Kerinaiua v Andreou - [2018] NTSC 87

CITATION:Kerinaiua v Andreou [2018] NTSC 87
PARTIES:KERINAIUA, Adam Troy
v

ANDREOU, Andreas

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  APPEAL from LOCAL COURT exercising Territory jurisdiction
FILE NO:LCA 15 of 2018 (21719339)
DELIVERED:  13 December 2018
HEARING DATE:  5 December 2018
JUDGMENT OF:  Barr J
CATCHWORDS:

CRIMINAL LAW – Defendant’s appeal from Local Court – appellant found guilty after summary trial – finding of guilt an ‘adjudication’ or ‘order’ under s163 Local Court (Criminal Procedure) Act – appeal to be instituted with 28 days of order or adjudication – condition precedent to right of appeal – notice of appeal filed and served outside 28 days – no basis for extending time – appeal not validly instituted – appeal dismissed.
Local Court (Criminal Procedure) Act, s 163, s 171(1), s 172(1), s 172(3)
Federal Commissioner of Taxation v Arnhem Aircraft Engineering Pty Ltd (1987) 47 NTR 8, applied
Walker v State of New South Wales (1994) 182 CLR 45; Walker (1998) 38 A Crim R 150, referred to
REPRESENTATION:
Counsel:
Appellant:Self represented
Respondent:  L Peattie
Solicitors:
Appellant:Self represented
Respondent:  Office of the Director of Public Prosecutions
Judgment category classification:    B
Judgment ID Number:  Bar1813
Number of pages:  9

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Kerinaiua v Andreou [2018] NTSC 87

No. LCA 15 of 2018 (21719339)
BETWEEN:

ADAM TROY KERINAIUA

Appellant

AND:

ANDREAS ANDREOU

Respondent

CORAM: BARR J
REASONS FOR JUDGMENT
(Delivered 13 December 2018)

