Freeman v Maher
[2024] VSC 682
•6 November 2024
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S ECI 2024 03024
| DEZI FREEMAN | Plaintiff |
| v | |
| RACHELLE MAHER | First Defendant |
| COUNTY COURT OF VICTORIA | Second Defendant |
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JUDGE: | Gorton J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 22 October 2024 |
DATE OF JUDGMENT: | 6 November 2024 |
CASE MAY BE CITED AS: | Freeman v Maher |
MEDIUM NEUTRAL CITATION: | [2024] VSC 682 |
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PRACTICE AND PROCEDURE – Summary judgment – Plaintiff convicted of driving offences including refusing to provide a sample of oral fluid for testing, mandatory two-year disqualification of licence imposed – Where plaintiff raised self-defence in circumstances including prior interactions with police officers – Where judge found did not act in self-defence, two charges proven – Where plaintiff sought judicial review - Where first defendant (informant) seeks summary judgment of plaintiff’s judicial review proceeding – Whether judge erred in approach to self-defence – Where plaintiff contends bias, lack of procedural fairness, disregard of personal circumstances, breach of federal laws and human rights and ‘draconian’ penalty – Open for judge below to find did not act in self-defence – No discretion not to impose mandatory penalty – No breach of procedural fairness – No breach of any applicable federal laws or human rights - Plaintiff’s application for judicial review has no real prospect of success – Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd (2013) 42 VR 27 – Civil Procedure Act 2010 (Vic) ss 62, 63, 64 – Charter of Human Rights and Responsibilities Act 2006 (Vic) – Road Safety Act 1986 (Vic) ss 49(1)(eb), 55D, 55E – Crimes Act 1958 (Vic) ss 322I, 322K.
JUDICIAL REVIEW – Where plaintiff appealed judicial registrar’s decision to not stay orders of judge below – Supreme Court (General Civil Procedure) Rules 2015 (Vic) ord 56.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Litigant in person | |
| For the First Defendant | Mr E S Dober of counsel | Office of Public Prosecutions |
| For the Second Defendant | N/A |
TABLE OF CONTENTS
A. Introduction.................................................................................................................................. 1
B. The application for summary judgment.................................................................................. 3
B.1The need for care................................................................................................................... 3
B.2An overview of the County Court proceeding................................................................. 3
B.3The County Court’s decision............................................................................................... 8
B.4Mr Freeman’s arguments in this proceeding.................................................................... 9
B.5Should there be summary judgment?.............................................................................. 12
B.5.1The arguments based on self-defence and duress.............................................. 12
B.5.2Abuse of process and natural justice.................................................................... 16
B.5.3Bias............................................................................................................................ 16
B.5.4The validity of the Road Safety Act 1986 and other legislation.......................... 16
B.5.5The heavy penalty................................................................................................... 17
B.5.6 The principle of legality.......................................................................................... 17
B.5.7Section 55E(12) of the Road Safety Act 1986.......................................................... 18
B.5.7Conclusion................................................................................................................ 18
C. The date of the suspension....................................................................................................... 19
D. The appeal against the refusal to grant a stay...................................................................... 19
E. Final remarks and disposition................................................................................................. 19
HIS HONOUR:
A. Introduction
On 17 November 2020, Mr Dezi Freeman, the plaintiff, was charged with speeding, refusing to provide an oral fluid sample for testing,[1] and using a mobile phone while driving.[2] This was alleged to have taken place on 28 September 2020. The charges were heard in the Magistrates Court of Victoria at Wangaratta on 30 June 2022. Mr Freeman was convicted of all three charges. He was fined, his license was cancelled, and he was disqualified from driving in the State of Victoria for two years as from 30 June 2022. Mr Freeman exercised his right to appeal to the County Court of Victoria.[3] Mr Freeman was granted permission to keep driving pending his appeal.[4]
[1]See Road Safety Act 1986 (Vic) s 49(1)(eb).
[2]The charge sheets for each of these three counts are dated 17 November 2020, but they refer to conduct that took place on 28 September 2020.
[3]Criminal Procedure Act 2009 (Vic), s 254.
[4]The order by the Magistrates Court to this effect was made on 18 July 2022; see also Criminal Procedure Act 2009 (Vic) s 264(1).
The County Court of Victoria heard the appeal, which proceeded as a rehearing of the charges,[5] on 15, 16 and 22 April 2024. Mr Freeman as well as Acting Sargeant Rachelle Maher, who was the informant and is the first defendant, and Senior Constable Sean Greaves, who was the informant’s colleague, gave oral evidence.[6] Video footage of the incident was tendered. Mr Freeman, among other things, disputed the enforceability of the laws under which he was charged and raised, or sought to raise, that he was acting in self-defence. On 22 April 2024, the judge in the County Court found Mr Freeman not guilty of speeding but guilty of refusing to provide a sample of oral fluid and guilty of driving while using a mobile phone. His Honour imposed a lesser fine, but cancelled Mr Freeman’s licence and disqualified him from obtaining a licence for a period of two years from 8 April 2024. That penalty was the mandatory minimum under the terms of the Road Safety Act 1986.[7]
[5]Criminal Procedure Act 2009 (Vic), s 256(1).
