Roberts v Harkness
[2018] VSCA 215
•29 August 2018
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCI 2017 0126
| PAUL ROBERTS | Applicant |
| v | |
| ZENAAN HARKNESS | First Respondent |
| and | |
| MAGISTRATES’ COURT OF VICTORIA | Second Respondent |
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| JUDGES: | MAXWELL P, BEACH and NIALL JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 30 July 2018 |
| DATE OF JUDGMENT: | 29 August 2018 |
| MEDIUM NEUTRAL CITATION: | [2018] VSCA 215 |
| JUDGMENT APPEALED FROM: | [2017] VSC 646 (Bell J) |
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ADMINISTRATIVE LAW – Appeal on question of law – Procedural fairness – Practical content of fairness – Magistrates’ Court – Charges of unlicensed driving – Respondent filed written objections to jurisdiction – Asserted common law right to travel – Magistrate dismissed jurisdictional objection without hearing oral argument – Whether denial of procedural fairness – Self-represented litigant – Objection clearly articulated – Objection self-evidently groundless – No necessity for oral argument – Appeal allowed – Criminal Procedure Act 2009 s 272(1), Road Safety Act 1986 s 18(1)(a).
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| APPEARANCES: | Counsel | Solicitors |
For the Applicant | Mr C Carr | Mr John Cain, Solicitor for Public Prosecutions |
| The First Respondent | In Person | |
| The Second Respondent | No appearance |
MAXWELL P
BEACH JA
NIALL JA:
Summary
Zenaan Harkness, the respondent to this application, was charged on summons with four counts of unlicensed driving contrary to s 18(1)(a) of the Road Safety Act 1986 (the ‘RSA’), which provides as follows:
(1) A person who drives a motor vehicle on a highway –
(a) without holding a driver licence …
is guilty of an offence and … is liable to a penalty not exceeding 25 penalty units or to imprisonment for not more than 3 months.
Before the charges came on for hearing, Mr Harkness lodged with the Magistrates’ Court a ‘Notice of objection to jurisdiction’ (‘2014 notice’), which in part asserted as follows:
5.The Court has not proven jurisdiction, either in its own right or any other right.
6.The Court has not proven jurisdiction over the Blessing of Almighty God.
7.The Court has not proven jurisdiction over my right to travel pursuant to the Blessing of Almighty God.
8.The Road Safety Act No. 127/1986 does not apply to me. I have neither seen nor been presented with any evidence proving that the Road Safety Act No. 127/1986 applies to me, and I believe that none exists.
Those charges, together with three other charges under the RSA, were fixed for hearing in June 2016. In advance of that hearing, the Magistrates’ Court directed that Mr Harkness
file and serve any arguments, submissions and authorities upon which he seeks to rely.
Pursuant to that direction, Mr Harkness filed a ‘Statement’ (‘2016 statement’), which repeated in substance what he had previously asserted, namely, that he had not ‘seen nor been presented with any evidence’ proving either the jurisdiction of the Magistrates’ Court or the applicability to him of the RSA. The 2016 statement said in part:
6.I have neither seen nor been presented with any evidence proving that any jurisdiction of the Seymour Magistrates' Court is a jurisdiction which can be used to hear a matter of a soul in a body living its fundamental and common law right to travel by the Blessing of Almighty God, and I believe that none exists.[1]
[1][2017] VSC 646 [8] (‘Reasons’). The Reasons dealt with the separate matter of Kyriazis v County Court of Victoria. That part of the judgment is the subject of a separate appeal: Doughty-Cowell v Kyriazis [2018] VSCA 216.
At the commencement of the hearing, the magistrate informed Mr Harkness that she would dismiss his objection to jurisdiction. Her Honour refused
Mr Harkness’s repeated requests to make oral submissions in support of his objection. Because of his persistent refusal to accept that ruling, and his disrespectful and disruptive behaviour, her Honour eventually ruled that Mr Harkness be excluded from the hearing. The charges were then heard in his absence. He was convicted on all but one charge, the prosecution having led no evidence on the final charge.
Mr Harkness then appealed to the Supreme Court under s 272(1) of the Criminal Procedure Act 2009 (the ‘CPA’), on the ground that he had been denied natural justice. He complained about the magistrate’s refusal to hear him on the objection to jurisdiction, and about his exclusion from the substantive hearing.
Bell J upheld the magistrate’s decision to exclude Mr Harkness from the hearing but concluded that her Honour had breached the rules of natural justice ‘by rejecting his objections to jurisdiction without first hearing his oral submissions and by failing to provide him with due assistance in relation to those submissions’.[2]
[2]Ibid [32].
The informant now seeks leave to appeal from that decision. For reasons which follow, we would grant leave to appeal, allow the appeal, set aside his Honour’s order and order instead that the appeal to the Supreme Court be dismissed.
The obligation to ensure a fair hearing is, of course, one of the defining characteristics of a court. There was no dispute, either before the judge or in this Court, that Mr Harkness was entitled, like every other litigant, to a fair hearing. The critical question, as it is so often, was what was required in the particular circumstances of this case to give Mr Harkness a fair hearing on his objection to jurisdiction.
With respect to his Honour, we have concluded that there was no breach of natural justice. Mr Harkness was given a full opportunity, in advance of the hearing, to set out in writing any argument or submission on which he wished to rely. As already noted, he took up that opportunity and set out — apparently comprehensively — the essential elements of his objection to jurisdiction.
Especially given that the objection to jurisdiction was only a preliminary point, it was perfectly appropriate for the Magistrates’ Court to have directed the filing of argument in advance. That is a procedure routinely adopted by courts. It serves the interests of justice, by giving parties time to formulate their arguments in writing and by enabling judicial officers to prepare for hearings by reading the written arguments before going to court.
It was readily apparent from both of the documents which Mr Harkness had filed with the court that he was able to articulate, fully and clearly, the basis of his objection to jurisdiction. It was equally clear that the objection had no foundation whatsoever in law and that no amount of elaboration could have altered that position.
Factual background
As already mentioned, Mr Harkness was charged on summons with seven offences under the RSA. There were four charges of unlicensed driving, two of using an unregistered motor vehicle on a highway and one of failing to comply with a notice requiring the surrender of a motor vehicle. The first four charges were laid in December 2013. The other three were laid in 2015.
On 24 April 2014, Mr Harkness filed the 2014 notice with the Magistrates’ Court at Seymour. The notice was in these terms:
TAKE NOTICE, that this notice arises pursuant to the following facts:
1.The jurisdiction of the Court over the Accused is challenged.
2.Jurisdiction of the Court over the Accused is not consented to.
3.The Accused appears conditionally and enters a conditional appearance, pursuant to the Blessing of Almighty God, as named in the Preamble to the Commonwealth of Australia Constitution Act.
4.The appearance of the Accused is conditional upon proof of jurisdiction by the Court.
5.The Court has not proven jurisdiction, either in its own right or any other right.
6.The Court has not proven jurisdiction over the Blessing of Almighty God.
