Mathews v Queensland Police Service; Mathews v Ipswich City Council; Mathews v Queensland Police Service
[2025] QCA 1
•24 January 2025
SUPREME COURT OF QUEENSLAND
CITATION:
Mathews v Queensland Police Service; Mathews v Ipswich City Council; Mathews v Queensland Police Service [2025] QCA 1
PARTIES:
In CA No 11 of 2023:
MATHEWS, Russell Gordon Haig
(applicant)
v
QUEENSLAND POLICE SERVICE
(respondent)In CA No 34 of 2023:
MATHEWS, Russell Gordon Haig
(applicant)
v
IPSWICH CITY COUNCIL
(respondent)In CA No 37 of 2024:
MATHEWS, Russell Gordon Haig
(applicant)
v
QUEENSLAND POLICE SERVICE
(respondent)FILE NO/S:
CA No 11 of 2023
CA No 34 of 2023
CA No 37 of 2024
DC No 1635 of 2021
DC No 15 of 2021
DC No 80 of 2023DIVISION:
Court of Appeal
PROCEEDING:
Applications for Leave s 118 DCA (Criminal)
ORIGINATING COURTS:
In CA No 11 of 2023: District Court at Brisbane – [2022] QDC 294 (Devereaux SC CJDC)
In CA No 34 of 2023: District Court at Brisbane – [2023] QDC 21 (Devereaux SC CJDC)
In CA No 37 of 2024: District Court at Townsville – [2024] QDC 16 (Coker DCJ)DELIVERED ON:
24 January 2025
DELIVERED AT:
Brisbane
HEARING DATE:
28 August 2024
JUDGES:
Mullins P, Dalton JA and Ryan J
ORDERS:
In CA No 11 of 2023:
1. Applications for leave to adduce further evidence refused.
2. Application for leave to appeal refused.
In CA No 34 of 2023:
1. Applications for leave to adduce further evidence refused.
2. Application for leave to appeal refused with costs.
In CA No 37 of 2024:
1. Application for leave to adduce further evidence refused.
2. Application for leave to appeal refused.
CATCHWORDS:
APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – WHEN APPEAL LIES – FROM DISTRICT COURT – BY LEAVE OF COURT – where the applicant was found guilty after trial in the Magistrates Court of one charge of knowingly and without lawful justification exposed to view an obscene object tending to corrupt morals – where the applicant was fined $500 and a conviction was recorded – where the applicant appealed to the District Court pursuant to s 222 of the Justices Act 1886 (Qld) – where the District Court judge dismissed the appeal – where the applicant applies for leave to appeal from the District Court pursuant to s 118(3) of the District Court of Queensland Act 1967 (Qld) – whether the applicant has shown that the District Court judge made an error to be corrected
APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – WHEN APPEAL LIES – FROM DISTRICT COURT – BY LEAVE OF COURT – where the applicant was convicted in the Magistrates Court of two charges of contravene an enforcement notice under s 168(5) of the Planning Act 2016 (Qld) (charges 1 and 3) and one charge of use insulting, offensive or threatening language in relation to an authorised officer under s 36(a) of the Ipswich City Council Local Law No 1 (Administration) 2013 (charge 2) – where the applicant was fined $10,000 for charge 1, $500 for charge 2 and $20,000 for charge 3 and ordered to pay professional and court costs – where the applicant appealed out of time to the District Court pursuant to s 222 of the Justices Act 1886 (Qld) – where the District Court judge refused an extension of time to appeal and dismissed the appeal – where the applicant applies for leave to appeal from the District Court pursuant to s 118(3) of the District Court of Queensland Act 1967 (Qld) – whether the applicant has shown that the District Court judge made an error to be corrected
APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – WHEN APPEAL LIES – FROM DISTRICT COURT – BY LEAVE OF COURT – where the applicant was sentenced on 6 February 1987 in the Magistrates Court for fail to remain at scene of accident – where the applicant was fined $200, ordered to pay costs of court, was disqualified from obtaining a driver’s licence for three months and a conviction was recorded – where the applicant applied for an extension of time for filing an appeal to the District Court pursuant to s 222 of the Justices Act 1886 (Qld) – where the District Court judge dismissed the application – where the applicant applies for leave to appeal from the District Court pursuant to s 118(3) of the District Court of Queensland Act 1967 (Qld) – whether the applicant has shown that the District Court judge made an error to be corrected
Criminal Code (Qld), s 228
District Court of Queensland Act 1967 (Qld), s 118, s 119
