Citation : KRYSIAK -v- McDONAGH [2012] WASC 270

Criminal law - Application for leave to appeal against conviction - Driving without authority - Alleged constitutional issues - Bias - Turns on own facts

Criminal Appeals Act 2004 (WA), s 9, s 18, pt 2

Criminal Procedure Act 2004 (WA), s 55

Currency Act 1965 (Cth)

Fines, Penalties and Infringement Notices Enforcement Act 1994 (WA), s 11, s 14, s 16, s 21

Judiciary Act 1903 (Cth), s 78B

Road Traffic Act 1974 (WA), pt IVA, s 49

Supreme Court Act 1935 (WA)

Allbeury v Corruption and Crime Commission [2012] WASCA 84

Amaca Pty Ltd (Formerly James Hardie & Co Pty Ltd) v Hannell [No 2] [2011] WASCA 232

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

Krysiak v McDonagh [2012] WASC 270

O'Connell v The State of Western Australia [2012] WASCA 96

Re Skyrings Application (No 2) (1985) 59 ALJR 561

Shaw v McGinty [2006] WASCA 231

1 McLURE P: The appellant, a self-represented litigant, appeals against two convictions of driving a motor vehicle without authority contrary to s 49 of the Road Traffic Act 1974 (WA) (RTA).

2 The offence the subject of CACR 173/2012 was committed on 29 January 2011. The particulars of the offence are, relevantly, that the appellant drove a motor vehicle on Albany Highway whilst not being a person authorised by pt IVA of the RTA and whilst no longer authorised to drive, having been disqualified from holding or obtaining a driver's licence under a licence suspension order made under the Fines, Penalties and Infringement Notices Enforcement Act 1994 (WA) (the Fines Enforcement Act) contrary to s 49(1)(a) and (3)(d) of the RTA.

3 The appellant was convicted of this offence after a trial before Magistrate Bayly on 27 July 2011. The magistrate imposed a fine of $400 and ordered the appellant to pay costs of $119.20.

4 A further offence of the same nature, which is the subject of CACR 172/2012, was committed on 15 May 2011. The appellant was convicted of this offence under s 55 of the Criminal Procedure Act 2004 (WA) by Magistrate Calder on 26 July 2011. Magistrate Calder imposed a fine of $750, imposed a 3-month disqualification period and ordered the appellant to pay costs of $121.95.

5 The appellant appealed against both convictions to a single judge of the Supreme Court under pt 2 of the Criminal Appeals Act 2004 (WA). The appeals were heard by EM Heenan J who refused leave to appeal on all grounds in both appeals: Krysiak v McDonagh [2012] WASC 270. He concluded that none of the grounds of appeal had any prospect of success.

6 The appellant appeals to this court against the refusals of leave. The appellant requires leave to appeal for each ground of appeal against the decision of the primary judge: Criminal Appeals Act, s 9, s 18. Leave will not be granted unless the ground of appeal has a reasonable prospect of succeeding.

7 The grounds of appeal in CACR 172/2012 are a subset of the grounds in CACR 173/2012. I will deal with both appeals together by reference to the grounds in CACR 173/2012.

8 In oral submissions, the appellant explained the background that informs many of the grounds of appeal. He explained that he appeared before the court as an Australian citizen and British subject and was 'petitioning this court ... on the same basis as the Royal Courts of the United Kingdom, Appellate Courts, in the 19th century would have applied the Imperial Constitution and law in relation to the rights of British subjects' (ts 3). The appellant also asserted that the law of the land which establishes the jurisdiction of the Court of Appeal is the King James Bible and that this court has a duty 'derived from the Royal Crown to uphold what is just and right and oppose what is oppressive in whatever slight degree', even if it is contrary to statute law (ts 5). These submissions reflect a fundamental misapprehension as to the constitutional roles and responsibilities of the legislative and judicial arms of government in this State.

9 I turn now to the grounds. Grounds 2 and 5 have been withdrawn.

10 The appellant contends that the magistrate's decision resulted in a restriction of freedom of travel thereby contravening s 92 of the Constitution of the Commonwealth. This is in substance a challenge to the constitutional validity of the relevant provisions of the RTA. The ground is without merit for the reasons given by the primary judge at [32].

11 The appellant contends the magistrate erred in failing to follow s 78B of the Judiciary Act 1903 (Cth) because his defence involved a matter arising under the Constitution or involving its interpretation. The appellant also claims that the magistrate erred by not referring the matter to the original jurisdiction of the High Court for the determination of those constitutional matters.

12 The primary judge was satisfied that the constitutional matters raised by the appellant were spurious in which event, he said, there was no need for any s 78B notice in either case [30]. The primary judge is correct in his assessment of the merit of the appellant's constitutional contention and the consequence thereof. The case law establishes that a constitutional issue does not arise for the purposes of s 78B of the Judiciary Act merely because a party asserts it does. If an alleged constitutional issue is unarguable or frivolous and vexatious, there is in truth no constitutional issue at all: Shaw v McGinty [2006] WASCA 231 [42]; O'Connell v The State of Western Australia [2012] WASCA 96 [90].

