In Rossiter v Adelaide City Council [2020] SASC 61 Livesey J has considered an appeal against a parking conviction by a SA magistrate.
Rossiter - who characterised himself as a Free Spirit Man - received an expiation notice as the driver of a vehicle parked in excess of the Council's 30-minute time limit. He chose to be prosecuted and was issued an information and summons. On the day of trial, but before the matter was called on, Rossiter showed the prosecutor a notice which read, “Notice: private property, no trespassing”. He said that the notice was displayed on the vehicle when the expiation notice was left on the windscreen. In the Magistrates Court he was mute, not entering a plea. The magistrate directed that a plea of "not guilty" be entered and proceeded as if the matter was ex parte. The prosecution proceeded to prove the appellant’s guilt beyond reasonable doubt with the assistance of statutory aids to proof. Rossiter was found guilty of breaching r 205 of the Australian Road Rules; a fine without a conviction was recorded.
On appeal to the Supreme Court he contested it on 11 grounds, including on the bases that no plea was entered and that the inspectors trespassed when attaching the expiation notice to the windscreen. The Court considered that there had been no miscarriage of justice, that 'affixation of the expiation notice to the vehicle was explicitly permitted by the Expiation of Offences Act 1996 (SA) and could not comprise trespass'. Free, sovereign or other spirit, Rossiter has to pay the fine.
The judgment states
The appellant describes himself as “Tim: Rossiter, a man” for reasons that will become clear. Whatever his name, he objects to the imposition of a parking expiation notice, and appeals against conviction for a breach of r 205 of the Australian Road Rules.
The prosecution case was that the appellant was the driver of a Toyota sedan when, on Sunday, 7 April 2019, he parked on Grote Street, Adelaide between 1.20 pm and 2.09 pm, well exceeding the 30-minute time limit indicated by the permissive parking sign.
Covered by the words “all rights reserved, without prejudice” the appellant elected to be prosecuted by a notice dated 8 April 2019, following which an Information and Summons was issued and the matter was eventually listed for trial on 24 February 2020.
At an earlier hearing on 4 October 2019 another Magistrate spoke to the appellant whilst he was sitting at the bar table. He replied only with words to the effect, “I am a man”. In the absence of a plea, the Magistrate treated the response as a plea of “not guilty” and set the matter down. On the day of the trial, but before the matter was called on, the appellant showed the prosecutor the notice that he said was displayed in the windscreen on the day the expiation notice was issued. It read: “Notice: private property, no trespassing”.
When the matter was called on, the appellant did not approach the bar table and remained seated in the back row of the public gallery. He apparently remained mute throughout the trial and during the delivery of ex tempore reasons.
The Magistrate treated the appellant’s failure to respond as another plea of “not guilty” and proceeded as if the matter was ex parte. The prosecution opened and proceeded in the ordinary way, although without any interaction from the appellant. In his reasons, the Magistrate accepted the evidence of two parking inspectors who gave evidence (using photographs that recorded the date and times at which they were taken), that the Toyota was parked for longer than 30 minutes, and that certain statutory presumptions had “not been rebutted”. ...
Where the appellant elected to remain mute and not participate in the trial, it was inevitable that he would be found to be the driver given that was what had been alleged. The Magistrate found the appellant guilty of the charge, but explained that it was usual not to record a conviction, and so the penalty without conviction was a fine of $52, a court fee of $286, a victims of crime levy of $160 and prosecution counsel fees of $1,270, a total of $1,768.The judgment continues
The handwritten grounds of appeal are unusual: No plea was entered, a notice was on car front windscreen that says ‘Notice, private property, no trespassing’ clearly visible respondent attached a sticker over it without permission or consent, the ‘election to be prosecuted’ and ‘stat dec’ was signed with
Nice try, as Groucho Marx said, but no juridical cigar.‘all rights reserved, without prejudice’ which I do not consent to be used in court, i am not the ‘registered owner’ of the car the local government has no constitutional recognition, (1988 referendum, Question 3) i do not have any contract with the corporation with the ABN: 20 903 762 572 and i do not consent to contract with them, i emailed the respondent a letter denying consent on 3/9/2014 which was not responded to or refuted, i have attached a copy, i did not cause any harm, injury or loss, the ‘Expiation Notice’ has foreign text on it which is not english, and i do not understand the nature of it.
