Lacey v Earle
[2014] ACTSC 397
•16 December 2014
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Lacey v Earle |
Citation: | [2014] ACTSC 397 |
Hearing Date(s): | 16 December 2014 |
DecisionDate: | 16 December 2014 |
Before: | Murrell CJ |
Decision: | Appeal dismissed. |
Category: | Principal Judgment |
Catchwords: | APPEAL AND NEW TRIAL – Procedure – Australian Capital Territory – appeal from Magistrates Court – appellant not present CONSTITUTIONAL LAW – Imperial, colonial, State and Commonwealth Constitutional relationships – sovereignty in respect of Indigenous peoples |
Legislation Cited: | Court Procedures Rules 2006 (ACT) r 5140 Pacific Islanders Protection Act 1872 (Imp) 35 & 36 Vict, c 19 |
Cases Cited: | Coe v Commonwealth (1993) 68 ALJR 110 Coe v Commonwealth of Australia (1979) 24 ALR 118 Walker v State of South Australia (No 2) (2013) 215 FCR 254 |
Parties: | Lee Anne Lacey (Appellant) Philip Earle (Respondent) |
Representation: | Counsel Self represented (Appellant) Ms J Campbell (Respondent) |
| Solicitors Self represented (Appellant) ACT Director of Public Prosecutions (Respondent) | |
File Number(s): | SCA 32 of 2014 |
Decision under appeal: | Court/Tribunal: ACT Magistrates Court Before: Magistrate Dingwall Date of Decision: 7 April 2014 Case Title: Earle v Lacey |
| Court File Number(s): CC 7909; 7910; 7911; 7912; 7913; 7919 of 2013 |
MURRELL CJ:
Introduction
The appellant was charged in the ACT Magistrates Court with driving offences, including using an unregistered and uninsured vehicle, exceeding the speed limit, and failing to provide her name. The offences allegedly occurred on 5 November 2013.
On 7 April 2014, the matters were heard by Magistrate Dingwall. In those proceedings, the appellant relied on a document entitled Notice of Rebuttal and Claim of Right, which became Exhibit D2. The appellant challenged the jurisdiction of the ACT Magistrates Court to deal with the offences on the basis that she is an Aboriginal person over whom the Magistrates Court (indeed, the courts of Australia) could exercise no jurisdiction. The Magistrate rejected that argument.
The appellant appealed on the ground of "jurisdiction". She sought orders to the effect of "[n]o jurisdiction, not guilty, no fines."
Division 5.3.5 of the Court Procedures Rules 2006 (ACT) (CPR) makes provision for the filing of appeal papers and submissions. Those rules were not complied with, but no specific directions had been made at directions hearings and the appellant was self-represented. The appeal was listed for directions on numerous occasions while the Court awaited receipt of the transcript from the Magistrates Court.
Absence of the appellant
The appellant represented herself at the directions hearing appearances before the Deputy Registrar, and must have been well aware that the matter was fixed for hearing today.
On 15 December 2014, the Court received a letter from Dr Gray, a staff specialist attached to the adult mental health unit at the Canberra Hospital, stating:
The above-named [that is, the appellant] is currently under my care in The Canberra Hospital & is likely to be medically unfit to perform court-related functions for at least four to six weeks.
That is the total content of the document. It does not explain whether the appellant is an inpatient at the Canberra Hospital, nor does it explain the nature of her unfitness.
The appellant did not appear when the matter was called at 10:15 am today.
The respondent sought to proceed pursuant to r 5140 of the CPR which relevantly provides:
(1) If a party is not present when the appeal is called on for hearing, the Supreme Court may—
…
(c)if the absent party is an appellant or cross-appellant—dismiss the appeal or cross-appeal; or
…
(3) If the appeal or cross-appeal is dismissed under subrule (1) (c), and the Supreme Court considers there are special circumstances to set aside the dismissal, the Court may, on application by the appellant or the cross-appellant—
(a)set aside the dismissal; and
(b)give directions for the further conduct of the appeal.
…
The respondent provided written submissions and also took the Court briefly to relevant case law, which indicated that the appeal was without merit. I therefore decided that I would proceed with the appeal, noting that, under r 5140 of the CPR, the appellant can make an application to amend or set aside orders made in her absence.
Nature of the appeal
In the Magistrates Court, the appellant’s "Notice of Rebuttal and Claim of Right" became Exhibit D2. It is difficult to disentangle the arguments advanced in that document. However, they appear to include the following:
(a)The forcible settlement by the British of Aboriginal land and the absence of a treaty between the British settlers and Aboriginal peoples means that there is no power in the Commonwealth to make laws for Aboriginal peoples; and
(b)The Pacific Islanders Protection Act 1872 (Imp) 35 & 36 Vict, c 19 (Pacific Islanders Protection Act) was designed to protect the sovereignty of tribes in the Pacific Ocean, including the Aboriginal community of which the appellant is a member, and the Pacific Islanders Protection Act was never effectively repealed.
