Maher v The Queen

[2021] NSWDC 212

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Maher v R [2021] NSWDC 212

Hearing dates:

19 January 2021, 25 May 2021

Decision date:

25 May 2021

Jurisdiction:

Criminal

Before:

Haesler SC DCJ

Decision:

The conviction appeal is dismissed. I confirm the orders of the Magistrate

Catchwords:

CONSTITUTIONAL LAW — Commonwealth Constitution — General principles — legislative capacity of the State of NSW to make laws applying to Aboriginal/indigenous people

CRIME - Constitutional Law — Commonwealth Constitution — General principles — Nature of common law

CRIME – Summary Offences - Driver use mobile phone when not permitted- Assault police officer in the execution of his duty - Hinder police

CRIME - Appeals - Appeal against conviction - Wrong decision on a question of law – appeal dismissed - no error in magistrate’s decision

APPEAL - Jurisdiction of appellate court — District Court

APPEALS — Nature of appeal - challenge to jurisdiction of the court.

Legislation Cited:

Crimes Act 1900 (NSW)

Crimes (Appeal and Review Act) NSW 2001

Judiciary Act 1903 (C’th)

Road Rules 2014

Cases Cited:

AG v Director of Public Prosecutions (NSW) [2015] NSWCA 218

Bradley v The Crown [2020] QCA 252

Coe v. The Commonwealth (1993) 8 ALJR 110

Dyason v Butterworth [2015] NSWCA 52

Gianoutis v Glykis (2006) 65 NSWLR 539

Love v Commonwealth of Australia; Thoms v Commonwealth of Australia [2020] HCA 3; (2020) 94 ALJR 198

Mabo v. Queensland (No.2) (1992) 175 CLR 1

Walker v NSW (1994) 182 CLR 45

Category:

Principal judgment

Parties:

Geoffrey Maher (the appellant)
Director of Public Prosecutions

Representation:

Solicitors:
Appellant appears unrepresented
Ms Azad (for Director of Public Prosecutions)

File Number(s):

2019/00391129

Judgment

1. Geoffrey Maher is an Aboriginal/Indigenous person of the continent of Australia. Mr Maher identifies as Yuin (South Coast NSW), Biribi (Taree NSW) and Gumbaynggirr (Nambucca Heads NSW). He asserts his right to represent Aboriginal people is verified by an online petition headed “Support Aboriginal People Facing an Unjust Justice System” to which a number of people have added their names and comments: MF1 2

2. Mr Maher was served with Court Attendance Notices for 3 offences said to have occurred on 21 November 2019 at Warrawong NSW:

1. Driver use mobile phone when not permitted: s300 Road Rules 2014

2. Assault police officer in the execution of his duty: s60(1) Crimes Act 1900 (NSW)

3. Hinder police: s546C Crimes Act 1900 (NSW).

3. Mr Maher said he was not guilty and the matter was listed for hearing. He challenged the jurisdiction of the court to try him. He did not contest the facts presented. On 17 August 2020 Local Court Magistrate Girotto sitting at Wollongong convicted Mr Maher of each charge. The uncontested material before her Honour proved each element of each charge beyond reasonable doubt. Fines were imposed.

4. On 7 September 2020 Mr Maher appealed the convictions to the District Court of NSW on the grounds that he was not guilty.

5. On 19 January 2021, I refused an application by the appellant to issue subpoenas and call fresh evidence to prove that there was no letter of consent given by Captain Cook to the Crown of England stating that the Aboriginal people gave up their sovereignty and rights to their land Australia.

6. The matter was adjourned to today so that Mr Maher could marshal his submissions and file and serve them.

7. In the Local Court Mr Maher took a point of law arguing that the Local Court of NSW had no jurisdiction to try him as the Aboriginal/Indigenous people of the continent of Australia had never ceded sovereignty to the Crown. Although he said he was raising a “constitutional issue” no notice pursuant to s 78B Judiciary Act 1903 (C’th) were issued in this court or the Local Court.

