Nikolajuk v Commissioner of Police
[2024] QDC 96
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- Nikolajuk v Commissioner of Police[2024] QDC 96
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Nikolajuk v Commissioner of Police[2024] QDC 96
Nikolajuk v Commissioner of Police[2024] QDC 96
DISTRICT COURT OF QUEENSLAND
CITATION: | Nikolajuk v Commissioner of Police [2024] QDC 96 |
PARTIES: | JERZY NIKOLAJUK (Appellant) v COMMISSIONER OF POLICE (Respondent) |
FILE NO: | 788/24 |
DIVISION: | Criminal |
PROCEEDING: | Appeal |
ORIGINATING COURT: | Magistrates Court at Pine Rivers |
DELIVERED ON: | 15 July 2024 (ex tempore) |
DELIVERED AT: | Brisbane |
HEARING DATE: | 15 July 2024 |
JUDGE: | Allen KC DCJ |
RULINGS: |
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CATCHWORDS: | CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – where the appellant was convicted of exceeding the speed limit after a trial in the Magistrates Court – where the appellant appealed against conviction pursuant to s 222 of the Justices Act 1886 (Qld) – where at first instance and on appeal the self-represented appellant made nonsensical pseudolegal submissions totally devoid of merit – where at first instance and on appeal the self-represented appellant made no submissions directed towards the merits of any defence – whether upon rehearing the guilt of the appellant was proved beyond reasonable doubt Legislation Judiciary Act 1903 (Cth), s 78B Justices Act 1886 (Qld), s 222 Transport Operations (Road Use Management) Act 1995 (Qld), s 124 Transport Operations (Road Use Management – Road Rules) Regulation 2009 (Qld), s 20 Cases House v. The King (1936) 55 CLR 499 Knight v Queensland Police Service [2013] QDC 146 NNRM v The Commissioner of Police & Anor [2024] QDC 64 Ponnambalam v The State of Western Australia [2013] WASCA 101 R v Frame [2009] QCA 9 R v Sweet [2021] QDC 216 |
APPEARANCES: | Appellant self-represented A Worthington, Office of the Director of Public Prosecutions (Qld). for the respondent |
- [1]On 7 March 2024, the appellant was convicted in the Magistrates Court at Pine Rivers of an offence of disobeying a speed limit on 21 June 2023, contrary to section 20 of the Transport Operations (Road Use Management – Road Rules) Regulation 2009. The appellant was fined $1300. No conviction was recorded.
- [2]The appellant has appealed against his conviction pursuant to section 222 of the Justices Act 1886. An appeal pursuant to section 222 of the Justices Act 1886 is an appeal by way of rehearing. An appellate court hearing an appeal by way of a rehearing must conduct a real review of the evidence and make up its own mind about the case having regard to the evidence led in the Magistrates Court and determining for itself the facts of the case and the legal consequences that follow from such findings of fact.
- [3]I have available to me a transcript of the proceedings in the Magistrates Court on 7 March 2024 and a copy of all the exhibits admitted during the course of the trial. I have reviewed all that material.
- [4]At the commencement of the trial, the defendant declined to enter a plea of guilty or not guilty, but stated that he did not commit the crime. Accordingly, the learned Magistrate proceeded on the basis that the defendant was pleading not guilty. After having rejected an opening submission by the self-represented defendant that the police had no authority to charge him with any offence, the learned Magistrate offered the defendant an adjournment to consider his position or obtain legal advice. The defendant declined such opportunity. The defendant instead made further submissions why the Magistrates Court lacked jurisdiction over him and submitted that there was a constitutional matter that required notice to the Attorneys-General pursuant to section 78B of the Judiciary Act 1903 (Cth). The defendant submitted that the fact that the police and court documents capitalised his name had some significance and made some submissions along the lines of the “strawman” theory often presented by pseudolegal litigants.
- [5]The learned Magistrate explained the procedure that would occur during the course of the trial in accordance with those requirements stated by Judge Smith in Knight v Queensland Police Service [2013] QDC 146 at [15].
- [6]There was one witness called for the prosecution. Senior Constable Aiden Lambert gave evidence that he was rostered to perform traffic enforcement duties on a marked police motorcycle on 21 June 2023. He utilised a LiDAR speed detection device to conduct speed enforcement on Eatons Crossing Road, Eatons Hill at the intersection of Apex Grove. The area in question was subject to a signed 60-kilometre speed zone. At about midday, he targeted the rear number plate of a silver Mercedes four-wheel drive heading in a westbound direction apparently in excess of 60 kilometres per hour. He recorded speeds varying from 80 kilometres per hour to 95 kilometres per hour. He then proceeded to intercept the vehicle and had a conversation with the defendant. The defendant identified himself and produced a Queensland driver’s licence in his name. A photograph of such licence was admitted as an exhibit during the trial. The defendant did not provide any sufficient lawful or emergent reason for exceeding the speed limit and was issued with a traffic infringement notice for the speed of 95 kilometres per hour in a 60-kilometre per hour speed zone.