It is not necessary to address appeal grounds 4, 5, 7, 8, 10 or 11 in much detail because they do not raise matters capable of giving rise to any defence, and they misunderstand the nature of the statutory and regulatory authority by which the respondent is authorised to control and regulate parking. The Road Traffic Act 1961 (SA) and the Local Government Act 1999 (SA) confer the statutory and regulatory powers by which the respondent controls parking and enforces parking offences within its area. That statutory and regulatory regime is as follows: The appellant was charged with a breach of r 205 of the Australian Road Rules, which are made under s 80(a) of the Road Traffic Act 1961 (SA). By s 17 of the Road Traffic Act 1961 (SA) a “road authority” may with Ministerial approval install “a traffic control device on, above or near a road”. The term “road authority” is defined by s 5 to mean, amongst other things, an “authority ... responsible for the care, control or management of a road”. The term “traffic control device” is defined by s 5 to mean, amongst other things, a sign, signal or parking ticket-vending machine and parking meter. Under s 208(1) of the Local Government Act 1999 (SA) all “public roads in the area of a council are vested in the council in fee simple under the Real Property Act 1886 (SA)”. As the owner of a road, a council is responsible for the care, control and management of a road, and it is therefore a “road authority” permitted to install “traffic control devices” such as signs and parking ticket-vending machines near a road under the Road Traffic Act 1961 (SA). By an instrument dated 22 August 2013 Ministerial approval was granted to the respondent (and all other councils) pursuant to s 17 of the Road Traffic Act 1961 (SA) to install “any traffic control device on, above or near a road which is under its care, control and management...”.
... By s 35 of the Road Traffic Act 1961 (SA), an “authorised person” as defined in the Local Government Act 1999 (SA) is an “authorised officer” under the Road Traffic Act 1961 (SA) for the purposes of enforcing prescribed provisions or exercising prescribed powers. Authorised persons are appointed under s 260 of the Local Government Act 1999 (SA) and, under s 261, they may issue expiation notices. By s 292 of the Local Government Act 1999 (SA) it is not necessary in any legal proceedings to prove the existence or constitution of a council, the appointment of an officer, or the appointment of an authorised person. ...Onwards to the 'your law doesn't apply to me' theatrics
Ground 1 complains that no plea was entered. It has long been recognised that a defendant’s right to attend a criminal trial is a right capable of being waived, with the result that a trial judge has a discretion, to be “exercised with great care” in the case of unrepresented defendants, to proceed ex parte, whether the absence is due to the misconduct of the defendant in the courtroom, or a deliberate refusal to attend at, or participate in, the trial.
According to Archbold, the English practice requires that a jury be empanelled to determine in a hearing whether the defendant was “mute of malice or by the visitation of God”, because this cannot be determined by the court. If the finding is that the defendant is “mute of malice”, the court may, under the relevant statute, direct that a plea of “not guilty” be entered, otherwise, if “mute by visitation of God” (perhaps because of deafness), the court must then determine whether there exists a disability that prevents the defendant from being tried. In 1971 in R v Hall the Full Court of the Supreme Court of Victoria described the direction of a trial judge that a plea of “not guilty” be entered, after the defendant said that he could not plead, as a “well-established practice”. In South Australia, the issue is addressed by the Criminal Procedure Act 1921 (SA), portions of which were known as the Summary Procedure Act 1921 (SA) until 2018. Section 129 of the Act, which is found in Part 5 “Indictable offences”, Division 6 “Pleas and proceedings on trial in superior court,” provides:
129—Plea of not guilty and refusal to plead (1) A person arraigned on an information who pleads not guilty will, by that plea, without any further form, be taken to have put themself on the country for trial (and the court must, in the usual manner, proceed to the trial of that person accordingly). (2) If any person, being so arraigned, refuses or fails to enter a plea to the information, it is lawful for the court to order a plea of not guilty to be entered on the person’s behalf and the person will be treated as if the person had pleaded not guilty.