8. Magistrate Girotto rejected the challenge to the legislative capacity of the State of New South Wales on a point of law. Her Honour relied on and applied the decisions of the High Court of Australia in Walker v NSW (1994) 182 CLR 45; Mabo v. Queensland (No.2) (1992) 175 CLR 1 and Coe v. The Commonwealth (1993) 8 ALJR 110.

9. Mr Maher appealed to the District Court, notwithstanding his assertion that the appeal process had been established by the laws he said did not apply to him: Bradley v The Crown [2020] QCA 252.

10. He argued that in rejecting his point of law Magistrate Girotto erred in law.

11. I received in evidence on the appeal all the material in evidence before her Honour and the transcript of proceedings for the 17 August 2020. I had as part of the tender bundle and her judgment have read and noted it.

12. I heard Mr Maher’s arguments today. He was polite and respectful. In a letter filed and served before today he succinctly set outs out his position:

1. He reasserts his claim that Governor of NSW and The Governor General of Australia provide a letter of consent proving the Aboriginal people of Australia gave up their sovereign rights to this land.

2. He calls on the Respondent or the Court to produce any document stating the

“Aboriginal rightful owners of this Country called Australia did at any stage give up our Sovereign Right and ownership of this Country.”

3. He asserts

4. “First peoples are not included in your Constitution, except for Census in 1980’s.”

5. Before concluding:

“ My legal argument remains that you still cannot prove to me that you have jurisdiction over me and you also stated that I am only speaking for myself and I say to you are speaking only your own opinion. I will present on the day a petition stating I am speaking on behalf of the First people. So I will plead NO JURISDICTION on the above evidence.”

13. I indicated to the Appellant that I was bound to apply the same principles of law that bound Magistrate Girotto. We discussed what those principles were and how they could be expressed as questions of law for me to answer.

14. I did not need to hear from Ms Azad, Solicitor for the Director of Public Prosecutions.

Determination

15. Magistrate Girotto made no error of law in applying the authority of the High Court of Australia to reject the appellant’s contentions. As no error was made by her Honour the appeal cannot succeed: Dyason v Butterworth [2015] NSWCA 52, per McColl JA at [25] to [29]; AG v Director of Public Prosecutions (NSW) [2015] NSWCA 218, per Basten JA at [34]

16. As Mason CJ noted in Walker v NSW at [2]:

“The legislature of New South Wales has power to make laws for the peace, welfare and good government of New South Wales in all cases whatsoever (1 Constitution Act 1902 (N.S.W.)). The proposition that those laws could not apply to particular inhabitants or particular conduct occurring within the State must be rejected.”

17. More recently in Love v Commonwealth of Australia; Thoms v Commonwealth of Australia [2020] HCA 3; (2020) 94 ALJR 198, Gaegler J noted that:

“Australian courts before and after Mabo v Queensland [No 2] ("Mabo"), as well as in the reasoning in Mabo itself, have consistently rejected the existence of Aboriginal or Torres Strait Islander sovereignty.” Citations omitted at [102].

18. In dismissing the appeal I answer each of the following questions of law raised by Mr Maher as follows:

1. Are the Aboriginal/indigenous people of the continent of Australia subject to the laws of the Commonwealth and of the States or Territories in which they respectively reside? Answer - Yes.

2. Does sovereignty reside in the Aboriginal/Indigenous people of the continent of Australia? Answer - No

3. Do the Parliaments of the Commonwealth and New South Wales have legislative competence to regulate or affect the rights of Aboriginal people? Answer - Yes.

4. Is the application of Commonwealth or State laws to Aboriginal/Indigenous people in any way subject to their acceptance, adoption, request or consent? Answer – No.

5. Does sovereignty adverse to the Crown reside in the Aboriginal/Indigenous people of Australia? Answer - No.

19. As there may still be a dispute as whether an Appellant to this court must demonstrates that the order the subject of the appeal is the result of a legal, factual or discretionary error, I note; a further reason for dismissing the appeal is that my review of the evidence and the uncontested facts before her Honour, and now me, establish each element of each offence beyond reasonable doubt: s 20(1) Crimes (Appeal and Review Act) NSW 2001; Gianoutis v Glykis (2006) 65 NSWLR 539.

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Amendments

28 May 2021 - Addition of catchwords

Decision last updated: 28 May 2021