KELLY -v- FIANDER [2024] WASC 275 (2 August 2024)

1. At trial, the State called one witness: the respondent, a senior constable.
2. The respondent gave unchallenged evidence that he saw a woman, whom he later identified as the appellant, driving a Suzuki Grand Vitara bearing a numberplate which read 'PRIVATE' on a road in the Great Southern Region on the morning of 26 July 2022, and that the driver failed to 'pull over' despite the respondent twice directing her to do so.
3. Evidentiary certificates, issued pursuant to s 110 of the Road Traffic (Administration) Act 2008 (WA), were also tendered through the respondent.
4. Relevantly, the certificates effectively recorded that as at 26 July 2022:

(1) There was no record that the numberplate 'PRIVATE' had ever been issued to a vehicle licensed to the appellant.

(2) The vehicle was not a licenced vehicle.

(3) The appellant's driver's licence had been cancelled, and she was disqualified from holding (or applying for) such a licence in consequence of convictions for two earlier, separate, offences under the Road Traffic Act 1974 (WA).

1. The information on the certificates was also not challenged.
2. The appellant did not testify at her trial and called no evidence.
3. She did, however, advance closing submissions as part of an exchange with the presiding magistrate.
4. The exchange is reflected at Annexure A to these reasons.
5. The appellant's submissions boiled down to this: The appellant was not a 'person' and the relevant statutes therefore did not apply to her.
6. The appellant now seeks leave to appeal against her convictions and the sentences imposed as a result.
7. Leave must not be granted on a ground of appeal unless the court is satisfied the ground has a reasonable prospect of succeeding.
8. For the reasons which follow, none of the appellant's grounds enjoy any such prospect.
9. Accordingly, leave will be refused on each ground and the appeal dismissed.

1. The appellant filed her notice of appeal on 10 January 2024. The last day for appealing was 29 December 2023. The appellant therefore requires an extension of time.
2. As the delay is inconsequential, I would grant an extension of time in which to appeal.

1. The appellant relies on 18 grounds of appeal.
2. The appellant's grounds span 57 pages.
3. The heading of each is set out at Annexure B to these reasons.
4. As will be apparent, the grounds are 'largely nonsensical' as was evidently also the case in the prequel to this matter.[2]
5. That said, it is possible to discern four main themes, namely that the magistrate:

(1) Erred in law regarding the appellant's submissions made at trial relating to 'pseudolaw', particularly the 'strawman' argument or 'duality' theory (Grounds 1, 6, 12 and 17).

(2) Erred in law by prohibiting or preventing the respondent from answering some of the appellant's questions during her cross‑examination (Grounds 2, 3, 4, 5, 7, 10, 13, 14, 15, 16 and 18).

(3) Was biased (Ground 9).

(4) Acted otherwise contrary to law (Grounds 11 and 19).

1. In their recent article entitled the 'Internationalisation of Pseudolaw: The Growth of Sovereign Citizen Arguments in Australia and Aotearoa New Zealand', Hobbs, Young and McIntyre opined as follows:

The term 'pseudolaw' refers to a distinct phenomenon whereby 'a collection of legal-sounding but false rules that purport to be law' are deployed. Pseudolaw 'superficially appears to be law, or related to law, and usually uses legal or legal sounding language, but is otherwise spurious'. For this reason, it is regularly described by courts as nothing more than 'obvious nonsense', legal 'gibberish', or 'gobbledygook'. However, while pseudolaw is 'largely incoherent, if not incomprehensible', and impenetrable to outsiders, it is not just a misunderstood and misapplied collection of doctrines, instruments, and rules. Pseudolaw is an 'integrated and separate legal apparatus' with its own confounding legal theories. Much of the source material is originally drawn from conventional law and legal sources, but it constitutes an 'alternative legal universe'.[3] (citations omitted)