Thus, where the defendant remains “mute” it is lawful for the superior court to order that a plea of “not guilty” be entered. If the defendant is under a mental impairment this is separately addressed by the provisions of Part 8A in the Criminal Law Consolidation Act 1935 (SA). In summary proceedings, where it is proved that the defendant has had notice of the proceeding, and a reasonable opportunity to attend and participate, the trial may proceed.
The procedure is, as one might expect, simplified so that where the defendant does not respond, the adjudication may proceed “as fully and effectually ... as if the defendant had personally appeared” and, indeed, the Magistrates Court may “in so doing regard any allegation contained in the summons, or information and summons, (as served upon the defendant) as sufficient evidence of the matter alleged”.
Whilst it is not made explicit by s 62BA(1) of the Criminal Procedure Act 1921 (SA), it appears that the trial may proceed as if the Magistrate has ordered that a plea of “not guilty” be entered. I was told by the respondent on the hearing of this appeal that this is often done in Magistrates Court trials in this State. In this case, the Magistrate directed that a plea of “not guilty” be entered after the appellant refused to participate in the trial.
As might be clear from the terms of s 62BA(1), and what appears to be long-established practice, the decision to proceed in the absence of any plea from the appellant did not, therefore, detract from the Magistrate’s power to adjudicate the question of guilt. The prosecution then proceeded to prove guilt beyond reasonable doubt at the trial in the ordinary way, with the assistance of statutory aids to proof, rather than utilising the assistance of s 62BA(1) of the Criminal Procedure Act 1921 (SA), which treats the allegations “as sufficient evidence of the matter alleged”.
That the Magistrate’s adjudication in this case proceeded with the benefit of the calling of evidence was, if anything, a precaution which merely reinforced the absence of any miscarriage of justice to the appellant. Whilst the respondent suggested on this appeal that the Magistrate required that the matter proceed on evidence, that is not how I read the transcript. The summary trial can be considered in terms of three distinct steps.
The first concerned the procedure to be applied when the appellant refused to participate. The Magistrate saw that the appellant was in the courtroom and, after questioning him, exercised the first discretion conferred by s 62BA(1) and decided to proceed, effectively ex parte. It is primarily that discretion which it has been said should be exercised “with caution”, as Bray CJ explained in Walker v Eves: ... the vital word is “may”, not “shall”. It is not mandatory for a court of summary jurisdiction to proceed ex parte under this section whenever a complaint has been made by a police officer and the summons is served as authorized by the Act and the defendant does not appear. It should not automatically do so. It should consider the seriousness of the offence and the possibility of a satisfactory explanation for the failure to appear. Requests for adjournment should not be lightly refused.
The second step involved the taking of a plea. As I have explained, in the absence of participation from the appellant, the Magistrate directed that a plea of “not guilty” be entered, as was appropriate. It is for that reason that this first appeal ground must be rejected.
The third step involved the form in which the trial would proceed. There was in fact no argument on that point at trial, and the Magistrate was not invited to proceed in accord with the second discretion conferred by s 62BA(1), on the basis that he could treat the allegations “as sufficient evidence of the matter alleged”.
As Bray CJ went on to explain in Walker v Eves:
The Court has not only a discretion whether to hear the case ex parte at all, but another discretion once it has been decided to hear it ex parte whether or not to regard the allegations in the complaint or summons as sufficient evidence of the matter alleged. Whilst there may in some cases be good reason to be cautious and proceed with proof in the ordinary way, that inevitably involves time spent on matters that may not genuinely be in issue.
In the circumstances of this case, where the appellant was present but refusing to participate, there seems to have been no good reason not to take advantage of this statutory aid.