13 Grounds 3, 4 and 14 are not reasonably arguable.

14 The appellant contends that the Magistrates Court is not a valid court pursuant to Chapter III of the Commonwealth Constitution 'as it ... incorporates [the] Fines Enforcement Registry, and also the Magistrates Court Act does not contain an oath of allegiance to the source of all judicial jurisdiction in Western Australia, the Crown, denying the Court jurisdiction'. These claims are not reasonably arguable for the reasons given by the primary judge at [36] - [38].

15 As to grounds 9 and 16, the primary judge's summary of the scheme of the Fines Enforcement Act is broadly accurate (see ts 24 - 26 and 36 on 4 July 2012). An infringement notice is an allegation that an offence has been committed (s 11). The recipient of a demand under s 14 following non-payment of the relevant penalty identified in the infringement notice has an election to have a charge for the offence alleged in the infringement notice heard and determined by a court (s 14(4)). If such an election is not made within a specified time, the infringement notice can be registered under s 16 and if registered, the Registrar must issue an order to pay or elect under s 21. If the alleged offender makes a s 21 election, the Registrar must lodge with a court of summary jurisdiction a prosecution notice in relation to the alleged offence. There is no arguable claim of a denial of natural justice.

16 The appellant contends the magistrate erred 'because they allowed the lack of reasonable suspicion and the unwarranted actions of the police officers to be judicially validated, when this lack of reasonable suspicion contravenes the officers' duty to act justifiably, as per their oath, the Common Law and constitutional law'. This ground has no reasonable prospect of succeeding for the reasons given by the primary judge at [42].

17 These grounds relate to currency matters. The appellant asserts that the magistrate contravened s 115 of the Constitution by making an order 'for an alleged monetary penalty in Australian dollars knowing that it cannot be paid as there is no gold or silver coin available as a legal tender in payment of an alleged debt, being the alleged penalty in the order'. The appellant also asserts that the magistrate erred by issuing a monetary penalty 'in terms of Australian dollars, which are not precisely legally defined, and payment of which cannot be made as it would breach the Currency Act 1965 (Cth), as there is no currency in circulation above $2 and no valid currency available to pay an alleged debt above $20'.

18 The primary judge was correct for the reasons he gives at [43] - [46] in refusing leave to appeal on these grounds. The appellant's attempt to distinguish Re Skyrings Application (No 2) (1985) 59 ALJR 561 fails.

19 The appellant claims that the primary judge erred in determining that the appellant required leave to appeal from the decisions of the magistrates. He contends that is contrary to the common law and the provisions of the Supreme Court Act 1935 (WA) 'requiring the Supreme Court to take on the jurisdiction of the Courts of Appeal in England, which take their jurisdiction from Her Majesty the Queen'.

20 These contentions are informed by the appellant's misunderstanding of the constitutional role and duty of State courts. The Criminal Appeals Act validly covers the field in relation to appeals from statutory offences: Allbeury v Corruption and Crime Commission [2012] WASCA 84 [16]. See also Amaca Pty Ltd (Formerly James Hardie & Co Pty Ltd) v Hannell [No 2] [2011] WASCA 232 at [21] - [26].

21 This ground has no reasonable prospect of succeeding.

22 The appellant asserts that the primary judge erred 'by demonstrating bias and apprehended bias, not taking proper judicial notice, giving personal views, and not giving proper lines of lawful reasoning in making his decision on each ground of appeal'.

23 The test of apprehended bias is whether the judge might not bring an impartial or an unprejudiced mind to the resolution of the questions for determination. It will often be necessary and appropriate, particularly with self-represented litigants, for a judge to intervene in and direct the course of proceedings: Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 [13].

24 The appellant complains that the primary judge frequently interrupted his submissions, attempted to hurry him in the delivery of his submissions, forcefully stated his views on their legal merit and prejudged the issues. I have read the transcript of the hearing on 4 July 2012. The primary judge engaged with the appellant in the course of his submissions, both to clarify and understand them and to explain the law to

the appellant as he was entitled to do. He gave the appellant the opportunity to add to his extensive written submissions and ruled during the course of the hearing on individual grounds of appeal.

25 Where, as in this case, the parties have filed written submissions which the primary judge had clearly read prior to the hearing, it is inevitable that the decision-maker will have formed a preliminary view. Where the preliminary view is that the low threshold test of merit has not been met, it is often the case that the preliminary view will be confirmed in the course of the oral hearing.

26 The fact that the appellant met strong headwinds on the legal merit of his arguments in this case does not give rise to a claim of actual or apprehended bias. The primary judge acted well within the boundaries of due and proper process. This ground of appeal does not have a reasonable prospect of success.

27 None of the grounds of appeal in either appeal has a reasonable prospect of succeeding. Accordingly, leave to appeal should be refused on all grounds with the consequence that the appeals are taken to be dismissed.