1. According to the learned authors, the 'strawman' argument or 'duality' theory is one of the three principal forms of the 'six core concepts' constituting the 'pseudolaw memeplex' which has recurred most often in Australia.[4]
2. In Kelly v Fiander,[5] Vandongen J (as his Honour then was) summarised the strawman duality theory in these terms:[6]
   1. The strawman duality theory is based on the fundamentally misguided notion that there exists a physical human being and, at the same time, a separate non-physical person (a 'doppelganger'). Under this theory, it is said that while governments can exercise power over both the physical and the non-physical person, the capacity to exercise power over the physical person only exists because there is a 'contract' that links the physical person with the non-physical person. This 'contract' is evidenced by documents such a birth and marriage certificates.
   2. The non‑physical person is often identified by pseudolaw exponents using an upper-case letter name because, it is said, government and legal documentation such as birth and marriage certificates use capital letters when recording names.
   3. A critical component of this strawman theory is the idea that government authority over the physical person can be negated by removing the doppelganger. In very simple terms, this is said to be achieved by revoking or denying the legitimacy of the contract. This then has the effect of removing any government authority over the physical person.
3. The theory, and its variants, have been repeatedly rejected by Australian courts,[7] including this court, having been variously described as 'nonsense',[8] 'nonsensical',[9] 'fundamentally misguided'[10] and 'gobbledygook'.[11]
4. It is unnecessary for me to attempt to add to the catalogue of euphemisms.
5. It is enough to observe there is ample authority which safely supports a conclusion that Grounds 1, 6, 12 and 17 have no merit at all.

1. With respect to Grounds 2, 3, 4, 5, 7, 10, 13, 14, 15, 16 and 18, the appellant relies substantially on assertions to the effect that the learned magistrate prohibited or prevented the respondent from answering a number of questions posed by her in cross-examination.
2. The questions were as follows:

(1) Owain Fiander, are you the author of the prosecution notices with the four charges being drove, caused of permitted a vehicle with forged replica or false plates to be driven on a road, section 36 pursuant to the Road Traffic (Administration) Act 2008 - - -[12]

(2) ...why is the name on the drivers licence back‑to‑front with the surname first and the Christian name second ... capital letters? Because it does not appear to be in any form of correct - correct form of King's English text in relation to Oxford Style ... Oxford English Styles menu ... Chicago Styles menu - Manual, article 11.147 ... 16th edition ...[13]

(3) This is a notice of irrevocable estoppel by acquiescence ... Notice to agent, notice to principal. Why did you not answer our notices pursuant to the bills of - why didn't you answer them?[14]

(4) So where in the - so if you can refer to these Acts that is relevant to your prosecution notice that you've issued to 'Kelly, Dawn Michelle'. Where in the Road Traffic Act and the Road Traffic (Administration) Act and the Road (Vehicles) Act and the Road (Administration) Act, section 44, did you - do you see the name Dawn Michelle Kelly?[15]

(5) I put it to you, Officer, that you acted on the name in the prosecution notice and the drivers licence. Are you trying to joinder the wording of the person with the legal name? ... The production of the ... prosecution notice, to which you're the author, was in the name of Dawn Michelle Kelly. The drivers licence is in the name Dawn Michelle Kelly or 'Kelly, Dawn Michelle'. Why is my name not there in the statute? Because I'm not a person. I'm neither - I'm ‑ ‑ ‑ ... a common law name or a legal name by consent.[16]

(6) So if the name is not present in the Act, how does that - how does that relate to me?[17]

(7) What binds me to the Acts? ... How do these Acts bind Dawn Michelle Kelly all caps or 'Kelly, Dawn Michelle' being the copyright owner ... of the name?[18]

(8) In your experience. Would it be safe to say that the Department of Transport has a monopoly on licensing and registration and are the sole ... distributor ... of numberplates in the State of Western Australia?[19]

(9) Where in the law in commerce am I bound to the law to this Act ... [20]

(10) So how does the Road Traffic Act apply to me?[21]

(11) ... who owns these roads?[22]

