Mowen v Commissioner of Police
[2023] QDC 54
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- Unreported Judgment
- Mowen v Commissioner of Police[2023] QDC 54
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Mowen v Commissioner of Police[2023] QDC 54
Mowen v Commissioner of Police[2023] QDC 54
DISTRICT COURT OF QUEENSLAND
CITATION: | Mowen v Commissioner of Police [2023] QDC 54 |
PARTIES: | BEVAN ALAN MOWEN (appellant) v COMMISSIONER OF POLICE (respondent) |
FILE NO: | 41 of 2022 |
DIVISION: | Appellate |
PROCEEDING: | Appeal pursuant to section 222 of the Justices Act 1886 |
ORIGINATING COURT: | Magistrates Court of Queensland |
DELIVERED ON: | 6 April 2023 |
DELIVERED AT: | Rockhampton |
HEARING DATE: | 3 April 2023 |
JUDGE: | Loury KC DCJ |
ORDER: |
|
CATCHWORDS: | CRIMINAL LAW – APPEAL – where the applicant was convicted by a Magistrate of driving while his driver’s licence was suspended – where the applicant’s driver’s licence had been suspended by operation of the State Penalties Enforcement Act 1999 (Qld) – where a notice of intention to suspend was issued to the applicant at his address – where the applicant’s core argument seems to be that the Commonwealth Electoral Act 1918 is invalid for inconsistency with the Commonwealth Constitution. |
LEGISLATION: | Acts Interpretation Act 1954 (Qld) ss 39, 39A Commonwealth Electoral Act 1918 s 93 Disability Discrimination Act 1992 (Cth) Electoral Act 1992 (Qld) Judiciary Act 1903 (Cth) s 78B Justices Act 1886 (Qld) s 222 State Penalties Enforcement Act 1999 (Qld) ss 51, 54, 157(3) Transport Operations (Road Use Management) Act 1995 (Qld) ss 78, 123C |
CASES: | Allesch v Maunz [2000] 203 CLR 172 Clampett v Queensland Police Service [2016] QCA 345 Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87 Mowen v Electoral Commission of Queensland [2015] QSC 16 Mowen v Queensland Police Service [2022] QDC 89 Mowen v The Australia Electoral Commission [2016] QCA 152 Re Finlayson; ex parte Finlayson (1997) 72 ALJR 73 Robinson Helicopter Company Inc v McDermott (2016) 90 ALJR 679 |
SOLICITORS: | The appellant appeared on his own behalf Office of the Director of Public Prosecutions for the respondent |
Introduction
- [1]The appellant was intercepted by police driving his vehicle on Gavial Gracemere Road on 8 June 2021. He was convicted by a Magistrate on 28 June 2022 of driving a motor vehicle while his driver’s licence was suspended under the State Penalties Enforcement Act 1999, contrary to section 78 of the Transport Operations (Road Use Management) Act 1995. He was fined $150 and disqualified from driving for one month.
- [2]The appellant has appealed his conviction and sentence pursuant to section 222 of the Justices Act 1886 on the following grounds:
- Denial of natural justice
- Judicial activism
- Matter arising under the Constitution.
- [3]The appellant’s outline refers to his reliance upon an affidavit under his hand. No such affidavit has been filed. His submission is articulated as follows:
“This is a Matter Arising Under the Constitution and requiring its interpretation and concerns section 109 of the Constitution where there is a conflict between State law overriding Commonwealth Law.”
- [4]An appeal pursuant to section 222 of the Justices Act 1886 is by way of rehearing. The powers of the appellate court are only exercisable where the appellant can demonstrate that, having regard to all the evidence now before the appellate court, the order is the result of some legal, factual or discretionary error.[1] This court is obliged to conduct a real review of the evidence and make its own findings of fact and draw its own inferences.[2]
- [5]The Notice of Appeal and outline of submissions filed by the appellant do not identify the error said to give rise to a denial of natural justice. The grounds of appeal articulated as “Judicial activism” and “matter arising under the Constitution” and the outline of submissions fail to disclose any arguable error on the part of the learned Magistrate. However, it has not been argued by the respondent that the appellant’s failure to identify grounds of appeal in a comprehensible way is vexatious and an abuse of process. Nor does the respondent argue that it cannot fairly respond to the grounds of appeal. Despite that, the respondent has only responded to one of the grounds of appeal, the third.