Justices Act 1886 (Qld), s 142A, s 222
Local Government Act 2009 (Qld), s 36
Planning Act 2016 (Qld), s 168Bradbury v Staines, Ex parte Staines [1970] Qd R 76, cited
McDonald v Queensland Police Service [2018] 2 Qd R 612; [2017] QCA 255, cited
R v Close [1948] VLR 445; [1948] VicLawRp 47, cited
R v Hicklin (1868) LR 3 QB 360; [1868] UKLawRpKQB 44, citedCOUNSEL:
The applicant appeared on his own behalf
B M White for the respondent in CA No 11 of 2023 and CA No 37 of 2024
J J Underwood for the respondent in CA No 34 of 2023SOLICITORS:
The applicant appeared on his own behalf
Director of Public Prosecutions (Queensland) for the respondent in CA No 11 of 2023 and CA No 37 of 2024
Ipswich City Council Legal Unit for the respondent in CA No 34 of 2023
MULLINS P: On 28 August 2024, the Court heard three applications by the applicant for leave to appeal from three judgments of the District Court exercising its appellate jurisdiction. The applicant applied for leave to adduce further evidence for all applications. There were seven affidavits that were filed in relation to the first two applications and a further 13 affidavits that were filed for the purpose of all applications. These affidavits are lengthy and exhibit voluminous material almost all of which is not directly relevant to the respective issues raised by the three applications.
The applicant has been unhappy over many years about the manner in which he has been treated by police and in the justice system. The applicant has theories for why this has happened. Applications for leave to appeal to this Court do not provide the vehicle for the consideration of the applicant’s wider concerns about his relationship with the police, his allegations of bad faith and corruption against the police and others, and the theories that are the subject of his affidavits. To the extent that the affidavits deal with his disabilities, a written request to the Court Registry for the accommodations that this Court can provide which are appropriate for a litigant’s disabilities is usually sufficient without requiring lengthy affidavits. The Court granted the applicant’s request to participate in the hearing by telephone. It is neither necessary nor relevant for the Court to receive the voluminous affidavits prepared by the applicant and forwarded to the Court Registry. The applications for leave to adduce evidence should therefore be refused.
The applicant did not file the usual outline of submissions required of a party for the purpose of summarising the arguments in support of the grounds for each of the applications for leave to appeal. In the application for leave to adduce evidence filed on 23 January 2023 in CA No 11 of 2023, the applicant summarised his arguments in support of his application for leave to appeal in that matter. That document will be treated by this Court as the applicant’s outline of submissions. A similar approach was taken by the applicant in the application for leave to adduce evidence filed on 7 March 2023 in CA No 34 of 2023 and that will be treated as the applicant’s submissions in that matter. The application for leave to appeal filed in CA No 37 of 2024 is six pages in length and the grounds of the application set out the applicant’s submissions and will be treated as such.
CA No 11 of 2023
On 26 March 2021, the applicant was convicted after trial in the Magistrates Court by Magistrate Hall of one charge under s 228(1)(b) of the Criminal Code (Qld) that between 1 and 4 February 2019 at Booval he knowingly and without lawful justification or excuse exposed to view in a place to which the public were permitted to have access an obscene object tending to corrupt morals. The main witness for the prosecution was the investigating police officer Detective Yarrow. The applicant did not call or give evidence but made submissions to the Magistrate. He was fined $500, a conviction was recorded, and it was ordered that the sign the subject of the charge be forfeited to the Crown.
Pursuant to s 222 of the Justices Act 1886 (Qld) (JA), the applicant appealed to the District Court and the learned Chief Judge dismissed his appeal: Mathews v Commissioner of Police [2022] QDC 294 (the Chief Judge’s reasons). The applicant applies to this Court for leave to appeal pursuant to s 118(3) of the District Court of Queensland Act 1967 (Qld) (the Act).
