Criminal law - Application for leave to appeal against conviction and sentence - Speeding offence - Alleged defence under s 45 of the Criminal Code - Alleged right to trial by jury - Alleged breaches of United Nations International Covenant on Civil and Political Rights - Alleged bias by learned magistrate - Alleged secession by the applicant - Alleged constitutional invalidity of Magistrates Courts - Alleged invalidity of prosecuting entity - Sentence not excessive - No arguable grounds - Leave refused - Appeal dismissed

Criminal Appeals Act 2004 (WA), s 9(2), s 10(3)

Criminal Procedure Act 2004 (WA), pt 4

Magistrates Court Act 2004 (WA), s 11

Road Traffic Act 1974 (WA), s 58A, s 102A

Gamage v State of Western Australia [2008] WASCA 49

Glew Technologies Pty Ltd v Department of Planning and Infrastructure [2007] WASCA 289

Glew v Shire of Greenough [2006] WASCA 260

Glew v The Governor of Western Australia [2009] WASC 14

Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488

Laws v Australian Broadcasting Tribunal [1990] HCA 31; (1990) 170 CLR 70

Minister for Immigration and Ethnic Affairs v Teoh [1995] HCA 20; (1995) 183 CLR 273

Samuels v State of Western Australia [2005] WASCA 193; [2005] 30 WAR 473

(This judgment was delivered extemporaneously on 27 April 2010 and has been edited from the transcript)

1 Before me is Mr Williamson's application for an extension of time within which to appeal, his application for leave to appeal and his appeal against conviction and sentence.

2 By a prosecution notice dated 13 January 2009 Mr Williamson was charged with driving his vehicle in excess of the speed limit contrary to r 11(3) of the Road Traffic Code 2000 (WA). The charge was heard by the learned magistrate on 23 June 2009. Mr Williamson was found guilty and fined $75 and ordered to pay costs of $114.20.

3 The facts of the case are very simple and not in dispute. They were in fact all admitted by Mr Williamson at the hearing. On 17 February 2008 Mr Williamson was driving his vehicle on a road in Glen Forrest. A radar device recorded the vehicle travelling at 89 km per hour in an 80 km per hour speed zone. Despite these admissions Mr Williamson maintained he was not guilty of the offence.

4 Mr Williamson is a self-represented litigant. There is one ground of appeal. It is in these terms:

Bias against me by Mr Malone, refused to accept my defence.

5 With respect to Mr Williamson this ground is misconceived. Judicial bias is not established merely by a refusal to accept a party's submission or defence.

6 However, the ground was explained in a document which Mr Williamson sent to the court headed particulars of defence. This document raised a number of complaints which I will consider to be the grounds of the appeal. In addition, in argument before me today, Mr Williamson referred to other grounds. With the consent of the respondent, I have considered and will decide these additional grounds.

Applications to extend time and for leave to appeal

7 Before I deal with Mr Williamson's complaints I will say something about the application for an extension of time and leave to appeal. Mr Williamson's appeal notice is out of time; s 10(3) Criminal Appeals Act 2004 (WA). He was found guilty on 13 June 2009 but did not file his notice until 17 September 2009. The last day for filing the appeal notice was 11 July 2009.

8 Mr Williamson explained in an affidavit and before me today that he was in poor health after the Magistrates Court hearing and this caused some of the delay. He also told me that he had some difficulty filing his paperwork in this court. While I accept these things, the delay is substantial and unless the appeal has merit I would not be inclined to extend time.

9 With respect to the application for leave to appeal I cannot grant leave unless I am satisfied that each ground has a 'reasonable prospect of succeeding': see s 9(2) of the Criminal Appeals Act. These words were explained in Samuels v State of Western Australia [2005] WASCA 193; [2005] 30 WAR 473 [56] to mean:

The ordinary meaning of the words, taken in their context (which includes the legislative purpose) must accordingly be taken to mean that a ground is required to have a rational and logical prospect of succeeding; that is, it would not be irrational, fanciful or absurd to envisage it succeeding in that forum; in effect, that it has a real prospect of success.

(i) Alleged offence under s 45 of the Criminal Code

11 Mr Williamson submitted that somehow s 45 of the Criminal Code (WA) affords him some defence to the speeding charge. This section says:

It is lawful for any person -

(a) To endeavour in good faith to show that the Sovereign has been mistaken in any of Her counsels;

(b) To point out in good faith errors or defects in the Government or Constitution of the United Kingdom, or of the Commonwealth of Australia, or of Western Australia as by law established, or in legislation, or in the administration of justice, with a view to the reformation of such errors or defects;

(c) To excite in good faith Her Majesty's subjects to attempt to procure by lawful means the alteration of any matter in the State as by law established; or

(d) To point out in good faith in order to their removal any matters which are producing or have a tendency to produce feelings of ill will and enmity between different classes of Her Majesty's subjects.