7.The Court has not proven jurisdiction over my right to travel pursuant to the Blessing of Almighty God.
8.The Road Safety Act No. 127/1986 does not apply to me. I have neither seen nor been presented with any evidence proving that the Road Safety Act No. 127/1986 applies to me, and I believe that none exists.
9.The Informant was notified that the Act does not apply to me and at the time of interception the Informant did not show cause other than the Road Safety Act.
The first four charges were listed for hearing on 11 July 2014. Mr Harkness did not appear and the charges were heard and determined in his absence. He was subsequently granted a rehearing. Eventually, after the laying of the further charges, the Magistrates’ Court on 7 April 2016 fixed all seven charges for hearing on 17 June 2016. At that time, the Court gave the following direction:
Accused to file and serve any arguments, submissions and authorities upon which he seeks to rely on or before 3 June 2016.[3]
[3]Ibid [6].
On 3 June 2016, Mr Harkness sent the Court by email an ‘Application to vacate’ the 17 June hearing and sought a special mention. In that application, Mr Harkness contended that the hearing ought to be vacated ‘pursuant to the failure of the informant to prove jurisdiction of the charges.’[4] He stated that he intended to rely upon the 2014 notice.
[4]Ibid [7].
Pursuant to the direction dated 7 April 2016, Mr Harkness also filed the 2016 statement, which read as follows:
I Zenaan Harkness of Two Hills Road, Glenburn, Victoria 3717, say that the following is true to the best of my knowledge:
1I appear conditional upon proof of jurisdiction in the matters listed below.
2.I do not consent to the jurisdiction of the Seymour Magistrates Court and I object to the jurisdiction of the Seymour Magistrates Court.
3.Jurisdiction of the Seymour Magistrates Court has not been proven.
4.I have neither seen nor been presented with any evidence proving jurisdiction in the matter D13873004 which jurisdiction applies to me and which jurisdiction applies to my right to travel which right exists at common law and which right exists pursuant to the Blessing of Almighty God, and I believe that none exists.
5.I have neither seen nor been presented with any evidence proving that the Seymour Magistrates' Court has any jurisdiction arising pursuant to the Commonwealth of Australia Constitution Act.
6.I have neither seen nor been presented with any evidence proving that any jurisdiction of the Seymour Magistrates' Court is a jurisdiction which can be used to hear a matter of a soul in a body living its fundamental and common law right to travel by the Blessing of Almighty God, and I believe that none exists.
7.I have neither seen nor been presented with any evidence proving that I have consented to any jurisdiction of the Seymour Magistrates' Court, and I believe that none exists.
8.I do not consent to any jurisdiction other than that jurisdiction which exists in my original right pursuant to the Blessing of Almighty God.
9.I have neither seen nor been presented with any evidence proving that the Road Safety Act No. 127/1986 applies to me, and I believe that none exists.
10.At all times in material particular the Informant has shown no cause to me that challenges my right to travel at common law.[5]
[5]Ibid [8].
The hearing before the magistrate
The Court refused the ‘application to vacate’ and the hearing of the charges commenced on 17 June 2016 as scheduled. The proceedings were recorded, and a transcript was subsequently prepared. In order to understand the issues which arise on this application and the events which led to Mr Harkness being excluded, it is necessary to set out some lengthy extracts from the transcript.
The hearing began as follows:
MAGISTRATE: Hello Mr Harkness.
HARKNESS: Um … Can I ask who you are please?
MAGISTRATE: Sorry.
HARKNESS: Can I ask who you are?
MAGISTRATE: I am Magistrate Stuthridge.
HARKNESS: Is that um, ah … S … T … U.
MAGISTRATE: T … H.
HARKNESS: T … H.
MAGISTRATE: R … I … D … G … E.
HARKNESS: I … D … G … E. Thank you.
MAGISTRATE: You’re welcome.
HARKNESS: And may I have your first name?
MAGISTRATE: No.
HARKNESS: Can I ask, ‘Why not’?
MAGISTRATE: Because I am referred to at work in my professional capacity as Magistrate Stuthridge.
HARKNESS: As a magistrate.
MAGISTRATE: Magistrate Stuthridge. So, Mr Harkness, take a seat.
I understand these seven matters are listed for a contested hearing today.
HARKNESS: Um … I have not consented to the jurisdiction of the Court, and does the Court have on file a notice from 2014?
MAGISTRATE: I have ah, notice of leave from the Court by the accused dated 13 August 2015. I have an application for an adjournment which was 3 February 2015, I think. I have notice of objection to jurisdiction dated 24 April 2014.
HARKNESS: Thank you.
MAGISTRATE: Okay.
HARKNESS: Okay, the insignia that I see on the wall behind you is ‘[dieu et] mon droit’ …
MAGISTRATE: M’mm.
HARKNESS: God and my right …
MAGISTRATE: M’mm.
HARKNESS: I stand here as a soul in a flesh and blood body …
MAGISTRATE: M’mm.
HARKNESS: And I stand before God, and I was brought here…
MAGISTRATE: M’mm.
HARKNESS: Pursuant to events, where men carrying guns came and bashed on my door, and said that I was to appear at this venue, for no reason other than my exercise of my God-given right of dominion and my common law right of passage.
MAGISTRATE: M’mm.
HARKNESS: So does this Court have jurisdiction over my common law and God-given rights?
MAGISTRATE: Okay, so a couple of things. First of all, I’ve read your notice of objection to jurisdiction and I don’t accept that there are any grounds to object to the jurisdiction. Secondly, all of these matters were originally summons matters; is that correct? And, so, it’s a matter for you whether you are here or not here today. Um, you’re not actually required to be here for this hearing if you don’t want to be here. But I propose to proceed with the hearing, there’s nothing in the notice of objection to jurisdiction that in any way raises a sensible question of jurisdiction. So, that application is refused. I propose to make an order that witnesses in relation to this matter be out of court during the giving of the evidence except for Mr Harkness and the informant. Take a seat, sir.
HARKNESS: Excuse me. Who are you to order me to do anything?
MAGISTRATE: Take a seat, sir.
HARKNESS: What jurisdiction do you have over me?
MAGISTRATE: Would you like to call your first witness?
PROSECUTOR: Okay.
HARKNESS: I object to the jurisdiction of the Court.
MAGISTRATE: I have told you, sir …
HARKNESS: I have a right to object. I have a right for jurisdiction to be proven.
MAGISTRATE: No … that’s not correct.
HARKNESS: Yes, I do.
MAGISTRATE: No. Take a seat, sir.
HARKNESS: When I’m in exercise of my God-given rights, it is my right for jurisdiction to be proven over my exercise of my rights.
MAGISTRATE: Sir, I do not have to prove the jurisdiction of this Court.
HARKNESS: Then you have no jurisdiction.
MAGISTRATE: Well that’s a matter that you … that may be an opinion that you hold and you’re welcome to do that.
HARKNESS: There’s nothing before me.