Grounds 2 and 3 complain that the parking inspectors attached the expiation “sticker” over the “no trespassing” sign. As may be obvious to some, there has been a tendency in recent times to try and exploit the proposition that, where there has been a revocation by written notice of the implied licence to enter a property, if that property is then entered, there is a trespass which can be made the subject of an action for damages. It is not necessary for the purposes of these reasons to determine whether that proposition is correct, or indeed what notice by words or conduct is effective to revoke the implied licence to enter property. In this case the same idea is used in a different way. The appellant says that no expiation notice could be affixed where any implied licence to encroach on property has been revoked by a notice on a chattel, here the Toyota sedan. The implication underpinning these arguments is that because the expiation notice could not be left on the vehicle the prosecution founders. There is no merit in any of these arguments.
The appellant cited Entick v Carrington, a case of trespass to land. There it was said that “our law holds the property of every man so sacred, that no man can set his foot upon his neighbour’s close without his leave; if he does he is a trespasser, though he does no damage at all; if he will tread upon his neighbour’s ground, he must justify it by law”. Whilst that famous case has often been followed, it does not assist the appellant in this case where there was explicit statutory authority to leave an expiation notice on the vehicle and where, more importantly, the right to park the vehicle was the subject of a lawful regulation, only permitting occupation of the relevant parking space for a specified period of time. I shall set out my reasons for finding that these grounds of appeal must be rejected. ...
Ground 4 assumes that the election to be prosecuted had some bearing on the prosecution. It did not. It simply operated as a notice advising the respondent that the appellant had no intention of paying the expiation fee.
Ground 5 assumes that the prosecution depended on proof that the appellant was the registered owner. It did not. It was sufficient that he was a deemed driver.For scholars of the sovereign citizen phenomenon will be unsurprised by Livesey J's statement -
Ground 6 is a complaint that there is no constitutional recognition of local government. This has been tried by others before. It is without merit. Because the 1988 constitutional referendum failed, local government remains a matter within the residual power of the States. The failure of the constitutional amendment says nothing about the legal existence and validity of local government entities such as the Adelaide City Council, and their capacity to regulate parking and prosecute parking offences.
Grounds 7 and 8 assume that the prosecution depended upon the existence of a contract with the respondent and that the respondent’s Australian Business Number was relevant. Both assumptions are wrong.
Ground 9 refers to the appellant’s letter dated 14 December 2012, apparently sent to the respondent on 3 September 2014, “denying consent”. It is this letter that explains why the appellant is concerned not to be described by the name he was, nonetheless, prepared to use on his notice of appeal. The implication underlying this ground is that the appellant sent the 2014 letter to the respondent making it clear that, unless there was a response to it, he was to be taken as having certain rights and immunities. These include the “right to travel freely without limit”. The appellant’s letter is addressed generically to “Dear Madams and Sirs” and says that it comprises his “Notice of Understanding and Intent and Claim of Right and denial of consent for your understanding”.
The letter is said to be from “Timothy-Noel: Rossiter, Free-spirit man” who is “man and man has certain inalienable rights”:
3. My truth and law exists inside me ... ... People living on the geographical area commonly referred to as Australia have the right to revoke or deny consent to be represented and thus governed, and; I, commonly known as Timothy-Noel: Rossiter do not consent to being governed/represented, and; If anyone does revoke or deny consent they exist free of government control and statutory restraints ...
Despite the intention eight years ago to disengage from society and to “direct my life which ever [sic] way I see fit”, the appellant was nevertheless concerned to claim the right to “use the police to protect me, my friends, family and my property”, as well as the “right to free education”.
The letter comprises three pages, and is witnessed, stamped and sealed by Joseph Pertl, Solicitor, Barrister and Notary Public.
The precept that the appellant can only be governed by that to which he explicitly consents possibly explains why he sent a handwritten “Notice” to my chambers in the following terms:
Notice: Dear Sir, i, a man, accept your oath of office, yours faithfully, [signed, together with a fingerprint] Tim: Rossiter 15/04/2020
Quite apart from the absence of any evidence at the trial that the 2012 letter was ever sent to the respondent, its effect is “most unclear”, and it is incapable of having any bearing at all on the prosecution case. It is incapable of generating any defence.
