NNRM v The Commissioner of Police
[2024] QDC 64
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- Unreported Judgment
- NNRM v The Commissioner of Police[2024] QDC 64
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NNRM v The Commissioner of Police[2024] QDC 64
NNRM v The Commissioner of Police[2024] QDC 64
DISTRICT COURT OF QUEENSLAND
CITATION: | NNRM v The Commissioner of Police & Anor [2024] QDC 64 |
PARTIES: | NNRM (appellant) v COMMISSIONER OF POLICE (first respondent) & FRN (second respondent) |
FILE NO/S: | D192/23 |
DIVISION: | Appellate |
PROCEEDING: | Appeal |
ORIGINATING COURT: | Magistrates Court Maroochydore |
DELIVERED EX TEMPORE ON: | 24 April 2024 |
DELIVERED AT: | Maroochydore |
JUDGE: | Cash DCJ |
ORDERS: | Order as per draft, being:
|
CATCHWORDS: | APPEAL – PRACTICE AND PROCEDURE – QUEENSLAND – POWERS OF COURT – where a police officer applied for a domestic violence protection order against the appellant – where the order was made – where the appellant challenges the decision to make the order – where the appellant challenges the standing of the first respondent – where the appellant promotes pseudolegal theories – whether the appellant is a ‘sovereign citizen’ – where the appellant contends the Magistrate lacked jurisdiction – where the appellant contends he is not the person who committed acts of domestic violence – the ‘strawman’ duality – pseudolaw – whether the decision of the Magistrate was affected by error – whether there is fresh evidence. |
LEGISLATION: | Domestic and Family Violence Protection Act 2012 (Qld), s 3, s 4, s 110, s 145, s 164, s 165, s 166, s 168, s 169 Magistrates Court Act 1921 (Qld), s 4 |
CASES: | Calderbank v Calderbank [1976] Fam 93; [1975] 3 All ER 333; [1975] 3 WLR 586 Carnes v Essenberg [1999] QCA 339 Fox v Percy (2003) 214 CLR 118 FY v Department of Child Safety [2009] QCA 67 GKE v EUT [2014] QDC 248 HBY v WBI & Anor [2020] QDC 81 Jennifer Glover, Separate Representative v Director, Child Protection Litigation & Ors [2016] QChC 16 Ratten v The Queen (1974) 131 CLR 510 R v A2 (2019) 373 ALR 214 R v Hodges [2018] QCA 92; [2019] 1 Qd R 172 R v Spina [2012] QCA 179 R v Sweet [2021] QDC 216 |
APPEARANCES: | Appellant appeared in person. T Boettcher instructed by the Queensland Police Service for the first respondent. Second respondent appeared by phone. |
Introduction
- [1]HIS HONOUR: The appellant was in a domestic relationship with the second respondent. A police officer made an application for a protection order, pursuant to the Domestic and Family Violence Protection Act 2012 (Qld) (‘DFVPA’), against the appellant, and in favour of the second respondent. The appellant contested the making of an order and the matter proceeded to hearing before a Magistrate. The appellant represented himself. After hearing evidence and submissions, the Magistrate delivered substantial oral reasons as to why she was satisfied the appellant had committed acts of domestic violence, and why a protection order was necessary and desirable.
- [2]The appellant now appeals against the decision of the Magistrate to grant the application for a protection order. He again appears for himself, though he would say he appears as some kind of agent. The grounds identified in the notice of appeal and the written filings of the appellant are prolix and not easy to understand. Before turning to the appellant’s submissions, it is helpful to explain the nature of the appeal and the limited circumstances in which this court can interfere with the decision of the Magistrate.
The nature of the appeal – statutory framework and legal principles
- [3]The nature of an appeal such as the present was considered by Moynihan QC DCJ in HBY v WBI & Anor [2020] QDC 81. I agree with his Honour’s analysis at [16] to [18], which I set out below:
[16] The power to appeal a relevant decision is found in s 164 of the Act. The appeal is started by filing a notice of appeal and the start of an appeal does not affect the operation of the decision unless there is a further order of the court: see s 165 and 166 of the Act. Section 168 of the Act provides that the ‘hearing procedures’ for the appeal are:
“168 Hearing procedures
(1) An appeal must be decided on the evidence and proceedings before the court that made the decision being appealed.