MAGISTRATE: At the end of the matter if you’re not satisfied as to my jurisdiction you can appeal the matter to the Supreme Court or the High Court and take it up with them.
HARKNESS: I was in …
MAGISTRATE: You’re entitled to do that, sir.
HARKNESS: I was in the County Court in the matter of Van Rooij where Judge Gullaci ordered the prosecution to prove jurisdiction and I don’t know the prosecutor’s name but he fell over with a heart attack and died.
MAGISTRATE: Take a seat, sir.
HARKNESS: So, it is the right of an accused to challenge jurisdiction.
MAGISTRATE: It is your right to challenge jurisdiction but I’ve read your challenge to the jurisdiction and there is no sensible challenge to this jurisdiction, no issue at law as to this Court’s jurisdiction in relation to the Road Safety Act. So, once again, sir, take a seat, I propose to commence the hearing.
HARKNESS: Can this Court hear my rights under Almighty God?
MAGISTRATE: Sir, if you’re not happy with my decision you can ultimately appeal it to another court, which is clearly aware of that.
HARKNESS: Can this Court hear my rights? Can this Court hear my rights by the blessing ‘[dieu et] mon droit’? God and my right? I am here …
MAGISTRATE: Mr Harkness.
HARKNESS: … living my rights, claiming my rights. I have a right to survive, I have a right to travel in my community. I have a right to travel to friends and to travel to get food, when I need it. These are my rights, these rights exist pursuant to the blessing of Almighty God which is in the preamble of our Federal Constitution. Does this Court have jurisdiction over these rights.
MAGISTRATE: Sir, I’ve told you, I have read your notice of objection to jurisdiction.
I do not accept that there is any valid reason to challenge the jurisdiction of this Court, to hear these seven charges laid under the Road Safety Act.HARKNESS: I’m now not referring to my notice, I am referring to what I’m saying.
MAGISTRATE: I am still not prepared to engage in a conversation around the issues of God, in this Court and my jurisdiction.
HARKNESS: Why not?
MAGISTRATE: The two are fundamentally separate. Take a seat.
HARKNESS: How do you say they are separate? When I live my rights, how can you say that’s separate to me being brought here?
MAGISTRATE: Sir, what I propose to do is put the informant in the witness box, have him sworn in, and take his evidence. It’s a matter for you whether you remain standing or seated.
HARKNESS: I’m objecting to the jurisdiction and I will continue to object to the jurisdiction.
…
HARKNESS: I propose to put certain documents which do prove that this venue, and you claim it’s a court, is out of jurisdiction with respect to my defence and my rights under God. I have these documents here and…I except that the Court, if you call it as such, receives these documents and actually makes an assessment based on them.
MAGISTRATE: Pass the documents up please. Have you seen these?
HARKNESS: Then it, these are the … there’s the ABN details, and the Magistrates’ Court Act details. I propose to give these … ah, to swear these as evidence.
PROSECUTOR: (Inaudible) Can I get copies?
HARKNESS: There’s two copies, if you’d like. There’s one. That’s one. There’s another. These are the first two documents.
MAGISTRATE: Okay, I see that there is an ABN … number, for the Department of Justice and Regulation.
HARKNESS: And one for the police department. Now, the Department of Justice and Regulation.
MAGISTRATE: That’s not this Court.
HARKNESS: Um … has a business name which you’ll see on page two, ‘Magistrates’ Court Victoria’, ah, registered with the um, ah … Australian Business Register which is a Federal entity on
24 March 2000, according to this record extracted …
MAGISTRATE: Okay.
HARKNESS: … 29 April 2016 by myself from the Australian Government’s Australian Business Register website. Now this is the first ground …
MAGISTRATE: Okay.
HARKNESS: … of lack of jurisdiction, which is, that the Magistrates’ Court Victoria is a business.
MAGISTRATE: M’mm.
HARKNESS: The second ground is that the ABN is a Federal entity and identifies a Federal entity, and this brings this business known as Magistrates’ Court Victoria, um …
MAGISTRATE: (Inaudible.)
HARKNESS: … with a conflict of interest, or a conflict of jurisdiction between the State … this is,
MAGISTRATE: Mr Harkness.
HARKNESS: This is meant to be a State court.
MAGISTRATE: Mr Harkness.
HARKNESS: And ABNs are a Federal jurisdiction.
MAGISTRATE: This is not a matter raised in your notice of objection to jurisdiction. I’m not prepared to hear oral argument at the commencement of the matter about the business status of this Court …
HARKNESS: It’s prima facie
MAGISTRATE: It’s a matter for you …
HARKNESS: It’s prima facie
MAGISTRATE: … if you don’t accept the jurisdiction of the Court. As I’ve said to you …
HARKNESS: It’s prima facie
MAGISTRATE: … these matters were originally commenced as summons matters. It’s a matter for you whether or not you are here. I’m not going to engage in any further discussion about the jurisdiction of this Court.
HARKNESS: My second two documents are the Magistrates’ Court Act.
MAGISTRATE: Please (inaudible).
HARKNESS: I have a right to submit the documents.
MAGISTRATE: I have said no, sir.
HARKNESS: Ah, oh, I’m not allowed to submit documents?
MAGISTRATE: That’s correct. If I say no, the answer is no.
HARKNESS: Then, then then, then where’s due process? Where’s my right to, to challenge the, the, the …
ROBERTS:I swear by Almighty God that the evidence I shall give will be the truth, the whole truth and nothing but the truth.
HARKNESS: I have a right to submit evidence regarding the jurisdiction of the Court and I have two more documents to that end.
MAGISTRATE: I am entitled to say no, and I have said no to your – your objection to the jurisdiction. I’ve heard you on the matter. I’m not prepared to read any more further documents on that issue. You may take a seat …
HARKNESS: You gave me …
MAGISTRATE: … and participate in the hearing.
HARKNESS: You gave me …
MAGISTRATE: Or you may leave.
HARKNESS: You gave me …
MAGISTRATE: They are your two choices.
HARKNESS: You gave me a ground that these, the ABN details and these other documents …
ROBERTS:Your Honour, my name is Paul Roberts.
HARKNESS: … were not in my notice of objection to jurisdiction.
ROBERTS:I’m a senior constable of police currently stationed at Kinglake police station.
HARKNESS: You said that … these grounds are the reason that you wouldn’t hear me.
ROBERTS:Ah, on ah, Tuesday 5 November 2013 …
HARKNESS: I have a right to be heard.
MAGISTRATE: Sir, I need to hear this gentleman.
HARKNESS: You gave me grounds …
MAGISTRATE: Sir, I need to hear this gentleman give …
HARKNESS: I submitted only two of my four documents.
MAGISTRATE: Sir.
HARKNESS: You accepted two documents …
MAGISTRATE: Sir.
HARKNESS: … and now you’re saying you won’t receive the other two documents.
MAGISTRATE: No, I will not.
HARKNESS: Why?
MAGISTRATE: Now, if …
HARKNESS: Why?
