Kobylski v Cole

[2007] QDC 127

DISTRICT COURT OF QUEENSLAND

CITATION:

Kobylski v Cole [2007] QDC 127

PARTIES:

JAROSLAW KOBYLSKI

Appellant

v

D C COLE

Respondent

JAROSLAW KOBYLSKI

Appellant

v

D C COLE

Respondent

FILE NO/S:

D100/2005 and D101/2005

DIVISION:

Criminal

PROCEEDING:

Appeal

ORIGINATING COURT:

Beenleigh

DELIVERED ON:

16 May, 2007

DELIVERED AT:

Beenleigh

HEARING DATE:

26 April 2007

JUDGE:

Dearden DCJ

ORDER:

Appeal No. D100/2005

1.   Leave to appeal out of time granted.

2.   Appeal dismissed.

Appeal No. D101/2005

1.   Appeal dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL – Appeal Against Conviction and Sentence – Unlicensed Driving – Unregistered Motor Vehicle – False Number Plate – Contravene Requirement – Fail to Stop Vehicle – Uninsured Vehicle – Possession of False Registration Plates – Obstruct Police Officer – Unsafe

Vehicle – Breach of Bail – Constitutional Defence

LEGISLATION:

Judiciary Act 1903 (Cth) s 78B.

Justices Act 1886 (Qld) ss 222(1), 222(2)(c).

CASES:

Kobylski v Queensland Police Service [2007] QCA 50

Till v Johns [2004] QCA 451

Hubner v Erbacher [2004] QDC 345

COUNSEL:

The appellant was self-represented

Mr N McGhee for the respondent

SOLICITORS:

The appellant was self-represented

Director of Public Prosecutions for the respondent

Introduction

1. The appellant appeals against conviction and sentence in respect of offences of disqualified driving, driving an unregistered motor vehicle, and having in his possession false registration plates (all of which are alleged to have occurred on 30 July 2004 at Beenleigh).  When the defendant declined to enter a plea to the charges at his trial in the Beenleigh Magistrates Court on 7 July, 2005, pleas of not guilty were formally entered by Magistrate O’Driscoll[1].  The appellant was convicted of each of the three charges.  In respect of the disqualified driving charge, the appellant was convicted and sentenced to four months imprisonment suspended after serving one month, with an operational period of two years, and the appellant was disqualified from holding or obtaining a driver’s licence for a period of two years.  The appellant was fined $600, in default one month’s imprisonment in respect of the offence of driving an unregistered motor vehicle, and was fined $500, in default one month’s imprisonment, in respect of the charge of possession of false number plates.  The Notice of Appeal was filed on 16 August, 2005, more than two weeks outside the one month time limit[2]. However, the prosecution took no point in respect of the delay[3], and accordingly leave is granted for the appellant to appeal out of time. The Notice of Appeal in respect of this decision (D100/2005) set out the following grounds:

“All ground appeal – decision and penalty.  Violation of constitutional and human rights.  Denial of natural justice.”

[1] Hearing T 8.

[2]Justices Act 1886 (Qld) s 222(1).

[3] Appeal T 3-4.

1. On 22 July 2005 the appellant appeared before Magistrate Webber at the Beenleigh Magistrates Court, represented by Mr Forrest of Legal Aid Queensland.  Mr Forrest entered a plea of guilty on behalf of the appellant on a charge of breach of bail condition (namely that the appellant have no contact with Malcolm McClure).  The appellant was convicted and fined $350, in default seven days’ imprisonment and allowed three months to pay.  The Notice of Appeal in respect of this matter (D101/2005) sets out as the grounds:

“All ground appeal – decision and penalty.  Violation of constitutional and human rights.  Denial of natural justice.”

I note that this appeal, which was filed on 19 August, 2005, complied with the relevant time limit.

