Wiggins v Mareeba Shire Council [2004] HCATrans 238 (23 June 2004)

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Wiggins v Mareeba Shire Council [2004] HCATrans 238 (23 June 2004)

Last Updated: 5 August 2004

[2004] HCATrans 238

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Brisbane No B9 of 2003

B e t w e e n -

ROBERT JAMES WIGGINS

Applicant

and

MAREEBA SHIRE COUNCIL

Respondent

Application for special leave to appeal

CALLINAN J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON WEDNESDAY, 23 JUNE 2004, AT 12.47 PM

Copyright in the High Court of Australia

MR R.W. WIGGINS appeared in person.

CALLINAN J: In this application there is no oral argument. The application relates to proceedings in the Magistrates Court in respect of the keeping of two licensed dogs. Mr Wiggins, I may not be clear about this. I will retract what I have just said. Did you wish to present any oral argument? Is there anything you want to say to us?

MR WIGGINS: Yes.

CALLINAN J: Yes, I am sorry. Well, you go ahead, please. The Council is not appearing. Are you aware of that?

MR WIGGINS: Yes.

CALLINAN J: And the Council does not wish to present any oral argument, but, Mr Wiggins, you go ahead and present argument to us, please, whatever you want to say.

MR WIGGINS: Your Honour, if you have seen the - - -

CALLINAN J: Just come to the microphone and stand at the lectern, will you, please?

MR WIGGINS: If you have perused the document, you would note that the portion of recording has been stated there missing was recorded by the court transcript provider. This, I believe, has removed a necessary part of this matter and puts in doubt any evidence in there and obviously because the purpose of removing the portion of recording was to uphold my conviction. I think this is a deliberate act.

CALLINAN J: I do not quite understand. What do you say is missing?

MR WIGGINS: There is a portion of the recording missing.

CALLINAN J: Yes. You go ahead now.

MR WIGGINS: Mr Hunt stated in the court case that the dogs had been previously registered at that address but were not currently registered and when he found the dogs he had found the dogs unregistered, so he had taken that information back to the – he stated in court that the dogs had been previously registered but were not currently registered. He had got that information off the computer at the Mareeba Shire Council and put that towards the Director of Health, Mr .....

Now, my problem with this was I was fined for two dogs and the fact that a portion of recording going missing in regards to a fine for two dogs just never made sense and never added up and it struck me like the records of proceedings were being manipulated in a manner to uphold a conviction but also to remove the responsibility of that authorised officer to obey the law and not commit perjury in the courts. So I appealed this to the District Court and in the District Court – I went through the District Court with Judge White and in that court he had stated that, “It was a revenue-raising offence, was it not?”. He repeated that statement, “Was it not?”, to Mr Sheridan who in the end answered, “Yes”. Now, if you look at that portion of the District Court’s statements - - -

HEYDON J: Is it page 55?

MR WIGGINS: Yes:

But there weren’t; nor did Mr Hunt have any reason to believe there was more than two. He said he observed two on a previous occasion. There was no basis for him believing that other than the revenue offences or revenue offence-----

No, that is not the spot. I will start at page 54, line 30 to 45:

HIS HONOUR: Except, by the same token, the cases in which unlawfully obtained evidence is admitted are usually for much more serious offences; very serious offences where the interests of the Court, in having those offences detected, outweighs the public interest in preventing a relatively minor or technical departure from the law by an investigating person.

MR SHERIDAN: Yes, I agree with that.

No, I am sorry, that was the wrong one. Sorry, a little bit further on, page 54, 50 – if you start at about paragraph 45 it states:

They didn’t attack Mr Hunt and he’s only got two.

MR SHERIDAN: Yes.

HIS HONOUR: So I presume he’s got no problems there. Most councils allow two dogs – at least I hope so, Mr Sheridan, otherwise I’m in trouble. So, as far as Mr Wiggins is concerned, it was a revenue offence, wasn’t it?

He then reinstated to Mr Sheridan – at that point in time he was quite upset, he said, “Well, wasn’t it?” Mr Sheridan took some time to answer that question and this brought my attention to that matter, and eventually Mr Sheridan said, “Yes”. Now, this is when I started to believe that this may be something else involved in regards to the law and that is when I came across section 53 of the Constitution which states that you cannot use revenue-raising offences as a means to raise tax.