Evidence at trial
- [6]A police officer was called to give evidence of the interception of the appellant’s car. She produced a number of certificates which proved that the appellant’s licence was suspended at the time. Most significantly, a certificate was tendered pursuant to section 123C of the Transport Operations (Road Use Management) Act 1995 which conclusively established that the appellant was not the holder of a valid licence at the time. The certificate indicated that the status of his driver licence was recorded as “SPER suspended”.
- [7]A further certificate issued pursuant to section 157(3) of the State Penalties Enforcement Act 1999 indicated that on 27 October 2016, an infringement notice issued to the appellant by the Electoral Commission of Queensland was registered with the State Penalties Enforcement Register (SPER) for enforcement. On 21 May 2018, a Notice of Intention to Suspend Driver Licence was issued to the appellant. It was posted to the address recorded with the Department of Transport and Main Roads. The notice was not returned unclaimed. Reminder notices were sent to the appellant’s postal address on 15 January 2019; 11 February 2019; and 8 March 2019. On 1 April 2019, a Notice of Intention to Suspend Driver Licence was sent to the appellant’s postal address. On 10 September 2019, a reminder Notice was issued. On 8 October 2019, a Notice of Intention to Suspend Driver Licence was issued to the appellant and posted to his address. A reminder notice was issued on 4 March 2021. On 29 March 2021, a Notice of Intention to Suspend Driver Licence was issued and sent by post to the appellant’s address.
- [8]The appellant gave evidence in his defence. He said that the first he became aware that his driver licence had been suspended was on the day he was intercepted. He said that he received no documentation from the State Penalties Enforcement Registry. In particular, he claimed not to have received a Notice of Intention to Suspend his licence. The appellant said that his licence was suspended because of his refusal to vote. He believes that the Electoral Act 1918 is contrary to the Constitution and to vote would be supporting a criminal activity. He further said that he had renewed his licence on 31 December 2020.
- [9]The appellant argued that the fine imposed on him by the Courts for failing to vote, the non-payment of which was referred to the State Penalties Enforcement Registry, was “ultra vires”. He also argued that he did not know that his licence had been suspended. He further argued that all enforcement orders had stopped because he had a matter before the District Court.
Ground 1
- [10]The appellant has not articulated how there was a denial of natural justice. I am unable to identify any denial of natural justice from a review of the transcript of the hearing. The trial proceeded in a regular way with the appellant having a full explanation given to him of the hearing procedure and of the rules of evidence that were applicable.
Ground 2
- [11]This ground of appeal is non-sensical.
Ground 3
- [12]The appellant believes that the Commonwealth Electoral Act 1918 section 93, which provides that a person who is 18 years of age and an Australian citizen is entitled to enrol to vote, is inconsistent with section 34 of the Constitution and therefore the Commonwealth Electoral Act 1918 is invalid in its entirety.
- [13]That argument was rejected by Daubney J in 2015 in Mowen v Electoral Commission of Queensland[3] who described it was “plainly unarguable”. He said:
“….Accordingly, there is nothing in the Constitution of the Commonwealth of Australia which mandates or prescribes that the franchise age for electors in the Queensland state election is 21 years of age. Rather, by reference to the provisions of the Electoral Act of Queensland and the Commonwealth Electoral Act, it is clear beyond any argument that the age of entitlement to be enrolled to vote in Queensland is 18.”
- [14]In 2012, McMeekin J had determined a similar application where the appellant applied for an injunction preventing the holding of the Queensland State election.[4]McMeekin J described the appellant’s argument as involving “a misconceived argument as to the age qualification for electors” and a misreading of s 34 of the Constitution and the effect of State laws.