(12) Does the Department of Transport own the roads?[23]

1. None of the above questions could have been relevant to the proper determination of any of the four charges of which the appellant stood accused.
2. Moreover, several appeared to be an attempt to explore and advance points relating to 'pseudolaw'.
3. To be clear, pseudolaw is not law.[24]
4. A magistrate has 'wide discretionary power' to 'contain cross‑examination within proper limits and to disallow repetitious, prolix or unnecessary questions'.[25]
5. Relevance is one of cross-examination's 'well recognised' limits.[26]
6. In circumstances where the appellant's questions were manifestly irrelevant, it was more than appropriate for the learned magistrate to rule that they could not be asked.
7. Indeed, the appellant could not have been left in any doubt as to which topics the magistrate considered to be relevant as his Honour's explanation, in the course of the appellant's cross-examination of the respondent, made plain:[27]

I just say, just so it's clear, the elements of the offences are very straightforward. Okay. The elements are was the plate issued by the Department of Transport or was it not; were you the driver or were you not; was the car licensed or was it not; was your licence disqualified or was it not; and did you fail to stop for the police or did you not. Those are the issues. Okay. They're very, very straightforward.

If you focus on those issues, you will be given plenty of leeway to run your case. If you're going to play word games about your name and unilateral contracts and so on, you will be stopped immediately. Is that clear?

1. Having particular regard to this explanation, I do not consider it could fairly be said that the learned magistrate failed to conduct the trial in accordance with the rules of procedural fairness.[28]
2. There is no merit in any of Grounds 2, 3, 4, 5, 7, 10, 13, 14, 15, 16 or 18.
3. In any event, even if the appellant had been permitted to ask the questions, and the respondent had answered them, the answers could have had no bearing on the outcome of the trial.
4. The prosecution led unchallenged evidence making out the essential elements of each of the four charges. The evidence was accepted by the magistrate.[29] It follows that no miscarriage of justice resulted in any event.

1. According to the appellant, the magistrate demonstrated bias by repeatedly ruling that her questions were irrelevant and by instructing the respondent not to answer them.
2. The rulings are said to have been made both in the context of the magistrate refusing to permit the respondent to answer the appellant's questions (see paragraph 33 above), and at other times during her cross‑examination of the respondent when his Honour either queried the relevance of particular questions or propositions, or signalled that he would not permit them to be put.
3. The test for determining whether a judge is to be disqualified for apprehended bias is 'whether a fair‑minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide'.[30]
4. The passages in the transcript upon which the appellant relies in support of Ground 9 reveal that his Honour did what any reasonable trier of fact would have done; namely, disallowed questions or propositions that were plainly baseless and/or irrelevant.
5. In doing so, the magistrate acted consistent with his duty to 'discard the irrelevant, the immaterial and the prejudicial'.[31]
6. Whilst some of the magistrate's interactions with the appellant might fairly be described as forthright, those interactions must be viewed in context, as the respondent correctly submits.
7. That context included that the proceedings took the form of a trial in a court of summary jurisdiction, involving a litigant who was evidently fixed in her determination to agitate unmeritorious points not relevant to any element of any of the charges of which she stood accused.
8. I do not consider that a fair-mined lay observer, aware of that context, would have thought that his Honour was biased against the appellant.
9. It follows there is no merit in Ground 9.

1. By Ground 11 the appellant says the magistrate was 'seditious' in his demeanour.
2. The ground is relied upon in consequence of his Honour's brief response to a remark made by the appellant towards the end of her closing submissions.
3. The appellant's remark was: 'So the Crown ... has no relevance in any law'. His Honour's response was: 'Not today at least, no'.[32]
4. This response is also best understood in its proper context which may be seen at Annexure A.
5. With respect to Ground 19, the appellant asserts that in his directions to the witness the magistrate 'knowingly perverted the course of justice'.
6. The assertion is both baseless and scandalous.
7. Grounds 11 and 19 are devoid of merit.