In oral argument before the Magistrate, the appellant also referred to the following matters:
(a)Aboriginal peoples are not recognised by the Commonwealth Constitution and therefore should not be subject to "corporate Crown law".
(b)The Australian government is a corporation registered with the United States Securities and Exchange Commission, and for reasons which are not clear, it therefore has no power to deal with the appellant, who is, "[n]ot a corporation [but] a human being".
(c)The appellant was “CHARGED”.
(d)"Blacks law legalese". I do not understand the substance of the argument in relation to this matter.
At pages 15 to 16 of his judgment, the Magistrate referred to two decisions, Coe v Commonwealth of Australia (1979) 24 ALR 118 and Re Phillips Ex parte Aboriginal Development Commission (1987) 72 ALR 508, and went on to say at pages 15–16:
And to summarise those two judgments the courts found that the aboriginal people of Australia are subject to the laws of the Commonwealth, and of the states or territories in which they respectively reside.
...
[I]t’s been found by the High Court and other courts in the past that the members of the aboriginal race who currently reside and live in Australia, which is their land, are nevertheless bound by the laws of the Commonwealth and each of the states and each of the territories.
It is that finding about jurisdiction against which the appellant appeals.
In the Magistrates Court the appellant did not dispute any of the evidence placed before the Court and it would seem from the Notice of Appeal that she does not seek to dispute the evidence on this appeal.
Merits of the appeal
In R v Buzzacott (2004) 149 A Crim R 320 (Buzzacott), Connolly J of this Court considered a similar challenge to jurisdiction. His Honour referred to relevant decisions of the High Court, including Coe v Commonwealth (1993) 68 ALJR 110, Mabo v Queensland (No 2) (1992) 175 CLR 1 and Thorpe v Commonwealth (No 3) (1997) 71 ALJR 767. At 325, his Honour concluded:
Whatever argument the accused may have as to whether or not the conduct of the policy towards Aboriginal Australians by successive governments, Commonwealth, State or Territory, amounts to genocide, whether as understood under international law or as established now as a domestic offence under a law of the Commonwealth, this Court cannot bring into question the basic principle of law underlying its own existence that there is but one sovereignty over the geographic entity of Australia and that the exercise of that sovereignty is governed by the Constitution of Australia, so that in the case of an offence allegedly committed within the Australian Capital Territory, this court has jurisdiction to try the case no matter what the racial or ethnic origin of the accused.
The respondent referred the Court to a recent decision of the Queensland Court of Appeal, R v Anning [2013] QCA 263 (Anning) in which the Court of Appeal considered a document entitled Notice of Rebuttal of Claim to Title to Land and Claim of Right, which resembles Exhibit D2. In Anning, the appellant asserted that the state of Queensland had no power to legislate in respect of the Yidindji tribe and that, as a Yidindji tribal man, the appellant was not subject to Queensland laws.
In the leading judgment in R v Anning, Morrison JA referred to the High Court decision in Mabo v State of Queensland (No 2) (1992) 175 CLR 1), Coe v Commonwealth of Australia (1979) 24 ALR 118 and Coe v Commonwealth of Australia (1993) 118 ALR 193, noting at [49] that the decision of Mason CJ in Coe (1993), had been adopted a number of times in the High Court, Federal Court and the Supreme Court of the Australian Capital Territory (in Buzzacott). His Honour referred to the decision in Members of the Yorta Yorta Aboriginal Community v State of Victoria (2002) 214 CLR 422 in which Gleeson CJ, Gummow and Hayne JJ said at 443–4:
But what the assertion of sovereignty by the British Crown necessarily entailed was that there could thereafter be no parallel law‑making system in the territory over which it asserted sovereignty. To hold otherwise would be to deny the acquisition of sovereignty and as has been pointed out earlier, that is not permissible.
The respondent referred to another recent decision, that of Mansfield J in Walker v State of South Australia (No 2) (2013) 215 FCR 254. In that case, the applicant relied upon the Pacific Islanders Protection Act in the way in which the appellant in this case relied upon that Act. At [53]–[56], his Honour determined that the Pacific Islanders Protection Act had “no application to the Indigenous people of Australia.” At [54] his Honour noted that the purpose for which the Pacific Islanders Protection Act was passed was to protect the “indigenous populations of the islands of the Pacific Ocean” from kidnapping for the purpose of labour. At [55]–[56], his Honour noted that the Act on its own terms did not apply to the “Indigenous people of Australia”. It applied only to the peoples of the islands in the Pacific Ocean who did not otherwise have the protection of the law, “not being within her Majesty’s dominions, unlike the people of Australia”.
Conclusion
Courts at all levels have held that the Commonwealth and the states and territories have power to enact laws in relation to all the people of Australia, including Aboriginal peoples, and that the arguments to which the appellant refers in her notice of rebuttal and which she raised before Magistrate Dingwall are unmeritorious.
For these reasons, the appeal is dismissed.
| I certify that the preceding twenty [20] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Chief Justice Murrell. Associate: Date: 10 February 2015 |
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