Another sovereign citizen aka pseudolegal claim, this time considered in Reiman v Commissioner of Police [2021] QDC 242 -
[1] On 26 May 2020, the appellant, who did not hold a driver’s licence, was driving an unregistered and uninsured car without number plates on the Tully Mission Beach Road. Police activated their siren. The appellant stopped her car, which remained partly on the roadway. Police asked her to move the car because its position was unsafe, so that they could speak to her about the absence of licence plates, and check if her car was registered. The appellant refused to move the car off the road and to get out of the car, despite direction to do so. More police were called and arrived. The appellant eventually got out of the car. In the course of speaking with a police officer, the appellant threw a bottle of iced coffee towards him. The liquid in the bottle hit him and another officer.
[2] From that incident, the appellant was charged with seven offences.
[3] After a summary trial in the Magistrates Court at Tully on 5 March 2021, the appellant was convicted of six of the seven charges. ...
[5] The appellant appeared on her own behalf in the court below and on appeal.
[6] The notice of appeal listed the following grounds of appeal: • “No due process • Error in fact of law • No binding contract • No evidence of jurisdiction • Affidavit not accepted as evidence”.
[7] Based upon the appellant’s oral submissions (which were at times difficult to understand) and documents, the issues in the appeal can be summarised as follows:
1. lack of jurisdiction: the appellant contends that she is not subject to any Queensland government statutes or proceedings, that the police acted without authority or jurisdiction, that she is not required to hold a driver’s licence, and the car she was driving is not required to be registered or insured under a statutory insurance scheme;
2. lack of procedural fairness: the appellant contends that she was denied a fair trial; and
3. provocation and self defence: the appellant contends that with respect to charges 6 and 7 (the two charges of serious assault police), the learned Magistrate erred in her consideration of the defences of provocation and self defence.
[8] For the reasons that follow, the appeal should be dismissed.
Nature of appeal
[9] The applicable principles for the hearing of such an appeal are not in dispute. To succeed, the appellant must demonstrate that the decision the subject of the appeal is the result of some legal, factual or discretionary error.
[10] The appeal is by way of rehearing on the evidence before the Magistrate (and any other evidence introduced with leave of this court) rather than a hearing de novo. The court must consider each of the grounds of appeal having regard to the evidence and to determine for itself the facts of the case and the legal consequences that follow from such findings. [
11] The rehearing requires this court to conduct a ‘real review’ of the evidence before the Magistrate and of the Magistrate’s reasons to determine whether they have erred in fact or law. Whilst this does not involve a rehearing of the evidence of witnesses, the court has the power to draw inferences from primary facts, including facts not disputed and findings of fact.
[12] If, after conducting the necessary review, I am satisfied of the guilt of the appellant, it is appropriate to dismiss the appeal.
Summary of the evidence at trial
[13] The prosecution called three police witnesses, and tendered various evidentiary certificates as well as the recordings of the police officers’ body-worn cameras.
[14] The appellant elected to give evidence. With respect to charges 3, 4 and 5, she did not dispute that she was driving the car, that she did not hold a driver’s licence and that the car was unregistered. The appellant asserted that she was not required to be licenced, and that the car was not required to be registered or insured, for the reasons set out under the lack of jurisdiction ground below.
[15] With respect to charges 6 and 7, the appellant’s evidence was to the effect that Officer Tamblyn had provoked her by knocking her cigarette out of her mouth to the ground, and that her actions in throwing the contents of the iced coffee bottle at him were justified in self defence.
[16] I deal with each of the grounds of appeal below.
Lack of jurisdiction ground
[17] For this ground, the appellant’s oral and written submissions, and the documents she sought to rely upon, included the following statements:
1. “I, Yvette Terese, the affiant, am not a Legal Fiction Person nor a Corporate Entity or some kind of Partnership, BUT INSTEAD am a living breathing, sovereign, flesh and blood Human Being with a living soul, with a distinct Mind is capable of possessing Knowledge”;
2. “I am a woman, a living woman. I am not dead or lost at sea. I stand under the jurisdiction of my flag[6]”;
3. the appellant had renounced any “contract” or “agreement” with any government agency or entity;
4. “slavery and peonage are immoral and fraud, misrepresentation, nondisclosure, intimidation, deceit, concealment of material fact, lying, and treachery are morally wrong”;
5. the appellant had “absolutely no desire whatsoever to be a “client” (slave) of any governmental agency, state or federal”;
6. the appellant had “unalienable/inalienable indefeasible rights to life, liberty, freedom and property”.
