Marks v Sly [1982] FCA 128

Federal Court of Australia|1982-05-28|Before: Keily JJ, Kelly JJ, Gallop J

ON APPEAL FROM THE SUPREME COURT OF THE AUSIRALIAN CAPITAL TERRITORY

Respondent ORDER ORDER : GALLOP, DAVIES and KEILY JJ.

ON APPLAL FRON THE SUPREME COURT OF tHE AUSTRALIAN CAPITAL TERRITORY

Sessions convicted the appellant of an offence against s.190A(1)(c)

cE the Yoter Troific Ordinance L950 as ererdet, and peesol a penalty af 410, the caximua for the offence being a prescribed penalty of $20.

The appellant has, pursuant to crder 52, 1ule 35 of the

Federal Court Rules, prepared written submissions and has also

made certain oral submissions in support of his appeal. Some of

these submissions, indeed, a great number of them, are not covered by the grounds of appeal set out in the notice cf appeal but no objection was taken to the submissions being outside the scope of the grounds set out in the notice of appeal. One may tuke ut, therefore, that any strict compliance with the ordinary presentation of submissions in an appedl has been waived by the respondent and we have entertained all those submissions because the appellant is appearing in person.

There are a number of submissions which I will endeavour to deal with. If I do not deal with all of them, it 1s not that I have not taken account of all of them, but 1t seems to me that the submissions fall into a number of recognizable categorics.

The first category of submissions was that the Chief Justice had made an error of law in Failing to give proper account of the fact that, during the course of the protest, which had taken piace earlier that day, that 1s, the day of the offence, 27 January 1980, the police had given permission to protesters, of which the appellant was one, not to wear safety helmcts. As I understand the appellant's written submissions, that argument 1s contained in paragraphs 2, 8, 15, 16, 17, 18, 19, 40, 41, 42, 69, 71, 72 and 73 of the written submissions. In my view, no error of law has been demonstrated in relation to those submissions.

In any event, I agree with what the Chief Justice said,

that the grant of permission - even 1f established - would not

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The secene cCategor' of subczssions ,as TAIt the Jrotester-, as I say, of whach the appellant was one of a nunber, hac a right of asserbly and the rights of other citizens were not intertered with and there occurred no breach of the peace.

Those paragraphs of tne written subnissions which scew to me to relate to that suggestion are puragraphs 8, 9, 10, 11, 12, 13 and 14. There 1s nothing in tnat ground whatever, 1t heing entirely irrelevant to the matters of fact upon which the magistrate had to be satisfied and the Chief Justice seems to have tuken any such arguments into account and rightly rejected them.

The third category of submissions might be compendiously stated as that the particular section under which the appellant was convicted docs not stipulate the style, type, standard or manner of wearing a helmet. And the paragraphs of the written submissions that deal with that are paragraphs 6, 22, 25, 24, 25 65 and as a sort of corollary to that submission the appellant has made further submissions that compliance was impossible and that submission 1s covered not only orally but in his written submissions at paragraphs 20, 21, 22, 23, 24 and 25. His Honour the Chief Justice dealt with that sort of submission and in my view rightly held that it 1s no part of the particular sub-section under which the appellant was charged that the style, type, standard or manner of wearing the helmet has to be specified.

The offence is committed 1f the appellant did not wear a safety helmet while driving a motor cycle on a public street and there really seems to be no dispute on the facts that each one of those elements of the offence was established.

The fourth category was that the manner of wearing a

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helmet sas not stipulated in the sestrun and tne tonellant pat

that suomission in paragraphs ~, 24, 20, 31, 32, 55, 54, 35, Jv, 37, 38, 359, 353 ane Se OF Abs Wittten submiss:ons. Tl1s oral submission was that wearing does not necessarily nean on the body, ut could equally mean carrying about his person and ground 5 of the notice of appeal seems to deal with that submission.

A similar submission was put to the Chief Justice. It was properly rejected by the Chief Justice at p.68 of the appeal book. Mr. Maguire has also pointed out that the very words or the section later on refer to wearing on the head. [In my view there 18 no substance in this argument whatever.

The next category of submissions was that the judge recognized the appellant from a previous case but failed to disqualify himself and in that way the judge indicated possible bias and failed to give reasons. This submission 1s set out in paragraphs 4, 43, 44, 45, 46, 47, 48, 49, 50, S51, 52, 53 and 54 of the written submissions and seems to be covered by ground 3 of the notice of appeal. Also it 1s submitted that the Chief Justice read the appellant's prior record before guilt was established and this 1s alleged in paragraph 46 of the written submissions and has also been alleged orally.

