Isenglaas v Queensland Police Service
[2023] QDC 242
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- Unreported Judgment
- Isenglaas v Queensland Police Service[2023] QDC 242
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Isenglaas v Queensland Police Service[2023] QDC 242
Isenglaas v Queensland Police Service[2023] QDC 242
DISTRICT COURT OF QUEENSLAND
CITATION: | Isenglaas v Queensland Police Service [2023] QDC 242 |
PARTIES: | BO ISENGLAAS (appellant) v QUEENSLAND POLICE SERVICE (respondent) |
FILE NO/S: | 1505/23 |
DIVISION: | Appellate |
PROCEEDING: | Appeal |
ORIGINATING COURT: | Brisbane Magistrates Court |
DELIVERED ON: | 14 September 2023 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 14 September 2023 |
JUDGES: | Dearden DCJ |
ORDER: |
|
CATCHWORDS: | CRIMINAL LAW – APPEAL – APPEAL AGAINST CONVICTION – where the appellant was convicted ex parte of one charge of disobeying the speed limit – where the appellant was fined $534.90 – where the appellant appeals on the ground that the Transport Operations (Road Use Management – Road Rules) Regulation 2009 (Qld) is not binding or enforceable on the appellant |
COUNSEL: | Appellant in person C McMullan for the respondent |
SOLICITORS: | Appellant in person Office of the Director of Public Prosecutions for the respondent. |
Background
- [1]On 18 April 2023 at the Brisbane Magistrates Court, the appellant was convicted ex parte of one charge of disobeying the speed limit Transport Operation (Road Use Management – Road Rules) Regulation 2009 r. 20 on 13 August 2022.
- [2]The appellant was fined $431 and ordered to pay $107.95 in costs (amended to $103.90 on the order). The appellant appeals against the conviction.
- [3]The appellant filed a notice of appeal on 30 May 2023, and subsequently filed a notice of application for extension of time on 6 June 2023. The grounds of application for an extension of time were:
“I was not familiar with the appeal procedures. The magistrate made the order on 08/05/23 and I did not obtain a copy of the order until 15/05/23. I thought I had 30 days from 08/05/23 to give notice of appeal.”
As indicated above, the order was made by the learned magistrate on 18 April 2023, but the advice of conviction or order was not issued until 8 May 2023.[1]
- [4]The respondent concedes that although the appellant has previously appealed to the District Court in 2013,[2] the appellant may not have become aware of the conviction and order until sometime after 8 May 2023 and accordingly it would be unjust to deny the appellant’s application for an extension of time within which to appeal. It is appropriate to grant the application for an extension of time to file the appeal.
Grounds of appeal
- [5]The appellant’s notice of appeal identifies the following grounds:
“Magistrate Quinn did not allow me to challenge the jurisdiction of traffic court. The following foundation evidence was missing: Proof of Claim.”
- [6]Perhaps more helpfully, the respondent has identified what might be considered to be three grounds of appeal based on the appellant’s notice of appeal and subsequent filed material:
- Ground 1: there was no proof of claim;
- Ground 2: the respondent committed the crime of barratry;
- Ground 3: the Transport Operations (Road Use Management – Road Rules) Regulation 2009 (Qld) is not binding or enforceable on the appellant (the appellant identified this ground as “the respondent does not have proof of authority”).
The law
- [7]I refer to adopt my exposition of the relevant principles as set out in Millar v Commissioner of Police [2022] QDC 254, [8]-[10].
The law – speeding
- [8]Transport Operations (Road Use Management – Road Rules) Regulation 2009 r. 11 provides that the regulation applies to vehicles and road users on roads and road-related areas.
- [9]Transport Operations (Road Use Management – Road Rules) Regulation 2009 r. 20 provides that a driver must not drive at a speed over the speed limit applying to the driver for the length of road where the driver is driving. The maximum penalty for contravening the direction is 40 penalty units.[3]
- [10]The respondent has helpfully outlined a summary of the hearing as follows:
- “[15]On 18 April 2023 the appellant attended court in response to a complaint and summons regarding the offence of disobeying the speed limit. The offence was particularised as a speed 78 kilometres an hour in a 60-kilometre zone on South Pine Road, Everton Park,[4] the offence having allegedly occurred on 13 August 2022.[5]
- [16]When the matter was called, the appellant advised the court he was making a special appearance. Magistrate Quinn asked the appellant to stand up. The appellant replied ‘why should I?’[6] Magistrate Quinn asked if he was Bo Ding Isenglaas. The appellant replied that he was the sole beneficiary of the Sabke Trust, and that no one was Bo Isenglass.