- [15]The appellant appealed the decision of Daubney J, but not the decision of McMeekin J. The appeal against Daubney J’s decision was dismissed. Applegarth J, (with whom McMurdo P and Gotterson JA agreed)[5] described the appellant’s submissions as misconceived and involving scandalous attacks on public officials.
- [16]The appellant did not vote in the Federal election in 2013. He was convicted by a Magistrate of a contravention of s 245(15) of the Commonwealth Electoral Act 1918 and fined $170 and ordered to pay $93.40 for court costs and $150 for witness expenses. He appealed that conviction to the District Court which appeal was dismissed. He sought leave to appeal from the Court of Appeal. His ground of appeal was that “The Commonwealth Electoral Act 1981 age qualification requirements are contrary to the age qualifications expressly stated in the constitution and are therefore unconstitutional”.
- [17]Atkinson J, with whom Fraser JA and Dalton J agreed in Mowen v The Australia Electoral Commission,[6] held that the appellant’s arguments were “clearly unmeritorious”. Atkinson J said:
“The respondent has identified that the applicant’s core argument seems to be that s 93 of the Commonwealth Electoral Act, which relevantly provides that a person who is 18 years of age and an Australian citizen shall be entitled to enrolment to vote, is inconsistent with s 34 of the Constitution and therefore the Commonwealth Electoral Act is invalid in its entirety. There are two problems with this contention. Firstly, if one section of an Act is constitutionally invalid then the normal procedure would be to declare that section unconstitutional rather to invalidate the entire Act. Secondly, and more importantly, s 34 of the Constitution itself expressly says “until the Parliament otherwise provides”. This section of the Constitution clearly provides that the Commonwealth Parliament can make laws with regard to the qualification to be a member of Parliament and can therefore validly change the age at which a person is eligible to be a member of Parliament. It has done so in s 163 of the Commonwealth Electoral Act and there is no merit in the argument that in doing so the Parliament has behaved in a way that is contrary to the Constitution. Section 30, which deals with suffrage, also contains the expression “until the Parliament otherwise provides” giving the Commonwealth Parliament power to legislate in this area.”[7]
- [18]The appellant’s argument has been advanced before two Supreme Court judges sitting in the trial division and three judges sitting in the Court of Appeal. Despite repeated judgements pronouncing that his argument is misconceived, the appellant continues to advance the same incorrect and misconceived argument. He claims that fines imposed on him for unlicenced driving as a consequence of his failing to pay a fine for not voting are “ultra vires” because his conviction for failing to vote is contrary to s 34 of the Constitution.
- [19]The appellant is wrong. He has been told many times that he is wrong. There is nothing new in his argument. It remains unsupported by any authority and indeed contrary to the authorities.
- [20]At the hearing of this appeal, the appellant stated that the Disability Discrimination Act 1992 (Commonwealth) is inconsistent with the State Penalties Enforcement Act 1999. He did not advance any argument upon which inconsistency is said to arise.
- [21]Where there is a cause pending which “involves a matter” arising under the Constitution or involving its interpretation, section 78B of the Judiciary Act 1903 (Commonwealth) imposes a duty on the Court not to proceed until notice has been given to the Attorneys-General of the Commonwealth, States and Territories. The appellant has not given the required notices to the Attorneys-General.
- [22]A cause does not “involve a matter” arising under the Constitution merely because someone asserts it does.[8] The matter must “really and substantially” arise under the Constitution and the constitutional question must be a “live issue in the proceedings”. The appellant has done nothing more than assert that the State Penalties Enforcement Act 1999 is inconsistent with a Commonwealth Act. He has made no argument and therefore provided no basis upon which inconsistency is said to arise. Accordingly, I do not consider that this appeal involves a matter arising under the Constitution. I can determine the appeal without the required notices being given. Indeed, the appellant’s submission is that I should dismiss his appeal so that he can take his arguments to the Court of Appeal, and then the House of Lords and the Privy Council. Those arguments are a repetition of the arguments that he has previously made about the Electoral Act 1918.