[6]Acting Sargeant Maher was a Leading Senior Constable at the time and Senior Constable Greaves was a Constable at the time. I refer to them in these reasons by ranks they held at the time of the County Court proceeding.
[7]Road Safety Act 1986 (Vic), s 50(1DA).
By an originating motion filed 6 June 2024, Mr Freeman seeks judicial review of the orders made by the County Court on 22 April 2024.[8] The role of this Court in an application for judicial review is not to determine whether the County Court of Victoria was correct to reach the decisions it did, but only whether it acted lawfully in arriving at those decisions. The County Court, the second defendant, has indicated that it will not take an active part in the proceeding and will abide by the Court’s decision.[9] The originating motion is currently listed for hearing in this Court on 14 February 2025. On 23 July 2024, the first defendant applied by summons for summary judgment of Mr Freeman’s application for judicial review.
[8]He is not able to appeal to the Court of Appeal under s 274 of the Criminal Procedure Act 2009 (Vic). That section only allows an appeal from an ‘originating court’. An ‘originating court’ is defined in s 3 of the Criminal Procedure Act 2009 (Vic) to include the County Court only ‘in its original jurisdiction’. The County Court is not ‘in its original jurisdiction’ when it is hearing an appeal from the Magistrates’ Court.
[9]In accordance with the principles set out in R v Australian Broadcasting Tribunal; ex parte Hardiman (1980) 144 CLR 13.
On 11 July 2024, Mr Freeman applied by summons filed in this proceeding for a stay of the County Court orders. On 24 July 2024, a judicial registrar of this Court dismissed that application. On 1 August 2024, Mr Freeman filed an appeal against the decision of the judicial registrar to dismiss his application for a stay. That appeal proceeds as a hearing de novo.[10]
[10]Supreme Court (Criminal Procedure) Rules 2017, r 3A.17(4).
The two matters I now have before me are the first defendant’s application for summary judgment on Mr Freeman’s application for judicial review, and Mr Freeman’s appeal against the dismissal of his application for a stay pending the determination of his application for judicial review. These reasons concern the application for summary judgment. I informed the parties that I would determine that application before considering Mr Freeman’s appeal against the dismissal of his application for a stay.
Mr Freeman says, and for the purposes of these reasons I accept, that he had not taken any drugs at the time that he was asked to provide an oral fluid sample for testing, and that he has an exemplary driving record. On that basis, he contends, too, that an inability to drive for two years is a disproportionate penalty that has caused him and his family real harm.
B. The application for summary judgment
B.1 The need for care
The power summarily to dismiss a proceeding should be exercised with caution.[11] A proceeding may only be summarily dismissed if it has no real prospects of success.[12] A proceeding may be permitted to proceed to trial, even if it does not have any real prospect of success, if it is otherwise in the interests of justice that it do so.[13]
B.2 An overview of the County Court proceeding
[11]Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd (2013) 42 VR 27, 35 [19] (Warren CJ and Nettle JA, referring to Spencer v Commonwealth (2010) 241 CLR 118, 132 [26] (French CJ and Gummow J)), 42 [40]-[41] (Neave JA).
[12]Civil Procedure Act 2010 (Vic) s 63.
[13]Ibid s 64.
Acting Sargeant Maher (the informant and first defendant) gave evidence that on 28 September 2020, while on patrol in a marked vehicle on the Great Alpine Road, she, with her colleague Senior Constable Greaves, observed Mr Freeman driving his vehicle into Porepunkah at what she thought was above the 60km/h speed limit. She turned her vehicle around, drove after Mr Freeman, and she and her colleague, using a radar, recorded Mr Freeman’s speed at 76 km/h.[14] They turned on their vehicle’s police lights and travelled at speed to catch up to him. Mr Freeman stopped at a fish and chip shop, and they pulled in behind him. A heated exchange then occurred. Mr Freeman was asked to undergo a breath test and, somewhat begrudgingly, did so. Acting Sargeant Maher asked Mr Freeman to provide oral fluid for testing.[15] Mr Freeman did not do so. Mr Freeman filmed their interaction on his phone. Mr Freeman then drove off, without having given the oral fluid sample, while using his phone to film the police officers. Footage from the vehicle and from Acting Sargeant Maher’s body camera was played to the court.
[14]Acting Sargeant Maher initially said that the radar had detected his speed before they turned around, but she then clarified this in cross-examination by reference to an earlier statement.
[15]Acting Sargeant Maher gave evidence that a preliminary oral fluid test is used to test for illicit drugs including ‘amphetamine-type substances such as MDMA, speed, methylamphetamine and cannabis or THC.’
