Citation : KRYSIAK -v- HODGSON [2009] WASC 16

Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA

Appeal - Leave to appeal - 50 draft grounds of appeal - 42 grounds of appeal in appellant's case - Whether reasonable prospect of success

Criminal Appeals Act 2004 (WA)

Criminal Procedure Act 2004 (WA)

Glew v Shire of Greenough [2006] WASCA 260

Krysiak v Hodgson [2009] WASC 16

Samuels v Western Australia [2005] WASCA 193; (2005) 30 WAR 473

Shaw v Jim McGinty in his capacity as Attorney General [2006] WASCA 231

Stead v State Government Insurance Commission [1986] HCA 54; (1986) 161 CLR 141

1 PULLIN JA: The appellant seeks leave to appeal against the decision of McKechnie J, who refused leave to appeal against the decision of Magistrate B A Lane. Magistrate B A Lane convicted the appellant of driving a motor vehicle 7 km per hour in excess of the speed limit, which was 70 km per hour. Section 17(2) of the Criminal Appeal Act 2004 (WA) states:

The appeal must be commenced by lodging with the Court of Appeal an application for leave to appeal that sets out the grounds of appeal.

2 The appellant did not appear to make oral submissions to McKechnie J. His Honour's reasons for refusing leave to appeal, found in Krysiak v Hodgson [2009] WASC 16, are short and read as follows:

The appellant sought to challenge the jurisdiction of the Magistrates Court on the prosecution notice before another Magistrate but was unsuccessful. When he tried to challenge jurisdiction again before the presiding Magistrate, she correctly pointed out that the matter had been ruled upon and the trial then proceeded.

The police called the Multanova operator who gave evidence as to the conduct in relation to the car and the photograph taken. The Magistrate correctly identified the legal principles and the burden of standard of proof and convicted the appellant who was then fined $75 together with costs. It is from that conviction that he seeks leave to appeal.

The grounds of appeal number 33, and the application for relief number 7. Ground 1 is simply incomprehensible.

Grounds 2 to 10 are vexatious. They seek in broad terms to advance an argument that there is some defect in the Court because the magistrates did not swear allegiance to Her Majesty Queen Elizabeth II and presided over a 'Star Chamber'.

Arguments identical to this have been raised from time to time in the last few years and the Court of Appeal on each occasion has ruled against the argument: Shaw v Jim McGinty in his capacity as Attorney General for Western Australia [2006] WASCA 231; Glew v Shire of Greenough [2006] WASCA 260. Any future appeals on the same grounds should be regarded as vexatious because the Court of Appeal's decision is final.

The grounds, in any event, have no reasonable prospects of success having regard to the law. The law is not as the appellant would advance it. The balance of the grounds display marked confusion as to the law, are vexatious and have no reasonable prospects of success.

I will not refer to all of them but, as an example, ground 17 says:

Both disregarded ['both' being the magistrates] and interfered with my right to contract by ignoring my demands that I had no wish to do so, in direct contravention of the affidavit filed into the matter, and continued to attempt to apparently enforce a non-consensual adhesion 'contract' upon me with the entity 'State of Western Australia' despite my protestations.

That ground is simply gibberish.

Ground 25 says:

Both [again referring to each magistrate] failed in their fiducial duty to me both as a Subject of Her Majesty and by appointment (I had appointed each my fiduciary in the document lodged with the 'Magistrates Court') and neither rebutted this action.

Again, it is gibberish. A magistrate does not stand in a position of fiduciary to a litigant.

That is just a flavour of the grounds, all of which are similar, all of which are incomprehensible, none of which have reasonable prospects of success.

The application is accompanied by an affidavit which (for reasons that escape me) also bears a fingerprint; I presume that of the appellant. The jurat is not in the correct terms. The affidavits are irrelevant except insofar as the affidavit of service purports to note that the appeal notice and documents were served on the police.

This appeal highlights the dangers of self-litigation. The appellant has made reference to a number of legal principles and authorities without apparently the slightest knowledge of their applicability. I would stay the whole proceedings as an abuse of process in the inherent powers of the Court and, in any event, I find that there is no reasonably arguable prospect of success on any ground. The application for leave to appeal is refused [2] - [14].

3 The appellant's appeal notice set out 50 draft grounds of appeal. The appellant's case contains 42 grounds of appeal which do not precisely correspond with the draft grounds. It was not clear whether the appellant was abandoning the 50 draft grounds of appeal and so the court will treat them as grounds of appeal, along with the 42 grounds in the appellant's case, even though r 32 makes it clear that the grounds are those appearing in the appellant's case.

4 The first of these grounds of appeal is numbered '1-33' and it reads:

The original 33 grounds of appeal (particularly grounds 8 - 10, 20 - 24 and 31 - 32) are reiterated for this appeal (but not listed for simplicity).

5 The reiteration does not lead this court to a conclusion which differs from the conclusion reached by McKechnie J concerning the 33 grounds. The second of the draft grounds is numbered ground 34, which alleges that as regards the magistrate who dismissed the challenge to the jurisdiction of the Magistrates Court that he was:

[A]cting beyond his authority to make a judgment on constitutional issues and the validity of Magistrates Court Act, which is the properly [sic] the province of either the Supreme Court or the High Court.