[18] Despite the appellant’s apparently strongly held belief otherwise, none of these repeated incantations have any relevant legal effect.
[19] The appellant also submitted that:
1. she did not recognise Queensland as a jurisdiction of the Commonwealth of Australia and she is not subject to the statutory laws and jurisdiction of the State of Queensland, because laws were created by God, in the Bible, upheld by the Magna Carta and reflected in the constitution, and because of the operation of s 109 of the Commonwealth Act 1901;
2. the police acted without lawful authority;
3. the Magistrates Court and District Court are unlawful and have no jurisdiction over her; 4. persons interacting with her must produce evidence of their lawful authority and pay a fee of “four-hundred-thousand dollars credit in gold or silver”;
5. she was travelling under her “inalienable right” under the Magna Carta and ss 51 and 92 of the Commonwealth Constitution;
6. the police were committing “war crimes” under the Geneva Convention;
7. when arrested she was “kidnapped” and falsely imprisoned.
[20] Despite contending that the District Court lacked jurisdiction and was a fraud, when invited to discontinue her appeal, the appellant declined to do so.
[21] It is unnecessary to answer every incomprehensible contention raised by the appellant when the unremarkable proposition that she is bound by the statutory law of Queensland is a complete answer to all her claims under this ground.
[22] Her submissions are misconceived and devoid of merit. The jurisdictional arguments raised by the appellant have been considered and rejected in other cases. Just a few examples will suffice.
[23] The argument as to the effect of Magna Carta and its supposed inconsistency with State legislation has been dealt with in a number of cases, the general thrust of which is that it is wrong to suppose that local legislation may not be made in conflict with the Magna Carta : “an applicable enactment, whether Queensland, Commonwealth or Imperial is capable in law of repealing Magna Carta either completely or to the extent that it is inconsistent with that enactment.”
[24] The appellant’s arguments were similar to those advanced unsuccessfully in Hubner v Erbacher [2004] QDC 345. I respectfully adopt the analysis of White DCJ at [10]-[17] in which he concluded that the appellant, as a resident of Queensland, was subject to the laws of Queensland, including those relating to vehicle registration, compulsory third party insurance, driver licensing and number plates.
The judgment in Huber states
[1] On 25 June 2003 the appellant was convicted in the Magistrates court at Atherton of the following offences:- 1. That on the 28th day October 2002 at Yungaburra in the Magistrates Court District of Cairns in the State of Queensland he used on a road namely Gordonvale-Atherton Road, Yungaburra, a vehicle namely a motor car which was not a registered vehicle contrary to s 10 of the Transport Operations (Road Use Management – Vehicle Registration) Regulation 1999. 2 2. That on the 27th day of October 2002 in the Magistrates Court District of Cairns in the State of Queensland he without reasonable excuse had in his possession a thing that purported to be but was not a number plate. The appellant appeals to the District Court against his conviction for these offences. ... Ultimately His Worship proceeded on the basis that the appellant pleaded not guilty to the charges. The prosecutor called evidence from two police officers, Sgt Daniel John Erbacher and Sen Const Paul John Morley. Evidence was also given by Maureen Bridget Forsayth, an officer of the Queensland Transport Department.