1. A range of further arguments were raised during the appellant's oral address at the appeal hearing.
2. They were difficult to follow, and many (if not most) appeared to rely on theories based in pseudolaw.
3. One of the arguments was to the effect that no 'victim' had been identified in the case and consequently (as best as I was able to understand the point) there was a miscarriage of justice.[33]
4. There is no merit in such a proposition.
5. Arguments were also advanced to the effect that the courts were biased, discriminatory, and prejudiced towards certain groups including, presumably, the appellant herself.
6. There is no merit in such a proposition either.
7. Additionally, the appellant handed up two letters from the Department of Transport.
8. The letters were dated 8 January 2024 and 27 March 2024. They related to applications made by the appellant under the Freedom of Information Act 1992 (WA) received by the Department on 1 January 2024 and 14 March 2024, respectively.
9. Each date was after the appellant's conviction.
10. According to the Department's letter of 8 January 2024, the documents sought by the appellant's request received on 1 January 2024 were:

(1) The original driver's licence 'contract' signed by Dawn Michelle Portch.

(2) The terms and conditions of the Department of Transport's driver's licence 'contract'.

(3) A copy of the documentation that the Department of Transport used to establish identity in creating the driver's licence.

(4) The driver's licence 'contract' signed by Dawn Michelle Kelly used to change the name of Dawn Michell P[o]rch on the driver's licence.

1. According to the Department's letter of 27 March 2024, the documents sought by the appellant's request received on 14 March 2024 were:

(1) Delegation of function in writing and signed by the CEO of the Department of Transport for several officers, including the respondent, pursuant to s 8 of the Road Traffic (Administration) Act 2008 (WA).

(2) The 'written agreement' between the Commissioner of Police and the CEO of the Department of Transport pursuant to s 11 of the Road Traffic (Administration) Act 2008 (WA).

1. The Department's response to each request was to the effect that the signatory to the letter was satisfied that 'all reasonable steps ha[d] been taken to locate the documents and that they do not exist'.
2. I received and read both letters but did not formally admit them into evidence.
3. However, even if a proper basis had been established for me to have done so, I am satisfied that the letters could not have taken the appeal any further.
4. As best as I was able to understand the appellant's contentions regarding the second letter, it seemed to me the appellant was seeking to argue that the respondent may not have had delegated authority to exercise any power or duty of the CEO under a road law for the purposes of s 8 of the Road Traffic (Administration) Act 2008 (WA) and, therefore, had no authority to prosecute her.[34]
5. If this was, in fact, the point which the appellant was seeking to advance, it would be misconceived for at least two reasons.
6. First, by s 209(3) of the Road Traffic (Administration) Act 2008 (WA), proof is not required in any proceedings for an offence under a road law of a prosecutor's authority to commence the prosecution absent evidence to the contrary.
7. No evidence to the contrary was adduced before the learned magistrate.
8. Secondly, and in any event,[35] a police officer is authorised to commence a prosecution in a court of summary jurisdiction for an offence under a road law by force of s 105(1)(a) and/or s 105(2)(a) of the Road Traffic (Administration) Act 2008 (WA) read with s 19 and s 20(3)(a)(iii) of the Criminal Procedure Act 2004 (WA).
9. The respondent gave unchallenged evidence at trial to the effect that he was such an officer. Indeed, the appellant addressed him as 'officer' multiple times throughout her cross-examination of him.[36]

1. The penalties imposed on the appellant following her conviction were as follows:

Failing to comply with a direction by a police officer to stop a motor vehicle, contrary to s 44 of the Road Traffic (Administration) Act 2008 (WA).

1. Driving a motor vehicle with an imitation number plate contrary to s 36(2)(e) of the Road Traffic (Administration) Act 2008 (WA).

Using an unlicensed vehicle on a road, contrary to s 4(2) of the Road Traffic (Vehicles) Act 2012 (WA).