Various terms have been used to describe “pseudolegal arguments” such as those advocated by the appellant in this case. They have without reservation been rejected as involving both legal nonsense and an unnecessary waste of scarce public and judicial resources. So too here.
Grounds 10 and 11 refer to the absence of harm or injury and to the foreign language text on the expiation notice, included no doubt for the assistance of those who have difficulty with English. None of that was relevant to the efficacy of the expiation notice or the prosecution for which the appellant elected on 8 April 2019.The judgment in conclusion states
It is regrettable that the appellant has advocated the various pseudolegal arguments underpinning this appeal. If he has acted on the advice of others, he is well advised to stop doing so. His decision to defend has resulted in a trivial parking fine escalating to a financial burden exceeding $2,000.
In Adelaide City Council v Lepse [2016] SASC 66, another judgment regarding a pseudolegal response to a parking penalty, the Court states
the conduct of the defendant reflects a bizarre and delusional litigious strategy that has been described in a number of decided cases concerning similar circumstances as “ pseudolegal ”. The propounding of such baseless arguments may be uniformly unsuccessful but nevertheless highly disruptive and time-wasting. However, such documentation may usually be summarily dismissed as an abuse of the process of the court with little further ado. ... On 17 March 2016, the defendant filed a notice of appeal in this Court seeking, perhaps ironically, to engage the jurisdiction of this Court. ...
it has now become common for unrepresented persons to themselves download court-approved forms from court websites, type in their relevant details, and file the completed document at the registry. The present case exposes a potential problem with that procedure.
Here, the defendant downloaded the appropriate appeal form from the court website, and typed into the appropriate areas of the form some details pertaining to her case and successfully filed it at the registry. The document, as presented, appeared genuine and I do not wish to be in any way critical of registry staff, or indeed of the solicitor of the respondent, for failing to detect a certain aberration. However, closer inspection by the Court prior to the hearing of the appeal revealed that while the document otherwise corresponds (closely enough) to the court-approved form, the following additional words (emboldened here but certainly not in the document as filed) had been surreptitiously inserted by the defendant in the substantive body of the form:
The Appellant, Waltraud Lepse, APPEALS to the a single Judge (acting under oath to Queen Elizabeth the second) of the Supreme Court of South Australia against the judgment of a single Magistrate of the Adelaide Magistrates Court. (Emphasis added)
Those emboldened words above do not form any part of the court-approved form and have been surreptitiously introduced by the defendant for her own purposes, and without any authority whatsoever to do so.
As many in the legal profession will be aware, there has been a considerable number of cases, both here and overseas, which have dealt with various bizarre purported “constitutional defences” sought to be advanced from time to time, and usually on the basis of suggestions to be found on the internet. It is sufficient to observe that there are obvious indications that this phrase “acting under oath to Queen Elizabeth the second” may be thought by some ill-informed persons to in some way advance abstruse, indeed unintelligible, arguments purporting to be in the nature of “constitutional” arguments. It is unnecessary to speculate further as to the purported motives of the defendant in inserting those words.
At the hearing of the appeal, of my own motion, I amended the notice of appeal by striking out the words and parentheses “(acting under oath to Queen Elizabeth the second)” pursuant to Rule 57 of the Supreme Court Civil Rules.
The fact that I took that course without initiating an investigation into this conduct of the defendant should not be thought to indicate that the surreptitious alteration of a substantive part of a court-approved document form is other than a very serious matter. In certain circumstances, such conduct might constitute a criminal offence, for example an attempt to pervert the course of justice. ...
It can be seen from the transcript (as verified by the affidavit of Mr Muscat, Exhibit R1), that the defendant deliberately adopted the same modus operandi in relation to both the Special Justice and the Magistrate. She passed through the door of the courtroom and, standing at a position just inside the door, attempted to negotiate with the Court the terms under which she would be prepared to attend, or appear, before the Court. She was asked on several occasions to come forward to the designated area where the parties in a case, or legal practitioners representing such parties, must attend or appear when their case is called on by the presiding judicial officer, namely “the bar table”. But the defendant at all times refused to do so, and asserted that it was entirely a matter for her choice as to whether she would submit to the Court’s jurisdiction. ...