(2) However, the appellate court may order that the appeal be heard afresh, in whole or part.”
[17] Section 169 of the Act provides that the powers of the appellate court are:
“169 Powers of appellate court
(1) In deciding an appeal, the appellate court may—
(a) confirm the decision appealed against; or
(b) vary the decision appealed against; or
(c) set aside the decision and substitute another decision; or
(d) set aside the decision appealed against and remit the matter to the court that made the decision.
(2) The decision of the appellate court upon an appeal shall be final and conclusive.”
[18] An appeal under s 168(1) of the Act is by way of rehearing: see GKE v EUT [2014] QDC 248 at [2]-[3]; Jennifer Glover, Separate Representative v Director, Child Protection Litigation & Ors [2016] QChC 16 at [73]. The powers of the appellate court may be exercised only where the appellant can demonstrate that, having regard to all the evidence before the appellate court, the order that is the subject of the appeal is the result of some legal, factual or discretionary error: see Fox v Percy (2003) 214 CLR 118. Section 168(1) is subject to the broad discretion conferred by s 168(2) to order some or all of the evidence be heard afresh, or for further evidence to be relied on: see Glover at [76]. The exercise of the discretion under s 168(2) does not convert the rehearing into a hearing de novo: see Glover at [75] and FY v Department of Child Safety [2009] QCA 67 at [12]-[13]. The circumstances in which s 168(2) applies are not prescribed in the Act. However taking into account the words of s 168 as a whole, in the context of the surrounding provisions relating to the appeal and the Act as a whole including its main objects (see s 3), the interpretation that best achieves the purpose of the Act is that the discretion in s 168(2) is engaged when good reason is shown for there to be an exception made to the rule under s 168(1): see s 14A of the Acts Interpretation Act 1954 (Qld) and R v A2 (2019) 373 ALR 214. A determination as to whether there are good reasons is informed by the common law principles that may apply in a particular appeal, for example, those concerning the reception of fresh or new evidence as articulated in Ratten v The Queen (1974) 131 CLR 510 at 519 and the principles for administering the Act, which in this case include “that the safety, protection and wellbeing of people who fear or experience domestic violence, including children, are paramount.”: see s 4(1) of the Act.
- [4]One other provision of the Act should be mentioned. Section 145 provides that a court hearing an application for a protection order is not bound by the ‘rules of evidence’ or ‘any practices or procedures applying to courts of record’. As well, the court need only be satisfied of a matter on the balance of probabilities.
- [5]In this appeal, the appellant suggested some intention to rely upon evidence that was not before the Magistrate. It is appropriate to say something about the circumstances in which this court might receive evidence when determining an appeal of this kind. As Moynihan QC DCJ observed, the legislation provides that an appeal is to be decided on the evidence and proceedings at first instance. The reception, on an appeal, of evidence that was not before the Magistrate is exceptional. Guidance as to when it is appropriate to receive such evidence may be found in the approach of the common law to ‘fresh’ and ‘new’ evidence. The distinction between fresh and new evidence is important. As McMurdo P stated in R v Spina [2012] QCA 179 at [32]:
Australian appellate courts have long recognised an important distinction between admitting fresh evidence and admitting new evidence. Fresh evidence is evidence which either did not exist at the time of the trial or which could not then with reasonable diligence have been discovered. New or further evidence is evidence on which a party seeks to rely in an appeal which was available at trial or could with reasonable diligence then have been discovered. The distinction between fresh and new evidence is sometimes blurred but it should remain significant for two reasons. The first is because the community has an interest in ensuring that defendants charged with criminal offences ordinarily have only one trial at which they have an opportunity to put forward all the available evidence upon which they rely. It is not in the public interest for defendants to hold back evidence so that, if they are unsuccessful at trial, they can use the withheld evidence to appeal and obtain a new trial. The second reason is that, where there is admissible fresh evidence, it is equally against the public interest for a conviction to stand as the conviction would not be based on all the available relevant evidence.
