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District Court 25 May 2021

Maher v R

[2021] NSWDC 212

Assault & violenceTraffic & drivingPublic order & justice offences
SUMMARY OFFENCES HINDER POLICE CRIME APPEALS APPEAL AGAINST CONVICTION WRONG DECISION ON A QUESTION OF LAW APPEAL DISMISSED

Citation: Maher v R [2021] NSWDC 212
Court: District Court of New South Wales
Date: 25 May 2021
Judge(s): Haesler SC DCJ

Background

The appellant, an Aboriginal man identifying with the Yuin, Biribi, and Gumbaynggirr peoples, was charged with three offences arising from an incident at Warrawong NSW on 21 November 2019: using a mobile phone while driving, assaulting a police officer in the execution of duty, and hindering police. He did not contest the facts underpinning any of the charges.

In the Local Court, the appellant challenged the jurisdiction of the court to try him, arguing that Aboriginal and Indigenous peoples of Australia had never ceded sovereignty to the Crown and therefore NSW law did not apply to him. Magistrate Girotto rejected that argument and, on the uncontested evidence, convicted him of all three charges and imposed fines.

The appellant then appealed to the District Court on the ground that the magistrate had erred in law. His position, stated in written submissions, was that neither the Commonwealth nor NSW had demonstrated jurisdiction over him as a First Nations person. No notices under section 78B of the Judiciary Act 1903 (Cth), which are required when a constitutional issue is raised in federal proceedings, were filed in either court.

  • Whether the legislature of New South Wales has the power to make laws that apply to Aboriginal and Indigenous people residing in the state
  • Whether Aboriginal and Indigenous sovereignty adverse to the Crown persists and, if so, whether it displaces the operation of NSW law
  • Whether the magistrate erred in law by rejecting the jurisdictional challenge
  • Whether, in any event, each element of each offence was established beyond reasonable doubt on the uncontested facts

Decision

Haesler SC DCJ found that Magistrate Girotto made no error of law. The magistrate had correctly applied binding High Court authority, principally the holdings in Walker v NSW (1994) 182 CLR 45, Mabo v Queensland (No 2) (1992) 175 CLR 1, and Coe v The Commonwealth (1993) 8 ALJR 110. Those authorities establish that NSW Parliament has plenary power to make laws for the peace, welfare and good government of New South Wales, and that proposition cannot be displaced by reference to the identity of particular inhabitants or the nature of conduct occurring within the state.

The District Court also noted the more recent High Court decision of Love v Commonwealth of Australia; Thoms v Commonwealth of Australia [2020] HCA 3, in which Gageler J confirmed that Australian courts, consistently before and after Mabo, have rejected the existence of Aboriginal or Torres Strait Islander sovereignty. The appellant's argument therefore had no foundation in current Australian law, and the appeal against conviction could not succeed.

Because no legal error by the magistrate was demonstrated, the appeal failed on that primary ground. The court also noted a further, independent reason for dismissal: its own review of the uncontested evidence established each element of all three offences beyond reasonable doubt, applying section 20(1) of the Crimes (Appeal and Review) Act 2001 (NSW).

Orders Made

  • The appeal against conviction was dismissed.

Key Takeaways

  • The District Court confirmed, applying binding High Court authority, that the NSW legislature has power to make laws applying to all inhabitants of the state, including Aboriginal and Indigenous people, and that no cession of sovereignty by First Nations peoples is required for those laws to operate.
  • In dismissing the appeal, the court answered five discrete questions of law: Aboriginal and Indigenous peoples are subject to Commonwealth and state laws; no sovereignty adverse to the Crown resides in those peoples; NSW and Commonwealth Parliaments have full legislative competence to regulate or affect Aboriginal peoples' rights; and the application of those laws is not subject to the acceptance, consent, or request of Aboriginal people.
  • Walker v NSW (1994) 182 CLR 45 remained the central authority, with Love v Commonwealth [2020] HCA 3 cited as confirming that even the most recent High Court jurisprudence does not recognise Aboriginal sovereignty as a legal concept capable of ousting state jurisdiction.
  • Where an appellant to the NSW District Court challenges conviction solely on a jurisdictional ground that is foreclosed by binding High Court authority, the appeal will fail for want of demonstrated legal error.
  • Under section 20(1) of the Crimes (Appeal and Review) Act 2001 (NSW), the District Court may independently review the evidence and, where the facts are uncontested, confirm that each element of the offences is established beyond reasonable doubt as an additional basis for dismissal.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 60(1), 546C
- Road Rules 2014 (NSW), s 300
- Crimes (Appeal and Review) Act 2001 (NSW), s 20(1)
- Judiciary Act 1903 (Cth), s 78B
- Constitution Act 1902 (NSW)

Cases
- Walker v NSW (1994) 182 CLR 45
- Mabo v Queensland (No 2) (1992) 175 CLR 1
- Coe v The Commonwealth (1993) 8 ALJR 110
- Love v Commonwealth of Australia; Thoms v Commonwealth of Australia [2020] HCA 3; (2020) 94 ALJR 198
- Dyason v Butterworth [2015] NSWCA 52
- AG v Director of Public Prosecutions (NSW) [2015] NSWCA 218
- Bradley v The Crown [2020] QCA 252
- Gianoutis v Glykis (2006) 65 NSWLR 539