MAGISTRATE: … you are not quiet I will ask to have you removed from court.
HARKNESS: Why?
MAGISTRATE: Because I’ve said no.
HARKNESS: Wh… How’s that ju… judicial process? How’s that due … how is that fair to me?
MAGISTRATE: Sir, yelling at me …
HARKNESS: I apologise.
MAGISTRATE: … and disagreeing with my argument will not assist you.
I have said, if you do not agree with my decision in relation to jurisdiction you may appeal that decision to the County Court, the Supreme Court, or the High Court. That’s a matter for you. What you are not entitled to do is yell at me in this Court.
HARKNESS: I apologise for that.
MAGISTRATE: If you are not happy with my decision …
HARKNESS: I do have a right.
MAGISTRATE: The answer when you’re not happy with something I’ve said is, ‘It’s a matter for you, Your Honour,’ and you sit down and you appeal me to another court. And it may well be that the Supreme Court says, or the High Court says, I have refused you due process, and I have not appropriately heard you. That’s a matter for them.
HARKNESS: Prima facie you only half heard me now.
MAGISTRATE: But I am not going to engage in an ongoing argument about the jurisdiction of this Court.
HARKNESS: You half heard me now.
MAGISTRATE: In circumstances where, first, you filed a notice of objection to jurisdiction which makes no comprehensive sense. It relies on precepts of religion in order to justify a disobeying of the law and a denial of this Court’s jurisdiction. That is not an appropriate argument, one. Two, you now seek to enlarge the jurisdiction argument orally by tendering a whole number of documents that you have not previously identified to the Court as being relevant to the argument, and you are not going to tender them. As I am not going to hear any further argument about the matter, and I am not going to be yelled at any more. Do you understand that?
HARKNESS: I have a …
MAGISTRATE: I have several times indicated to you that you may sit and participate in the contest. You may stand, it doesn’t bother me which at all you choose, but, if you continue to yell at me I will have you removed. Thank you.
HARKNESS: Jurisdiction …
MAGISTRATE: Thank you.
HARKNESS: … may be challenged at any time including the beginning of a court case.
MAGISTRATE: Thank you.[6]
[6]Emphasis added.
The magistrate subsequently excluded Mr Harkness from the courtroom on account of his persistent misbehaviour. (As will appear, the trial judge held that this decision was unimpeachable.) In his absence, her Honour went on to hear evidence from the prosecution in relation to six of the seven charges. She made orders convicting and fining him on those six charges and dismissed the seventh.
The proceeding at first instance
As mentioned earlier, Mr Harkness filed a notice of appeal against the orders of the Magistrates’ Court, under 272(1) of the CPA. On 20 January 2017, he filed an affidavit in support, which began as follows:
1.I am a flesh and blood man who is of and by the Blessing of Almighty God, our Creator.
1.1I exist of and by the Blessing of Almighty God and by no other authority.
1.2I am not created by any Statute law, nor by any other law save those inscrutable laws of nature and laws of creation which are manifested in me and in the incomprehensibly immense universe made by our Creator or Maker, Almighty God, and those unseen or unknown laws of creation whereby the Creator gave existence to me, to my soul and to my awareness, in realms both in and beyond this physical universe.
1.3The existence of the Commonwealth of Australia Constitution Act, the Federal Parliament and the various State Parliaments, exist pursuant to their humble reliance upon the Blessing of Almighty God. This Blessing is a foundation stone enshrined in law by the founders of said constitution.
1.4The Senate Standing Orders, Order 50, humbly invokes this Blessing of Almighty God, pursuant to the Preamble of the Commonwealth of Australia Constitution Act and Godly foundations of our Federal constitution, as follows:
Senate Standing Orders
Chapter 8 — Sittings, quorum and adjournment of the Senate
50Prayer and acknowledgement of country
The President, on taking the chair each day, shall read the following prayer:
Almighty God, we humbly beseech Thee to vouchsafe Thy special Blessing upon this Parliament, and that Thou wouldst be pleased to direct and prosper the work of Thy servants to the advancement of Thy glory, and to the true welfare of the people of Australia.
Mr Harkness subsequently filed an outline of submissions, the opening paragraph of which repeated the substance of paragraph 1 of his affidavit (except for the reference to the Senate Standing Orders) and referred to the 2014 notice. In the balance of the outline, which ran to some nine pages, Mr Harkness contended that he had been entitled to challenge the jurisdiction of the Magistrates’ Court and had been denied his common law right to be heard, which he described in these terms:
a.It is a common law right which is firmly entrenched in the ancient law, that a man has a right to be heard, and a right to cross examine and challenge his accuser and a right to hear the evidence of his accuser, and this right was denied to the Appellant.
b.It is a constitutional right to be heard, per the Commonwealth of Australia Constitution, Annotation §206 at page 1 line 17 ‘No man can be legally bound by a judgment given behind his back and without his having had an opportunity of being heard’.[7]
c.It is incumbent upon every court of competent jurisdiction to ensure that this right to be heard is upheld.
[7]This was a reference, on which Mr Harkness has continued to rely, to Quick and Garran, The Annotated Constitution of the Australian Commonwealth (1901) (‘Quick and Garran’). The annotation in question concerns the power of the Commonwealth Parliament under s 51(xxiv) of the Constitution to make laws with respect to the service and execution of process (p 614).
The informant (the present applicant) was named as respondent, together with the magistrate and the Magistrates’ Court. In his outline of submissions in response, the informant argued that Mr Harkness’s submissions on the question of jurisdiction were ‘misconceived’. As to the complaint of a denial of procedural fairness, the informant’s submission said:
There is no merit in the ground that the Appellant was denied procedural fairness. The Appellant was treated with scrupulous fairness by the magistrate given his conduct. Further, there is no merit in his purported defence of the proceedings. Even if there was a departure from the rules of natural justice, and the Appellant was denied an adequate opportunity to fully ventilate his submissions on jurisdiction before the magistrate, his submissions were plainly erroneous and bound to be answered unfavourably to the Appellant.
(The submission here cited the High Court’s decision in Stead v State Government Insurance Commission.[8])
[8](1986) 161 CLR 141, 145 (‘Stead’).
As this extract makes clear, the informant was advancing two alternative contentions. He contended, first, that there had been no denial of procedural fairness. In the alternative, on the authority of Stead, he contended that even if there had been a denial of procedural fairness, it would have been futile to give Mr Harkness the opportunity to make further submissions on his objection to jurisdiction, since the objection was ‘plainly erroneous’ and was therefore bound to fail. On that basis, it was said, the application for review should be refused.
On 17 February 2017, Mr Harkness filed a 24 page outline of submissions in response. It began with a lengthy ‘Preface’ which said, in part:
F)It appears that the courts are seeking to constrain my intelligent and conscionable spirit that arises from the Blessing of Almighty God, our Creator, which authority is at the foundation of my existence (and the existence of our Federal and State constitutions), into a box of limited capacity wherein I am constrained in shackles and gagged, to be not heard, and to be blatantly dismissed and trod upon and disrespected with the brute physical force of an unconstrained authority which appears to have no conscience, and no compassion nor heart whatsoever, and which engages in all manner of unjust and corrupt behaviour on the pretext of ‘enforcing or upholding the law’ or ‘I am simply doing my job’.