- [6]While her Honour’s observations related to criminal proceedings, they are apposite here. Parties to any proceeding should generally be held to their conduct at first instance. An appeal by way of rehearing is not to be regarded as an opportunity for a disappointed litigant to try a different approach to the one that failed at first instance. Before a party would be permitted to rely upon new evidence (that is, evidence which was available, or which could have been discovered, at the time of the hearing at first instance), it would usually be necessary for the party to show that the evidence compels the conclusion that the decision at first instance was wrong. In other words, new evidence will only be received where it demonstrates there has been a miscarriage of justice. In the case of fresh evidence, the barrier to admission may be easier to overcome.[1]
The appellant’s submissions
- [7]With these principles in mind, I turn to the appellant’s notice of appeal. The notice begins with, but soon abandons, the usual form for notices of appeal under the Uniform Civil Procedure Rules 1999 (Qld). At the very beginning, the appellant recites:[2]
Take notice without ill will and with just cause that, for [NAME NAME NAME NAME] appeals against the whole of the decision/order* of trading name CS Benson…
- [8]The document is signed in the following manner:
by:[Name]-[Name]-[Name]:[Name], all rights reserved UCC308.
- [9]I take the latter to be a reference to section 308 of the Uniform Commercial Code of the United States of America. This section is intended to permit contracting parties to reserve legal rights. It has no application in Queensland or Australia which – it is trite to observe – are not governed by the statute law of the United States. The appellant’s references, during oral submissions, to the District of Colombia – where he asserts Queensland is registered as a trading corporation – do nothing to persuade me that the Uniform Commercial Code of the United States is of any relevance whatsoever.
- [10]To those who have had even a glancing exposure to the discredited alternative legal theories known as pseudolaw, what I have already mentioned is enough to raise the alarm.
- [11]The notice of appeal continues. Under the heading ‘error of law’, various general statements are made, none of which provide any information about the nature of the error alleged. The hint in the appellant’s writing is that the proceeding and the decision was invalid because he had not entered into a contract and had not consented to the jurisdiction of the court. If those are the appellant’s ideas, they are wrong. The jurisdiction of the Magistrates Court to hear and determine an application for a protection order is one granted by the Parliament of Queensland through legislation. The Parliament is competent to do so and the laws it passes are binding on all persons in this state. It is not necessary that there be a contract or consent before the court could exercise jurisdiction over the appellant.
- [12]Under the next heading, ‘procedural fairness’, the appellant misunderstands the term and sets out allegations of bias on the part of the Magistrate. Having read the transcript of the hearing and the decision of the Magistrate, I am satisfied the Magistrate was perfectly fair to the appellant and there is no merit in his suggestion of bias.
- [13]The next heading, ‘lack of evidence’, repeats the appellant’s wrong-headed assertion about the need for a contract to engage the jurisdiction of the court, but otherwise contains no detail of how or why the evidence is said to be lacking. Again, having read the transcripts, I am satisfied the evidence was sufficient for the findings expressed by the Magistrate, a topic to which I will return. I will also return to the next heading which was ‘new evidence’.
- [14]The fifth heading is ‘unreasonable decision’. Again, the appellant asserts, without particulars, that the Magistrate’s decision was biased and contrary to the evidence. The appellant’s logic seems to proceed from the assumption that he did not commit any of the acts alleged, and which the Magistrate found were proved, therefore the decision must be unreasonable. In this regard, the appellant faces the insuperable obstacle that much of the conduct constituting acts of domestic violence were found in messages he had undoubtedly sent to the second respondent. There is no merit in this complaint.
- [15]The sixth ground, under the heading of ‘bias’, repeats earlier allegations and is also without merit.
- [16]Under the next heading, ‘inadequate reasons’, the appellant asserts that the Magistrate did not provide ‘true reasons’. No particulars are provided, and it again appears the appellant proceeds from the assumption that he did not commit the acts found by the Magistrate to constitute domestic violence. For the reasons already set out, that assumption cannot be shown to be true. Otherwise, the Magistrate’s reasons were detailed and sufficiently explained the basis of her findings.
