iii)
   by a notice of adjournment given to the defendant at a reasonable time before the date previously fixed for the hearing of a complaint;  and

3. (c)
   the defendant does not appear at the time and place fixed for the hearing of the complaint;

the court before which the complaint comes for hearing, whether on the return date or an adjourned date, may, if it is satisfied that the facts as alleged in or annexed to or served with the complaint or summons or as stated by the complainant according to law constitute such a simple offence or breach of duty and that reasonably sufficient particulars thereof are set out in or annexed to or served with the complaint or summons or are stated by the complainant, deal with and determine the matter of the complaint as fully and effectually to all intents and purposes as if the said facts and particulars had been established by evidence under oath before it and as if the defendant had personally appeared at the time and place fixed for the hearing of the complaint.”

35. [35]
    The critical words here are “does not appear at the time and place fixed for the hearing of the complaint”.

36. [36]
    It is clear from the record that the defendant did appear at 10 am on the 21^st of February 2014 in compliance with a section 142A(4)(b)(iii) notice. Although it is clear that the complaints were read to him and he pleaded not guilty, what then happened was that a number of directions hearings were then conducted by her Honour, pursuant to section 83A of the Justices Act, to consider the appellant’s multi-faceted pre-trial applications. This is clear from her Honour’s comment at page 1-2, line 44 of the transcript and by numerous references thereafter before the argument commenced on the application to join SPER as a party to the proceeding. She then proceeded to deal with the appellant’s no-case submission, again clearly before the hearing of any evidence. She made it clear that she regarded this application as a directions hearing under the Act. Ms Galbraith made it clear that the affidavits she tendered during the preliminary arguments were not part of the evidence, but were designed to assist her Honour in understanding the nature of the applications made by the appellant.

37. [37]
    Her Honour then proceeded methodically to deal with all the preliminary applications, which took some hours. The final ruling commenced at 1.51 pm. Critically to this issue, is what her Honour said in her exchange with the defendant at the end of this ruling: 

“I reject the argument that in some way these proceedings are an abuse of process, and I’m satisfied the complaint should be heard according to law. Now ‑ ‑ ‑ 

DEFENDANT: I would move that I can straightaway cease these proceedings and go through a section 40  ‑ ‑ ‑ 

BENCH: You can’t cease them, Mr Pettet.

DEFENDANT: I can walk out this court any time.

BENCH: You’re not the – you can walk out, and then I will deal with the matters under section 142 of the Justices Act.

DEFENDANT: Good. Whatever it is, but I’m entitled – you said  ‑ ‑ ‑ 

BENCH: Very well. Would you like to leave, Mr Pettet?

DEFENDANT: I’m entitled to take the 40 – section 40 of the Justices Act issue up to the High Court.

BENCH: Thank you.

DEFENDANT: You cannot prevent me from exercising my rights at law.

BENCH: I’m not going to prevent you for a moment, Mr Pettet.

DEFENDANT: Okay.

BENCH: Do you plan to remain while I hear the matter of the complaint or are you leaving now?

DEFENDANT: Did I say I’m leaving?

BENCH: I see that you’re collecting your files and walking out of the courtroom.

DEFENDANT: I just [indistinct] railroaded.”

38. [38]
    It is abundantly clear that her Honour was giving the appellant clear and unequivocal notice that the complaints would then be heard. He chose to leave and, therefore, not appear at the time and place that she then fixed for the hearing of the complaints. Section 147 would have come into play if the hearing had commenced in the sense that a procedure such as is described in section 146(1)(a) pertained, which it did not. This was the situation that arose in Mbuzi v Hornby [2010] QCA 186, so section 147 applied in that case. What occurred here is much more analogous to one of the decisions referred to me by Ms Galbraith and that is Isenglaas v Commissioner of Police [2014] QDC 6, a decision of his Honour Judge Butler SC, the former Chief Magistrate, in which his Honour found that the magistrate appropriately proceeded under section 142A.

39. [39]
    Her Honour then proceeded to rely on the facts and circumstances set out in the complaints and summons, together with the particulars which I’ve placed on the records, supplemented in relation to the offence against the Electoral Act by a certificate by the respondent under section 186(4) of the Electoral Act. That evidence, considered pursuant to section 142A, was sufficient to prove both charges beyond a reasonable doubt.

40. [40]
    In relation to the fine, although it was the maximum, the submission made by Ms Galbraith by reference to comparables does suggest that this type of offending is prevalent. Whether this was an example of the worst category of this offence is doubtful but I doubt if that principle really applies where the maximum penalty is, as a matter of law, so modest. It was not excessive in my opinion.

41. [41]
    As I’ve indicated above, an affidavit was tendered which revealed the extensive costs of the proceedings to the respondent. Ms Galbraith submitted that the amount referred to therein be moderated to $4000 for each complaint, which her Honour ordered. There’s no error made by her in relation to the costs order and it’s not excessive. It follows that the appeals are dismissed.

42. [42]
    HIS HONOUR: My reasons will indicate that I’m satisfied that this is a matter that does involve special difficulty and complexity, all because of issues raised by the appellant which the respondent, particularly in his capacity as a model litigant, was obliged to respond to. In those circumstances, I order that the appellant pay the respondent’s costs of the appeal, fixed at $22,315.22.

Annexure ‘A’

Timeline of events for Electoral Act complaint

Annexure ‘B’

Timeline of events for Local Government Electoral Act complaint