The sign was confiscated during the execution of the search warrant at the applicant’s address at Booval on 3 February 2019. The sign was displayed at the front of the applicant’s home and was visible from the adjoining road by members of the public who traversed the road. There were other signs erected on the applicant’s property. The sign was described by the Chief Judge (at [3] of the Chief Judge’s reasons):
“The sign was large, described by the two police witnesses as between 3m and 4m wide. The first line of the sign reads in large black letters, ‘Sixteen-plus YO’, smaller less bold letters ‘school’, then in large black letters ‘boys’, then in much larger letters on the second line in red, ‘free sex’. On the third line, in smaller lowercase black writing appears ‘No Catholics, drugs, cigs, grog.’ On the fourth and final line, the sign reads [web address that had a section on alleged police corruption].”
Section 228(1) of the Code provides:
“Any person who knowingly, and without lawful justification or excuse—
(a)publicly sells, distributes or exposes for sale any obscene book or other obscene printed or written matter, any obscene computer generated image or any obscene picture, photograph, drawing, or model, or any other object tending to corrupt morals; or
(b)exposes to view in any place to which the public are permitted to have access, whether on payment of a charge for admission or not, any obscene picture, photograph, drawing, or model, or any other object tending to corrupt morals; or
(c)…
is guilty of a misdemeanour, and is liable to imprisonment for 2 years.”
The Magistrate identified the issue as whether the contents of the sign rendered it an obscene object tending to corrupt morals. The Magistrate found that the contents of the sign breached contemporary community standards as it ostensibly was offering to provide free sex to 16 year old schoolboys. The Magistrate rejected the applicant’s defence that the purpose of the sign was political discourse and to provoke members of the public to discuss the contents of the sign and the statements on the other signs on his property.
The grounds on which the applicant appealed to the District Court were set out at [7] of the Chief Judge’s reasons:
“1.That the sign displayed on the appellant’s house was not an ‘object’ as it was not a ‘picture, photograph, drawing or model’ but rather written words on a sign;
2.The contents of the sign were not ‘obscene’ but were ‘political discourse’ and used to attract attention to the political signs also affixed to the appellant’s house;
3.That the appellant was denied natural justice by being denied his ‘disability aids’; and
4.That the decision of the learned Magistrate was induced or affected by fraud/corruption.”
The Chief Judge concluded (at [14] of the Chief Judge’s reasons) that the sign was an object and, if the writing on it that was exposed to the public tended to corrupt morals, the offence was proved. The Chief Judge (at [23]) agreed with the Magistrate’s dismissal of the argument that the object was not obscene because it was part of a political discussion. Apart from the Magistrate’s interpretation of the words on the sign, the Chief Judge was of the opinion (at [19]) that “the sign may also be read as an invitation to interested persons to arrange, through the website or by attending the house, to have sex with 16 year old schoolboys”. On the rehearing on the record, the Chief Judge noted (at [26]) that the Magistrate’s conclusion that the contents of the sign being directed at children “tends to corrupt morals within the community and tends to corrupt the morals of other vulnerable older persons” meant the sign tended to corrupt the morals of young people and/or other vulnerable people because it encouraged them to engage in sexual activity at the house where the sign was displayed. The Chief Judge concluded (at [27]) that the Magistrate had applied the proper test of whether the sign (with its content) tended to corrupt morals and that the Magistrate’s conclusion was open and should not be set aside.
The Chief Judge rejected (at [28] of the Chief Judge’s reasons) the applicant’s assertion he was denied a fair trial because he was without his disability aids on the basis the transcript showed that he “ardently represented himself” and also rejected (at [29]) the ground that the Magistrate’s decision was induced or affected by fraud/corruption on the basis that no evidence was adduced by the applicant at the hearing before the Magistrate in support of those claims.
The applicant seeks leave to appeal to this Court on grounds which can be summarised as:
1.the charge was ultra vires as it was brought by the police in bad faith;
2.the Chief Judge erred in construing “other object” in s 228(1)(b) of the Code to extend to the sign;
3.the Chief Judge erred in finding the contents of the sign were obscene, as they were political discourse and used to attract attention to other political signs affixed to the applicant’s house;
4.the appointment of Magistrate Hall as a temporary magistrate was unconstitutional and a breach of human rights and denied the applicant his right to a fair hearing.