G)It is my position that it is important, and is fundamental to my defence, that I am recognised as being a man of and by the Blessing of Almighty God, and endowed with certain inalienable rights and capacities arising from this Blessing. What is the point in a proceeding happening if the very nature of who I am is not recognized by the court conducting that proceeding?
H)I am spirit and soul which is the anima of my flesh and blood body, and I have a conscience and wisdom and I am with capacity to know right from wrong, and I know that which is uplifting to life and to our community, and to the prosperity of myself and to my greater community.
I)It is me, a flesh and blood man endowed with soul and spirit and conscience, that has brought this matter before this court. If this is not the case then whom or what does this court believe or hold to be the nature of the entity that has brought this matter before the court?
The balance of the reply submission consisted of a detailed, sequential response to each paragraph of the informant’s outline. As to the informant’s contention that the objection to jurisdiction would inevitably have failed even if
Mr Harkness had been able to make further submissions, he submitted that this merely showed that the informant:
holds the same position as Magistrate Stuthridge made in the Court below when she pre-determined the relevance of documents and made her ‘conclusion’ regarding my challenge to the jurisdiction of the Court below, in the face of my having NOT been allowed to make various of my submissions in support of my challenge!
For either [the informant] or Magistrate Stuthridge to conclude that my ‘submissions were plainly erroneous’ when I was not permitted to make certain of my submissions and where pre-determinations were made on two of my documents in support of my challenge, as a bias on the face of the record.[9]
[9]Emphasis in original.
On 3 March 2017, Mr Harkness filed what he called ‘further written submissions’, which elaborated at length on the alleged denial of procedural fairness. The first heading in the submission was in these terms:
My Rights arising from the Blessing of Almighty God are various and manifold and are inextricably intertwined with my existence.
The submission then repeated the opening paragraph of the January 2017 affidavit, extracted above.[10]
[10]See [21] above.
Relevantly for present purposes, the further submission addressed the High Court’s decision in Stead at some length, before concluding as follows:
The insurmountable hurdle for [the informant] to overcome is to demonstrate conclusively that no evidence that I could have adduced, would have made any difference to the outcome of the matter in the Court below, were a retrial to be ordered.
Were it taken to be so, that my evidence and my defence in the Court below could have no appreciable effect on the outcome, the inescapable conclusion would be that my attendance in the Court below must be considered immaterial and not required for ‘the administration of justice’ to proceed most swiftly and efficiently. Needless to say that such a position in no way accords with the concepts of natural justice.
It was thus clear from the documents which Mr Harkness filed in support of his appeal that he fully understood the informant’s position and was perfectly capable of joining issue on both limbs of the informant’s argument.
The judge’s reasons
After summarising the facts, the trial judge said that ‘the main ground relied upon’ by Mr Harkness was the alleged failure of the Court ‘to ensure that due assistance was given to [him] as a litigant in person’.[11] This was put, his Honour said,
upon the basis of the common law by reference to the rules of natural justice and the right to a fair hearing by reference to s 24(1) of the Charter.[12]
[11]Reasons [19].
[12]Ibid, referring to the Charter of Human Rights and Responsibilities Act 2006 (‘the Charter’).
His Honour then set out what he had said in 2007, in Tomasevic v Travaglini,[13] about ‘the overriding duty of a judge to ensure a fair trial’, as follows:
Every judge in every trial, both criminal and civil, has an overriding duty to ensure the trial is fair. A fair trial is the only trial a judge can judicially conduct. The duty is inherent in the rule of law and the judicial process. Equality before the law and equal access to justice are fundamental human rights specified in the ICCPR. The proper performance of the duty to ensure a fair trial would also ensure those rights are promoted and respected.
Most self-represented persons lack two qualities that competent lawyers possess — legal skill and ability, and objectivity. Self-represented litigants therefore usually stand in a position of grave disadvantage in legal proceedings of all kinds. Consequently, a judge has a duty to ensure a fair trial by giving self-represented litigants due assistance. Doing so helps to ensure the litigant is treated equally before the law and has equal access to justice.
The matters regarding which the judge must assist a self-represented litigant are not limited, for the judge must give such assistance as is necessary to ensure a fair trial. The proper scope of the assistance depends on the particular litigant and the nature of the case. The touchstones are fairness and balance. The assistance may extend to issues concerning substantive legal rights as well as to issues concerning the procedure that will be followed. The Family Court of Australia has enunciated useful guidelines on the performance of the duty.
The judge cannot become the advocate of the self-represented litigant, for the role of the judge is fundamentally different to that of an advocate. Further, the judge must maintain the reality and appearance of judicial neutrality at all times and to all parties, represented and self-represented. The assistance must be proportionate in the circumstances — it must ensure a fair trial, not afford an advantage to the self-represented litigant.[14]
[13](2007) 17 VR 100 (‘Tomasevic’).
[14]Ibid 129-30 [139]–[142].
His Honour then referred to the right to ‘a fair and public hearing’ guaranteed by s 24(1) of the Charter, and to his decision in Matsoukatidou v Yarra Ranges Shire Council,[15] where he had discussed ‘the duty of the Court to apply the human right to a fair hearing’ as it related to self-represented parties.[16] In that case, his Honour said, the duty had been stated ‘in terms that stressed the fundamental importance of ensuring their effective participation in a legal proceeding’.[17]
[15](2017) 51 VR 624 (‘Matsoukatidou’).
[16]Reasons [27].
[17]Ibid.
His Honour then set out the following passage from Matsoukatidou:
[T]he Charter is intended to guarantee human rights that are practical and effective, not theoretical or illusory. Respect for the equal dignity of all individuals and their right to equal access to justice and a fair trial under the rule of law are values of foundational significance in democratic society and not just matters of manner and form. Under ss 8(3) and 24(1) of the Charter, it is especially important that the right of all persons equally to access, and effectively to participate in proceedings in, the courts and tribunals of justice are applied in a way that is practical and effective, not theoretical or illusory. In both a criminal and civil proceeding, a trial is not fair in human rights terms if the procedures followed do not ensure that all parties can effectively participate and have equality of arms with the opposing side. Where the party is self-represented, it is the duty of the court to ensure that this occurs, subject to the fundamental requirements of judicial independence, impartiality and fairness and respect for the human rights of other participants.[18]
[18]Matsoukatidou (2017) 51 VR 624, 668 [130] (emphasis added).