Now, I put this in the argument that if you go door-to-door on this type of basis, without any interest in the public or any public interest concerned, other than the actual registration of a dog, shortly after you have made the law, you have gone forward with the intent to unlawfully raise revenue. This, I believe, contradicts section 53 of the Constitution.

Now, the other thing that I would like to bring before you today, if you read this document, I could never understand why Mr Hunt carried on his actions at the first instance, on the first time he came to my property on the Saturday, prior to the Tuesday when he actually entered to fine me. On that Saturday his actions were particularly conflicting, confrontational-type actions to pursue – to excite conflict. Now, I will have to explain this to you so you can get an understanding of what occurred. I was working at the front of my property in my bobcat and Mr Hunt came to the driveway, and I did not see him at this point but I was operating the bobcat loading trees and stacking them up to burn and my son came over and he said, “There’s someone at the gate, Dad”. So I looked over and I could not see anyone, no one was there at that time. My son pointed up the road and here was this four-wheel drive ute, a Toyota Land Cruiser, disappearing up around the top corner of the road.

Now, about an hour and a half later, my son pointed out the same bloke again, only this time he stayed in the driveway and he was watching me. I was up the front in the bobcat again and I drove towards him and I would have got about half the distance – and this would be 40 or 50 metres – and he was watching me, we had made eye contact and I had obviously thought he was looking for someone or something, so I went towards him and I got about halfway and he reversed out and then sped off. There was no ID on this car and you could not tell this bloke was an authorised officer or anything of that nature.

Now, the third time I was a lot closer to the gateway – it would be about 20 metres or so, I suppose, and I was bringing a tree up from the bottom side and I was actually crossing over the driveway and I looked to the right and here is this bloke sitting there again. So I jumped out and I started walking towards him. Now, I had walked about half the way this time and he took off. Now, by this time I was fairly well and truly starting to get worried that this bloke was up to no good.

Now, on the fourth time I was cutting a tree up with the chainsaw which was down to the right-hand side of the driveway; the driveway was on my left. Now, I looked over through the trees a little bit and you could see this bloke was sitting at the driveway watching me. This time I took off because I wanted to cut him off. With that he started to speed off down the driveway, or down the road, I was trying to cut him off through the bush but I could not get there. Now, this particular activity scared the hell out of me to be quite frank - - -

CALLINAN J: Mr Wiggins, I do not really want to interrupt you, but you are not really helping yourself very much because the point of the case is, did you have a defence to the offence of keeping two unregistered dogs. I think you have acknowledged, at all times, that you did keep two unregistered dogs. You certainly did in the Court of Appeal. So how an official of the Council behaved or did not behave really is not to the point.

MR WIGGINS: Well, if they obtained that evidence or if this pursuit was for another purpose other than the Council – and I believe this is what the pursuit was for. It was directed specifically to create conflict, which it did, and I believe there is corruption within the Council and a group of developers which pursued this action because I have since found out in the last few months, and unbeknownst to me, a lot of property in behind Speewah has been sold for future development.

CALLINAN J: Again, I have to tell you, Mr Wiggins, that cannot affect the charge of keeping two unregistered dogs.

MR WIGGINS: So the interest of any criminality with the developers in the Council makes no difference?

CALLINAN J: That is a separate matter altogether.

MR WIGGINS: You see I do not believe the purpose of this officer was to actually fine me. He was actually in there to create and find any other evidence he could obtain so the Council could harass me to such a point that I would be forced off my property.

CALLINAN J: The problem for you is that he was able to find that there were two dogs and they were not registered.

MR WIGGINS: The only other thing I can fall back on there would be section 53 of the Constitution, that it was an unlawful revenue-raising act.

CALLINAN J: Well, that applies only to the Commonwealth, not to the State or to a local authority of the State. Those laws are concerned with Commonwealth revenue, not with State revenue or local authority revenue.

MR WIGGINS: But do not the local authority and State governments come under the same rule as the Commonwealth or have to abide by the same rule?

CALLINAN J: No. The rules are different.

MR WIGGINS: So if the Commonwealth makes a law, the States do not have to comply with it.

CALLINAN J: The States have to comply with it, but sections 53 and 55 of the Constitution are concerned with the way in which the Commonwealth makes its laws in relation to taxation, not the way in which the States make their laws in relation to their taxation.

MR WIGGINS: But all members of this country have to abide by that Constitution.

