Batten v Police No. Scgrg-98-183 Judgment No. S6588

[1998] SASC 6588

BATTEN  v  POLICE

Magistrates’ Appeal

Bleby J

HIS HONOUR: The appellant was charged on complaint dated 23 September 1997 with driving a vehicle at a speed greater than 60 kilometres per hour in a municipality contrary to s49(1)(a) and 79B of the Road Traffic Act 1961. The speed at which the vehicle was recorded was a speed of 78 kilometres per hour. The offence was detected by photographic device, namely, a speed camera which is provided for in s79B of the Act. The offence occurred on 14 July 1997 on Kenihan Road at Happy Valley.

The complaint was listed for hearing in the Magistrates Court of South Australia at Christies Beach on 27 October 1997.  The appellant had been given notice that if he intended to plead not guilty the matter would not be dealt with on that day, but that it would be adjourned to another date to be fixed on that day.  The appellant did not appear in the Magistrates Court on that day but had sent a letter to the Court dated 10 October 1997 in which he challenged the validity of the law under which he was charged, and claimed that the court possessed no jurisdiction to hear the charge.  The learned magistrate properly took that as notice of an intention to plead not guilty, and did not proceed to hear the complaint.  He adjourned it for trial on 15 January 1998 at 10.00am.  The appellant was advised that he would have to appear on that date and that he would have to bring his witnesses if he proposed to call any. 

On 15 January 1998, the appellant was present when the matter was called on at 10.30am.  The appellant asked the magistrate to identify the source of his authority to hear the matter and continued to allege the invalidity of the law under which he was charged.  When asked by the magistrate whether he drove the car, as alleged in the complaint, the appellant apparently gave no answer.  The matter was left in the list to be dealt with later in the day as a plea of not guilty. 

The matter was called on again at 11.30 that morning.   The appellant, at that time, did not appear.  The matter proceeded ex parte in his absence.  The magistrate recorded a conviction and imposed a fine of $180 with court fees of $73, criminal compensation levy of $28, and prosecution costs of $100, a total of $381 which he directed was payable within 1 month of that date. 

The grounds of appeal alleged in the appellant’s notice of appeal against both his conviction and sentence are:

“The Presiding Magistrate erred in law.  In ignoring legal argument and proceeding to reach his finding he:

(1)...... breached The Human Rights & Equal Opportunities Act (sic) (Commonwealth)

(2)breached the Judiciary Act 1903 (Commonwealth)

(3)...... ignored High Court rulings

(4)breached Article 36 of the Statute of the International Court of Justice

(5)...... breached Article 2 of the United Nations Charter (a legal treaty binding Australia.”

The appellant conducted his own appeal before me and submitted a voluminous written submission which I read before the hearing commenced.  He elaborated on that briefly with some oral submissions. 

As I understand his argument, he suggests first that the Commonwealth and State Constitutions rely on United Kingdom law for their efficacy and validity.  Secondly, that that law, for some reason, ceased to have effect when Australia signed the Treaty of Versailles on 26 June 1919, and that the charter of the United Nations, to which Australia is a signatory, also prevents the application of colonial law to member States of the United Nations. 

His submission is that somehow that renders invalid the domestic law under which he was charged, as well as the Acts constituting the Magistrates Court and this Court, either because the State and Federal constitutions are invalid or because they are Acts of the United Kingdom Government.  Any domestic law must also be so characterised and must be unable to be given effect to because of the effect to the treaties to which I have referred. 

He further submits that the current Letters Patent to the Governor of South Australia, dated 14 February 1986, being exercised by the Queen of the United Kingdom are also invalid, and so therefore are the purported Acts of the Governor performed in that capacity. 

He further suggests that the whole argument raises a question in which the learned magistrate was obliged to refer forthwith for hearing to the High Court under the provisions of the Judiciary Act 1903 (Cth), or that the matter should have been adjourned pending such removal. I presume that he relies on s38(a) of the Judiciary Act which confers exclusive jurisdiction on the High Court in matters arising directly under any treaty.