[3] Sgt Erbacher and Sen const Morley gave evidence that they were performing road patrols on the Gillies Highway between Yungaburra and Atherton. The evidence was that the road was also known as the Gordonvale-Atherton Road. At about 2.10 in the afternoon the officers intercepted a Ford F250 utility which was being driven by the appellant. The officers noticed, attached to the vehicle, what appeared to be a number plate bearing the numbers 351-F250. It had the letters AUS printed down the side of the number plate and the words “HM ELECTORS PARLIAMENT QUEENSLAND” printed underneath the number. Const Morley asked the appellant to produce his driver’s licence which he did and which confirmed the appellant’s identity. Const Morley asked the appellant where he had obtained the number plate and he responded that he had bought them from a friend in Victoria for $400.00. Morley also noticed that there was not a Queensland Transport registration sticker attached to the vehicle and when asked why, the appellant replied that he did not need a registration sticker because it is his right under the Constitution and the Magna Carta 1215 and he believed he did not need one. Const Morley seized the registration plates and they were tendered to the Court. The evidence was that the appellant’s home address was Park Avenue, Yungaburra. That is consistent with all of the appeal documents filed by the respondent.
[4] Sgt Erbacher gave evidence that the following day, 28 October 2002, he and Morley were again on patrol on the Gillies Highway near its intersection with Marks Lane. At about 12.30 pm they intercepted the same orange Ford F250 model utility which they had seen the day before and they again observed the appellant to be the driver. When asked to explain, the appellant once again asserted that according to the Magna Carta and the Constitution he was not obliged to have the vehicle registered.
[5] Maureen Forsayth gave evidence of having searched the Queensland Transport records. She ascertained that the orange Ford F250 utility had previously been registered to the appellant but that the registration expired on 31 July 2002.
[6] The appellant did not give evidence at the trial and nor did he attempt in any way to dispute the factual evidence given by the prosecution witnesses. In fact, he specifically told His Worship that what the prosecution witnesses had said in evidence was true (T 44 L50).
[7] As to the first offence of which the appellant was convicted s 10 of the Transport Operations (Road Use Management – Vehicle Registration) Regulation 1999 provides as follows:-
“A person must not use or permit to be used on a road a vehicle that is not a registered vehicle unless – (thereafter the section contains some exceptions, none of which are suggested to apply in the present case). Maximum penalty – 80 penalty units.”
Relevantly, s 5 of the Regulation provides as follows:-
“(1) In this regulation a vehicle is taken to be a registered vehicle if it has current registration under this regulation. (2) In this regulation a vehicle is taken to be an unregistered vehicle if – (a) It has no current registration under this regulation because – ... (ii) it has had registration under this regulation but the registration has expired or been cancelled and (b) Nothing in this regulation permits its use on a road whether or not under limited circumstances.”
On the undisputed evidence the appellant’s vehicle was not a registered vehicle within the meaning of s 5. The fact and place of its use was not disputed. Therefore the appellant was clearly guilty of the offence charged.
[8] As to the second offence s 76 of the Regulation provides as follows:-
“(1) A person must not, unless the person has a reasonable excuse – make, sell or have in the person’s possession anything that purports to be but is not a registration certificate, registration label, number place or permit. Maximum penalty – 40 penalty units.”
The appellant had the offending number plate attached to his vehicle as if it were a number plate issued pursuant to the Regulation. There can be no doubt that it was not a number plate and by reason of the manner of its use it purported to be a number plate. The appellant offered no reasonable excuse for having it in his possession. He was therefore guilty of the second offence.
[9] As I have said the appellant did not in any way attempt to dispute the prosecution evidence. He accepted that the evidence put forward in the prosecution case was true. Rather, in the court below and on appeal, he directed his arguments towards demonstrating that either the relevant regulation was not a valid law or that other legal rights, which he claimed to have, prevailed over such law. Some of the rights/freedoms which he asserted either in the court below and/or on appeal are as follows:-
(a) Freedom of conscience. (b) Freedom of belief. (c) Right to exercise free will. (d) Freedom of movement. (e) Right of passage on a public road. (f) Right of renunciation. (g) Right of privacy. (h) Rights as an elector. (i) Right to be empanelled as a juror. (j) Right to form political unions. (k) A common law right to register his vehicle with the entity of his choice. (l) A duty to uphold the teachings of Jesus Christ. (m) Right of peaceful protest. (n) Rights under the Magna Carta 1215. (o) Rights under the Australian Constitution.