A situation not dissimilar to the present occurred in the Western Australian decision of Ashwell v Commissioner for Consumer Protection.
The defendant appealed from a decision of the Magistrates Court. When the appeal was called on before Jenkins J on 5 June 2015, the defendant was in the public gallery and sought to make his submissions from there. He refused to come to the bar table despite repeated requests by the Judge. The result was that Jenkins J refused to hear submissions by the defendant from the public gallery and therefore heard oral submissions only from the respondent.
In later delivering reasons for that ruling, Jenkins J stated:
[25] I then asked Mr Ashwell why he declined to come to the bar table. Mr Ashwell replied “I don’t believe in your court”. This comment was consistent with various statements made in the appellants’ written submissions filed in the appeal. For example, those submissions include the following statements:
The man, David Ashwell, at no time, grants willing consent to being a party to these proceedings, but attends merely for the purpose of putting matters right. Attendance is under duress: to bring clarity to falsified information, to serve compensation bills for harm and injury incurred, to hold accountability by those who chose to harm Mr Ashwell, his wife, and his livelihood to make a point out of a matter that was exploited beyond any rational proportion. Attendance is under protest and as a result of injury incurred. ... It is recognised and acknowledged that this court, the Supreme Court of Western Australia and the Magistrates Court of Geraldton Western Australia, is NOT following procedures under a Common Law Jurisdiction. ... Silence is consent. Well not in this court room on June 5th 2015. Let it be clearly known and understood, that consent to this paradigm is NOT granted.
[26] Mr Ashwell’s comment was also consistent with comments he had made to the magistrate, including the comment “I do not recognise the court” (ts 24, 28 August 2014).
[27] I advised Mr Ashwell that I did not wish to deny him an opportunity to be heard orally in the appeal, but that unless he came forward to the bar table, I was not prepared to hear him. I said that the reason for this was that in order for him to prosecute the appeal he must submit to the authority of the court to hear and determine it. Mr Ashwell refused to come forward to the bar table then and again after the respondent’s oral submissions were made. In those circumstances, I declined to permit him to make oral submissions on his appeal from the public gallery.
[28] On the material before me, there was no practical reason why Mr Ashwell could not come forward to the bar table. Rather, because of his hearing disability, there were very good practical reasons why it was desirable for him to come forward to the bar table to make his submissions.
[29] Fundamentally, Mr Ashwell refused to come to the bar table as a demonstration of his belief that the court does not have authority over him. Of course, this belief is inconsistent with the commencement and prosecution of the appeal. Putting that issue to one side, it seemed to me that by his actions Mr Ashwell was mocking the court’s authority and demonstrating his refusal to recognise the court’s jurisdiction. Whilst the court does not revel in exercising authority over litigants, it is important that litigants who seek redress from the court are prepared to acknowledge the authority of the court and to demonstrate that by appropriate behaviour in the court. (Emphasis added)
In Lepse Peek J goes on to express concern about what might be perceived as endorsement by JPs of pseudo legalism -
In the present case, a Justice of the Peace has been prepared to append her signature and stamp to documents which falsely purport to be affidavits and, to a lay person, might well be presumed to be affidavits. However, it is quite clear that these documents have in no way been sworn of affirmed. I consider this to be a serious matter.
However, the matter does not stop there. The content of documents may be so clearly redolent of an abuse of legal process that a person such as a Justice of the Peace should play no part in the advancing of such documentation, quite irrespective of whether they actually purport to be affidavits. ...
Justices of the Peace, or others, who purport to witness documents which on their face appear to be associated with meritless pseudolegal arguments may be seen to be giving support to such arguments. It is disappointing to see that documents of that sort in this case have been given what might appear to be some verisimilitude by appearing to have been formalised by a Justice of the Peace.