AS was pointed out in argument in the conduct of this appeal there is absolutely no ground for this unwarranted allegation and it is sufficient to refer to pages 50 and 62 of the appeal book as was done by my brother Davies in the course of the hearing of the appeal. [t is plain that [1s Honour read only the depositions. It is plain also that His Honour was careful to give the appellant an opportunity to object to His

Honour hearing the matter. The appellant did not object and it

is almost unconscionable that an appellant would take such a

point on the hearing of en appeal to this ceaurt in vil ta. e1lremmstances of what took place.

Next 1t is submitted that the judge did not admit or adequately consider relevant evidence, and that 15 contained in wiaitten submissions at paragraphs 57, 58, 59, 60, 601, 02, 65, b+, 66, 67, 68 and 70. In my view, any such evidence as referied to in those paragraphs was irrelevant and His Ionour the Chicf Justice has not fallen into any error in that respect.

Next, so it 1S submitted, the circumstances of 27 November 1980 indicated that in order to be able to hear the directions of the police and as a matter of public safety the cyclists should not have covered their heads with helmets. And paragraphs 74 and 75 are where the written submissions are made. There 1s absolutely nothing in that argument either, 1n my view.

Lastly, on the question of whether the offence has been committed or not, it was submitted that no evidence has been produced so as to show that a 400cc Kawasaki motor cycle meets the requirements of the definition of motor cycle as defined in s.4 of the Motor Traffic Ordinance, and that argument is advanced at paragraph 30 as well as orally before us. I referred in argument to the evidence of Constable Collett and Constable Mayer and the admissions of the appellant contained therein, and in my view there was ample evidence that the motor vehicle that the appellant was riding was a motor cycle within the meaning of the Motor Traffic Ordinance. There is nothing in that ground either.

Lastly, it is submitted that the penalty of $10 being half of the maximum was too high considering the appellant's background and what the maximum penalty is under the section, and

that submission is put in paragraphs 76, 77, 78, 79, 80 and 81.

Tnere 1s nothing in eather. fF sould dismiss the appeal sith costs, : five A 6-82 foaut te

On Appeal from the Supreme Court of the Australian Capital Territory

I agree with the reasons delivered by the learned presiding judge. I want myself to make one or two comments because of

some of the grounds of appeal. Mr. Marks does not appear to

have appreciated that it is a law of the Australian Capital Territory that a motor cyclist should wear a safety helmet.

It is an offence not to do so. A motor cyclist is guilty of an offence if he does not wear a safety helmet. The law 1s very

Simply stated and it is clear that a motor cyclist is guilty of an offence if, when he rides on a public street on a motor cycle,

' i Marks was riding a notor cvcle on 2 eanlic street and was r0t

Wearing a safety helmet. All sorts oz submissions were put to the learned trial judge and have been put to tnis court, but they Simply rave no baSis whatever, There was no arguable ground of

appeal and no ground, indeed, to go to the Supreme Court in the first place from the decision of the Court of Petty Sessions.

Mr. Marks' failure to understand that 1t was the clear duty of the court to record a conviction has led him to vut Forward allegations of biaS and pressure, all of which are quite unwarranted. I wish to say, Mr. Marks, that I hope that if you

ever come to a court again you will not then make such unwarranted allegations.

In this case the law is clear, the fact that you committed an offence 18S clear, and the court's duty was to record a conviction. As to the penalty, the fact of the matter is that a penalty of only $10, a $10 fine, was imposed and the learned

Chief Justice considered that to be an appropriate penalty for a traffic offence of this character and indeed because it was a

traffic offence which involved a question of safety, I for myself cannot understand that any argument could be put that it was not appropriate. I agree with the order proposed.

I certify that this and the on® preceding pages dZe a true copy of the reasons for erein of the-Geure Kaa Honour D Aton

ON APPEAL FROM THE SUPREME COURT OF [PF AUSTRALIAN CAPITAL TERRITORY

I would dismiss the appeal for the reasons given by Mr. Justice Gallop. I agree, too, with what has fallen

I certify that this si pee peeumizet paceswhe a true copy of the

Reasons for Judgment herein of his Honour Mr. Justice Kelly

At a glance

Court

Decision date

Before

Source

Judgment (55 paragraphs)

Cited By (1)