CALLINAN J: Yes, but there are some provisions in the Constitution that apply only to the Commonwealth and, indeed, there are very few provisions of the Constitution that apply to the States. The States have their own constitutions.

MR WIGGINS: And they do not have to abide with the Commonwealth Constitution?

CALLINAN J: Well, to the effect that the provisions under the Commonwealth Constitution operate on the States, yes, but sections 53 and 55 are only concerned with Commonwealth revenue, not with State revenue.

MR WIGGINS: So that means that, say, the transport department wish to come and inspect your vehicle, they could enter your property, inspect your vehicle and fine you for whatever they could find?

CALLINAN J: Well, if you have created an offence and subject to their rights of entry and things of that kind, yes.

MR WIGGINS: And you believe the right of entry of Mr Hunt was lawful?

CALLINAN J: It does not matter whether it was or was not, the question is, did you commit the offence, and you seem to have admitted that.

MR WIGGINS: That is it.

CALLINAN J: I am afraid it is, Mr Wiggins.

MR WIGGINS: Yes, I can understand your position.

CALLINAN J: The applicant seeks leave to appeal from a decision of the Court of Appeal of Queensland dismissing an appeal from a decision of the District Court which, in turn, dismissed an appeal by which, in turn, an appeal was dismissed from the Magistrates Court.

The Magistrates Court convicted the applicant of two offences of keeping unregistered dogs, contrary to the by-laws of the Mareeba Council. The applicant acknowledged, as the Court of Appeal recorded, that he did, in fact, at all material times keep two dogs which were unregistered.

In this Court, the applicant would seek to advance two arguments, in substance: first, that the by-laws infringed sections 53 and 55 of the Constitution; and, secondly, that some allegedly oppressive behaviour by an official of the Council, who appears to have been responsible for the initiation of the prosecution, in some way rendered the convictions invalid.

The application must be dismissed. The argument seeking to invoke the Constitution overlooks that those provisions are concerned with the raising of Commonwealth revenue and not otherwise. The second argument advanced was advanced in the Court of Appeal and in the District Court and was rejected there for the reason that, in substance, it was irrelevant, particularly in light of the concession or admission by Mr Wiggins that he did, in fact, keep the two unregistered dogs.

The same view should be taken on this application in this Court. Accordingly, the application must be dismissed.

MR WIGGINS: Could I say one more thing, your Honour?

CALLINAN J: Yes, Mr Wiggins.

MR WIGGINS: The other thing I was going to bring to your attention, as I said before, was the altered transcript in the District Court and the Magistrates Court.

CALLINAN J: I will deal with that, Mr Wiggins, as well.

Mr Wiggins seeks to raise a third point that there is a deficiency or an omission from the transcript. That matter also is in the same category as the second matter that he wished to argue. It can have no relevance to this application in light of the admission that Mr Wiggins has made, that he did, in fact, keep the two unregistered dogs. The application, therefore, has to be dismissed.

Mr Wiggins, no doubt you are aware that the respondent Council has asked in its written submissions for costs, but, in the circumstances, we are not minded to make an order for costs against you. So the order of this Court is simply application dismissed.

MR WIGGINS: Thank you, your Honour.

CALLINAN J: Thank you.

MR WIGGINS: Could I say something?

CALLINAN J: Well, it is too late. There is nothing more you can say. The matter has been dealt with, Mr Wiggins.

MR WIGGINS: Your Honour, I would just like to implement your opinion in the future, maybe - - -

CALLINAN J: We can only do it case by case, Mr Wiggins, we really can. We cannot hear you any more. We have dealt with your application. Thank you.

MR WIGGINS: Your Honour - - -

CALLINAN J: We really cannot hear you any more, Mr Wiggins. We have dealt - - -

MR WIGGINS: I have just got a query to your costs.

CALLINAN J: Yes, what do you want to know?

MR WIGGINS: Does that relate to the other proceedings as well?

CALLINAN J: No, it only relates to these proceedings in this Court. I think you have had a pretty good go, Mr Wiggins.

MR WIGGINS: I live now in fear of what is going to happen if they can play with transcripts in this manner, I will tell you now.

CALLINAN J: All right, well - - -

MR WIGGINS: I live in fear.

CALLINAN J: Thank you, Mr Wiggins.

MR WIGGINS: And I worry for my children.

CALLINAN J: Thank you, Mr Wiggins.

MR WIGGINS: Thank you, your Honour.

AT 1.09 PM THE MATTER WAS CONCLUDED