Driving a vehicle on a road while not authorised to do so, and whose authority to do so was at the time suspended other than because of penalty enforcement laws: s 49(3)(c) of the Road Traffic Act 1974 (WA).

Disqualification from holding or obtaining a drivers licence

1. None of the appellant's 18 grounds of appeal touched on the question of sentence.
2. Nor did the appellant take issue with the reasonability or otherwise of any of the sentences imposed; let alone advance a contention that they were manifestly excessive.
3. Evidently, it was the appellant's case that she should not have been sentenced because she should not have been convicted in the first place.
4. There is in any event nothing to suggest to me that the sentences imposed were such as to warrant appellate intervention.

1. The offences with which the appellant was charged, and of which she was convicted, involved:

(1) a failure to comply with a direction by a police officer to stop a motor vehicle;

(2) driving a motor vehicle with an imitation number plate;

(3) using an unlicensed vehicle on a road, and

(4) driving a vehicle on a road while her authority to do so was suspended.

1. Each of the above acts was conduct engaged in by a living, breathing (and sentient) human being.
2. That person was the appellant.
3. That is what the learned magistrate found.
4. His Honour was correct.
5. I make the following orders:

(1) Leave to appeal be refused.

(2) The appeal be dismissed.

ACCUSED: As I mentioned earlier in my - well, as I mentioned earlier, I am not a person. I am a living, breathing, sentient woman of soul pursuant to a notice of divine special appearance, which you just disregarded flagrantly. The statutes only relate to the person. We have clearly stated that we are not a person. We are a living, breathing, sentient woman of soul.

HIS HONOUR: Well, I suppose for the sake of argument, I find that you are a person, how does that affect your defence?

ACCUSED: I disagree with that. I'm not a person.

HIS HONOUR: Just to play devil's advocate, suppose I say you're a person; how does that affect the charges?

ACCUSED: Well, it's very clear. Sorry, can I just have that.

HIS HONOUR: If there were a ‑ ‑ ‑

ACCUSED: Have a look here. Hang on.

HIS HONOUR: Well, if a person behind a wheel was, indeed, a person, would that person be guilty of these charges?

ACCUSED: If they are not a person. So that's the thing. You've got to prove - you've got to prove that the woman standing in front of this court today answering to these charge honourably is a person.

HIS HONOUR: All right.

ACCUSED: And I'm saying I'm a woman. It says here - let's have a look here. Section 44 of the Road Traffic (Administration) Act 2008:

Directions to be complied with. A person to whom a direction is given under section -

blah, blah. A person.

HIS HONOUR: Okay. Well, I will just stop you there.

ACCUSED: They all relate to the person. I'm not a person.

HIS HONOUR: Okay. Well, this is nonsense, so can you carry on with something that might be relevant to me.

ACCUSED: So again, what gives the Acts authority, what authority do the Acts have over me? I'm not a person. Royal Assent. If you were to refer to my notice of divine special appearance - sorry, I've just got to find it here, which was mentioned and acknowledged by Owen Fiander that he had received that document because it was served to him and you. So it states here:

All Acts. The crown was removed unlawfully from every court in Western Australia.

HIS HONOUR: (indistinct) right there. I'm sure you're well aware of this. There has been a raft of decisions from the Supreme Court dealing with these sorts of arguments. If you don't believe me, Google it over lunchtime. Look up Glue. Look up Priziac. Look up Williamson. There's a whole bunch of them and they all find such arguments in increasingly cursory terms to be utterly misplaced and, as I've said many times in the course of today's proceedings, arrant nonsense. I am not entertaining those submissions. Can you move onto something else.

ACCUSED: So is it fair to say that essentially if - I would like to say in my closing that the Queen of Australia is a fictional entity. It is an abstract Queen. So what gives authority is the Royal Assent to any Act and legislation, as you're aware of.

HIS HONOUR: Okay. I've just said that those arguments have been dispelled many times.

ACCUSED: So no, but I need to say them. This is my argument.

HIS HONOUR: Well, I am ruling that argument is nonsense and you need to move on. Okay.