A summary of the relevant principles that apply to an application for leave to appeal to this Court from a judgment of the District Court in its appellate jurisdiction is set out by Bowskill J (as the Chief Justice then was) (with whom Fraser and Philippides JJA agreed) in McDonald v Queensland Police Service [2018] 2 Qd R 612 at [39]. Relevantly (at [39](e)), if leave is granted, the appeal is an appeal in the strict sense in respect of which this Court’s duty is to determine whether error has been shown on the part of the District Court on the material before the District Court. This Court’s power to draw inferences of fact from facts found by the judge, from admitted facts, or facts not disputed is limited by s 119(1) of the Act to inferences that are not inconsistent with the findings of the judge. Leave to appeal will usually be granted only where an appeal is necessary to correct a substantial injustice to the applicant and there is a reasonable argument that there is an error to be corrected (at [39](d)).
It was not in issue at the trial in the Magistrates Court that the sign was on the applicant’s property and contained the words that enabled the Magistrate to be satisfied beyond reasonable doubt that the offence under s 228(1)(b) of the Code was proved beyond reasonable doubt. Detective Yarrow gave evidence that a complaint had been made about the sign to the police by a member of the public. The applicant’s ground that the charge was brought by the police in bad faith is based on his view of his relationship with the police. It was naïve of the applicant to expect such a huge sign on his property with the content that it contained that was visible to members of the public would either pass unnoticed by the police or not be investigated by police upon a complaint being made about it, regardless of his belief about the police attitude towards him arising from his previous dealings with them. The applicant cross-examined Detective Yarrow at the trial on his defence that the sign was promoting political discourse and used to attract attention to other political signs on the applicant’s property. The applicant did not explore with Detective Yarrow his view that police were biased against him. Ground 1 that is relied on in this Court to the effect that the charge was brought by the police in bad faith appears to overlap with ground 4 before the Chief Judge that the Magistrate’s decision was induced or affected by fraud/corruption. To the extent that it was dealt with by the Chief Judge, no error can be shown in respect of the Chief Judge’s conclusion on ground 4 as there was no evidence before the Magistrate or submissions to the Magistrate in support of a claim of bias or fraud that affected the Magistrate. To the extent that ground 1 is based on the applicant’s view of the attitude of the police towards him, that was not an issue before the Magistrate and is irrelevant to the circumstances in which this charge arose. It was also not a matter on which any error was made by the Chief Judge. The applicant fails on ground 1.
Grounds 2 and 3 are the substantive grounds on which the applicant bases his application. Ground 2 concerns whether the sign with its content falls within the subject matter of s 228(1)(b) that applies to “any obscene picture, photograph, drawing, or model, or any other object tending to corrupt morals”. The applicant submits that term “other object” is used in each list that is set out in paragraphs (a) and (b) of s 228(1) and that the general term of “other object” takes its nature from the terms in the list preceding it. The applicant therefore argues that “other object” must be like a picture, photograph, drawing or model and that he could not be convicted under s 228(1)(b) for the words on the sign.
The applicant submits accurately that the lists in paragraphs (a) and (b) of s 228(1) are for different purposes. The gravamen of the offence under paragraph (a) is that the offender “publicly sells, distributes or exposes for sale” any obscene books, printed or written matter, computer generated images or “any obscene picture, photograph, drawing, or model, or any other object tending to corrupt morals”. The gravamen of the offence in paragraph (b) is the exposure to view in any place to which the public are permitted to have access of the types of things that fall within “any obscene picture, photograph, drawing, or model, or any other object tending to corrupt morals”. The sign with its content was exposed to view in a place to which the public were permitted to have access. The question is whether it falls within “any other object tending to corrupt morals”. What makes a picture, photograph, drawing or model obscene is what it shows or is depicted in or on it. The list is of items that can be exposed to view in a place to which the public are permitted to have access. As a matter of statutory construction, the sign with its content can fall within “any other object” that can be exposed to view in any place to which the public have access, provided it tends to corrupt morals. There was no error in the Chief Judge’s rejection of the applicant’s submission that the sign was “printed or written matter” that fell within s 228(1)(a) of the Code and conclusion that it was sufficient for the proof of the offence under s 228(1)(b) if the sign with the writing on it that was exposed to the public tended to corrupt morals. The applicant fails on ground 2.