- [17]Magistrate Quinn asked the appellant again if he was Bo Ding Isenglass. The appellant replied that he was the sole beneficiary of the Sabke Trust. Magistrate Quinn requested the appellant leave the bar table. The prosecutor sought a warrant. Magistrate Quinn had the appellant’s name called three times.[7]”
- [18]The appellant told Magistrate Quinn he was there to make a special appearance. Magistrate Quinn stated he was satisfied that no person identifying themselves as Bo Ding Isenglass had appeared and directed a Justices Act warrant be issued for the arrest of Bo Ding Isenglass.[8]
- [19]About an hour later, the prosecutor made an application to hear the matter ex parte.[9]
- [20]The appellant was convicted and fined the amount on the infringement notice which was $431 and $107.95 in court costs. A conviction was not recorded. It was referred to the State Penalties Enforcement Registry.
- [21]The Advice of Conviction or Order issued on 8 May 2023 outlined the costs to be $103.90 with the total amount of $534.90 ordered to be paid by 15 May 2023.”
Ground 1 – there was no proof of claim
- [11]The appellant appears to contend that if the matter is a tort action, no injured party has been identified; and if the matter is commercial in nature, no valid contract has been produced; and claims that he has not “had sight of any proof of claim presented by the respondent.”[10]
- [12]Self-evidently, the proceedings are neither a tort action, nor commercial, and the appellant’s material does not explain what “proof of claim” means.
- [13]The proceedings in this matter proceeded by way of a complaint and summons which indicated that a photographic detection device captured the appellant’s registered car travelling at 78km/hr in a 60km/hr zone. An infringement notice was issued to the appellant on 18 August 2022. A complaint / sworn and summons was issued to the appellant on 16 February 2023 requiring the appellant to appear in the Brisbane Magistrates Court on 18 April 2023.[11]
- [14]Pursuant to Transport Operations (Road Use Management) Act 1995 (Qld) s. 114(1), a person is taken to have committed the offence of speeding if the person was in charge of the car at the time of the offending. It is a defence, if the person can prove they were not the driver of the vehicle, by notifying the chief executive within 28 days of receiving the infringement notice.[12] The matter proceeded in the appellant’s absence, and there is nothing either before the learned magistrate, or before this court on appeal, to indicate that the appellant was not the person driving the car. Clearly the proceedings have been initiated correctly. To the extent that it is asserted there was no “proof of claim” (whatever that means), this ground of appeal must fail.
Ground 2 – the respondent committed the crime of barratry
- [15]The Shorter Oxford English Dictionary 5th Edition identifies that in Maritime Law, “barratry” is “fraud or gross or criminal negligence prejudicial to a ship’s owner(s) or underwriters on the part of the master or crew.” There is no such offence in Queensland, and even if there were, it has no relevance whatsoever to proceedings against the appellant in respect of a speeding offence. This ground of appeal fails.
Ground 3 – the Transport Operations (Road Use Management – Road Rules) Regulation 2009 (Qld) is not binding or enforceable on the appellant
- [16]The appellant has filed what purports to be a statutory declaration dated 19 June 2023 with the introduction:
“I, Bo Isenglaas, a living man in the abode of 61 Burwood Road Everton Park Queensland, underwriter for the legal person BO DING ISENGLAAS, SECURED CREDITOR WITH POWER – OF – ATTORNEY, DO SOLEMNLY AND SINCERELY DECLARE THAT:
and then addresses various matters which appear to be an assertion that he is not subject to either Commonwealth or State laws.
- [17]Also attached is a document headed “formal challenge to the twelve presumptions of law” which purports to contain quasi-legal language. Nothing in that document is of any assistance to this court in this appeal.
