Imperial Commonwealth of Australia High Court ,Common law Reports.

Firstly we must inform you the people that you are indeed sovereign in your own right .

This is your fundamental unalienable right as a man and woman .

We are all born free .

We all need remember this truth this fact.

Yet we allow others to unlawfully enslave us or imprison us for victimless crimes .

We all should be standing up to end these acts of trespass against us.

Ok lets move along .
So What are law reports?

Law reports summarise judgments in cases that are important for legal reasons.

These are usually cases that set a precedent as to how other, similar cases will be decided.

When a legal decision is made by a judge, it may involve interpreting the meaning of a law.

If this interpretation is new, or different to previous interpretations, this sets a precedent.

A precedent is usually followed, for the sake of consistency and credibility, by all other courts.

Some time ago, we were made aware of a very interesting Victorian Supreme Court ruling.

This was an appeal against the judgement handed down in the Victorian Magistrates Court in the matter of Hemingway vs. Hamilton (2011) VMC 10.

The magistrate dismissed a charge against Andrew Hamilton of failing to stop for police because Hamilton was not obliged to do so if he was not actually under arrest.

Here is a very important judgement set by the Supreme Court of the Northern Territory, which is very important in determining police powers.

“(Police officers) have no power whatever to arrest or detain a citizen for the purpose of questioning him or of facilitating their investigations.

It matters not at all whether the questioning or the investigation is for the purpose of enabling them to ascertain whether he is the person guilty of a crime known to have been committed or is for the purpose of enabling them to discover whether a crime has or has not been committed.

If the police do so act in purported exercise of such a power, their conduct is not only destructive of civil liberties but it is unlawful.”
Regina v. Banner (1970) VR 240, at p 249,

the Full Bench of the Northern Territory Supreme CourtSUPREME Court judge ruled that a person who is not under arrest is entitled to do a runner from police seeking to question them.

Justice Stephen Kaye said Sydney man Andrew Hamilton was under no obligation to stop and speak to police when they approached him after receiving a complaint over an unpaid restaurant bill.

The judge said that it was an ancient principle of the common law that no one has to stop and speak to police or answer their questions, and there was no legislation in Victoria that alters that right.

“The respondent (Mr Hamilton) before being placed under arrest did not have any obligation to stop when requested to do so, or to answer questions asked of him,” Justice Kaye said.

The judge dismissed an appeal by the Director of Public Prosecutions and made a costs order in favour of Mr Hamilton.

The Director of Public Prosecutions appealed this judgement in the Supreme Court before Justice Stephen Kaye – DPP vs. Hamilton (2011 VSC 598, but the appeal failed and the original judgement by the Magistrates Court was upheld.

Justice Kaye stated:

“It is an ancient principle of the Common Law that a person not under arrest has no obligation to stop for police, or answer their questions.
And there is no statute that removes that right.

The conferring of such a power on a police officer would be a substantial detraction from the fundamental freedoms which have been guaranteed to the citizen by the Common Law for centuries.”

Judge Stephen Kaye – Melbourne Supreme Court ruling – 25 November 2011
This principle was further stated in a court case in Victoria:

“There is no common law power vested in police giving them the unfettered right to stop or detain a person and seek identification details.

Nor is s.59 of the (Road Safety) Act a statutory source of such power.”
Magistrate Duncan Reynolds – Melbourne – July 2013

A very important thing to remember is that a person can only be placed under arrest if he has committed a crime or is reasonably suspected of doing so.

For there to be a crime, there has to be a victim or injured party or a violation of contract.

So if a person has not committed a crime, injured anybody or violated a contract, he should be free to go about his business without any form of harassment by police.

It must be noted that Justice Kaye said that his ruling was very narrow and in this particular matter, there was no evidence that the defendant was fleeing from police after being informed that police were intending or attempting to arrest him.

The defendant had not refused to provide his name and address to police although he was under no obligation to identify himself, as the ruling from Magistrate Duncan Reynolds indicates.

The ruling hinged on whether the police had the power to require Hamilton to stop and speak to them when they were not in the course of actually arresting him and whether the police were actually acting in the execution of their duty under the Summary Offences Act.

INFRINGEMENT ACTS ARE PRETEND LAWS
A very important ruling was made by Chief Justice Latham of the High Court of Australia, as follows:

Common expressions such as:

‘The Courts have declared a statute invalid’ sometimes lead to misunderstanding.

A pretend law made in excess of power is not and never has been a law at all.

Anybody in the country is entitled to disregard it.

Naturally, he will feel safer if he has a decision of a court in his favour, but such a decision is not an element that produces invalidity in any law.
The law is not valid until a court pronounces against it – and thereafter invalid.

If it is beyond power, it is void ab initio HCA 1942 (65 CLR 373 at 408).
Chief Justice Latham – High Court of Australia – Uniform Tax Case

This High Court ruling seems to imply that the Victorian Infringements Act 2006 is a pretend law and as Justice Latham stated, “anybody in the country is entitled to disregard it”.