The focus of ground 3 is whether the Chief Judge erred in confirming the findings of Magistrate Hall that the sign with its content was obscene and was not political discourse. The applicant’s submissions before Magistrate Hall and the Chief Judge were to the effect that the content of the sign was to promote discussion of the age of consent for sexual intercourse for boys and to direct attention to his other signs that also raised matters for political discussion. The reference on the sign to “free sex” and 16 year old schoolboys was an extremely oblique way of purporting to generate discussion about the age of consent. It is not apparent from the subject sign that it was being used as a link to the other signs on the property. The finding of the Magistrate that the subject sign was not part of a political discussion that was confirmed by the Chief Judge was open on the evidence.
In relation to whether the sign (with its content) tended to corrupt morals, the purpose of that test is to distinguish between objects that are otherwise within s 228(1)(b) that are obscene and those that are obscene and have that additional quality of “tending to corrupt morals” that justifies pursuit of a charge that amounts to a misdemeanour. This was explained in relation to a similar English provision in R v Hicklin (1868) LR 3 QB 360 at 371, as explained by Fullagar J in R v Close [1948] VLR 445 at 463. See also Bradbury v Staines, Ex parte Staines [1970] Qd R 76 at 86 and 88. It was a finding of fact made by the Magistrate that the sign (with its contents) tended to corrupt morals by offering to provide free sex to 16 year old schoolboys. Particularly, as the sign could also be read as suggested by the Chief Judge (at [19] of the Chief Judge’s reasons) as an invitation to attend the house to have sex with 16 year old schoolboys, there was no error by the Chief Judge in confirming the finding that the sign with its content tended to corrupt morals. The applicant fails on ground 3.
Ground 4 asserts the appointment of Magistrate Hall was unconstitutional and that consequences therefore followed for the applicant’s human rights and his right to a fair hearing. The applicant describes Magistrate Hall as “a temporary magistrate”. Magistrate Hall was, in fact, an acting magistrate whose appointment for a specified period was made by the Governor in Council pursuant to s 6(1)(g) and s 6(5) of the Magistrates Act 1991 (Qld). Section 6(6) of the Magistrates Act provides that a person who is appointed to act as a magistrate for a specified period acts as a magistrate only when directed by the Chief Magistrate to carry out the duties of office of a magistrate during the person’s period of appointment. The Chief Magistrate is given flexibility under s 6(7) in making that direction, as the person may be directed to carry out the duties of office of a magistrate on a full-time basis, part-time basis or from time to time. Under s 12(2)(h) and s 12(5) of the Magistrates Act, the Chief Magistrate or delegate can give directions to an acting magistrate about when the person is to carry out the duties of office of a magistrate during the person’s period of appointment.
The applicant’s submissions refer to the direction notice given to Magistrate Hall to carry out the duties of a magistrate at Ipswich for the day of 26 March 2021 when the trial of this charge was listed. (When the direction notice was given to Magistrate Hall, it referred to subsection (6) of s 12 of the Magistrates Act which was what the current s 12(5) was then numbered.) The applicant is mistaken when he submits that Magistrate Hall was appointed a magistrate for the day. It was not the case that the magistrate was “sacked” after completing the applicant’s trial on 26 March 2021 which is the basis for the assertion that his trial was unconstitutional. It was only a direction given to Magistrate Hall by the regional coordinating magistrate acting in accordance with a delegation of the Chief Magistrate’s powers under s 12(2)(h) for Magistrate Hall sit on the day the applicant’s trial was listed. Her appointment as an acting magistrate otherwise continued. There is no substance to ground 4.
The orders which should be made in respect of CA No 11 of 2023 are:
1.Applications for leave to adduce further evidence refused.
2.Application for leave to appeal refused.
CA No 34 of 2023
The applicant was convicted in his absence by Magistrate Hall on 7 January 2021 of two charges of contravene an enforcement notice under s 168(5) of the Planning Act 2016 (Qld) (charges 1 and 3) committed respectively on 28 June 2019 and 3 January 2020 and one charge of use insulting, offensive or threatening language in relation to an authorised officer under s 36(a) of the Ipswich City Council Local Law No 1 (Administration) 2013 (charge 2) committed on 4 November 2019. He was fined $10,000 for charge 1, $500 for charge 2 and $20,000 for charge 3. He was also ordered to pay professional costs of $2,000 and court costs of $101.80. The applicant did not apply for a rehearing pursuant to s 142A(12) of the JA but appealed his conviction pursuant to s 222 of the JA. The notice of appeal to the District Court was filed out of time and the applicant required an extension of time to appeal. The Chief Judge refused the application for the extension of time and dismissed the appeal on 21 February 2023: Mathews v Ipswich City Council [2023] QDC 21 (the planning reasons).
