Kobylski v Queensland Police Service
[2007] QCA 50
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- Unreported Judgment
- Appeal Determined (QCA)
- Kobylski v Queensland Police Service[2007] QCA 50
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Kobylski v Queensland Police Service[2007] QCA 50
Kobylski v Queensland Police Service[2007] QCA 50
SUPREME COURT OF QUEENSLAND
CITATION: | Kobylski v Queensland Police Service [2007] QCA 50 |
PARTIES: | KOBYLSKI, Jaroslaw (appellant/applicant) |
FILE NO/S: | CA No 302 of 2006 DC No 221 of 2005 DC No 174 of 2005 DC No 175 of 2005 |
DIVISION: | Court of Appeal |
PROCEEDING: | Application for Extension of Time s 118 DCA (Criminal) |
ORIGINATING COURT: | District Court at Southport |
DELIVERED ON: | 23 February 2007 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 12 February 2007 |
JUDGES: | McMurdo P, Keane JA and Mullins J Separate reasons for judgment of each member of the Court, each concurring as to the order made |
ORDER: | Application for extension of time is refused |
CATCHWORDS: | CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PROCEDURE – APPLICATION FOR EXTENSION OF TIME SENTENCE AND CONVICTION – where applicant convicted of a number of driving and related offences – where applicant appealed unsuccessfully to the District Court –where no satisfactory explanation for delay and no reasonable prospect of appealing conviction and sentence Hubner v Erbacher (unreported, District Court, Cairns, White DCJ, 24 August 2004); [2004] QDC 345, considered R v Tait [1999] 2 Qd R 667; [1998] QCA 304, applied Till v Johns [2004] QCA 451; CA No 209 of 2004, 17 November 2004, applied |
COUNSEL: | The applicant appeared on his own behalf D R MacKenzie for the respondent |
SOLICITORS: | The applicant appeared on his own behalf Director of Public Prosecutions (Queensland) for the respondent |
- McMURDO P: The application for extension of time should be refused for the reasons given by Mullins J.
- KEANE JA: I agree with the reasons of Mullins J and with the order proposed by her Honour.
- MULLINS J: The applicant applies for an extension of time in which to apply for leave to appeal from the dismissal by the learned District Court Judge at Southport on 25 August 2006 of the applicant’s appeals from his convictions and sentences for numerous offences after summary trials that were held on 29 July 2004 and 15, 16, 18 and 31 March 2005. Both the application for an extension and the application for leave to appeal were filed on 3 November 2006 (which was about 6 weeks late).
- The convictions relate to a variety of offences that have their genesis in the applicant’s decision to join what he describes in his written submissions as “a political protest movement regarding vehicle registration and related matters” which has resulted in the applicant protesting about “the monopoly of Queensland Transport”.
- The offences of which the applicant has been convicted include unregistered motor vehicle, uninsured motor vehicle, possession of false registration plates, unlicensed driving, obstruct police officer and breach of bail.
- Before the District Court Judge the applicant filed extensive written submissions and relied on his asserted “inalienable human rights”, the Commonwealth of Australia Constitution Act (“Constitution”), and particularly s 92 of the Constitution, Magna Carta, the Bill of Rights and the Bible. Notices were given to the various Attorneys-General in reliance on s 78B of the Judiciary Act 1903 (Cth). No Attorney-General appeared to make submissions on the appeals to the District Court.
- The District Court Judge noted the similarity between the arguments advanced by the applicant and those that had been unsuccessful in Hubner v Erbacher (unreported, District Court, Cairns, White DCJ, 24 August 2004); [2004] QDC 345 and adopted the analysis of White DCJ to conclude that the applicant, as a resident of Queensland, was subject to the laws of Queensland, including those relating to vehicle registration, compulsory third party insurance, driver licensing and possession of false number plates. The District Court Judge was satisfied that there was evidence to support the conviction on each charge and that procedural fairness had been observed in each of the hearings. On the basis that the applicant could show no error of law in respect of any of the convictions or that any of the penalties imposed was outside the relevant Magistrate’s sentencing discretion, the appeals were dismissed.
- On the application for extension of time before this Court, the applicant did not limit his submissions (either written or oral) to the grounds for why such an extension should be granted. He sought to agitate his complaints about the conduct of the various Magistrates and conditions relating to bail that were not in issue on the appeals. Those submissions on irrelevant issues must be disregarded.
- The applicant purports to raise so-called constitutional arguments on his appeal to this Court, by reference to uninformed, misguided and mischievous interpretations of the Constitution. The underlying conduct of the applicant that resulted in his conviction of the subject offences (and his being held on remand for approximately two months after he breached a condition of his bail granted on 30 September 2004 that he was not to drive a motor vehicle) was his failure to comply with the laws of the State of Queensland which was his deliberate choice.
- It was appropriate that no notices under s 78B of the Judiciary Act 1903 (Cth) were given in relation to this application for extension. There is vexation in the applicant’s pursuit of unmeritorious constitutional arguments. 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 paragraph [6].
- In considering whether to grant an extension of time within which to apply for leave to appeal from a District Court Judge who has dealt with appeals from the Magistrates Court, the Court looks at “whether there is any good reason shown to account for the delay and…whether it is in the interests of justice to grant the extension”: R v Tait [1999] 2 Qd R 667, at 668 [5]. The applicant stated in his submissions that he did not receive the order of the District Court Judge until 11 September 2006. The applicant stated in his application for extension of time that he was “also very sick from a bad flu virus for the last few weeks”. The applicant did not put any evidence before the Court to support his claim that illness prevented his compliance with the relevant time limit. The applicant has not shown good reason for the delay. In any case, it is patent that it is not in the interests of justice to allow him to advance arguments on the application for leave to appeal that have no prospects whatsoever of being successful. The application for extension of time should be refused.