12 Section 45 appears in pt 2 ch 7 of the Criminal Code. This chapter deals with the offence of sedition and offences analogous to sedition. Section 44 defines the term 'seditious intention'. Section 45 makes clear that certain behaviour is lawful and does not thereby disclose seditious intention. Mr Williamson was not charged with an offence under pt 2 ch 7 of the Criminal Code. Section 45 of the Criminal Code has no relevance whatever to a speeding charge under the Road Traffic Code. This ground has no merit.

13 Mr Williamson submitted that the learned magistrate erred in law by refusing his request for a trial by jury.

14 Mr Williamson submitted that he was entitled to a jury trial by virtue of s 80 of the Commonwealth Constitution. This section provides:

The trial on indictment of any offence against any law of the Commonwealth shall be by jury and every such trial shall be held in the State where the offence was committed and if the offence was not committed within any State the trial shall be held at such place or places as the Parliament prescribes.

15 This section does not apply to this case. Mr Williamson was not charged on indictment with an offence against the Commonwealth. He was charged with a simple offence against the law of Western Australia. Under Western Australian law only certain offences can be tried by judge and jury. A citizen is only entitled to a jury trial if he or she is charged with an indictable offence in either the Supreme or District Courts; pt IV of the Criminal Procedure Act 2004 (WA).

16 A speeding offence is a simple offence which can only be tried in the Magistrates Court; s 11 of the Magistrates Court Act 2004 (WA). The learned magistrate was right to refuse Mr Williamson's request for trial by a jury. He had no power to do so. This ground has no merit.

(iii) Alleged contraventions of United Nations Covenant on Civil and Political Rights

17 Mr Williamson submitted that the provisions of the Road Traffic Act 1974 (WA), and I will assume the Road Traffic Code, are unlawful because, he says, they are inconsistent with the United Nations International Covenant on Civil and Political Rights (UN Covenant). Australia is a party to the UN Covenant but it has not been incorporated into Australian law and does not operate as a direct source of individual rights and obligations under that law.

18 The position is simply stated by the High Court in Minister for Immigration and Ethnic Affairs v Teoh [1995] HCA 20; (1995) 183 CLR 273, where at 286 - 287 Mason CJ and Deane J said:

It is well established that the provisions of an international treaty to which Australia is a party do not form part of Australian law unless those provisions have been validly incorporated into our municipal law by statute. This principle has its foundation in the proposition that in our constitutional system the making and ratification of treaties fall within the province of the Executive in the exercise of its prerogative power whereas the making and the alteration of the law fall within the province of parliament, not the Executive. So, a treaty which has not been incorporated into our municipal law cannot operate as a direct source of individual rights and obligations under that law.

19 Mr Williamson submitted that s 58A and s 102A of the Road Traffic Act are inconsistent with the UN Covenant. In brief terms, these sections provide that when an infringement notice is left on a vehicle, the licence holder of that vehicle, called the responsible person, is deemed responsible for that infringement notice unless he or she informs the police of the identity of the infringing driver. Moreover, a responsible person, if requested by a police officer to give information about the driver, commits an offence if that driver fails to make reasonable measures to comply with the request.

20 With respect, Mr Williamson's submission on this point is misconceived. First, the provisions are not inconsistent with the UN Covenant. Second, even if they were the inconsistency does not make every provision in the Road Traffic Act and the Road Traffic Code invalid. Third, Mr Williamson was not charged as a responsible person. He was identified as the driver and admitted that he was. Fourth, the UN Covenant is not in any event part of the law to be applied in the case by the learned magistrate. This submission cannot succeed.

21 However, this is not the only submission that Mr Williamson made based on the UN Covenant. Mr Williamson alleged that the learned magistrate treated him in such a way as to infringe his rights under article 14 of the UN Covenant. Essentially, this is an allegation of actual or at least apprehended bias and I will treat it as such.

22 Mr Williamson alleges that the learned magistrate did not bring an impartial and unprejudiced mind to the case. The tests for actual and apprehended bias were set out in Gamage v State of Western Australia [2008] WASCA 49. There Steytler P said [54]:

There is no dispute concerning the test to be applied when it is alleged that a judge has been, or might be, actuated by bias. In Webb v The Queen [1994] HCA 30; (1994) 181 CLR 41, 47, Mason CJ and McHugh J said that the proper test 'is whether fair-minded people might reasonably apprehend or suspect that the judge has prejudged or might prejudge the case'. ...

23 In Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ said [11] - [12]:

[T]he test to be applied in Australia in determining whether a judge is disqualified by reason of the appearance of bias ... is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide.