So any infringement issued under the authority of this Act can be disregarded and no penalty for doing so can be imposed.

The High Court is the highest branch of the Australian legal system and its rulings apply nationally, so it can be assumed that this particular ruling would also apply to any similar infringements acts in any state.

It is important to note that the Infringements Act 2006 has been validly challenged by Gerrit Schorel-Hlavka on 23 February 2011.

It was challenged on Constitutional grounds and therefore it is Ultra Vires and no court can hear or determine any case involving the Infringements Act 2006 until or unless a court declares it otherwise.”

So if you are charged with any offence under this Act, your first line of defence is to challenge its validity and quote the precedent.

Property Rights—Real Property
A common law principle

20.9 As noted in Chapter 18, the common law has long regarded a person’s property rights as fundamental, and ‘property rights’ was one of the four areas identified as of concern in the national consultation on ‘Rights and Responsibilities’, conducted by the Australian Human Rights Commission in 2014.

20.10 With respect to the right to exclude others from enjoyment of land, Entick v Carrington concerned trespass in order to undertake a search—an interference with real property in the possession of another.[6] Rights such as those protected by the tort of trespass to land have long been exercisable even against the Crown or government officers acting outside their lawful authority.

20.11 A consequence of the principle in Entick v Carrington was stated by Bingham MR in R v Somerset County Council; Ex parte Fewings:

In seeking to answer that question it is, as the judge very clearly explained, critical to distinguish between the legal position of the private landowner and that of a land-owning local authority … To the famous question asked by the owner of the vineyard: ‘Is it not lawful for me to do what I will with mine own?’ … the modern answer would be clear: ‘Yes, subject to such regulatory and other constraints as the law imposes’.

But if the same question were posed by a local authority the answer would be different.

It would be: ‘No, it is not lawful for you to do anything except what the law expressly or impliedly authorises.

You enjoy no unfettered discretions.

There are legal limits to every power you have’. As Laws J put it, the rule for local authorities is that any action to be taken must be justified by positive law …

20.12 In Plenty v Dillon, Mason CJ, Brennan and Toohey JJ said that the principle in Entick v Carrington ‘applies to entry by persons purporting to act with the authority of the Crown as well as to entry by other persons’.[8]

20.13 Similarly, in Halliday v Nevill, Brennan J said:

The principle applies alike to officers of government and to private persons. A police officer who enters or remains on private property without the leave and licence of the person in possession or entitled to possession commits a trespass and acts outside the course of his duty unless his entering or remaining on the premises is authorized or excused by law.[9]

20.14 Implicit in this statement of the law is the recognition that the law—common law or statute—may authorise entry onto private property. Examples of such statutes are discussed in Chapter 16, which deals with laws authorising what would otherwise be a tort.

20.15 The protection of the landowner by the common law was so strong that protection of uninvited entrants from intentional or negligent physical injury by occupiers was slow to develop. It was only in 1828, in Bird v Holbrook, that the courts declared unlawful the deliberate maiming of a trespasser, albeit only if it was without prior warning.[10]

[5] Australian Human Rights Commission, Rights and Responsibilities Consultation Report (2015) 8.

[6] Entick v Carrington (1765) 19 St Tr 1029; 95 ER 807. See discussion in Ch 18.

[7] R v Somerset County Council; Ex parte Fewings [1995] 3 All ER 20 25.

[8] Plenty v Dillon (1991) 171 CLR 635, 639 (Mason CJ, Brennan and Toohey JJ). Their Honours then quoted Lord Denning adopting a quotation from the Earl of Chatham. ‘“The poorest man may in his cottage bid defiance to all the forces of the Crown. It may be frail—its roof may shake—the wind may blow through it—the storm may enter—the rain may enter—but the King of England cannot enter—all his force dares not cross the threshold of the ruined tenement.” So be it—unless he has justification by law’: Southam v Smout [1964] 1 QB 308, 320.

[9] Halliday v Nevill (1984) 155 CLR 1, 10 (Brennan J). Brennan J was quoted in Plenty v Dillon (1991) 171 CLR 635, 639 (Mason CJ, Brennan and Toohey JJ). In Plenty v Dillon, Gaudron and McHugh JJ said: ‘If the courts of common law do not uphold the rights of individuals by granting effective remedies, they invite anarchy, for nothing breeds social disorder as quickly as the sense of injustice which is apt to be generated by the unlawful invasion of a person’s rights, particularly when the invader is a government official’: Ibid 655.

[10] Bird v Holbrook (1828) 4 Bing 628; Southern Portland Cement v Cooper [1974] AC 623 (PC); Hackshaw v Shaw (1984) 155 CLR 614. For negligent injury, trespassers were at first owed no duty of care; then, after Southern Portland Cement v Cooper, only a duty of common humanity. The High Court of Australia in Hackshaw v Shaw recognised a limited duty of reasonable care when there was a real risk that a trespasser might be present and injured: Southern Portland Cement v Cooper [1974] AC 623 (PC); Hackshaw v Shaw (1984) 155 CLR 614.