- [17]The eighth ground is expressed cautiously. Writing under the heading ‘procedural irregularity’, the appellant ventures that the court did not follow the correct procedure – without identifying what the correct procedure was – and faintly suggests there ‘may be grounds for appeal’. The tentative expression of this ground betrays its lack of merit.
- [18]The next ground, ‘change in circumstances’, appears to be related to the ‘new evidence’ ground, which I will discuss shortly.
- [19]The last ground, ‘mistake of fact’, alleges, without any detail, that there were misunderstandings or misrepresentations in the Magistrate’s reasons for the decision. Without the identification of these alleged errors, it is impossible to consider this ground of appeal, though I will return to the topic when dealing with other writings filed by the appellant in which asserted errors are identified.
- [20]The ‘new evidence’ ground is supplemented on page 2 of the notice of appeal by various assertions made by the appellant. There are vague assertions that the second respondent has committed criminal offences or has otherwise misled the court. There is a reference to the possibility of further witnesses or evidence who might shed light on the matter. The principal difficulty for the appellant is that the admission of new or fresh evidence on an appeal of this kind is exceptional. It requires consideration of the principles identified above, and must begin with an understanding of precisely what is the evidence sought to be adduced. The applicant has filed no affidavit setting out that material, and it is impossible, in the circumstances, to consider that ground.
- [21]Before going then to the 46-page document filed by the appellant under the guise of an ‘outline of appeal’, I would note that, at the beginning of the oral hearing this morning, the appellant sought to raise an issue that he described as ‘standing’, concerning the appearance of the Commissioner of the Police as the first respondent to the appeal. The submissions of the appellant are without merit. The Commissioner of the Police has the right to appear pursuant to section 169 of the DFVPA, and that is a whole answer to the matters raised by the appellant.
- [22]The notice of appeal did not suggest the appellant had much prospect of success. His position was not improved by the contents of the 46-page document filed by him as an ‘outline of appeal’. It was a document complete with a postage stamp in the top left corner on the first page.[3] The drafting of the document implies that the appellant subscribes to the so-called strawman argument, and other discredited pseudolegal theories.
- [23]So far as I am able to discern any actual argument in the document, I will deal with it.
- [24]First, the appellant asserts the court had no jurisdiction because section 4 of the Magistrates Court Act 1921 (Qld) was not engaged. The appellant is right about the latter and wrong about the former. That is because the court was exercising the jurisdiction granted to it pursuant to the DFVPA. Section 4 of the Magistrates Court Act 1921 (Qld) was irrelevant. There is no merit in this complaint.
- [25]Next, the appellant writes:
Statement of counsel in brief or in argument are not sufficient for a summary judgment, see Trinsey v Pagliaro.
- [26]I do not know what this means in the context of the hearing or the appeal. Trinsey v Pagliaro[4] was a decision of a United States Federal District Court Judge in Philadelphia in 1964. It stands for the proposition that a court in the United States asked to give summary judgment will not act upon assertions of fact from the bar table. In what appears to be an ex-tempore decision, Judge Wood said:
The defendant’s motion to dismiss … is incomplete because it requests this Court to consider facts outside the record which have not been presented in the form required by [the] Rules. Statements of counsel in their briefs or argument while enlightening to the Court are not sufficient for purposes of granting a motion to dismiss or summary judgment.
- [27]This is an unexceptional proposition, and one which would largely apply in this jurisdiction as well. But it is irrelevant to this appeal where the record contains all that is necessary to decide the matter.
- [28]I am guessing the appellant discovered this case during an internet search, as it appears that the case has some traction among pseudolawyers, who rely upon it to argue that attorneys cannot present facts to a court. The principle in Trinsey v Pagliaro has morphed into the mistaken belief that whenever an attorney refers to a fact – whether proved in evidence or not – it is objectionable. Not only is the pseudolawyers’ understanding of the principle wrong, they often misunderstand the citation and claim it is a decision of the Supreme Court of the United States. It is not, though there may have been an unsuccessful attempt to engage the Supreme Court of the United States who declined to take the case. As an aside, the apparent popularity of this decision in some circles is attested to by the ability to buy a T-shirt with the case and the last sentence above printed upon it.