- [7]Senior Constable Lambert gave evidence that, prior to commencing his enforcement duties on that day, he conducted a series of checks on the speed detection device to ensure that it was working in accordance with the manufacturer’s specification and Australian Standards and then at the end of his shift, conducted the same checks to ensure it was working in accordance with those same specifications. Certificates confirming such matters were admitted as exhibits pursuant to section 124(1) of the Transport Operations (Road Use Management) Act 1995. Also admitted as exhibits were photographs of the recalled events on the screen of the speed detection device, confirming the speeds testified to by the witness. The learned magistrate also viewed body-worn camera footage of the events recorded by the witness.
- [8]The defendant’s cross-examination of the witness was as to irrelevant matters and did not go to the merits of the case. There was no challenge to the evidence of the police officer as to relevant facts.
- [9]The defendant chose not to give evidence and addressed the learned Magistrate as to the same matters which are the subject of his grounds of appeal to this Court. His submissions did not go to the merits of the matter.
- [10]The learned Magistrate gave detailed reasons why he found the charge proved beyond a reasonable doubt.
- [11]The arguments advanced by the defendant, both at first instance and on appeal, are typical of a particular type of pseudolaw commonly presented to the courts by unqualified persons. Although the defendant disavows the label “sovereign citizen”[1] and reliance upon the “strawman” theory, his submissions are such that are commonly presented by persons identifying as adherence to “sovereign citizen” ideas, including assertions along the lines of the strawman argument often presented by such litigants.[2]
- [12]The notice of appeal sets out grounds of appeal, which will be dealt with shortly. The appellant has also filed extensive written submissions by way of an outline of argument numbering more than 60 pages and an addendum outline of submissions numbering 22 pages. I have had regard to all the contents of that material as well as some further documents that were admitted as an exhibit on the appeal. The appellant has also made extensive oral submissions repetitive of those matters in his written material. I will deal with the grounds of appeal in order.
- [13]1. The decision-maker man acting as Magistrate Lance Randale acting in his foreign jurisdiction, did not have the authority or proper jurisdiction to make the decision to enter plea, run the case using his own opinions and convict and enter the order. The decision-maker man acting as Magistrate Lance Rundle breached the rules of natural justice. There is no discretion to ignore lack of jurisdiction.
- As already noted, upon the refusal of the appellant to enter a plea of guilty or not guilty, it was quite proper for the learned Magistrate to proceed on the basis that the appellant was pleading not guilty to the offence. The Magistrate was quite entitled to find on the evidence placed before him that the charge was proved beyond reasonable doubt. He did not lack any authority or jurisdiction to hear and determine the charge, which was properly within the jurisdiction of the Magistrates Court. The learned Magistrate was at pains to explain the procedure and applicable law to the appellant and offered him opportunities for an adjournment to seek legal advice. There was no denial of procedural fairness. This ground of appeal is not made out.
- [14]2. The decision-maker man acting as Magistrate Lance Randale involved an improper use of power and committed Treason by siting (sic) in Magistrate Court with wrong linage (sic) of Authority pretending that he is the Officer of the lawful Crown working for foreign governments and political subdivisions of AUSTRALIA, Registered Corporations Washington DC and held to Uniform Commercial Code of United States District of Columbia.
- The ground of appeal need only be stated to demonstrate that it is utter nonsense, and no further time of this Court will be spent in dealing with it.
- [15]3. The decision-maker man acting as Magistrate Lance Randale committed Violation of the Rights recognised in international treaties. An implied limit on executive processes. International Treaty is cited here as a defence. Declaration of Independence and self determination is attached to this Document as exhibit 1
- This ground of appeal, as with the others, is further developed in the material filed by the appellant and in his oral submissions. It is entirely without merit and deserves no further consideration.
- [16]4. Where a court failed to observe safeguards, it amounts to denial of due process of law, Magistrate Lance Randale in his court is deprived of juris.
- I have already rejected an allegation of a denial of procedural fairness and the submission that the Magistrates Court lacked jurisdiction. This ground of appeal is without merit.
- [17]5. A decision or judgment rendered by a court without personal jurisdiction is void. It is a nullity. The court cannot confer jurisdiction where none existed and cannot make a void proceeding valid. It is clear and well-established law that a void order can be challenged in any court.
- This ground of appeal adds nothing further to the submissions that the Court lacked jurisdiction to hear the charge and deserves no further consideration.