Mr Freeman, in an assertive cross-examination, suggested that his vehicle was a great distance from the informant’s vehicle when the radar device was used and that there were ‘power lines and transformers’, and that there might also have been microwave transmissions or ‘CB’ or other radio transmissions in the area, that interfered with the radar device or, rather, that the informant couldn’t prove that they had not interfered with the measured speed. Mr Freeman also challenged the informant’s evidence that, in her estimation, he was travelling at a speed consistent with the radar reading, that she had an opportunity properly to use the radar, and that she had used the radar in accordance with her training. He suggested that her evidence that the radar recorded his speed at 76 km/h was false. He suggested it was unfair that he was charged with speeding when the police officers had travelled at a much greater speed themselves in order to catch up to him. He suggested that the radar was used in a ‘built-up area’ when, according to its instruction manual, it cannot be used in a built-up area. He extracted from Acting Sargeant Maher a concession that, although she maintained he was exceeding the speed limit, he was not driving in ‘dangerous manner’, and he criticised the devotion of public resources to his prosecution. He suggested to the informant that she was ‘pretending’ that he was refusing a breath test. He put to her that a two-year disqualification from driving was an unfair consequence in the circumstances and suggested, as I understood it, that accordingly she had acted improperly by bringing these charges. He suggested to her, and she denied, that she also arranged for one of her colleagues then to cancel his firearms licence. The tenor of Mr Freeman’s cross-examination is reflected in his final question:
How was it – how was it fair that when I haven’t arrested you for the multitude of crimes you have committed and I haven’t exposed you or other police to the multitude of crimes they have committed, for the logs in their eyes, how is it fair that you go after me for the splinter in mine? What about equality of arms? What about equal treatment (indistinct)? What do you think about that? Do you even think about it? Are you capable of thinking about it? Or are you morally bankrupt?
Mr Freeman gave evidence in his defence. He combined submissions with his evidence and also made some submissions afterwards. He gave evidence that he was a safe driver with an excellent driving record, he had had a difficult childhood, had overcome disadvantage, and had a history of unpleasant encounters with police officers. Mr Freeman referred to the police in his evidence as ‘frigging Nazis’, ‘Gestapo’ and ‘terrorist thugs.’ He said he was in no hurry on 28 September 2020, denied that he was speeding and said that he checked his speedometer and it showed him travelling at 60 km/h. He tendered photographs of adjacent transformers, power lines and signage.
Mr Freeman then turned to what he described as ‘the absolute heart of this case’. He contended that he was acting in self-defence or under duress.[16] Section 322K of the Crimes Act 1958 provides that a person is not guilty of an offence if they carry out the conduct constituting the offence in self-defence. Section 322O of the Crimes Act 1958 similarly provides that a person is not guilty of an offence in respect of conduct carried out by the person under duress. Mr Freeman emphasised s 322I of the Crimes Act 1958. That section provides as follows:
[16]He had also said that he was acting in circumstances of a sudden or extraordinary emergency, as to which see s 322R of the Crimes Act 1958 (Vic). That argument was not developed.
322I Onus of proof
(1) The accused has the evidential onus of raising self-defence, duress or sudden or extraordinary emergency by presenting or pointing to evidence that suggests a reasonable possibility of the existence of facts that, if they existed, would establish self-defence, duress or sudden or extraordinary emergency (as the case may be).
(2) If the accused satisfies the evidential onus referred to in subsection (1), the prosecution has the legal onus of proving beyond reasonable doubt that the accused did not carry out the conduct in self-defence, under duress or in circumstances of sudden or extraordinary emergency (as the case may be).
Mr Freeman also gave evidence including the following:
“I hereby declare under oath that I believed that the conduct of driving away and getting out of there and also filming while I could still see them was necessary in self-defence.
…
Now, I state under oath that I perceived that conduct of just simply driving away, and I perceive that conduct of still holding up my video camera recording for a few seconds onto a deserted road - I perceive that as a very reasonable response right at the very bottom of the severity scale of self-defence.
…
I state under oath, that I was acting in self-defence of myself, being the person, and in self-defence of another two people, being minors - being my children, who have also suffered in the past from this kind of conduct by police.
…
I believe that I was preventing … and terminating, because there was … an unlawful deprivation of liberty occurring, but especially preventing any further unlawful deprivation of liberty of myself and of my children …. but also … the possibility, based on my experience and belief, of a much worse kind of deprivation of liberty occurring.
…
I state that I was under extreme duress. You’ve seen the video. You’ve seen my demeanour.
…
I believe and I state I felt threats of harm, and … I also felt threats of – like, as the fear of the unknown – unknown harms which are – um, or unpredictable harms that will be carried out unless I got the hell out of there, ‘cause I could see it only escalating, and you’ll see why that can go in all different places…
…
I had to, like, get myself and my kids out of there and hope I wasn’t get - gonna get chased by [the informant] or shot at or whatever else unknown.
…
I state under oath - I give evidence that I was not responding to lawful conduct, if any existed. I was responding to unlawful conduct…
…
No, I did not know that any conduct was – that I was responding to was lawful, and I do not believe that – I did not believe that any contact I was responding to was lawful…
…
So … the unlawful conduct that I was responding to are my reasonable grounds to self-defence, was what I believe was the improper purpose of what [the informant] was doing … She was exercising that process of escalation upon me, something I was very familiar with and had been harmed by in the past, including in that 1996 event, and many, many others.