[10] What the appellant seems to have conveniently overlooked or failed to appreciate is that there is a hierarchy of laws. The supreme laws so far as Queensland and people within the State of Queensland are concerned, are the laws of the Commonwealth Parliament enacted pursuant to the provisions of the Commonwealth of Australia Constitution Act and the laws enacted by the Queensland Parliament pursuant to the Constitution Act of 1867 as amended (the Constitution of the State of Queensland). I am indebted to Chesterman J for his judgment in the Court of appeal case of Carnes v Essenberg & Ors 1999 QCA 339 (23 August 1999). In that case the appellant was convicted in the Magistrates Court at Kingaroy for offences against s 50 of the Weapons Act. In that case the appellant relied expressly on the provisions of Magna Carta. However, the reasoning which applied to the Magna Carta applies equally to any other rights which may be asserted on the basis of the common law, natural law, the Bill of rights 1688 or any other claimed source of freedom or legal right. His Honour said:-
“Mr Essenberg has two points. He maintains that Magna Carta was and remains a pre-eminent source of legal obligation binding on all courts and governments and that any subsequent developments of legal principle or enactments of parliament that have occurred in the last 800 years that might be thought to have diminished the force of Magna Carta are invalid. By its terms he claimed a right to trial by jury. But the proceedings brought against him for contravention of the Weapons Act were simple offences prosecuted before a Magistrate. Mr Essenberg has a second point. He claims that by the Bill of Rights 1688 he as a citizen has a right to bear arms suitable for his defence. He asserts that that right also remains untouched by 300 years of legal and political development. He argues that the Weapons Act is invalid because it takes away that right. Magna Carta formed part of the system of imperial laws which apply to the colonies of eastern Australian on their settlement. So did the Bill of Rights. The historical importance and the influence on the constitutional development in English speaking countries of those two enactments are profound. However it is completely inaccurate to say that colonial parliaments or indeed the Parliament of Westminster could not alter, modify or even repeal the provisions of centuries old legislation.
The Australian Courts Act 1828 was enacted by the imperial parliament to allow for the establishment of an organised judiciary in the colonies and to facilitate the making of local laws. Section 24 provided that – “All laws and statutes in force within the realm of England at the time of the passing of this Act shall be 5 applied in the administration of justice in the Courts of New South Wales so far as the same can be applied within the said colonies and it shall be lawful that the governors of the said colonies respectively with the advice of legislative councils of the said colonies to make and establish such limitations and modifications of any such laws and statutes as may be deemed expedient.” The Australian Courts Act became part of the law of Queensland upon its separate establishment in 1859. It may be noted also that the Colonial Laws on Validity Act 1865 was passed by the Imperial Parliament to remove doubts about the extent to which Australian colonial parliaments could alter Imperial legislation as it applied to the colonies. As Dr Lumb points out in his work on the Constitution of the Australian States, the result of that Act was that no colonial law was void on the ground that it was repugnant to the fundamental principles of English law. The matter is made even more explicit by s 3(2) of the Australia Act 1986 which provides that no law and no provision of any law made after that Act by the Parliament of the State shall be void or inoperative on the ground that it is repugnant to the laws of England or to the provisions of an existing or future Act of Parliament of the United Kingdom. The supremacy of parliament to make laws contrary to what had been the common law is expressly recognised by the courts. It is enough to refer to the decision of the High Court in Kable v The Director of Public Prosecutions 189 CLR 51 at pp 73-74 in the judgment of Justice Dawson. His Honour pointed out that that champion of the common law Chief Justice Coke had, in his institute of the laws of England in the early 17th century accepted that Magna Carta could be altered by English Parliament. Indeed he referred to Bills of Attainder which allowed for trial contrary to Magna Carta as being lawful enactments. Justice Dawson went on:-
“Judicial pronouncements confirming the supremacy of parliament are rare but their scarcity is testimony to the complete acceptance by the courts that an Act of Parliament is binding upon them and it cannot be questioned by reference to principles of a more fundamental kind.”
The passage goes on and concludes:-
“There can be no doubt that Parliamentary supremacy is a basic principle of the legal system which has been inherited in this country from the United Kingdom.”
That is enough to dispose of the arguments that Magna Carta and the Bill of Rights are untouchable and unalterable sources of private rights or immunities. The Criminal Code and the Justices Act of Queensland have changed the manner in which prosecutions may be brought. The Weapons Act has abrogated the right of citizens to go armed in public.”