6 The magistrate had express statutory authority to make a decision about jurisdiction (see s 127 of the Criminal Procedure Act 2004 (WA)). The appellant then lists grounds which he numbers '35-40', making observations about Magistrate B A Lane, who convicted the appellant of speeding, none of which reveal any error in the magistrate's decision. Further, none of the grounds numbered 34 to 40 allege any error by McKechnie J which is the decision under appeal. There then follow grounds numbered 41 to 50. These do refer to the decision of McKechnie J. Grounds 41 to 45 and grounds 47 to 50 are either unintelligible or do not allege any error of law made by McKechnie J in reaching his decision. Ground 46 reads:

Justice McKechnie proceeded with the hearing despite my clear indication in a letter to the Principal Registrar (on file) that I would be unavailable until the latter of January [sic], thus denying me a fair hearing, denying me natural justice and denying me my right to appeal.

7 The reference to the appellant's letter is to a letter from the appellant dated 30 December 2008 addressed to the Principal Registrar, received by the Supreme Court office on that day. The letter referred to the appellant's efforts to obtain the transcript of trial and then continued:

Added to this I am leaving for holidays to the eastern states today and so will not be available until the latter part of January next year. Please allow the matter to move forward with the material thus far garnered, pending the receipt (if any) of the final portion of the transcript. If the final portion does not materialise I intend to supply you with an affidavit of the material points concerning the main portion of the trial.

Contextually the reference to the latter part of January is to the second half of January.

8 By letter dated 12 January 2009 the acting listings coordinator notified the appellant in writing, sent to the appellant's address for service, that the application for leave to appeal was listed for 16 January 2008 (which is 'in the latter part' of January). The appellant did not appear. Even if the appellant did not realise that the application for leave was listed for hearing, he has now not been disadvantaged because he has attempted to persuade this court as to the merit of the grounds of appeal which were before McKechnie J.

9 For the reasons given by McKechnie J, they have no reasonable prospect of succeeding. Thus, even if it had been possible for the appellant to demonstrate that there had been a breach of the rules of natural justice, it is not every departure from those rules which requires a new trial or hearing.

10 If a person is denied the opportunity to make a legal submission, and if the appellate court answers it unfavourably to the complainant, then it is futile to order a new hearing: see Stead v State Government Insurance Commission [1986] HCA 54; (1986) 161 CLR 141, 145.

11 The 42 grounds of appeal contained in the appellant's case contain a mix of unsustainable or irrelevant propositions, or contain allegations of fact or complaints concerning the conduct of the hearing before the magistrate, which allegations or complaints were not supported by any evidence. Ground 1 reads:

The primary court (and the earlier magistrates courts) has erred in fact and law with regard to the names in this matter, as it refused to acknowledge the fact, supported by affidavit, that I am not the accused in this matter, to wit the various entities named, ie 'KRYSIAK, Tadeusz Edmund' (or 'TADEUSZ EDMUND KRYSIAK') or any other corruption or variation of my birth appellation (as written using the rules of English grammar, as opposed to legal grammar and language), and therefore neither the prosecution nor the courts have correctly identified me, Tadeusz Edmund Krysiak, as the accused, and therefore there is no valid jurisdiction over me in this matter.

12 The proposition seems to be that there was no jurisdiction because the appellant's surname was listed first, followed by his Christian name or because his name was typed with capital letters. The appellant spent a good deal of his time for making oral submissions to this court in support of this proposition. There is no merit in this ground.

13 Ground 3 which was also the subject of emphasis in oral submissions reads:

The primary court has erred in fact and law by sustaining the contention that both magistrates in this matter have sworn an oath to an entity called 'State of Western Australia' and that it was purportedly valid for them to sit in judgment of a subject of Her Majesty Queen Elizabeth the Second of the United Kingdom and Australia (etc).

14 I repeat what McKechnie J had to say about this ground which is that arguments identical to this have been raised from time to time in the last few years and the Court of Appeal on each occasion has ruled against the argument. See Shaw v Jim McGinty in his capacity as Attorney General [2006] WASCA 231 and Glew v Shire of Greenough [2006] WASCA 260. It is not necessary for the Court to set out all of the other grounds but they all suffer from the defects referred to above. It is only necessary to give examples. Grounds 34 and 36 read:

The primary court has erred in fact and law by sustaining the contention that my grounds are all vexatious and similar, and has purportedly ascribed to the Court of Appeal has legislative ability, and it's decision is final.

...

The primary court has erred in fact and law by incorrectly referring to me as a 'a litigant', which seems to indicate it is really a civil matter and is a denial of natural justice.

15 Neither of these grounds, nor any of the other grounds demonstrate any error in the judgment appealed from. I should, however, mention ground 35 which reads:

The primary court has erred in fact and law by proceeding with the hearing despite my clear indication of unavailability well in advance, thus denying me natural justice.

16 This is a reference to events leading up to the listing before McKechnie J. It is the same point raised by draft ground 46 and I repeat what I said in relation to that ground. None of the 92 grounds of appeal has any reasonable prospect of succeeding, as that expression is explained in Samuels v Western Australia [2005] WASCA 193; (2005) 30 WAR 473. Leave to appeal should therefore be refused and the appeal dismissed.