…
And … this is how it goes, right? She goes, ‘oh, okay… your test is inconclusive. Now I want to do a blood test. We can’t do it here. Now you’ve got to accompany me to the Wangaratta police station’. So there goes – what’s going to happen with my kids? … she is using that to escalate and, ‘As it’s inconclusive I believe you have been using drugs. We’re going to search the van’, right? Then they violate and trespass again. That’s happened too many times. Then they find – because we’ve been fishing – I’ve got a fishing knife in the tackle box. Right? And next thing they pull out a knife and you can see on the front page of the newspaper now, ‘Oh, man’s arsenal of weapons seized in a van…
…
I felt threatened and preyed upon …. even the sight of a cop or a cop car … it’s like an Auschwitz survivor seeing a Nazi soldier. What’s worse than a swastika is the inverted pentagram, the Satanic symbol that they wear and they behave like it as well.
…
The unlawful conduct I was responding to that was immediate at the time was the probability of them trying to arrest me which in fact is usually an assault and abduction…
…
The unlawful conduct I was responding to in defending myself and my kids from was the unlawful detention of my kids…”
He then expanded that the ‘past unlawful conduct’ to which he was responding was ‘a lifetime of bullying and predatorial behaviour by police.’
As the above makes clear, although Mr Freeman denied that he was speeding, he accepted that he did not provide a sample for a drug test; rather, his case was that he did not provide a sample for a drug test because he thought that the police had no legal entitlement to require him to provide a sample, certainly in the absence of some reasonable belief by them that it was necessary to do so in the interests of road safety, that they were not qualified to administer the drug test and, principally, that he was acting in self-defence. His submissions, as they emerged from his evidence and his final address, were to the effect that:
(a) Acting Sargeant Maher and Senior Constable Greaves were not to be believed;
(b) Relevant parts of the Road Safety Act 1986 were invalid because they were ‘repugnant to or incompatible with the institutional integrity of the Supreme Court, contrary to its function as a court, which exercises judicial power pursuant to Chapter III of the Commonwealth Constitution.’ He contended in particular that the power to require someone to do a drug test without reasonable cause was unlawful;
(c) The Road Safety Act 1986 was invalid insofar as it purported to authorise a police officer to require a person to provide the sample for drug testing without there being reasonable cause to suspect that the person was affected by drugs, on threat of two years suspension if they did not comply. The invalidity was said to arise because of an incompatibility between that and human rights to bodily autonomy. He said he had a ‘lawful duty, obligation and right to refuse to give body samples to police when there’s no reasonable cause demonstrated.’ Otherwise, he would be in breach of the ‘higher laws’ which included the ‘fundamental principles of law and justice and freedom, the Commonwealth Constitution clause 5 and s 109, and the writings in the annotated Constitution, the Charter of Human Rights and Responsibilities Act, the International Covenant on Civil and Political Rights, and the higher source of human rights, because … statutes do not grant human rights’; and
(d) He also asserted (and the prosecution accepted) that he had a ‘reasonable belief’ that roadside drug tests were unreliable.
B.3 The County Court’s decision
The County Court judge accepted Mr Freeman’s argument that it was not proved that he had exceeded the speed limit and dismissed that charge. However, the County Court judge rejected Mr Freeman’s argument that the relevant provisions of the Road Safety Act 1986 were invalid. His Honour concluded that it was within the legislative power of the State of Victoria (and not the Commonwealth) to pass those laws. His Honour said that the Charter of Human Rights and Responsibilities Act 2006 (‘the Charter’) does not override the Road Safety Act 1986 but merely requires, in the case of ambiguity, that the Road Safety Act 1986 should be interpreted so far as is possible in a way that is compatible with human rights, and that the relevant provisions of the Road Safety Act 1986 were ‘clear and unambiguous’. The County Court judge watched and summarised the video footage of the interaction between Mr Freeman and the two police officers, and then found the offences of using a mobile phone while driving and refusing to provide a sample of oral fluid were proven. I set out further below his Honour’s reasons in relation to the issue of self-defence and duress. His Honour cancelled Mr Freeman’s licence and disqualified him from obtaining another licence for two years. As noted above, this was mandatory: upon finding the offence proved, the County Court judge was required by the Road Safety Act 1986 to cancel Mr Freeman’s licence and to disqualify him from obtaining one for a period of not less than two years.[17]
B.4 Mr Freeman’s arguments in this proceeding
[17]Road Safety Act 1986, s 50(1DA)(a).
Mr Freeman drew his originating motion himself, where he raises ‘15 points’ for the Court’s consideration. While the originating motion does not separately set out the relief sought and the grounds on which relief is sought, it emerges from the document and his oral submission that Mr Freeman wishes to present the following arguments in this proceeding:
(a) The County Court of Victoria failed properly to apply section 322I of the Crimes Act 1958. On a proper application of that provision in light of the evidence led, the Court was obliged to find the offence not proved on the grounds of self-defence;
(b) He was denied natural justice (or procedural fairness) because he had little education, was an impoverished person and was unable to afford legal representation whereas the informant was legally represented;[18]
[18]He made a similar point in relation to the hearing of the application before me.