The appellant, who also identifies himself by his tribal name Parlini, has appealed his conviction for aggravated assault.
The appellant appeared before the Local Court at Wurrumiyanga charged on information with a number of offences alleged to have been committed on 19 April 2017. One of the charges (count 2) alleged that the appellant unlawfully assaulted Richard Cunningham, with the circumstance of aggravation that the victim suffered harm.
The appellant conducted his own defence at the trial in the Local Court. He cross-examined the alleged victim, but did not suggest in cross-examination that he, the appellant, had not struck him. The appellant did not give evidence in relation to the assault. He called no witnesses. There was no issue of defensive conduct or other possible defence raised in evidence.
On 7 February 2018, the appellant was found guilty of the charge. The judge’s essential findings were as follows:
I am satisfied beyond reasonable doubt that on 19 April 2017 Adam Kerinaiua did punch Richard Cunningham to the left cheekbone, constituting an assault. I am satisfied that this caused pain, which constitutes harm, and the aggravated assault is made out. I find Adam Kerinaiua guilty of count 2.
In all the circumstances, the finding was unexceptional.
After the judge announced the verdict, further consideration was adjourned to 14 February and then to 23 February 2018, for sentencing submissions.
The finding of guilt on 7 February 2018 was an “adjudication”, alternatively an “order” within the meaning of s 163 Local Court (Criminal Procedure) Act. Any right of appeal had to be exercised by the institution of an appeal within 28 days from the time of such adjudication or order.
An appeal is instituted by a combination of (1) filing a written notice of appeal, which must be served upon the respondent,[1] and (2) payment of the prescribed fee.[2] Satisfaction of the requirement of s 171(2) Local Court (Criminal Procedure) Act – that an appeal must be instituted within 28 days from the time of the relevant order or adjudication appealed against – has been held for many years to be a ‘condition precedent’ to the right of appeal.[3]
The notice of appeal was not filed until 21 March 2018, outside the prescribed period of 28 days. While it appears that the appellant might have been under the misapprehension that the 28-day period ran from the time of sentence on 23 February 2018, he did not give evidence about or refer to any such misunderstanding at the hearing of the appeal, or provide any other material to persuade this Court that it should extend the prescribed time for giving notice of appeal pursuant to s 171(2) Local Court (Criminal Procedure) Act.
The consequence is that appeal has not been validly instituted and must be dismissed.
Alternative consideration
The appeal provisions contained in the Local Court (Criminal Procedure) Act may have harsh consequences for certain appellants, and so, notwithstanding the absence of evidence of the kind mentioned in [9] above, I propose to consider the merits of the appeal, as argued by the appellant. This consideration is only relevant in the event it were later held (contrary to my finding) that the appellant gave notice of appeal within time, or that the appellant should have been granted an extension of time by this Court.
I set out the grounds of appeal below:
1. The judgment was unfair and improper and the Judge didn’t take into account all the facts.
2. A Notice of Constitutional matter under section 78B of the Judiciary ACT [sic] was served and that the Northern Territory Magistrates Court, and in particular Magistrate/Judge Neill made decisions which are beyond his scope of authority.
3. The Police and the true offenders conspired to fabricate statements in order to support the offenders in the matter and to specifically have the Victims removed from their Homeland/Island to which they could not return effectively breaching Section 5 of the Genocide Convention Act 1949 CTH. In doing so the police used false instruments in order to justify removing myself and my family from our home and lands
4. The Applicant believes that given the nature of the elements of his argument, the High Court is the only court within the Crown’s realm, which can deliver a judgment, which the Courts of the Northern Territory must adhere to. The High Court has the exclusive power to determine matters regarding Treaty’s and this matter concerns issues raised by virtue of the Treaty between the Applicant and his Tribe in respect of their Law, Lands, Song Dance and Culture.
In relation to the first ground, that the judgment was unfair and improper, and that the judge did not take into account all the facts, the only submission made at the hearing of the appeal was that, rather than hearing the case, the judge should have brought the parties together, and had them apologise (to one another).
The appellant’s submission failed to take account of the fact that the informant had laid charges against the appellant, which were then listed for trial in the Local Court. The appellant had pleaded not guilty to all charges. Accordingly, the judge was under a duty to hear the evidence relied on by the prosecution and determine whether or not the appellant was guilty of any one or more of the charges. In hearing and deciding the case, the judge was discharging his obligations as a judicial officer.
No error is made out by the suggested failure on the part of the judge to conduct a conciliation of the kind suggested by the appellant. The first ground of appeal is not made out.
The second ground of appeal refers to a notice of a constitutional matter said to have been served, and also to s 78B of the Judiciary Act (Cth). While the ground is unclear, the contention seems to be that, because a s 78B notice had been served, the judge ought not to have continued with the hearing and exceeded his jurisdiction by continuing.
Pursuant to s 78A Judiciary Act, the Attorney-General of the Commonwealth may on behalf of the Commonwealth intervene in proceedings before a Territory court if the proceedings “relate to a matter arising under the Constitution or involving its interpretation”. Apart from matters entirely subjective to the appellant, there was no issue before the Local Court which could be legitimately characterised as “a matter arising under the Constitution or involving its interpretation”. Consequently, there was no proper basis for the judge to have held off proceeding further until such time as notice had been given to the Commonwealth Attorney-General pursuant to s 78B Judiciary Act.
The second ground of appeal is not made out.
I would make a further observation in relation to the second ground of appeal. Counsel for the respondent informed this Court, without objection, that an application by the appellant to remove this proceeding to the High Court of Australia was rejected in Kerinaiua v Crown in Right of the Northern Territory [2018] HCASL 224. On the hearing of the appeal, neither party tendered any documents in relation to the appellant’s application. However, my research indicates that, on 15 August 2018, two judges of the High Court determined that an application by the appellant for removal of a cause under s 40 of the Judiciary Act 1903 (Cth) raised no question warranting the attention of the High Court. The application was refused.
In relation to the third ground of appeal, the appellant’s assertions are made without evidence, and appear irrelevant to any issue in the court below. It may be assumed any issues of witness credit were dealt with by the judge in the course of the Local Court hearing. As to the one charge on which the appellant was found guilty, I refer to my brief mention in [3] and [4] about the conduct of the hearing and the evidence referred to by the judge in finding the appellant guilty. The third ground is not made out.
In relation to the fourth ground of appeal, the appellant’s’ belief about the jurisdiction of Territory courts and Federal courts is irrelevant. The fourth ground is not made out.
The appellant filed an affidavit in support of his grounds of appeal. While the contents are confusing and irrelevant, indeed somewhat bizarre, there are two contentions apparently raised. The first is that the appellant is not subject to the laws of the Northern Territory because he is a member of a sovereign tribe.[4] However, whether or not the appellant is a member of a formerly sovereign tribe, as he asserts, it has been consistently held that Indigenous Australians are subject to the laws of the Commonwealth and the laws of the States or Territories in which they may reside.[5]
The appellant also contends that the Constitution divested the Local Court of jurisdiction to determine the charges against him; that the case against him had to be heard in the High Court of Australia.[6] This contention appears to rely on s 51(xxvi) of the Constitution as originally drafted,[7] prior to the legislative amendments which followed the 1967 referendum.[8] In any event, as counsel for the respondent points out, s 51(xxvi) of the Constitution is not expressed to grant legislative powers to the Commonwealth to the exclusion of the States and Territories.[9] Moreover, the grant of legislative power to the Northern Territory by s 6 of the Northern Territory Self-Government Act 1978 (Cth), to make laws “for the peace, order and good government” of the Territory, is a plenary power.[10]
In summary, all grounds of appeal relied on by the appellant are without merit such that, even if the appeal had been instituted within time, it could not have succeeded.
I note finally that the notice of appeal filed by the appellant appeared to include an appeal against the sentence of one month’s imprisonment, suspended after one day, imposed by the Local Court on 23 February 2018. No specific grounds of appeal were stated other than those set out in [12] above. On the hearing of the appeal, the appellant did not argue that the sentencing discretion had miscarried, whether by reference to specific error or manifest excess. He made no submissions at all in relation to the sentence.
For the reasons explained in [8] – [10] above, the appeal has not been validly instituted and must be dismissed.
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[1] Local Court (Criminal Procedure) Act, s 171(1), 172(1).