I do not believe that any serious question arises which under the Judiciary Act 1903 or the constitution requires removal of these proceedings, or which required removal of the Magistrates Court proceedings, to the High Court. In any event, any such application would have to be made to the High Court: s40 Judiciary Act (1903) (Cth).

Notwithstanding the written grounds of appeal, the written argument also suggested that the learned magistrate was obliged to refer the matter to the International Court of Justice.  He suggested that I, of course, was required to do likewise in respect of this appeal. 

I am not prepared to accede to any of Mr Batten’s arguments. In my opinion they display a fundamental misunderstanding of Australian constitutional law and history, of the Constitution and the constitutional history of this State, and of the effect of laws validly passed both by the Commonwealth and State Parliaments which have effect in this State.

The argument also displays a lack of understanding of the nature and effect of international laws and treaties and their effect in this country. 

There is no doubt in my mind of the validity of the law which Mr Batten broke or of the laws constituting the Magistrates Court of South Australia and this court.  Nor is there any doubt in the appointment of Mr Johansen as a magistrate of the Magistrates Court, or of any appointment to this court. 

I invited Mr Batten to make any further submissions he might wish to in relation to the learned magistrate’s finding that the charge was proved and in his recording of a conviction.  Apart from addressing some procedural matters to which I have referred, in respect to which I again consider there is no substance, he did not wish to elaborate further on the findings of the magistrate. 

I also invited him to make any submissions he might wish to make on the question of the penalty imposed by the learned magistrate, but he chose to make no further submissions. 

The appellant did not raise, either at the hearing or before me on this appeal, any of the possible statutory defences to the offence with which he was charged and which might have been available under s79B(2) of the Road Traffic Act. 

The matter, as I indicated, was heard ex parte by the magistrate pursuant to s.62ba of the Summary Procedure Act 1921.  In those circumstances, the allegations contained in the complaint and summons were sufficient evidence of the matters alleged: s62ba(1), Summary Procedure Act 1921. 

It follows, in my opinion, there was no error on the part of the learned magistrate and the appeal will have to be dismissed. 

Ms Martin, do you make any application?

MS MARTIN:  I am instructed to seek costs. 

HIS HONOUR:  Mr Batten, Ms Martin has sought an order that you pay the costs of this appeal, normally those are fixed at $150.  Is there anything you wish to say about whether or not an order in those terms should be made?

MR BATTEN:  Sir, you have ruled that your court is a valid forum, and because you have ruled so there is little point in me saying that I believe that under the material that I presented to you, and from the material I have presented to you, there is sufficient substantial evidence to raise a serious question over your ruling. 

However, because anything that I may say in relation to the costs that have come from the Crown counsel, questions from the Crown counsel will obviously have no effect. 

I repeat sir -

HIS HONOUR:  They would not have no effect.  Normally in this court costs of the proceedings follow the event.   That is not an absolute rule.  If there is some matter, some extraordinary matter you wish to put to me which might suggest that there needs to be some variation of that in these circumstances I will listen to you. 

MR BATTEN:  Yes, sir, there is an extraordinary matter, I am a poor man - no, not at all.  I do not believe that I have sufficient knowledge of the fine detail of the domestic law to be dealing with it here sir, therefore there is not anything that I could say that would be of any advantage I think to my own position. 

I would, seeing that you are allowing me to speak with you, indicate that it will be necessary for me to proceed on the matter that has occurred in the court here. Even if it is only under s75 of our Constitution, which is the fundamental law of the land which says that “In all matters arising under any treaty the High Court shall have original jurisdiction”. Thank you very much for being tolerant and listening to me.

HIS HONOUR:  The formal order of the court will be:

1. Appeal dismissed.  

2. The appellant is to pay to the respondent the costs of the appeal fixed at $150.  I direct payment of that to be made to the Crown Solicitor within one month of today.