(c) The informant disregarded his rights to
(i) ‘religious observance and practice’ under s 14 of the Charter and art 18 of the International Covenant on Civil and Political Rights; [19] and
[19]International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976) (‘ICCPR’).
(ii) protection against arbitrary interference with his privacy under art 17 of the ICCPR;
(d) The imposition of a two-year drivers licence disqualification was a ‘draconian’ penalty that was ‘inconsistent with natural justice’ and in breach of article 15.1 of the ICCPR. He contended that ‘at the very least’ the two-year suspension should have been applied from 30 June 2022;
(e) The penalty imposed was not only excessive but failed to factor in (showed ‘disregard and indifference to’) his personal circumstances;
(f) He had been subject to an unfair legal burden of proof compared to the prosecution, and that particularly ss 13.1, 10.4 and 10.5 of the Criminal Code Act 1995 (Cth) had been disregarded;
(g) Section 55D of the Road Safety Act 1986, which imposes an obligation to provide a sample of oral fluid, is invalid or, if it is valid, that 55E(12) applied to him.[20] That subsection states that a person must not be convicted or found guilty of refusing to provide a sample of oral fluid ‘if he or she satisfies the court that there was some reason of a substantial character for the refusal, other than a desire to avoid providing information which might be used against him or her.’;[21]
[20]Mr Freeman referred to s 55D(12), but it is clear, from the context, that he meant s 55E(12). See also Part B.5.7 below.
[21]In support of this point he also claimed that the informant had ‘hid behind the colour of the law’, and ‘did act inconsistently with rulings of Chief Justice John Latham of the Higher Court of Australia regarding pretend law and my right to disregard such a “law”’, citing his Honour in South Australia v Commonwealth (1942) 65 CLR 373, 408.
(h) The provisions that makes it an offence to drive a holding a mobile phone are directed at stopping accidents occurring because of distracted drivers, and they did not apply to him because he was ‘simply holding up a video camera whilst lawfully acting in self-defence for a few seconds as I drive onto a deserted service road’, with the result that the charge and conviction ‘did not reflect the true purpose of the statute’;
(i) The Court disregarded s 109 of the Commonwealth Constitution Act 1901 by applying the Road Safety Act 1986 in a way that was inconsistent with art 7, 9, 17 and 18 of the ICCPR and the above sections of the Criminal Code Act 1995 (Cth); and
(j) The Court failed properly to consider a document he tendered titled ‘Voir Dire Submission on Abuse of Process’ and, by continuing with the case, acted inconsistently with the rulings referred to in that document.
The remedies he seeks were expressed in the following terms (the numbering has been added for clarity):
1.‘…to have due consideration given to [ss 322I and 322K of the Crimes Act1958, and ss 10.4 and 10.5 of the Criminal Code Act 1995 (Cth)] and that they be upheld and properly implemented according to the High Court rulings in [Zecevic v Director Of Public Prosecutions Vic (1987) 162 CLR 645] and other relevant self defence precedents and that the Defendants ruling be set aside.’
2.‘…to have section 322I upheld and my evidence properly considered and that the ruling of the Defendant be altered to reflect that.’
3.‘… that this entire abomination of the prosecution be struck out altogether as more than enough harm has already been done to my family and I to appease the police’s vendetta of hatred that this case is based on and enough taxpayers money has already been wasted.’
4.‘… my right to religious observance and practice that I exercise during the incident in question be respected and upheld and that the ruling is altered to reflect that.’
5.‘… the conviction on the two charges be quashed, but failing that, that the 2 year loss of license be dated from its original date beginning 30.06.22 and ending on 30.06.24.’
6.‘… a ruling that the Prosecution failed to satisfy the legal burden of proof and that therefore the guilty verdict ruled by the County Court is invalid.’
7.‘… due regard for my circumstances and the harmful delay in prosecution of the past 3.5 years be factored in by the [C]ourt in a way that secures natural justice for my family and I.’
8.‘…a ruling on the validity of section 55D of the Road Safety Act in relation to other relevant statutes and case law relevant to my particular case, my authority to disregard a pretend law and the proper limits of Parliamentary authority…’
9.‘…to have the two convictions quashed based on the fact that the Defendant disregarded the principles of consistency and legality and the relevant sections of statute.’
10.‘…these Commonwealth laws be given their rightful authority over the State legislation and the conviction/sentence be altered to reflect that.’
11.‘…the conviction be quashed and the prosecution halted on the grounds stated in the document including the fact that the evidence shows that this case has nothing to do with road safety and everything to do with malice, misconduct and the superiority complex of the police informant...’
Other material relied on by Mr Freeman shows that he also contends that his prosecution serves no purpose and is not in the public interest because he is not a drug user, has always been a safe driver, and that he is a ‘homeless disability pensioner’.
B.5 Should there be summary judgment?