ACCUSED: So Whitlam's Government, Duumvirate Government, passed 40 Acts with two men in the government. Right?

HIS HONOUR: I don't know. I don't care. Carry ‑ ‑ ‑

ACCUSED: You don't know. You don't care. You don't care. Right. So the Crown - so the Crown has no relevance in any law. So the Crown ‑ ‑ ‑

HIS HONOUR: Not today at least, no.

ACCUSED: Not today. Okay. Yes. No further evidence. Thank you.

HIS HONOUR: Okay. All right. Thank you. All right. Well, it's almost 1 o'clock. So I will give a decision at 2 pm. Thank you. I will adjourn to 2 pm.

1. Divine Special Appearance Mentioned in the transcript: Living Woman. Magistrate accepted our Divine Special Appearance: "I don't know what that means but I will take your word for it".

1. Magistrate directed the witness, Owain FIANDER not to answer citing irrelevance as reasoning which aided and abetted the Prosecution's case creating an estoppel of the defence to cross examine the witness.

1. The Reasoning of Relevance is to be drawn out by cross-examination of the Witness, not determined by the Magistrates opinion to stop the witness answering question. The defence case arrived at an estoppel of the witness testimony and could not proceed: Interfering with the defence's case during cross-examination of a sworn witness to give evidence in chief.

1. Unfair trial, diminishing capacity to question the witness in lawful cross-examination by the interference of the Magistrate interjecting and stopping the witness answering, acting on behalf of the prosecutions case. The Magistrate is acting in favour of the prosecutions case. Impartiality of adjudication duty was not present.

1. Procedural unfairness demonstrated by the Magistrates continual hinderance to stop the defence drawing out relevance in cross examination, the legal name, being the primary legal instrument in the original prosecution notice, to create joinder with the word person in the act to infer person and Dawn Michelle Kelly are one and the same, by way of trespass of the Magistrate an estate name without consent.

1. The Magistrate in the transcript states that the word "person" in the act means "everyone", no evidence was brought forward in trial by the Magistrate or the prosecution that "person" and "everyone" includes Dawn Michelle Kelly by the Magistrate inferring that it does, are we to believe Magistrates inference words alone.

1. Magistrate stated cross-examination questions were irrelevant shutting down our defence case. All questions put to the Witness in Chief were not in violation to s.26, 1 (a)(b) of the Evidence Act (WA). The questions put to the witness in chief were not misleading, unduly annoying, harassing, intimidating, offensive, oppressive, or repetitive.

1. Non-Impartiality ruling of the magistrate directing the witness not to answer clearly illustrates biasness contra to the Evidence Act s.26. Relevancy is not a condition to direct a witness not to answer.

1. Magistrate in his direction to a witness not to answer is withholding true testimony to be given in chief by right of cross examination.

1. Seditious expressive demeanour of Magistrate holds fast to objectionable decisions contra to law: When the Magistrate answered "Not today at least" to the question "So the Crown has no relevance in any law" it demonstrated his presence of mind in the face of adversity, the Crown MUST be in the forefront of fairness in the adjudication process in the Kings Courts.

1. In The transcript: "It doesn't change the elements of the offences" however the element of the legal name eluded, is the primary instrument of prosecution.

1. Protection from Statutory Encroachment. Clarity of Language - Ambiguity in Statutes must be challenged and cannot be denied: The Magistrate yet again blocking the defence right of cross-examination directing the witness not to answer the question being put to the witness "Why is the name of the drivers licence back to front with the surname first and the Christian name second in all capital letters because it does not appear to be in any form of correct Kings English text in relation to the Oxford Styles Manual or the Chicago Styles Manual article 11.147, 16th Edition?"

1. The Magistrate shut down the defence line of questioning pertaining to the legal name by instructing the witness: "Don't answer that... it's irrelevant" "Question is not relevant .... Move on" "I'm not letting you waste time" and "We know what the charges are, you don't need to read them" ...