His Honour summarised his conclusion in Matsoukatidou as having been that
the purpose and scope of the duty to ensure a fair hearing for self-represented parties under the rules of natural justice and the human rights in the Charter are very close.[19]
He then set out the following further passage from that decision:
The human right of parties to court or tribunal proceedings to a fair hearing under s 24(1) of the Charter and the common law obligation of the court or tribunal to ensure a fair hearing both give effect to equality before the law and equal access to justice. In relation to the participation of self-represented parties in such proceedings, they are very close both in content and in application. Thus Tomasevic explains the obligation at common law of a court or tribunal to ensure a fair hearing in a way that draws upon, and is consistent with, the human right to a fair hearing in that context. Both categories of right promote respect for the personal dignity, agency and capacity for self-determination of individuals in the legal system and aim to ensure, as far as reasonably possible, that participation by self-represented parties in court and tribunal proceedings is effective.[20]
[19]Reasons [23].
[20]Matsoukatidou (2017) 51 VR 624, 681 [178] (citations omitted).
His Honour concluded that, although the magistrate’s decision to have
Mr Harkness removed for misbehaviour was unimpeachable, her decision nevertheless had to be set aside for error of law because of the procedure she had adopted with respect to the objection to jurisdiction. His Honour said:
The hearing of the charges brought against Mr Harkness was fatefully flawed from the outset of the hearing because the magistrate breached the rules of natural justice, and violated his right to a fair hearing under s 24(1) of the Charter, by rejecting his objections to jurisdiction without first hearing his oral submissions, and by failing to provide him with due assistance in relation to those submissions, having regard to his position as a litigant in person. With respect, it would not have taken much time or effort to adapt the procedures suggested in the decided cases to the circumstances of the case before the court. I believe that the matter would not have got this far had her Honour done so.[21]
[21]Reasons [32] (citations omitted).
His Honour explained that conclusion in these terms:
The document dated 24 April 2014 by way of notice of objection to jurisdiction and the statement dated 3 June 2016 by way of elaboration of that notice were not Mr Harkness’s full submissions on that subject, neither in form nor content. The court had not ordered that such submissions had to be in writing (see above). He was entitled to make oral submissions at the hearing on 17 June 2016 and he wished to do so. However much the magistrate may have doubted the viability of the issues and arguments raised in the notice and statement, her Honour’s obligation was to keep an open mind on the subject and hear and determine Mr Harkness’s submissions. Instead she came on to the bench and immediately announced her decision that his objections to jurisdiction were not accepted. The magistrate made no attempt at the start of the hearing to determine
Mr Harkness’s state of knowledge about legal procedure and principles or assist him in any way in relation to his submissions as to jurisdiction, given that he was a litigant in person. Her Honour did not ask him what he meant by various paragraphs of his notice and statement or ask him to elaborate upon the particulars of his objections.It is clear from the magistrate’s statement during the course of the hearing that her Honour thought that Mr Harkness was objecting to jurisdiction upon untenable religious grounds. In the absence of the kind of clarification of the issues and arguments raised in the notice and statement that was required in the proceeding before her Honour, it is not possible for this court to make a confident finding about what Mr Harkness actually had in mind. But examination of the content of the notice and statement reveals that he was relying (among other things) upon his ‘common law right to travel’, not some kind of religious immunity. While I understand how the magistrate was distracted by
Mr Harkness’s frequent references to religious precepts and concepts, it was (with respect) neither fair nor accurate of her Honour to dismiss his issues and arguments as being based solely upon such precepts and concepts, which I think she did. Had the magistrate made due inquiry of Mr Harkness at the start of the hearing, and provided him with due assistance as a litigant in person, I think this misunderstanding could have been avoided.[22]
[22]Ibid [28]–[29] (emphasis added).
Finally, his Honour referred to the failure of the magistrate to give reasons:
As her Honour made a significant judicial determination, she was obliged to give reasons adequately disclosing the path of the reasoning behind her rejection of the objections to jurisdiction made by Mr Harkness. Yet she stated only her conclusion that the grounds were not accepted and not sensible. If her Honour considered that the grounds were not sensible, by which I take her to mean not tenable, on their face, I could not myself so conclude because they obviously needed elaboration and clarification. This was not a case in which ‘the simplicity or context of [the] case or the state of the evidence [was] … sufficient to indicate the basis of decision’.[23]
[23]Ibid [30] (emphasis added) (citations omitted).
His Honour dealt with Mr Harkness’s removal from the courtroom in these terms:
I accept the articulate submissions of counsel for the informant that, at times, Mr Harkness was discourteous towards the magistrate and raised his voice, for which he apologised to her and again in this court. He impermissibly sought the magistrate’s first name, made irrelevant references to the Latin insignia (‘[dieu et] mon droit’) on the wall behind the bench, made irrelevant and distracting remarks, raised his voice to her Honour and disrupted the hearing of the charges … On the other hand, the magistrate displayed (with respect) judicial courtesy and dignity throughout the hearing, under trying and ultimately impossible circumstances. Her Honour eventually removed Mr Harkness for his misbehaviour, exercising powers which she undoubtedly possessed, for a magistrate may have an accused person removed from a court and proceed with the trial in his or her absence where the conduct of the accused in the course of the trial renders its continuation in his or her presence impossible. A recent statement of that principle is that of Riordan J in Boros v O’Keefe, which I endorse:
The accused has a fundamental right to be present. This fundamental right is only lost if it becomes necessary by reason of the accused abusing the right to be present. The loss of this right may occur where the accused uses his or her right to be present to obstruct the proceeding in such a way that it is necessary for him or her to be removed to enable the proceeding to be completed. Where an accused is, by his or her outrageous behaviour, preventing a proceeding from continuing, a court may remove such an accused so as to avoid the consequence of being unable to complete a proceeding.[24]
I could not find that this power was improperly exercised in this case.[25]
[24][2017] VSC 560 [19].
[25]Reasons [31] (citations omitted).
His Honour concluded as follows:
Mr Harkness has established that he was entitled to make oral submissions by way of objections to jurisdiction in relation to the road safety charges that were brought against him. The magistrate sitting in the Magistrates’ Court at Seymour summarily rejected those objections without giving him the opportunity to make those submissions or providing due assistance to him as a litigant in person. In doing so, her Honour breached the rules of natural justice and his human right to a fair hearing under the Charter, which were errors of law. She committed no error of law in having him removed from the courtroom and hearing and determining the charges in his absence as this was done by reason of his unacceptable behaviour. Mr Harkness’s appeal will be upheld, the orders of the magistrate will be quashed and the charges will be remitted to the Magistrates’ Court for hearing and determination according to law by a different magistrate.[26]
[26]Ibid [65].
His Honour did not address the informant’s alternative argument, based on Stead. It seems clear, however, that he would have rejected that argument, given his statement that in the absence of ‘elaboration and clarification’ he could not himself have concluded that the grounds of objection to jurisdiction were ‘not tenable on their face’.[27]
[27]See [36] above.
The application for removal to the High Court
The application for leave to appeal to this Court was filed on 5 December 2017. It was accompanied by a written case in which, as at first instance, the informant advanced two arguments in the alternative. The first was that there had been no denial of procedural fairness. The second was that, even if Mr Harkness ought to have been given a further hearing, the judge should have refused relief because the objections to jurisdiction
were simply untenable, groundless assertions, which could not be further articulated or ‘clarified’.