Even though the applicant did not appear before the Magistrate, a submission that had been sent by the applicant to the Magistrates Court on 19 July 2020 that asserted that the three charges involved the applicant’s “constitutional democratic right to engage in political communication via my ‘electoral advertising’ that the Qld government, including the parliamentary, executive including employed public sector and the judiciary is corrupt and undemocratic and unAustralian”. That email and accompanying documents that dealt with the applicant’s disabilities and assertions in relation to corruption were made exhibit 1 on the trial. The Magistrate proceeded pursuant to s 142A(4)(a) of the JA.
The applicant had put up large signs on his property which constituted assessable development pursuant to the Planning Act for which a development permit was required and resulted in the issue of the first enforcement notice by the Council. The first charge was brought when the applicant had not complied with the enforcement notice within the requisite time period. Subsequently he removed those signs, but then at a later date they were put up again. A second enforcement notice was issued with which the applicant failed to comply and that resulted in the third charge. The Magistrate rejected the applicant’s submission that the Council did not have power to take action against the applicant’s political communications, as the enforcement notices were not related to the content of the signs but to their size. The second charge arose out of the entry by an officer of the respondent onto the applicant’s land pursuant to a warrant issued under s 130 of the Local Government Act 2009 (Qld) (the LGA) to enable the officer to measure the size of large shipping containers in the applicant’s backyard and assess them for compliance with relevant planning laws. It was the verbal abuse by the applicant of the officer that was the subject of the second charge.
The Chief Judge considered the merits of the appeal on the basis, if the extension were granted, it would be a rehearing under s 222 of the JA. The grounds of appeal before the Chief Judge incorporated the applicant’s argument that all notices from the Council contravened the applicant’s constitutional freedom of political communications. The applicant also had a ground of appeal that the Magistrate breached s 78B of the Judiciary Act 1903 (Cth) by proceeding without all Attorneys General being advised of a constitutional matter. The applicant also contended that all action by the Council against his election advertising was ultra vires, including enforcement notices, application for warrant of entry, the warrant and the complaints and summons.
Section 36 of the LGA provides that a local government must not make a local law that prohibits or regulates the distribution of how-to-vote cards or prohibits the placement of election signs or posters. The meaning of “election sign or poster” is found in s 36(3) of the LGA:
“An election sign or poster is a sign or poster that is able, or is intended, to—
(a)influence a person about voting at any government election; or
(b)affect the result of any government election.”
The applicant relied on s 36(5) of the LGA which states that a local law contrary to that provision is ineffective.
The Chief Judge reviewed the evidence for each of the charges and was satisfied (at [24], [27] and [31] of the planning reasons) that it was open for the Magistrate to have concluded, and the Chief Judge also concluded, that each charge was proved beyond reasonable doubt.
The Chief Judge noted (at [34] of the planning reasons) that the grounds and contentions relied on by the applicant could not apply to the second charge as the abusive statements which constituted the second charge were abusive not political.
The Chief Judge noted (at [38] of the planning reasons) that the laws governing the signs were State legislation, namely the Planning Act, the Building Act 1975 (Qld) and the Building Regulation 2006 (Qld). In addition, the Chief Judge concluded (at [39]), after viewing the exhibits tendered before the Magistrate, that the applicant’s signage was not an election sign or poster as contemplated by s 36(3) of the LGA.
The Chief Judge concluded (at [41] of the planning reasons) that the applicant’s defence of the charges did not involve a matter arising under the Constitution, despite the applicant’s contrary assertion. The Chief Judge relied (at [40]) on the statement of Toohey J in Re Finlayson; Ex parte Finlayson (1997) 72 ALJR 73 at 74 to the effect that “a cause does not ‘involve’ a matter arising under the Constitution or involving its interpretation merely because someone asserts that it does”.
The applicant’s grounds for the application for leave to appeal to this Court can be summarised as:
1.section 36 of the LGA applies as all signs are election advertising and all notices issued by the Council were ultra vires as the subject matter was political/election advertising;
2.the officer of the Council who was the subject of charge 2 was a trespasser and the applicant was entitled to remove and abuse a trespasser.