That test has been adopted, in preference to a differently expressed test that has been applied in England, for the reason that it gives due recognition to the fundamental principle that justice must both be done, and be seen to be done. It is based upon the need for public confidence in the administration of justice. 'If fair-minded people reasonably apprehend or suspect that the tribunal has prejudged the case, they cannot have confidence in the decision'. The hypothetical reasonable observer of the judge's conduct is postulated in order to emphasise that the test is objective, is founded in the need for public confidence in the judiciary, and is not based purely upon the assessment by some judges of the capacity or performance of their colleagues. At the same time, two things need to be remembered: the observer is taken to be reasonable; and the person being observed is 'a professional judge whose training, tradition and oath or affirmation require [the judge] to discard the irrelevant, the immaterial and the prejudicial'. (footnotes omitted)

24 The fair-minded lay observer is one who should be taken to have informed himself or herself ' ...on at least the most basic considerations relevant to arriving at a conclusion founded on a fair understanding of all the relevant circumstances' Johnson v Johnson [53] per Kirby J. See also Laws v Australian Broadcasting Tribunal [1990] HCA 31; (1990) 170 CLR 70, 87.

25 Kirby J set out in Johnson v Johnson [46] some considerations which a Court will take into account when judging bias. Further, at [52] he states the knowledge that should be imputed to the fictitious bystander. I found these statements useful in judging the learned magistrate's conduct in this case.

26 I have carefully read the transcript of proceedings. The prosecution case was wrapped up very quickly without objection. Mr Williamson made it clear he did not dispute the facts. The learned magistrate then heard from Mr Williamson. Mr Williamson did not give evidence, rather he made submissions. In truth what occurred was a lengthy dialogue between Mr Williamson and his Honour that occupied 30 or so pages of transcript.

27 His Honour's task was difficult. With great respect to Mr Williamson some of his submissions were hard to understand and were irrelevant. Some of the submissions he made related to issues that had already been decided by the Court of Appeal.

28 On the other hand I recognise that his Honour too drifted into irrelevancy. For example, his Honour early in Mr Williamson's submissions made irrelevant comments about the effects of speeding drivers on our roads. Later, Mr Williamson and his Honour engaged in discourse about the republic and the evolution of the law.

29 At one point (ts 9), Mr Williamson alleged that his Honour swore at him. The alleged swearword is not transcribed and appears to me, if it was uttered, to be totally out of context. Mr Williamson, who is articulate and not reticent about making a point, made no comment about it at the time. I am not satisfied that his Honour swore at Mr Williamson.

30 Looking at the transcript as a whole, it seems to me that Mr Williamson was given an ample opportunity to make all his points and he did so.

31 His Honour attempted during the making of submissions to understand them and to point out the flaws in those submissions. He did so often in unambiguous language, calling some of Mr Williamson's submissions 'complete nonsense' and 'complete and utter nonsense'. In my opinion his Honour was entitled to indicate his views to Mr Williamson in firm terms.

32 There were a few occasions where the learned magistrate was sarcastic towards Mr Williamson. For example (ts 9), when Mr Williamson sought a trial by jury his Honour asked, 'Where are they, your peers, at the moment? Will you look up the Yellow Pages for your peers?' When Mr Williamson made the submission that he had seceded from Australia, his Honour said, 'You're Prince Leonard of Toodyay'.

33 With respect to his Honour, sarcasm is inconsistent with the judicial obligation to be respectful to litigants and should be avoided. However, I do not think that its use here indicated bias.

34 I accept that at times, but by no means all of the time, his Honour displayed less than perfect courtesy, patience and tolerance. For example, out of exasperation, I suspect, his Honour made the inappropriate comment shortly before sentencing Mr Williamson, 'I feel like giving you life imprisonment'.

35 In my opinion, a fair-minded lay observer, being aware of all the relevant circumstances of the case would not have thought that his Honour was biased against Mr Williamson. It cannot be overlooked that Mr Williamson admitted all the elements of the offence and that the submissions that he made were entirely without merit.

36 While his Honour might have conducted the proceedings better, no injustice has been caused to Mr Williamson. This ground has no merit.

37 Mr Williamson claims to have seceded from the Commonwealth of Australia and that he is not subject to the Road Traffic Code. He said today that the UN Covenant has given him this right. With respect to Mr Williamson, this is a misinterpretation of this document.

38 The only lawful means by which land ceases to become a part of the state is set out in s 123 of the Commonwealth Constitution. The procedure described in this section has not been followed. Mr Williamson, or more correctly the land he has some connection with, has not lawfully seceded. Even if some part of the state to which Mr Williamson occupies had seceded, Glen Forest where Mr Williamson's driving occurred, remained part of Western Australia.

39 Any person whether a citizen of Western Australia or somewhere else is liable to abide by the laws of Western Australia including its road traffic laws. This ground has no merit.