B.5.1 The arguments based on self-defence and duress
A person is not guilty of an offence if the person carries out the conduct constituting the offence in self-defence.[22] In this case, the ‘conduct constituting the offence’ was Mr Freeman’s failure to undergo a preliminary oral fluid test when asked to do so and instead driving away.[23] Mr Freeman acted in self-defence if he believed that his conduct was ‘necessary in self-defence’, and his conduct was ‘a reasonable response in the circumstances as he perceived them’.[24] For the first limb to be satisfied, it would be sufficient if Mr Freeman genuinely held that belief, even if the belief were mistaken. For the second limb to be satisfied, Mr Freeman’s refusal had to be a reasonable response in the circumstances as he perceived them, which, although based in his perceptions, is an objective test. As provided for by s 322I of the Crimes Act 1958, set out in para 10 above, if Mr Freeman led evidence that suggested a reasonable possibility of the existence of facts that, if they existed, would establish self-defence, then the prosecution had the onus of proving beyond reasonable doubt that he did not carry out that conduct in self-defence.
[22]Crimes Act 1958 (Vic) s 322K(1).
[23]Road Safety Act 1986 (Vic) s 49(1)(eb).
[24]Crimes Act 1958 (Vic) s 322K(2)(a)-(b).
It must be borne in mind that this is a proceeding for judicial review and is not an appeal, let alone an appeal in the nature of a rehearing. The County Court judge referred in his reasons to the interactions between Mr Freeman and the officers taken from the video including in the following terms:
“When asked to produce his licence… [t]here is further conversation and then Acting Sargeant Maher says, ‘We haven’t confirmed your identity as yet.’ To which Mr Freeman replies, ‘I don’t give a shit. Leave me alone, you terrorist. Get the hell away from me and go.’
…
A little later, Acting Sergeant Maher required Mr Freeman to undergo a preliminary breath test. He interrupted to say, ‘Well that’s the little power trips you love, isn’t it?’ She then tries to state the consequences of refusal. Despite saying that, Mr Freeman says, ‘Let’s go to court. You’re going to the Supreme Court, baby. Get out.’
…
When Acting Sergeant Maher says they are the Highway Patrol, he calls them terrorists again and then adds, ‘out here with guns, guns, terrorising my kids again. I’ve been to court 15 times because of you corrupt scum. You corrupt filth.’
The issue of the drug test is then raised. Against the backdrop of Mr Freeman telling Acting Sergeant Maher she is not qualified to do medical testing on people, she requires him to undergo a drug test and says if he refuses, the same penalty of a minimum two years disqualification applies in a fine. When requested again, Mr Freeman raises the Charter of Human Rights and Responsibilities.
When asked if he was going to do the test, he replied he was not going to answer Acting Sergeant Maher questions adding, ‘Fish and chips are getting cold. You’re a terrorist, and I’m not a druggo. Look me up.’ When asked for his reason for refusing to undergo a preliminary oral fluid test, Mr Freeman reiterates her lack of qualification to do a medical test, citing the Charter and ‘whole bunch of Commonwealth Acts’. He then says it is a ‘medical experiment’.
Acting Sergeant requests twice more for Mr Freeman to undergo the test, to which he says, ‘listen to this ignoramus.’ And then adding, ‘I’m not refusing. I’m not accepting.’ It included a passage from the Supreme Court judgment. He raises the issue of lights and an emergency. To a further requirement to undergo the test, Mr Freeman and Acting Sergeant Maher say they will each see the other in court. Mr Freeman drives away holding up his mobile phone, apparently photographing the police members.”
The reference to the Supreme Court judgment was clarified in oral submissions. Mr Freeman explained that he kept in his car some authorities that set out some of his rights that he can use in such situations.
When it came to considering the question of self-defence, his Honour said the following:[25]
“Mr Freeman does not discharge the evidential burden upon him in raising self-defence or duress by presenting or pointing to evidence that suggests the reasonable possibility of the existence of facts that, if they existed, would establish self-defence or duress.
Although Mr Freeman says that he had such a relevant belief, saying so does not establish it in the circumstances. As to his self-defence, his conduct constituting his refusal has nothing to do with the defence of himself or his children. It is all about argument with the police officers in order ultimately to avoid undergoing a preliminary oral fluid test.
During the course of his arguing, he raises several points, none of which has any merit. His attitude to the police officers is aggressive and highly abusive. In light of the abuse, their behaviour towards him was commendably restrained. Mr Freeman does not discharge his evidentiary burden. Self-defence does not arise. The same applies to duress. There is no threat of harm raised by the behaviour of the police officers who were desiring to carry out their duty and doing so in a reasonable [manner]. Duress does not arise.”
[25]The following is taken from a transcript of reasons that were delivered orally. The emphasis has been added.