Judiciary Act Notices

1. The appellant submits that notices should have been given under s 78B of the Judiciary Act 1903 (Cth), but as Mullins J noted in Kobylski v Queensland Police Service[4]:

“Section 78B operates only when the circumstances in which it applies appear to the court to be present and not because a party asserts those circumstances are present: Till v Johns [2004] QCA 451 at para [6].”

[4] [2007] QCA 50.

Grounds of Appeal

1. As I observe below, the appellant’s legal arguments, although they claim to raise constitutional issues, are so clearly without merit that, in my view, the appeals “[do] not ‘involve’ a matter arising under the Constitution or involving its interpretation under s 78B Judiciary Act 1903 (Cth) requiring notices to be given to the Attorneys-General of the Commonwealth and the States”[5]. I do not consider s 78B Judiciary Act notices were required in this matter.

   [5]Till v Johns [2004] QCA 451, para 6 (per McMurdo, P).

1. The appellant raises a series of grounds which he describes as “constitutional” in his submission (in respect of Appeal No. D100/2005 relating to the disqualified driving, unregistered vehicle and false plate charges) that he was wrongfully arrested by Constable Cole, that his property (purported number plates) was seized by Constable Cole, and that he (the appellant) was denied natural justice.  The appellant’s arguments (similar it would seem to the arguments the appellant raised in his unsuccessful application for leave to appeal out of time to the Court of Appeal[6]) relied on “uninformed, misguided and mischievous interpretations of the constitution.”[7]  However, it is clear that the applicant, as a resident of Queensland, was subject to the laws of Queensland, including those relating to vehicle registration, driver licensing and the possession of false number plates, and on each of these current convictions the subject of this appeal, there was evidence to support the conviction. The appellant was afforded procedural fairness in respect of the hearing.  The appellant chose not to give evidence, which of course was not evidence against him, but it is clear on the evidence of Constable Darrin Cole, the sole prosecution witness, that his evidence (if accepted on the applicable standard of beyond reasonable doubt) was sufficient for the learned magistrate to be satisfied of all the elements of each of the three charges before him. In my view, there was no error of law in respect of any of the convictions, and I consider that the penalties imposed were in each case within the appropriate range of the magistrate’s sentencing discretion[8].  As Mullins J pointed out in Kobylski v Queensland Police Service:[9]

“The underlying conduct of the [appellant] that resulted in his conviction of the subject offences … was his failure to comply with the laws of the State of Queensland which was his deliberate choice.”

The arguments of the appellant in the appeal before me are clearly “unmeritorious constitutional arguments”[10] and accordingly the appeal should be dismissed.

[6]Kobylski v Queensland Police Service [2007] QCA 50.

[7]Kobylski v Queensland Police Service [2007] QCA 50, para 9 (per Mullins J).

[8] See Hubner v Erbacher [2004] QDC 345 and Kobylski v Queensland Police Service [2007] QCA 50, para 7 (per Mullins J).

[9] [2007] QCA 50, para 9.

[10]Kobylski v Queensland Police Service [2007] QCA 50, para 10 (per Mullins J).

1. In respect of Appeal No. D101/2005 against the decision of Magistrate Webber, the appellant sought to argue that his plea of guilty should be set aside.  Even if the provisions of Justices Act s 222(2)(c) did not preclude the setting aside of a plea of guilty, regularly entered, no material was filed in support of that application to indicate that the appellant’s plea was anything but free and informed[11].  There is, in my view, no basis to set aside the appellant’s plea of guilty. The penalty imposed (a fine of $350, in default seven days imprisonment) was clearly within the range of a sound sentencing discretion by the magistrate for the offence of breach of bail.  The appeal in respect of that matter is also dismissed.

   [11]Till v Johns [2004] QCA 451, para 3 (per McMurdo J).

Orders

Appeal No. D100/2005

1.    Leave to appeal out of time granted.

2.    Appeal dismissed.

Appeal No. D101/2005

1.   Appeal dismissed.

Costs

I will hear the parties on costs.