- [18]The appellant has also filed a document titled “Affidavit of Truth.” This document contains quasi-legal language that, as best as it can be understood, appears to be an assertion that the appellant is not subject to Queensland road rules and has no legal relationship with the Department of Transport and Main Roads. The appellant asserts that he has a “common law right of travelling freely upon public highways and roads in the ordinary course of [his] life and business using [his] private automobiles.” The appellant asserts further that “this natural right is inherent, inviolable and unalienable.” [13]
- [19]To the extent that anything can be discerned from this material, the respondent identifies that the appellant appears to claim that a contract was unknowingly created when the appellant registered his car with the Department of Transport and Main Roads and that he seeks to rescind this contract and affirm his common law right to travel on public roads.[14]
- [20]With respect, the purported affidavit does not contain “evidence” but rather quasi-legal assertions which have no basis in law in Queensland. The material is neither “fresh evidence” nor “new evidence”[15] and is not in my view admissible on this appeal. It lacks any relevance whatsoever.
- [21]As Cash QC stated in R v Sweet [2021] QDC 216, [6]:
“In Australia, a human being is also a legal person. An adult human being with full capacity can sue and be sued. They are subject to the criminal laws of this state … If the applicant were somehow able to renounce his legal personality, he would become a human being without rights.”
- [22]In Hubner v Erbacher [2004] QDC 345, White DCJ set out succinctly the operation of the legal system in Australia (both Commonwealth and State) at [10]-[13]. Clearly, the appellant is subject to the laws of Queensland, in particular the effect of the Transport Operations (Road Use Management – Road Rules) Regulation 2009, which in my view is clearly binding and enforceable on the appellant. This ground of appeal must fail.
Ex parte proceedings
- [23]The respondent identifies, for completeness, that there is provision in the Justices Act 1886 (Qld) for a defendant to be convicted ex parte, where the defendant does not attend a hearing, due notice of that hearing has been given and the court is satisfied of the facts alleged in relation to a simple offence.[16]
- [24]The court file contains a complaint and summons, together with a completed oath of service.[17] The appellant received these documents and attended court, however, when asked to announce his appearance, refused to acknowledge that he was Bo Isenglaas. The learned magistrate had his name called three times and the appellant again declined to identify himself by that name, although he was apparently present in the courtroom.
- [25]The learned magistrate then ordered that a bench warrant be issued. Subsequently, the learned magistrate made an order under Justices Act s. 142A(4), which order was available to the magistrate, upon being presented with evidence that the appellant had reasonable notice of the requirement and hearing the offence, the facts of the circumstances which were particularised in the complaint. The summons itself stated that the matter could be dealt with in the appellant’s absence.[18] The court was entitled to find that the summons had been served on the appellant, upon production of the signed oath of service which had been completed and was before the court at the time of sentence. There is nothing that was on the material before the learned magistrate to indicate that the appellant was not the driver of the car at the relevant time, nor that the appellant had not disobeyed the speed limit. The motor vehicle was registered to the appellant. The appellant was clearly subject to the provisions of the Transport Operations (Road Use Management – Road Rules) Regulation 2009, whether or not his motor vehicle was registered.
- [26]The learned magistrate did not fall into error in any way whatsoever in proceeding ex parte in the circumstances.
- [27]In all of the circumstances, the appeal should be dismissed.
Orders
- [28]I make the following orders:
- Application for extension of time to appeal granted.
- Appeal dismissed.
Footnotes
[1]Outline of submissions on behalf of the respondent [4].
[2]Isenglaas v Commissioner of Police [2014] QDC 6.
[3]Transport Operations (Road Use Management – Road Rules) Regulation 2009 r. 20.
[4]Decision transcript T3 ll5-6.
[5]Affidavit of William Orrah sworn 24 July 2023, Exhibit A(b) p. 7.
[6]Hearing transcript T2 l18.
[7]Hearing transcript T1-2-1-3.
[8]Hearing transcript T1-2.
[9]Justices Act 1886 (Qld) s. 142.
[10]Outline of argument (appellant) [2.4].
[11]Affidavit William Orrah sworn 24 July 2023, Exhibit A(b), p. 7.
[12]Transport Operations (Road Use Management) Act s. 114(5).
[13]Exhibit 3 – Affidavit of truth, [9].
[14]Outline of submissions on behalf of the respondent [30]-[31].
[15]R v Spina [2012] QCA 179.
[16]Justices Act 1886 (Qld) s. 142(4).
[17]Affidavit of William Orrah sworn 24 July 2023, Exhibit A(b), p. 7.
[18]Affidavit of William Orrah sworn 24 July 2023, Exhibit A(b), p. 7.