I am satisfied that there is no real prospect that Mr Freeman can establish that the County Court judge acted unlawfully or erred in the relevant sense when his Honour rejected Mr Freeman’s argument that the informant had not proved beyond reasonable doubt that Mr Freeman had not acted in self-defence or under duress. The County Court judge was clearly satisfied, beyond reasonable doubt, having watched and heard the video recording of Mr Freeman’s interaction with the police, and having heard evidence from Acting Sargeant Maher, Senior Constable Greaves and Mr Freeman, that Mr Freeman was not acting in self-defence or under duress when he failed to provide a sample and instead drove away while using his mobile phone to film the police officers. It is true, perhaps, that his Honour in his language to some extent combined the concepts of Mr Freeman’s not discharging his evidentiary onus with the finding that there was no self-defence or duress. However, it is apparent that his Honour:
(a) was not satisfied that Mr Freeman’s evidence (that he failed to provide a sample because Mr Freeman believed, as a result of his prior experiences with police, that the police were engaged in a process of trying to do him harm, and that the request for a sample was part of that process), even if true, would establish that he was acting in self-defence or under duress on this occasion; and
(b) was satisfied, in any event, to the requisite standard, that Mr Freeman was not in fact acting in self-defence or under duress when he failed to provide the sample.
There is no reason to think that these conclusions were not open to his Honour. Mr Freeman contends that the prosecution did not tender any proof that was contrary to his evidence that he was acting in self-defence, but it did: it called the two police officers who described what happened on this occasion and it tendered the video of Mr Freeman’s interactions with them. It was open to his Honour, having regard to that evidence, which his Honour said showed the police officers to be acting with restraint and Mr Freeman to be acting with verbal aggression, to be satisfied beyond reasonable doubt that Mr Freeman was not on this occasion acting in self-defence when he left the scene.
Mr Freeman’s position is that it is only his own state of mind that matters when the question of self-defence arises, and that self-defence could not be disproved in the absence of direct evidence contradicting his claimed beliefs. That is not correct. Although Mr Freeman’s state of mind is fundamental, a person does not act in self-defence unless, in addition to their subjective belief, the conduct is also a ‘reasonable response’ in the circumstances as the person perceives them.[26] This introduces an objective element; it is open to a court to conclude that conduct was not a reasonable response even in light of the beliefs held. Equally, and even assuming the evidentiary onus to have been discharged, the Court was entitled to be satisfied, beyond reasonable doubt, on the whole of the evidence including the video showing what Mr Freeman said and how he behaved on the day, that Mr Freeman did not in fact at the time believe that his refusal to provide the sample was ‘necessary to defend himself’ (or his children), or that it was a ‘reasonable response in the circumstances’ as Mr Freeman perceived them. These were matters of fact entrusted to his Honour to evaluate.[27] It was well open to his Honour to form the view, in all the circumstances, that Mr Freeman was not acting in self-defence when he left the scene rather than undergo a preliminary oral fluid sample. As noted above, this is not an appeal in the nature of a rehearing or a review on the merits, and there is no basis for this Court to set his Honour’s decision aside in a proceeding for judicial review. The same applies with the argument in so far as it is that Mr Freeman was acting under duress.
B.5.2 Abuse of process and natural justice
[26]Crimes Act 1958 (Vic) s 322K(2)(b).
[27]I should add that Mr Freeman did not produce in this Court the video of the incident, and expressly submitted that I should not look at it. The defendant did not contend to the contrary. Accordingly, I have not watched the video. Particularly in those circumstances, there is no basis to consider that the County Court’s interpretation of the events shown on the video were not open.
There is no real prospect that Mr Freeman could succeed in having the County Court’s decision set aside on the grounds that the proceeding was an abuse of process or that he was denied natural justice. Whatever Mr Freeman’s past experiences may have been with other police officers, there is no reason to consider that the police officers dealing with Mr Freeman on this occasion acted improperly or were motivated by malice or misconduct or any superiority complex that made their prosecution an abuse of process. There is no reason to doubt his Honour’s characterisation of their interactions on this occasions. The case was presented in an unexceptional manner. Mr Freeman cross-examined prosecution witnesses, gave evidence himself, was permitted to make submissions both in the course of his giving of evidence and afterwards, and tendered documents. Mr Freeman asserted that he was not given sufficient time to present his case but I do not accept that this was so. He gave evidence (in the course of which he made submissions) over some 85 pages of transcript.
Similarly, the fact that the informant was legally represented but Mr Freeman was not does not mean that there was an abuse of process or that he was denied natural justice. Parties are free to engage, or not to engage, lawyers if they wish to do so even against persons acting for themselves. The fact that it has been expensive to prosecute Mr Freeman does not mean that the prosecution is an abuse of process.
B.5.3 Bias
The fact that the legal system is funded by the State does not mean the police or the Courts are biased.
B.5.4 The validity of the Road Safety Act 1986 and other legislation
Mr Freeman did not raise any argument that cast any doubt on the conclusion drawn by the County Court judge that the relevant provisions of the Road Safety Act 1986 under which Mr Freeman was charged are valid. I am satisfied that Mr Freeman’s argument that s 55D of the Road Safety Act 1986 is invalid has no real prospects of success. Mr Freeman points to nothing in the federal constitution that either empowers the federal legislature to enact laws that govern drivers in Victoria, or, if there were, to laws that are in conflict with the provisions of the Road Safety Act 1986 here under consideration so as to engage s 109 of the Commonwealth Constitution. The regulation of driving in Victoria is a matter for the Parliament of the State of Victoria and not the Commonwealth and, as his Honour concluded, the Victorian Parliament had power to enact that legislation.