[11] The law making powers of the Legislative Assembly of the State of Queensland are contained in s 9 of the Constitution Act 1867 and still apply. That power is “to make laws for the peace, welfare and good government of the colony in all cases whatsoever”. These words have traditionally been used to confer “the widest legislative powers appropriate to a sovereign”. See Ibralebbe v The Queen 1964 AC 900 at 923 and Union Steamship Co of Australia Pty Ltd v King (1998) 166 CLR 1 at 9-10. They have been held to admit of no inquiry by the courts as to whether as a matter of fact or law a particular statute is or is not a prudent exercise of the power or is calculated to attain its particular end or object. See Reil v The Queen (1885) 10 Appeal Cases 673 at 678.
[12] The Parliament of Queensland passed the Transport Operations (Road Use Management) Act 1995. The Act received Royal Assent on 5 April 1995. All provisions of that Act had commenced by 1 July 1995.
[13] Section 171 of the Act so far as is relevant provides as follows:-
“(1) The Governor-in-Council may make regulations under this Act. (2) A regulation may be made prescribing offences for a contravention of a regulation and fixing a maximum penalty of not more than 80 penalty units for a contravention.”
Sections 146, 147, 148, 149, 150 and subsection 171(3) give the Governor-in-council power to make regulations covering an enormously wide area of subject matter. In my view there is no doubt that the Transport Operations (Road Use Management – Vehicle Registration) Regulation 1999 was within the regulatory power given to the Governor-in-Council by the provisions of the Act. The regulation was made by the Governor-in-Council on 30 September 1999 and notified in the Government Gazette of 1 October 1999. All of the original provisions commenced by 1 January 2000. The terms of s 10 and s 76 of the Regulation which I have set out above were in force at the time of the incidents giving rise to the offences with which the appellant was charged. Subject to the provisions of the Commonwealth of Australia Constitution Act the provisions of the Transport Operations (Road Use Management – Vehicle Registration) Regulation 1999 was a valid regulation enacted pursuant to the legislative power of the Queensland Parliament and prevails over all common law or other rights and freedoms to the extent that they are inconsistent therewith. To adopt the words of Chesterman J, the Act and Regulation abrogated any rights which the appellant may have previously had.
[14] I turn now to the Commonwealth of Australia Constitution Act. Section 4 of the Australian Constitution preserves the law making powers of the State Parliaments subject to the provisions of the Constitution. Section 52 of the Australian Constitution provides for a list of exclusive powers of the Commonwealth Parliament. They did not include the power to make laws in relation to transport operations and road use management. Chapter V of the Australian Constitution deals specifically with the States and preserves the constitution of each of the States.
[15] The appellant sought to rely on certain sections of the Australian Constitution; I will deal with them briefly in turn. Section 92 of the Constitution provides, so far as is relevant:-
“On the imposition of uniform duties of customs, trade, commerce and intercourse among the States whether by means of internal carriage or ocean navigation shall be absolutely free.”
There is nothing inconsistent with the provisions of the Act and Regulation and s 92 of the Australian Constitution. The provisions of the Act and Regulation dealing with transport operations and road use management and vehicle registration within the State of Queensland having nothing whatsoever to do with trade, commerce and intercourse amongst the States.
[16] Section 116 of the Australian Constitution provides as follows:-
“The Commonwealth shall not make any law for establishing any religion or for imposing any religious observance or for prohibiting the free exercise of any religion and no religious test shall be required as a qualification for any office or public trust under the Commonwealth.”
Firstly, the Queensland Acts are not laws purportedly made by the Commonwealth. Secondly, the Act and Regulation have nothing to do with religion.
[17] Section 117 of the Australian Constitution provides as follows:-
“A subject of the Queen resident in any State shall not be subject in any other State to any disability or discrimination which would not be equally applicable to him if he were a subject of the Queen resident in such other State.”
In my view this section has no application. Mr Hubner is a resident in Queensland, the relevant laws which he purports to attack are not the laws of any other State, they are the laws of Queensland.
