IN THE SUPREME COURT OF TASMANIA – LAUNCESTON DISTRICT REGISTRY
ON APPEAL FROM THE COURT OF PETTY SESSIONS
HELD AT LAUNCESTON
Supreme court, petty sessions, appeal, road safety, notice of appeal, magistrate, ordered, convict, convicted, freedom of religion, freedom of conscience, practice of religion, peaceful, erred, lawful, public order

No LCA 24    of       2003

 In the matter of:  ROAD SAFETY (ALCOHOL AND DRUGS) ACT 1970 (NO. 77 OF 1970)
 

Kenneth John Atherton                                                                                           Appellant

BETWEEN                 and

Michael Bonde                                                                                        Respondent

NOTICE OF APPEAL

TAKE NOTICE that a Judge will be moved on ..............Monday the......................21st
day of …July……………...2003 at …10 am………….…o’clock in the forenoon, or so soon
 there after by Kenneth John Atherton                                                    ( the Appellant)

 TO REVIEW the decision of Magistrate Zygmunt Szramka made on the twenty fifth day of June 2003 whereby the learned magistrate:

 ORDERED THAT: the appellant be convicted on 5 offences being:

Refuse breath test; refuse breath analysis; drive whilst unlicensed; use unregistered motor vehicle; use uninsured motor vehicle, (complaint No. 33901/03A), and sentenced to a fine of $937.05 and disqualified from driving for 12 months.

AND TO QUASH the said decision ON THE GROUNDS THAT:

 (1) The Magistrate erred in fact and law in denying myself the God given freedom of choice to heed God’s Code of Conduct Command to "ONLY be loving, compassionate, merciful and forgiving and to remain peaceful at all times."

 This free profession and practice of religion is also guaranteed within the State of Tasmania Constitution Act 1934 section 46(1). Thus the magistrate’s ruling, quote: - - - “this is not an excuse or defence as such known to the law and is not something the court can lawfully… is not something the court is lawfully able to accede to,” - - - is in error.

 AND TO QUASH the said decision ON THE GROUNDS THAT:

 (2) The Magistrate erred in fact and law in applying the “subject to public order” qualification within the Constitution Act 1934 section 46(1) to dismiss that provision’s “guaranteed freedom of conscience and the free profession and practice of religion” when: “No contrary evidence was provided of myself being other than sober, orderly, peaceful and of civil behaviour.”

 Further, no evidence was given or proved of any breach of peace offence by myself including any act of disturbing the peace, of public nuisance, affray, riotous, offensive, provocative or violent behaviour, nor of causing harm, actual or prospective against any person or property, as per the definition of “Public Order” provided in Osbornes Concise Law Dictionary.

Further, no offence was committed by me against public order as per the definition of “Public Order” given in Butterworths Australian LEGAL Dictionary, as I was of an orderly and peaceful behaviour at all times.

 AND TO QUASH the said decision ON THE GROUNDS THAT:

 (3) - The Magistrate erred in fact and law in his ruling, quote: “public order must be read broadly and includes at least the maintenance of civil and safe society.” - - - Clearly in my view and ideological belief, society can only be civil and safe when inhabitants individually understand the reality that God’s ONE law is: “What you do to others will be done to you,” or “as you sow so shall you reap,” and that is unavoidable, immutable and inviolate.

 Thus they will as me conform to God’s Code of Conduct Command to "ONLY be loving, compassionate, merciful and forgiving and to remain peaceful at all times."  - - - This, I the appellant do, being guaranteed by GOD the free profession and practice of the aforesaid being my religious belief, as well as by your Constitution, provided within the provisions of the State of Tasmania Constitution Act 1934 section 46(1).

 Rather than relying on man’s laws of enforcement that themselves deny God’s Command. For I cannot condone, or be a “party to,” a contra ideology that is a forceful and punitive one, being the ideology of the State Institution.

 AND TO QUASH the said decision ON THE GROUNDS THAT:

 (4) - The Magistrate erred in fact and law by disallowing the morality qualification within the Constitution Act 1934 section 46(1). This he did by ruling that, quote: “the Road Safety (Alcohol and Drugs) Act 1970 is a law that the defendant must accede to in the practice of his religion as he must comply with the law,” when in fact I was complying with the “rule” that forbids driving whilst under the influence of alcohol and was complying with my own belief that one must not drink and drive.

 If the “belief” of the State Institutional ideology (religion) is such that a man must prove his “innocence,” then that belief is a contra one to mine and also one contra to the State institution’s practice of one being innocent until proven guilty, - - - and to punish one under the “law” of man for non compliance to a “contra” belief is itself an “act” contra to the Constitution of said State Institution, and this “action” defies God's "Only love & forgive" command, - - - and is a treasonable offence against God and the State Constitution “authority,” - - - and is an immoral act.

 AND TO QUASH the said decision ON THE GROUNDS THAT:

 (5) - The Magistrate erred in his misleading “conclusion,” where his judgement being: “the defendant must accede to in the practice of his religion as he must comply with the law.

Considering all the evidence I find that the charge proved,” not only defies God's call of “mercy & forgiveness,” but it also gives a misleading “signal” to other men working as policing “officers” and prosecutors for the State Institution.

 For it leads them to believe falsely, that it is right action on their part, it is not. For it is wrong to persecute any peaceful person of any ideology, especially those that follow a different religious belief, as it is their entitlement within the Constitution Act and is their God given right. It is unlawful for the police to persecute and prosecute any children of God who walk in peace.

 Should the above grounds for the non-application of the clause “subject to public order” be dismissed, then I submit that:

 AND TO QUASH the said decision ON THE GROUNDS THAT:

(6) - The Magistrate erred in fact and law under the Commonwealth of Australia Constitution Act (9^th July 1900) section 116 that states; “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.” This is relevant in that: The State and Commonwealth’s Institutions assume that I, being born in Australia, are thus a citizen of Australia and are thus a subject of the Queen and am controlled under her laws. And being a subject of the Queen I am subject to the Constitution of the Commonwealth and its laws.

 Secondly, where an inconsistency of laws exists as does in this case between the above Constitution of Australia Act section 116 and Tasmanian State Constitution Act 1934 section 46(1) in regards to the qualification “subject to public order and morality.” The Constitution of Australia Act section 109 states, “When a law of a State is inconsistent with a law of the Commonwealth, the latter shall prevail and the former shall, to the extent of the inconsistency, be invalid." (The Commonwealth law supersedes that of the State)  

Thus the qualification imposed on the freedom to practice ones religious belief found in the state act where it states “subject to public order and morality,” is inconsistent to that freedom granted within the Commonwealth act and is thus invalid.

DATED THIS……….….day of………………………2003

Signed………………………………………………....(the Appellant)

TO: The Registrar, Supreme Court of Tasmania

 AND TO;           Clerk of Petty Session (Magistrates Court)
                    Director of Public Prosecutions (15 Murray St. Hobart - Cameron St. Launceston)
                    Police prosecution (Launceston Police Headquarters)

Filed by the Appellant in person
200 Norwich Drive Longford Tasmania. Telephone (03) 6391 1799