- [29]Third, the appellant asserts bias again, and again without evidence.
- [30]Next, the appellant deals at length with his asserted errors of fact. These include such weighty and significant matters as the Magistrate stating that the application was ‘brought by police’ when it was actually commenced by a single police officer, or that the appellant ‘represented himself’ when in truth he claims to have appeared as some kind of agent for a separate legal entity. The former is of no legal consequence and the latter is wrong, for reasons that I have already expressed in R v Sweet.[5] A repetition of this claim by the appellant when discussing service of a notice by police is similarly of no assistance to him.
- [31]Apart from one matter, it is unnecessary to give further consideration to the appellant’s claims as to errors of fact. They are either not made out or are of no consequence. But there is one matter to be mentioned which does not favour the appellant in this appeal. In January 2017, the appellant violently assaulted the second respondent. The results of his violence upon her were shown in photographs and evidence at the hearing. The appellant was convicted by a Magistrate and sentenced to imprisonment for 15 months but was released immediately on parole.
- [32]The appellant asserts the Magistrate was wrong to say he had assaulted the second respondent because the ‘[Name]’ sitting in the courtroom was not the trust, or estate, or trading vessel constituted by the name printed on the criminal history, which was written in capital letters. This curious and wrong assertion – another instance of what has been described as the ‘strawman duality’ or ‘strawman argument’ – appears to derive ultimately from a style guide that stipulates that corporations should be named using capital letters.[6] It is wrong in law and does not help the appellant.
- [33]The manner in which his name was printed on the criminal history did not change the fact that he has been found to have committed that offence. His denial during the hearing that he committed the offence was a matter which diminished his credit, to which the Magistrate properly had regard.
- [34]Next, the appellant complains that while the rules of evidence did not apply to the hearing (see section 145 of the DFVPA), he was prevented from cross-examining the second respondent by the same ‘rules of evidence’. This misunderstands the effect of the complementary legislation found in the DFVPA dealing with protected witnesses. The statutory prohibition on the appellant cross-examining the second respondent in section 151 of the DFVPA is not a ‘rule of evidence …applying to courts of record’ for the purposes of section 145 of that Act.
- [35]In this court, the appellant objected to the Magistrate’s reference to his ideas as being similar to those proffered by so-called ‘sovereign citizens’. He complains this was a defamatory slur and he denied identifying as a ‘sovereign citizen’. The only curiosity of the appellant’s position is that it demonstrates a shift in the landscape of pseudolaw. Adherents have come to recognise that the term ‘sovereign citizen’ carries negative connotations, and now go to some length to attempt to disassociate themselves from the term, despite repeating the same tired and discredited ideas long associated with so-called ‘sovereign citizens’.
- [36]The appellant raises an issue concerning the service of a police protection notice. Even if he is right about his claims as to faults in the service, it does not matter. Section 110 of the DFVPA sets out the requirements for service of a police protection notice, but in subsection (4), says, ‘Failure to comply with this section does not invalidate or otherwise affect a police protection notice’.
- [37]There follows a brief diversion via the Fair Trading Act, which is of no relevance.
- [38]Then on page 23 of the writing, the appellant comes to something which might matter, if he were right. He submits that the messages providing evidence of his acts of domestic violence were not admissible. Unfortunately for the appellant, the asserted basis for this proposition misunderstands the common law as it relates to ‘without prejudice’ offers in civil proceedings. The appellant apparently believed that by writing that the messages were private, or sent with rights reserved, they could not be used or admitted in either criminal proceedings or proceedings under the DFVPA. This belief is wrong and the messages were properly available for the Magistrate to consider.
