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

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.

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Kobylski v Cole

Details

AGLC: Kobylski v Cole [2007] QDC 127
Case: [2007] QDC 127
Decision Date: 16 May 2007

CaseChat Overview and Summary

Kobylski v Cole was an appeal against conviction and sentence brought before the court by the appellant, Kobylski, following a series of charges related to unlicensed and unregistered driving. The charges stemmed from an incident where Kobylski was found driving an unregistered vehicle with false number plates, subsequently failing to stop when requested by police, and possessing false registration plates. The appellant was also charged with driving an uninsured vehicle, obstructing a police officer, and driving an unsafe vehicle. Additionally, Kobylski faced a charge of breaching his bail conditions. The constitutional defence was raised during the proceedings.

The primary legal issues addressed in the appeal were whether the trial judge had erred in admitting certain evidence and whether the sentence imposed was excessive. The appellant contended that the evidence regarding the unregistered and uninsured status of the vehicle, the false number plates, and the obstruction charge were improperly admitted as they violated the constitutional protections against self-incrimination. The appellant also argued that the sentence was manifestly excessive given the circumstances and should be reduced.

The court examined the admissibility of the evidence and found that there were no errors in the trial judge's decision to admit it. The court held that the evidence was properly obtained and was relevant to the charges against the appellant. Regarding the sentence, the court found that while the charges were serious, the sentence imposed was proportionate and appropriate given the appellant's criminal history and the nature of the offences. Consequently, the appeal was dismissed.

The court granted leave to appeal out of time in the first appeal and dismissed both appeals. The sentence and conviction were affirmed.

Orders

Orders of the court

Appeal No. D100/2005

1. Leave to appeal out of time granted.

2. Appeal dismissed.

Appeal No. D101/2005

1. Appeal dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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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