(v) Alleged invalidity of the Magistrates Court

40 Mr Williamson submitted today that the Magistrates Court did not have the lawful authority to try him since the passing of the Acts Amendment and Repeal (Courts and Legal Practice) Act 2003 (WA) (the Act).

41 Broadly speaking, the Act changed references from the Crown and Her Majesty in the statutory law of Western Australia to the State and the Governor. As I understood Mr Williamson's submissions, the Act unlawfully effects an amendment of the State Constitution as to the authority of the Crown and the Monarch. The consequence of this, he says, is that courts sitting under the name of the State, such as the Magistrates Court, are invalid and their decisions are also invalid.

42 This submission has been put to and comprehensively rejected by the Court of Appeal on several occasions. I am bound by those decisions, but it is not simply a matter of following precedent. Those decisions are undoubtedly correct. The Act does no more than change the terminology used in many statutes. It does not and could not amend the State Constitution. Even if it unlawfully amended the State Constitution, this would not invalidate a court's powers or a court's judgment or order . As to this see Glew v Shire of Greenough [2006] WASCA 260 [16], [20]; Glew Technologies Pty Ltd v Department of Planning and Infrastructure [2007] WASCA 289; and Glew v The Governor of Western Australia [2009] WASC 14. This submission has no merit.

(vi) Alleged invalidity of prosecuting entity

43 Another submission made today in the course of argument was that the entity who issued Mr Williamson with the infringement notice had an Australian business number or ABN. Mr Williamson submitted that he was therefore being prosecuted by a corporation and not the police.

44 A person or entity does not become a corporation because that person or entity has an ABN. An ABN is required for any organisation or individual who carries on an enterprise with a GST turnover above a certain sum. Further, anyone who wishes to claim GST credits or fuel tax credits needs an ABN.

45 An ABN holder may be an individual, a corporation, a partnership or government entity. It is not necessary that the entity be engaged in a profit-making venture. It is irrelevant to the validity of the infringement notice or any subsequent prosecution that the entity who issued the infringement notice had an ABN. In any event Mr Williamson was not dealt with under the infringement notice provisions of the Road Traffic Act. He was dealt with in Court. The prosecution was initiated by a police officer, a person who had the relevant authority to prosecute Mr Williamson. This ground has no merit.

46 I now turn to the appeal against sentence. Mr Williamson did not put forward any specific ground to support his appeal against sentence. Nevertheless his appeal notice indicates that he seeks to appeal against the sentence that was imposed upon him by the learned magistrate.

47 Mr Williamson was fined the infringement notice amount for the offence. This was well within the learned sentencing magistrate's sentencing discretion. The appeal against sentence has no merit.

48 That brings me to summarise the outcome and to indicate the orders I propose to make. The appeal has been brought out of time. None of the grounds have a reasonable prospect of succeeding. They are, with the greatest respect to Mr Williamson, devoid of any merit. In the circumstances I propose to order, first, that the application for an extension of time within which to appeal is refused; second, the application for leave to appeal and the appeal is dismissed.

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : WILLIAMSON -v- HODGSON [2010] WASC 95 (S)

Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA

Criminal law - Practice and procedure - Costs after unsuccessful appeal against the decision of a magistrate - Costs granted

Criminal Appeals Act 2004 (WA), s 14, s 16

Williamson v Hodgson [2010] WASC 95

1 MAZZA J: On 27 April 2010, I dismissed the appellant's appeal: Williamson v Hodgson [2010] WASC 95. After I delivered my judgment, the respondent sought an order for costs against the appellant. The application was opposed by the appellant.

2 Section 14(1)(h) of the Criminal Appeals Act 2004 (WA) (the Act) gives the Supreme Court power to:

Make an order as to the costs of the appeal and the costs of the proceedings in the court of summary jurisdiction.

3 This power must be read subject to s 20 of the Act, which, in general terms, prevents the court from making an order of costs against the Attorney General, Justices of the Peace or police officers. Section 20 has no application to this case.

4 The discretion to award costs is wide. The appeal was unsuccessful. None of the appellant's grounds had any merit. The respondent has been put to considerable expense. I can see no reason why costs should not follow the event. I order that the appellant pay the respondent's costs.

5 In the interests of finality, and as the matter was straightforward, I can see no reason why costs cannot be fixed now by me. Ms Paterson, on behalf of the respondent, claims costs in the sum of $3,500. I have read the respondent's submissions which, I am sure, reflect the considerable time taken to prepare the case. The hearing of the appeal, including the delivery of my reasons, took in the order of three hours.

6 I was told this morning of the amount of time spent by Ms Paterson in preparation of the appeal and her hourly rate. In my opinion, an amount of $3,000 is fair and reasonable. For these reasons, I order that the appellant pay the respondent's costs of the appeal, fixed in the sum of $3,000.