Further, the Charter is not a bill of rights by which laws may be declared invalid by this Court, but is rather a guide to how laws should be interpreted in cases of ambiguity.[28] A mandatory licence disqualification for two years on proof of guilt is not invalidated by the Charter, or the ICCPR. Section 13.1 of the Criminal Code 1995 (Cth) merely imposes (where it applies) the onus on the prosecution to prove every element of an offence. There is no reason to doubt that his Honour thought other than that the onus was on the prosecution.
B.5.5 The heavy penalty
[28]See the Charter at ss 32–33.
It is true that two-years’ disqualification for failing to provide a sample is a significant penalty. But that is what the legislature has provided. As his Honour below noted, that is a mandatory penalty. The Victorian Parliament has power to enact mandatory penalties for offences.[29]
[29]See generally: Palling v Corfield (1970) 123 CLR 52, 58 (Barwick CJ), Magaming v R (2013) 252 CLR 381, 396 [49] (French CJ, Hayne, Crennan, Kiefel and Bell JJ).
B.5.6 The principle of legality
Mr Freeman pointed out, correctly, that legislation should be interpreted on the basis that the legislature is presumed not to have intended the abrogation or curtailment of fundamental common law rights and freedoms and that the legislature intended to legislate in a manner consistent with its international obligations. But those are only presumptions and they must give way to an intention clearly expressed in the legislation. That is the case here. The Road Safety Act 1958 clearly imposes an obligation on drivers to participate in preliminary oral fluid tests, and clearly imposes a mandatory penalty of at least two-years licence disqualification if they are proved not to have done so. Those legislative provisions infringe on persons’ rights, of course; but the statutory intention is clear and overcomes any presumption to the contrary.
B.5.7 Section 55E(12) of the Road Safety Act 1986
Section 55E(12) of the Road Safety Act 1986 provides that a person ‘must not be convicted or found guilty of refusing to provide a sample of oral fluid in accordance with this section if he or she satisfies the court that there was some reason of a substantial character for the refusal, other than a desire to avoid providing information which might be used against him or her.’ Unlike the situation with self-defence, that is a defence where the onus is placed on the accused. Mr Freeman did not rely on this defence in the County Court so it cannot be said that his Honour erred in the exercise of his jurisdiction by failing to consider that provision. Furthermore, s 55E(12) expressly states that it applies to persons being convicted or found guilty of refusing to provide a sample of oral fluid ‘in accordance with this section’. Mr Freeman was not charged with failing to comply with an obligation imposed by section 55E the Road Safety Act 1986: he was charged with failing to comply with an obligation imposed by s 55D of the Road Safety Act 1986. Section 55E refers to tests and analysis other than the ‘preliminary’ test with which s 55D is concerned and imposes its own obligation to provide samples. Notably, s 55D does not have an equivalent provision to s 55E(12). It follows that s 55E(12) does not apply to a charge brought for failing to comply with an obligation imposed by s 55D. Mr Freeman submitted that the words ‘this section’ in s 55E included s 55D because, as I understood it, they were both part of s 55. I disagree: section 55D and s 55E are different sections of the Road Safety Act 1986.
B.5.7 Conclusion
I am satisfied that Mr Freeman’s application for judicial review has no real prospects of success. It is not in the interests of justice that it be permitted to proceed to a full hearing. On the contrary, it is in the interests of justice that it be summarily dismissed.
C. The date of the suspension
Mr Freeman sought, as an alternative, that the two-year’s disqualification be back-dated to when it was first imposed in 2022. That would have the effect of permitting him, now, to re-apply for a licence. I doubt that this Court would have power to make such an order, but it certainly does not have power to make such an order in circumstances where, as is the case here, no relevant error is found in the order being reviewed.
D. The appeal against the refusal to grant a stay
In circumstances where this application for judicial review is to be summarily dismissed, there is no need to consider Mr Freeman’s application for a stay pending the hearing and determination of this proceeding.
E. Final remarks and disposition
Mr Freeman feels genuinely aggrieved. As noted above, I have no reason to doubt his assertion that he does not take drugs and that a lengthy time off the road will seriously interfere with his and his family’s life. I accept that the loss of his licence for the two-year period will lead to hardship in his particular circumstances. But those are the consequences that flow from the policy decisions taken by Parliament, in its assessment of the interests of public safety, to require drivers to provide samples for testing on request by police officers and to impose a large mandatory penalty on those who refuse to do so, and, of course, from his decision not to provide a sample. The laws that implement those policy decisions are clearly expressed and are within the State of Victorian’s legislative competence and therefore are valid laws. In this case, the County Court judge who saw and heard the evidence was satisfied that Mr Freeman had breached those laws and that he was not acting in self-defence when he did so. An application for judicial review, as noted above, is not a review on the merits of those conclusions, but only a review for lawfulness. There is no realistic prospect that Mr Freeman will succeed in this application. Accordingly, I will make an order that this proceeding be dismissed.
I will hear the parties on whether any and if so what order ought be made on the plaintiff’s notice of appeal from a judicial registrar filed 1 August 2024, which is an appeal within this proceeding, and on the question of costs.
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