1. The Legal Name Decedent is the Primary Legal Instrument for Prosecution: The Magistrate: 'Question is not relevant .... Move on' 'I'm not letting you waste time' - 'Okay. So, Officer Fiander, why is the name on the drivers licence back-to-front with the surname first and the Christian name second ... '- - - capital letters? Because it does not appear to be in any form of correct - correct form of King's English text in relation to Oxford Style - - -'; ...

1. Magistrate used 'time', as a restraining reasoning to expedite the trial on an economic basis over a judicial duty to adjudicate fairness of an accused preventing full or hinder the progression of defence cross examination as a right. In doing so, favouring the prosecutions case against the accused defence right at trail denying the cross in full.

1. On the introduction of the illustrated drivers licence to the witness to establish the authenticity of the licence being issued by the Department of Transport and showing the legal name in all caps: capitalisation.

1. The Magistrate directed the prosecution witness ... 'Don't answer that' ... 'I'm directing him not to answer it': The magistrate holding in direction the witness not to answer, as acting council for the witness on the principal: privilege against Self-incrimination, ' not to answer', hears no substance in reasoning as the witness is not on trial the accused is.

1. The Magistrate in his directions to the witness for the prosecution knowingly perverted the course of justice against the accused.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

CITATION : KELLY -v- FIANDER [2024] WASC 275 (S)

Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA

Costs - Single judge appeal - Where appellant unsuccessful - Relevant principles - Where meritless grounds - Where no questions of law of public importance raised - Turns on own facts

Criminal Appeals Act 2004 (WA), s 14(1)(h)

Appellant to pay respondent's costs fixed in sum of $5,056

1. On 2 August 2024 the Court handed down its reasons in Kelly v Fiander.[37]
2. Leave to appeal on grounds relating to four convictions under the Road Traffic (Administration) Act 2008 (WA), the Road Traffic (Vehicles) Act 2012 (WA) and the Road Traffic Act 1974 (WA) was refused, and the appeal dismissed.
3. The parties were subsequently directed to file and serve any written submissions on the question of costs.
4. The appellant submits that costs ought not be ordered against her. The respondent seeks an order for the appellant to pay the respondent's costs fixed in the sum of $5,056 as per a Bill of Costs dated 9 August 2024.
5. Under s 14(1)(h) of the Criminal Appeals Act 2004 (WA), the court may make an order as to the costs of this appeal. However, there is not any general rule to the effect that costs should ordinarily follow the event.
6. The Criminal Appeals Act confers a general and unconstrained discretion upon the decision maker to award costs, having regard to all relevant circumstances, including any relevant aspect of the public interest.[38]
7. In this instance, the appeal was commenced by the unsuccessful party. The court concluded that each of her 18 grounds of appeal was without merit and dismissed the appeal.
8. In addition, as the respondent correctly submits, the appeal did not involve questions of law of public importance.
9. The above are all matters relevant to the exercise of my discretion in awarding costs.[39]
10. The appellant nevertheless resists the award of costs against her on five grounds.
11. Two of the grounds assert that a costs order would constitute a denial of procedural fairness. Further, the appellant submits she is under financial distress.
12. In addition, the appellant submits she intends appealing my decision.
13. Finally, the appellant proposes to 'set off' any costs order in this matter, against the costs she anticipates being awarded in a separate appeal: Kelly v Osborne [2023] WASC 252. Accordingly, she submits the court should 'balance the account'.
14. For the reasons that follow, I do not accept the appellant's submissions.
15. As the respondent correctly submits, the question of costs in Kelly v Osborne is not relevant to the determination of costs in this appeal.
16. Further, as the respondent also correctly submits, no evidence of financial distress on the part of the appellant has been presented to the court. In any event, the inability of an unsuccessful party to meet a costs order is not a sufficient reason to deny a successful party their costs.[40]
17. Nor do I consider the mere fact the appellant intends appealing my decision affords a sufficient reason to avoid a costs order.
18. I turn, then, to the appellant's point regarding procedural fairness. It is axiomatic, as the appellant effectively suggests, that she enjoyed the right to challenge her conviction by the learned magistrate by bringing these proceedings.
19. However, the fact she may have enjoyed that right cannot detract from the principle that a party who successfully resists an appeal may in appropriate circumstances be compensated for their wasted costs.
20. In my view, the above is all the more pertinent where, as here, the appeal grounds are meritless, and the quantum sought is eminently reasonable.[41]
21. Accordingly, I order that the appellant pay the respondent's costs fixed in the sum of $5,056.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