- [18]6. Refusing to consider and rule on my 4 motions, that is qualified as gross misconduct in public office and due process violation.
- This ground of appeal refers to four documents that were admitted as exhibits during the course of the trial and were, as stated by the learned Magistrate, considered by him. They consisted of untenable pseudolegal contentions which were bound to be rejected by a Court, and the lack of any formal ruling upon them is quite understandable. It certainly does not amount to any error by the Magistrate and certainly does not amount to misconduct in public office or “due process violation”.
- [19]7. The decision was in some other way unlawful. All this giving rise to an apprehension of bias;
- Magistrate refused to accept any evidence from me. I ask man acting as Magistrate Patrick Murphy and on second visit Magistrate John Costanzo then on mt (sic) third visit Magistrate Annette Hennessy and Magistrate Lance Randale to consider my 4 Motions and rule up on them. They did not do that. (all motions and documents are in Magistrate files) The obligation of the Magistrates will, in some cases, include informing the accused of the operation of Evidence and the right of the accused to request a direction on evidence that may be unreliable. Helping the Police Prosecution by allowing them not to produce most vital evidence I ask for. I needed any information that is necessary to ensure a fair trial, I was dented (sic) this on my 4 visits in Pine Rivers Court.
- The Magistrate informed the defendant of his right to give or call evidence. The appellant declined that opportunity. As to appearances before prior Magistrates, none of the events on those earlier hearings are relevant to an appeal against the conviction. I have already noted, in considering ground 6, the assertion that the learned trial Magistrate was required to rule upon such motions. As earlier stated, the learned trial Magistrate did inform the accused of such matters necessary to ensure that he was adequately informed of his rights. It is apparent from a perusal of the record that the assertion of apprehended bias is groundless.
- [20]8. Magistrate Lance Randale refused to consider Judiciary Act 1903 – Sect 78B on 7nd March 2024. I rise quiet (sic) number of times Constitutional challenge and Mr, Lance Randale compliantly disregarded this with silence (3 times) instead Mr, Lance Randle want to talk about Straw-man theory whatever that is, another opinion he want to hold to derail justice further and further giving prosecution more cover for they (sic) lack of Lawful Authority under the Crown. That is Due process violation.
- A constitutional issue does not arise for the purposes of section 78B of the Judiciary Act 1903 (Cth) merely because a party asserts that it does. If the alleged “constitutional issue” is unarguable, there is in truth no constitutional issue at all.[3] There was, in fact, no arguable constitutional matter requiring any notice pursuant to section 78B of the Judiciary Act 1903 (Cth), and no error was demonstrated by the Magistrate continuing to hear and determine the charge without offering the appellant a further opportunity of an adjournment for that purpose. The other assertions in this ground of appeal as to lack of authority of the police to prosecute the appellant have already been dealt with in dealing with the earlier grounds.
- [21]In oral submissions, the appellant further submitted that the learned trial Magistrate was biased and assisting the prosecution. A perusal of the record demonstrates that there is no basis for such an assertion.
- [22]The appellant complains about the effects of appearances before the Magistrates Court upon his health because of a spinal injury. Such submission is irrelevant to the merits of the appeal.
- [23]The appellant continues to assert, as in his written material, that he is not bound by any statutory law because all statutory law is invalid. Such argument is so clearly untenable and contrary to longstanding authority that it does not require further elucidation.
- [24]Likewise, the appellant’s assertion that he is not to be held responsible for any actions as a driver of a motor vehicle unless he injures another person is clearly untenable.
- [25]The submissions by the appellant regarding the significance of capitalisation of his name in police and court documents are irrelevant to the merits of the appeal.
- [26]None of the submissions by the appellant, either in writing or orally, address the merits of his conviction of the offence.
- [27]I have made a review of the evidence before the Magistrates Court. It appears to me that there was no reasonable conclusion open to the learned Magistrate other than that the charge was proved beyond a reasonable doubt.
- [28]Upon a review of the evidence, I am also satisfied that the charge is proved beyond a reasonable doubt.
- [29]The appellant has not established any error of fact or law by the learned Magistrate.
Footnotes
[1]Consistent with a “shift in the landscape of pseudolaw” noted by Cash KC DCJ in NNRM v The Commissioner of Police & Anor [2024] QDC 64 at [35].
[2]See Young, Hobbs and McIntyre, “The growth of pseudolaw and sovereign citizens in Aotearoa New Zealand courts” [2023] NZLJ 6; “A Kind of Magic: The Origins and Culture of ‘Pseudolaw’”, a paper delivered to the Queensland Magistrates’ State Conference 2022 on 26 May 2022 by Cash KC DCJ; R v Sweet [2021] QDC 216.
[3]Ponnambalam v The State of Western Australia [2013] WASCA 101 at [10].