On 10 April 2018, Mr Harkness filed a 19-page written case in response, in which he submitted that the decision at first instance was correct. In addition, the written case contended that the trial judge had erred ‘by not finding that my removal from court was procedurally unfair’.
Under the heading ‘Constitutional ground, freedom of speech’,
Mr Harkness’s written case said:
Freedom of speech and freedom of expression are foundational principles alive in our community which are upheld and spoken to in our Federal Constitution; any denial of the right to speak to one’s own defence in any criminal proceeding (including the right to make oral submissions on a filing) is a denial that our community will not accept from the courts, would not be accepted by the framers of our Federal or State Constitutions, and could be a violation against the right to defend one’s own matters, especially in the case of an illiterate and self-represented defendant.
The hearing of the application for leave to appeal was set down for 30 July 2018. On 23 July 2018, Mr Harkness informed the Court of Appeal Registry that he had applied under s 40 of the Judiciary Act 1903 (Cth) to remove into the High Court ‘the matters involving our Federal Constitution and/or its interpretation.’ He applied for an adjournment of the hearing in this Court pending the determination of the application for removal, a copy of which was attached.
The application purported to raise constitutional questions, in particular whether s 51(xxiv) of the Constitution
speak[s] to an intention (implied or otherwise) of the framers that our Federal Constitution be an overarching authority to which a man may have a right of appeal in pursuance of his cause that he not be bound by a judgment that was given behind his back and without his having had an opportunity of being heard.[28]
The application also asked whether the right to be heard was an implied right under the Constitution.
[28]This formulation was based on the Quick and Garran annotation: see [22] fn 7 above.
Having reviewed the removal application, we refused the application for adjournment. Noting the statement in the removal application that the purported constitutional questions had not been addressed by the trial judge, we directed the Registrar to assure Mr Harkness by email that he would have an opportunity to address those matters on the hearing of the leave application. He was duly given that opportunity.
Unrepresented litigants and the right to a fair hearing.
As his Honour correctly stated, it is the fundamental obligation of every court to ensure a fair hearing for the parties before it.[29] The High Court recently affirmed, in Condon v Pompano Pty Ltd, that procedural fairness is ‘an essential attribute of a court’s procedure’.[30] The correlative right of each party to a fair hearing is firmly established at common law and — since 2006 — has been enshrined in s 24(1) of the Charter, which relevantly provides as follows:
A person charged with a criminal offence … has the right to have the charge … decided by a competent, independent and impartial court or tribunal after a fair and public hearing.
[29]Reasons [53].
[30](2013) 252 CLR 38, 99 [156] (‘Pompano’).
The existence of the fair hearing right being uncontroversial, the critical question is: ‘What does the duty to act fairly require in the circumstances of the particular case?’[31] Natural justice is ‘fair play in action’.[32] As Gleeson CJ said in Lam:[33]
Fairness is not an abstract concept. It is essentially practical. Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice.
[31]Kioa v West (1985) 159 CLR 550, 585.
[32]Salemi v Minister for Immigration & Ethnic Affairs (Cth) [No 2] (1977) 137 CLR 396, 445.
[33](2003) 214 CLR 1, 14 [38].
It is an essential requirement of a fair hearing that each party be given a ‘reasonable opportunity’ of presenting its case,[34] whether in writing, or orally, or both. This will ordinarily include being informed of the case to be advanced by the opposing party, and having an opportunity to respond.[35]
[34]Russell v Duke of Norfolk (1949) 1 All ER 109, 118 (‘Russell’); Minister for Immigration and Border Protection v WZARH (2015) 256 CLR 326, 341 [55] (‘WZARH’); Shrestha v Migration Review Tribunal (2015) 229 FCR 301, 308-9 [38]–[41] (‘Shrestha’).
[35]Pompano (2013) 252 CLR 38, 100 [157].
Axiomatically, what is ‘reasonable’ for this purpose will depend on the circumstances of the case.[36] Matters to be taken into account in determining the practical content of fairness in the particular case will include
·the nature of the decision to be made;
·the nature and complexity of the issues in dispute;
·the nature and complexity of the submissions which the party wishes to advance;
·the significance to that party of an adverse decision (‘what is at stake’[37]); and
·the competing demands on the time and resources of the court or tribunal.[38]
[36]Russell (1949) 1 All ER 109, 118; see also National Companies and Securities Commission v News Corporation Ltd (1984) 156 CLR 296, 311–2, 319–20; Pompano (2013) 252 CLR 38, 99 [156].
[37]Shrestha (2015) 229 FCR 301, 310 [49], 311 [54].
[38]AMF 15 v Ministerfor Immigration and Border Protection (2015) 241 FCR 30, 48 [44](e); Shrestha (2015) 229 FCR 301, 310-11 [53]–[54]; Barratt v Howard (2000) 96 FCR 428, 444-5 [50]–[54]; Chenv Minister for Immigration and Ethnic Affairs (1994) 48 FCR 591, 600-602.
One of the key considerations in determining the content of fairness in a particular case is the statutory framework governing the decision-making process. This is most obviously the case with administrative decision-makers whose powers are conferred by statute, but it is also true of courts. As the plurality said in Pompano:
To observe that procedural fairness is an essential attribute of a court’s procedures is descriptively accurate but application of the observation requires close analysis of all aspects of those procedures and the legislation and rules governing them.[39]
[39](2013) 252 CLR 38, 99 [156].
It is relevant, therefore, that the ‘main purposes’ set out in s 1 of the Magistrates’ Court Act 1989 include the following:
(c)to provide for the fair and efficient operation of the Magistrates’ Court; and
(d)to abolish inefficient and unnecessary court process and procedures; and
(e)to allow for the Magistrates’ Court to be managed in a way that will ensure —
(i) fairness to all parties to court proceedings; and
(ii) the prompt resolution of court proceedings; and
(iii) that optimum use is made of the Court’s resources.[40]
[40]Emphasis added.
We refer also to the Magistrates’ Court Criminal Procedure Rules 2009, which include the following:
5 Overriding objective
(1)The overriding objective of these Rules is to enable the Court to secure the just and timely determination of every criminal proceeding.
(2)Dealing with a case in a just and timely manner includes, so far as is practicable —
(a)ensuring simplicity in procedure, fairness in administration and the elimination of unnecessary delay;
(b)efficiently determining all the issues in the case;
(c)ensuring an appropriate allocation of the Court’s resources, while taking into account the needs of other cases.[41]
[41]Emphasis added.
With great respect to his Honour, we do not consider that the framework of analysis changes in any significant respect where one of the parties is unrepresented. The question to be asked — both at first instance and on judicial review — remains the same: what is (or was) required to give the unrepresented person a reasonable opportunity to advance his/her own case and to be informed of and respond to the opposing case?[42]
[42]See WZARH (2015) 256 CLR 326, 337-8 [36]–[42], and Nobarani v Mariconte [2018] HCA 36 [47] (‘Nobarani’).