[1] As amended at the hearing pursuant to s 132(3) of the Criminal Procedure Act 2004 (WA).

[2] Cf. Kelly v Fiander [2023] WASC 187 [27] (Vandongen J).

[3] Hobbs H, Young S & McIntyre J, 'The Internationalisation of Pseudolaw: The Growth of Sovereign Citizen Arguments in Australia and Aotearoa New Zealand' (2024) 47(1) UNSW Law Journal 309, 312.

[4] Hobbs H, Young S & McIntyre J, 'The Internationalisation of Pseudolaw: The Growth of Sovereign Citizen Arguments in Australia and Aotearoa New Zealand' (2024) 47(1) UNSW Law Journal 309, 324.

[5] Kelly v Fiander [2023] WASC 187.

[6] Kelly v Fiander [2023] WASC 187 [11] ‑ [13].

[7] See for example, Deputy Commissioner of Taxation v Casley [2017] WASC 161 [15] (Le Miere J); Yap v Matic [2022] WASC 181 [61] (Solomon J); Stefan v McLachlan [2023] VSC 501; (2023) 105 MVR 214 [28] (J Dixon J); Kelly v Fiander [11] (Vandongen J); Branch v Town of Victoria Park [2023] WASC 231 [65] (Seaward J); Kwok v City of Subiaco [2023] WASC 307 [40] (Whitby J).

[9] Branch v Town of Victoria Park [65].

[11] Deputy Commissioner of Taxation v Casley [15]; Kelly v Fiander [18].

[12] Transcript, Western Australia Police v Kelly, Magistrates Court of Western Australia, 30 November 2023, 29 (ts 30 November 2023).

[24] Hobbs H, Young S & McIntyre J, 'The Internationalisation of Pseudolaw: The Growth of Sovereign Citizen Arguments in Australia and Aotearoa New Zealand' (2024) 47(1) UNSW Law Journal 309, 315, 323.

[25] R v Kelly; Ex parte Hoang Van Duong (1981) 28 SASR 271, 273 (King CJ).

[26] Stack v The State of Western Australia [2004] WASCA 300; (2004) 29 WAR 526 [101] (Steytler J).

[28] Cf. Williamson v Hodgson [2010] WASC 95 [31] - [36] (Mazza J).

[30] Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 [11] (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ).

[31] Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 [12].

[35] Subject to an exception not presently relevant.

[36] Eg. ts 30 November 2023, 30, 31, 32, 34, 35 and 38.

[37] Kelly v Fiander [2024] WASC 275.

[38] Wilson v McDonald [2009] WASCA 39 (S) (Wilson) [10] (Martin CJ, Beech AJA agreeing); The House of Relocators Pty Ltd v Ginbey [2014] WASCA 94 (S) (Ginbey) [10] (Pullin, Newnes, Mazza JJA).

[39] Wilson [18]; Ginbey [11]; and Thomas v Kent [2014] WASC 23 (S) [7] (Allanson J); and Sims v Keene [2014] WASC 248 (S) [11] - [12] (Corboy J).

[40] Hunter v City of Joondalup [2018] WASCA 166 (S) [9] citing Smolarek v Roper [2009] WASCA 124 (S) [11].

[41] Noting, in particular, the circumstances referred to in Kelly v Fiander [2024] WASC 275 [21] - [22].