- [23]The evidence before the learned Magistrate established that the appellant’s licence was suspended at the time he was intercepted driving. The prosecution proved by way of certificate that he had been served with a Notice of Intention to Suspend his licence. That is all that was required in terms of proof of the offence. It was not necessary for the prosecution to prove that the appellant received the Notice of Intention to Suspend his Licence. The offence under section 78 of the Transport Operations Road Use Management Act 1995 is an offence of strict liability. The nonreceipt of the Notice of Intention to Suspend is irrelevant as delivery of the notice is deemed to have occurred.[9] Any mistaken belief on the part of the appellant as to whether he was lawfully allowed to drive was a mistake of law.[10] Section 24 of the Criminal Code 1899 was not engaged.
- [24]The appellant submitted to the learned Magistrate that section 51 and 54 of the State Penalties Enforcement Act 1999 meant that as he then had a matter under challenge, that all suspensions had been lifted. He referred to having a matter before the District Court. I assume, although there was no evidence led by the appellant of this, that he is referring to the matter of Mowen v Queensland Police Service[11] which was published on 19 April 2022. The appellant appealed his conviction for unlicenced driving on 27 December 2022. The appellant’s arguments again related to his wrong understanding of the Commonwealth Electoral Act 1918 and the Queensland Electoral Act 1992. His appeal was ultimately dismissed.
- [25]Section 54 of the State Penalties Enforcement Act 1999 provides as follows:
54 Effect of appeal on enforcement order
- (1)This section applies if, after an enforcement order is made for a penalty imposed by a court for an offence, the enforcement debtor appeals against the conviction or sentence for the offence.
- (2)The appeal suspends the enforcement order.
- (3)If the appeal is upheld, the registrar must refund to the enforcement debtor any amount paid to SPER for the offence.
- (4)If the appeal is dismissed, the suspension of the enforcement order is lifted and the registrar may continue to enforce the order.
- (5)As soon as the registrar becomes aware of the appeal mentioned in subsection (1), the registrar must ensure that any steps taken under this Act to enforce the enforcement order are discontinued immediately and no further action is taken until the appeal is decided.
- [26]Section 34(4) provides for the issuance of an enforcement order for the unpaid amount of a fine, ordered by a court. The Act provides for a variety of ways in which a person may deal with an enforcement order, including paying the amount in full or applying to pay in instalments. If the amount remains unpaid, an enforcement warrant or a fine collection notice or an arrest and imprisonment warrant can be issued.
- [27]The effect of section 54 in relation to the appellant’s matter which was the subject of an appeal at the time of his summary hearing, was that he did not have to pay the fine until the appeal was decided. Section 54 says nothing about the suspension of his licence being lifted.
- [28]The appellant was convicted after a regularly conducted trial. There was ample evidence adduced establishing that his licence was suspended at the time he was intercepted by police. He had no defence. I am satisfied that the evidence adduced established the guilt of the appellant beyond reasonable doubt.
- [29]The appellant has appealed his sentence. He was fined a small sum. He has made no arguments directed towards the sentence. His appeal against sentence is dismissed.
- [30]Order:
1. Appeal against conviction and sentence dismissed.
Footnotes
[1] Allesch v Maunz [2000] 203 CLR 172, 180 [23].
[2] Robinson Helicopter Company Inc v McDermott (2016) 90 ALJR 679.
[3] [2015] QSC 16.
[4] Unreported; file reference S 110/2012 (Rockhampton registry) but set out in Mowen v Rockhampton Regional Council; Bendigo & Adelaide Bank Ltd v Mowen [2017] QSC 295 at [117].
[5] [2015] QCA 221.
[6] [2016] QCA 152.
[7] At [12].
[8] Re Finlayson; ex parte Finlayson (1997) 72 ALJR 73 at 74 per Toohey J.
[9] Acts Interpretation Act 1954 s 39 and 39A; Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87 at 95-97.
[10] Clampett v Queensland Police Service [2016] QCA 345 at [18].
[11] [2022] QDC 89.