- [39]Of course, no pseudolaw submissions would be complete without a reference to either Magna Carta or the Bill of Rights. The appellant chooses the latter, but it avails him not. The provision he cites was intended to address a supposed abuse by James II in levying fines and forfeitures in a summary matter. When William and Mary were invited to take the throne, they agreed to prohibit such conduct, among many other things listed in the Bill. A prohibition on the levying of such fines without due process – assuming that is the effect of the Bill of Rights in Queensland, which is a very questionable proposition – is irrelevant to this appeal. In any event, if there is any inconsistency between the Bill and Queensland legislation, it is within the legislative competency of the Parliament to repeal the effect of the Bill.[7]
- [40]Much of what I have set out above is wrong or misguided, but with a little effort, can be understood. There remains, however, parts of the appellant’s writings that defy comprehension.
- [41]First, there is the assertion that:
Cameron Dick issued a 10 billion global note, note, 13th January 2023 to trade on the Luxembourg Stock Exchange via the Deutsche Bank and with in cahoots with of big banks listed in the note.
- [42]I do not know what this means, or how it is relevant, and I was unable to understand the submissions directed by the appellant toward that topic.
- [43]Next, there are a series of disconnected assertions which, taken together, produce a claim that the appellant is to be paid some $28 million, being $5.7 million for each year that the protection order will be in place. This is based on the combination of a “fee schedule”, the United States Commercial Code, and what is said to be a ‘Calderbank’ offer (though Calderbank is spelt ‘Caulderbank'). Presumably, the appellant means Calderbank v Calderbank[8]. While reference to this case might indicate an intriguing combination of real law and pseudolaw, the decision of the English Court of Appeal in a case about costs is not relevant here. Otherwise, the idea that the appellant might be entitled to $28 million as a result of this proceeding, much less that I have the power to order it, is so disconnected from reality as to be concerning.
- [44]I cannot leave the appellant’s writings without noticing his apparent response to my dismissal of the strawman argument in R v Sweet. Having quoted my conclusion that a ‘human being is also a legal person’, the appellant goes on to write:
- Human is not man
- Human means as defined: see Monster
- Monster means: Person is like a Human being defined as “Monster” would be type of animal/beast thing, res, that cannot own property
- Hu-man is sort of Shade or colour of man, a hue, and Human is a law merchant type term imposition presumption as a legal person, legal fiction, in a legal setting of legal proceedings, are not lay terms.
- [45]The appellant proceeds to assert, I think, that the DFVPA is part of the ‘merchant law’ as distinct from admiralty law but does not explain why that is so or why that matters.
- [46]None of this is in any way a rebuttal of my reasoning in R v Sweet which, in my view, remains an entire answer to the spurious suggestions of people like the appellant that they are possessed of distinct natural and legal personalities.
- [47]Finally, I would note that the Magistrate’s careful, detailed and correct analysis of the messages sent by the appellant show why he committed acts of domestic violence. Having reached that conclusion in this case, it was practically inevitable that the Magistrate would find a protection order was necessary and desirable.
- [48]The appellant has failed to show any error. The appeal he has brought is vexatious and a waste of the time of the respondents and the court.
- [49]In my preliminary view, there should be an order for costs in favour of the first respondent who has appeared by legal representative today, to compensate the first respondent for the unnecessary expenditure in answering this pointless appeal.
- [50]I will hear the parties as to costs.
- [51]…
- [52]I make an order in terms of the draft, which will be that the appeal filed on the 11th of December is dismissed, and that the appellant is to pay the costs of the Queensland Police Service on the standard basis and on the District Court scale. I have initialled a draft with those orders which I will place with the papers.
Footnotes
[1]See R v Hodges [2018] QCA 92; [2019] 1 Qd R 172, [21].
[2]In order to preserve the anonymity of the appellant and second respondent, consistent with section 159(1) of the DFVPA, I have redacted the names used by the appellant.
[3]See Donald Netolitzky, ‘Organised pseudolegal arguments as magic and ceremony’ (2018) 55(4) Alberta Law Review 1045.
[4]229 F. Supp. 647 (E.D. Pa. 1964).
[5][2021] QDC 216 (‘R v Sweet’).
[6]Chicago Manual of Style, 16th ed., at 16.89.
[7]See Carnes v Essenberg [1999] QCA 339.
[8][1976] Fam 93; [1975] 3 All ER 333; [1975] 3 WLR 586.