The applicant did not pursue in this Court his argument that notices should have been given under s 78B of the Judiciary Act. The applicant did seek to pursue his assertions about corruption in the Queensland government and the police acting against his interests but those were matters that had not been properly the subject of his appeal to the Chief Judge. It is therefore not appropriate for those matters to be considered by this Court on the application for leave to appeal from the Chief Judge’s decision which is dependent on showing error in the decision made by the Chief Judge on the issues that were before the Chief Judge arising from the Magistrate’s decision.
Both grounds 1 and 2 focus on the applicant’s submission that s 36 of the LGA made all actions of the Council that were the subject of the three charges ultra vires. The structure and placement of the physical signs on the applicant’s property was the focus of the offending under the Planning Act and not the communication of any political messages set out on those signs. Section 36(1)(b) of the LGA precludes local government from making a local law that prohibits the placement of election signs or posters. That provision has no application to the prosecution for the first and third charges which took place under the Planning Act and not under a local law. The purpose of the attendance by the Council’s officer who was abused by the applicant was for investigating a possible breach of the Planning Act for which the officer had been authorised to enter under a warrant issued under the LGA. There was therefore no error by the Chief Judge in rejecting the applicant’s submission that all actions by or on behalf of the Council were ultra vires. The applicant does not succeed on its grounds for seeking leave to appeal to this Court.
The Council seeks an order for costs against the applicant on the basis that the applicant has pursued an unmeritorious application for leave to appeal. There is no reason not to make such an order.
The orders which should be made in CA No 34 of 2023 are:
1.Applications for leave to adduce further evidence refused.
2.Application for leave to appeal refused with costs.
CA No 37 of 2024
On 6 February 1987 the applicant was sentenced in the Magistrates Court at Townsville for fail to remain at scene of accident (the traffic offence). The applicant was convicted and fined $200, ordered to pay $35.25 as costs of court and disqualified from obtaining a driver’s licence for three months. The traffic offence was committed on 4 August 1985. On 19 June 2023 the applicant filed a notice for extension of time for filing an appeal to the District Court in respect of that conviction. The hearing before Coker DCJ took place on 8 December 2023. The application was refused: Mathews v Queensland Police Service [2024] QDC 16 (the Townsville DC reasons).
The applicant applies for leave to this Court pursuant to s 118(3) of the Act.
Pursuant to s 222(1) of the JA, the appeal to the District Court must be made within one month of the date of the order that is the subject of the appeal. In this matter, the applicant’s notice to the appeal was filed more than 36 years outside the time allowed for an appeal. Coker DCJ adverted in general terms to the explanation given by the applicant of the persecution he had suffered in the intervening 36 years and rampant corruption that the applicant asserted existed within the State of Queensland but concluded (at [46] of the Townsville DC reasons) that, despite the lengthy affidavits relied on by the applicant, there was no explanation for the delay and no proper basis upon which it could be suggested that the interests of justice would be met by granting the extension and allowing the appeal to proceed.
The application to this Court is therefore for leave to appeal from the refusal of Coker DCJ to extend the time by 36 years or so for the applicant to appeal against a traffic offence that was committed on 4 August 1985. That charge arose after a very short period of driving which had resulted in the applicant being charged with dangerous driving. He was convicted of the offence of dangerous driving after a trial before a jury in the District Court. He successfully appealed to the Court of Criminal Appeal against that conviction: The Queen v Mathews (CA No 117 of 1986, unreported, 6 October 1986). The conviction for the traffic offence (which arose out of the same circumstances that had resulted in the charge of dangerous driving) occurred subsequent to his successful appeal against the dangerous driving charge. The applicant did not offer an explanation for why he did not appeal against the traffic offence in 1987.
Reciting the bare facts of the subject matter of the application to this Court is sufficient to show that there is only one outcome for the applicant’s application. It is not in the interests of justice for this Court to give leave to appeal against Coker DCJ’s refusal to extend the time by some 36 years for the applicant to appeal the conviction for the traffic offence.
The orders which should be made in CA No 37 of 2024 are:
1.Application for leave to adduce further evidence refused.
2.Application for leave to appeal refused.
DALTON JA: I agree with the orders proposed by Mullins P and with her reasons.
RYAN J: I agree with Mullins P.
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