The one key difference, however, is that the Court will first have to assess the capability of the unrepresented person to formulate, and communicate, the case which he/she wishes to present. The assumptions as to capability on which the Court proceeds where a party is represented do not, of course, apply.
The assessment of capability will typically be based on any written documentation which the litigant has filed and, where there is an oral hearing, on the quality of the litigant’s verbal communication with the Court.[43] Very often, the judicial officer will be able to assess relatively quickly whether, and to what extent, the litigant will need assistance, either from the Court or from a third party, in order for the Court to be able to understand the litigant’s case.
[43]Cf WZARH (2015) 256 CLR 326, 338 [40].
A critical fair hearing question for the judicial officer is whether there is, or may be, an arguable legal point underlying the unrepresented litigant’s arguments but which he/she has not been able to articulate.[44] In those circumstances, in our view, the duty to afford a fair hearing may require the judicial officer to seek to elicit and elucidate the legal point, through exchanges with the litigant. That burden may be ameliorated by facilitating access to pro bono assistance, as regularly occurs in this and other courts.
[44]See, eg, Neil v Nott (1994) 121 ALR 148, 150.
Procedural fairness is also supported by opposing parties, and their legal representatives, acting fairly and in accordance with both statutory and professional obligations. The proper discharge of those obligations forms part of the relevant matrix within which the Court discharges its obligation to ensure a fair hearing.
Applying these considerations to the present case, we are quite satisfied that there was no denial of procedural fairness. The magistrate was fully entitled to deal with the objection to jurisdiction on the basis of the written documents which
Mr Harkness had filed in advance, namely, the 2014 notice and the 2016 statement. As we said earlier, the direction that Mr Harkness file his arguments in advance was entirely appropriate.[45] As counsel for the applicant pointed out in this Court, it was a procedure particularly well-suited to an unrepresented accused, who might have difficulty advancing argument orally.
[45]See [11] above.
The result of the procedure adopted was that on two separate occasions — one on his own initiative, the other at the Court’s direction — Mr Harkness had had the opportunity to set out, as fully as he chose, the propositions on which his objection to jurisdiction rested. More particularly, those documents demonstrated, very clearly, that Mr Harkness was:
·articulate, fluent and verbally confident;[46]
·familiar with, and able to utilise, Court documents and procedures; and
·able to state in clear and definite terms his position about the inapplicability of the Road Safety Act to him and about the Magistrates’ Court’s lack of jurisdiction.[47]
[46]See Re Minister for Immigration and Multicultural Affairs; Ex parte PT (2001) 178 ALR 497, 502–3 [25].
[47]Cf Nobarani [2018] HCA 36 [43].
This was not a case where fairness required that Mr Harkness be given assistance with his objection to jurisdiction. Nor was there any reason for the magistrate to have been concerned that there might be some valid legal argument underlying Mr Harkness’s contentions. The assertion that he had an overriding right
to travel which right existed at common law and which right exists pursuant to the Blessing of Almighty God[48]
required no further investigation. As an answer to a charge of unlicensed driving, it was self-evidently a groundless assertion, with no conceivable legal foundation. The fact that Mr Harkness was evidently operating under the mistaken belief that there was some legal foundation for his assertion did not affect the content of the fair trial obligation.
[48]See [17] above.
As we have said, the question for the magistrate — and for the Court on judicial review — was whether procedural fairness required that Mr Harkness be given any further opportunity to elaborate his twice-asserted objections. To that question, there could only reasonably have been one answer, namely, that no further opportunity was required.
With great respect to the judge, the magistrate was plainly correct to conclude that there was no tenable basis for the objection to jurisdiction. As mentioned earlier, his Honour said that Mr Harkness’s arguments ‘obviously needed elaboration and clarification’.[49] Had his Honour asked Mr Harkness to elaborate or clarify, however, it would have quickly become apparent — as it did in this Court — that there was nothing to be said beyond the grounds set out in the 2014 notice and the 2016 Statement.
[49]See [36] above; Reasons [30].
When invited on the present application to explain his objections,
Mr Harkness did not seek to defend his previous, unqualified, assertions that the Magistrates’ Court had no jurisdiction to hear the charges and that RSA did not apply to him. Instead, in response to questions from the Court, he conceded that:
·the RSA was a valid law, of general application, applicable to any ‘person’ whose conduct attracted the operation of its provisions; and
·he viewed himself as bound to comply with the RSA’s prohibitions on driving above the speed limit.
Asked about his earlier categorical denials of jurisdiction, Mr Harkness responded that he had worded the documents
in a way that is about as extreme as I could have worded it to begin the dialogue.
He had expressed himself in ‘absolute’ terms, he said, as ‘a beginning to the conversation’. Rather than refusing to accept the Court’s jurisdiction, Mr Harkness said, he had wanted to have — and believed he was entitled to have — a ‘dialogue’ or ‘conversation’ with the magistrate about the extent of the Magistrates’ Court’s jurisdiction.
When it was pointed out that he had asserted ‘a common law God-given right to drive without a licence’, Mr Harkness responded:
I’m not challenging the validity of the licence. I’m seeking to find the boundary of applicability of statute law — Road Safety Act and its jurisdiction over common law rights. Does it have complete unfettered jurisdiction over common law rights? Now, I believe that’s a jurisdictional question which is worthy of exploration ...
The management of cases involving unrepresented litigants is a source of continuing difficulty for judicial officers. They are required to balance the interests of justice in the particular case with the competing public interest in the efficient use of public resources and in access to justice for other litigants waiting to have their cases heard. What is required is a combination of patience and judgment and an ability to discriminate between those cases where the interests of justice demand a prolongation or adjournment of the hearing — so that the unrepresented litigant’s case can be fairly presented — and those where the interests of justice call for expeditious disposal. So far as the objection to jurisdiction was concerned, this was a case in the latter category, as the magistrate recognised.
For completeness, we should say that her Honour the magistrate was quite correct to describe Mr Harkness’s arguments as grounded in religious precepts. As is apparent from the various extracts set out above, Mr Harkness’s lengthy written submissions were grounded in his assertions about the place of Almighty God as the source of his rights, in particular his right to travel. It was those repeated references which understandably made clear to her Honour, as they did to this Court, that Mr Harkness’s objection to jurisdiction was based on a mixture of personal philosophy and religious belief, and was completely lacking in legal foundation.
What we have said above is enough to demonstrate why the appeal must be allowed. We would also note, that because Mr Harkness’s objection to jurisdiction was devoid of merit and had no prospects of success, any failure to give him an opportunity to develop his arguments by way of oral submissions did not deny him ‘the possibility of a successful outcome’. As a result, had there been any breach of procedural fairness, it would not have been material and would not have entitled him to any relief in this Court.[50]
[50]Stead (1986) 161 CLR 141, 145; Hossain v Minister for Immigration and Border Protection [2018] HCA 34 [30].
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