[2] Local Court (Criminal Procedure) Act, s 171(1), 172(3).

[3] Federal Commissioner of Taxation v Arnhem Aircraft Engineering Pty Ltd (1987) 47 NTR 8.

[4] Appellant’s affidavit at pars 10, 21 and 53. At par 10, the appellant contends, "…you don't have jurisdiction to make Real Laws over me, Parlini, the Sovereign Man."

[5] Walker v State of New South Wales (1994) 182 CLR 45 at 48 per Mason CJ, referring to Coe v The Commonwealth (1979) 53 ALJR 403 at 408 per Gibbs J. Another example is Walker (1998) 38 A Crim R 150 at 154-155 per McPherson J (Andrews CJ and Demack J agreeing).

[6] Appellant's affidavit, par 5: "Any matter regarding section 51 of the Commonwealth Constitution is automatically a High Court matter; no lower court can hear the matter."

[7] Appellant's affidavit, par 6: "51.26 of the race power act states you can't make laws against me. … (xxvi) The people of any race, other than the aboriginal race in any State, for whom it is deemed necessary to make special laws." [underlining in the original]

[8]As initially drafted, s 51(xxvi) empowered the Commonwealth Parliament to make laws with respect to: "The people of any race, other than the aboriginal race in any State, for whom it is deemed necessary to make special laws". The provision was amended, after the 1967 referendum, to delete the words shown in italics.

[9]This may be contrasted with s 90 of the Constitution, considered in Capital Duplicators Pty Ltd v Australian Capital Territory (1992) 177 CLR 248. At 277, Brennan, Deane and Toohey JJ observed: "In terms, s 90 makes the legislative power of the Parliament in respect of duties of customs and excise... exclusive of any other legislative power... exclusive of State Parliaments." Where there is a conflict between Federal and State law, such conflict is resolved by s 109 of the Constitution, which provides that when a law of a State is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid.

[10] Union Steamship Co of Australia Pty Ltd v King (1988) 166 CLR 1 at 9: "The power to make laws ‘for the peace, welfare and good government’ of a territory is indistinguishable from the power to make laws ‘for the peace, order and good government’ of a territory. Such a power is a plenary power and it was so recognised, even in an era when emphasis was given to the character of colonial legislatures as subordinate law-making bodies."