Jakaj v Kinnane [2019] ACTSC 71

The applicant was convicted of using a mobile phone while driving a motor vehicle. He had a right of appeal from the orders made by the ACT Magistrates Court but he did not seek to exercise that right, and instead sought judicial review of the Magistrate’s decision in Jakaj v Kinnane [2019] ACTSC 71. There were numerous grounds, including lack of procedural fairness, as he claimed that he felt the magistrate ‘blocked’ him when he was attempting to put his oral arguments challenging the jurisdiction of the court, and that the magistrate proceeded to deal with the matter on the merits without acknowledging that there was ‘an estoppel’ in place, due to the attempted foisted contract, and its “notice of default”.

The plaintiff claimed that he was there ‘under duress’, because he did not consent to the jurisdiction of the court. He expressly declined to enter any plea in the court until his complaints about jurisdiction had been properly addressed.  The magistrate entered a plea of not guilty on his behalf, which he claimed was unlawful. The court referred to section 282 of the Crimes Act 1900 (ACT) gives a magistrate power to enter a not guilty plea on behalf of a defendant.

The plaintiff took issue with the fact that the oath of office of the magistrates does not refer to bearing allegiance to Queen Elizabeth II, submitting that this was inconsistent with the requirements of clause 5 of the Constitution, and the oath contained in the schedule. The court pointed out that the only reference to the schedule in the Constitution is in section 42, and it only applies to members of the House of Representatives and senators, whereas the power to make laws for the peace, order and good government of the Territory in section 22 of the Australian Capital Territory (Self-Government) Act 1988 (Cth) includes the power to legislate the terms of the oath to be sworn by magistrates holding judicial office in the Territory. The court noted a similar argument was raised in Palmer v City of Gosnells [2013] WASC 446 (at 113) and in Glew v Shire of Greenough [2006] WASCA 260 (at 18), where it was held that there was no constitutional prohibition upon the alteration of terminology which refers to the Crown or to Her Majesty, and even if there was a defect in the oath, it would be protected by the de facto officer doctrine, citing Makucha v Sydney Water Corporation [2013] NSWCA 177 per Barrett JA (at 16-21).

The plaintiff also argued that the proceeding should have been brought in the name of the Crown, instead of by a police informant, and the proceedings were therefore not competently commenced, to which the court responded the applicable legislation did not require the proceedings to be brought in the name of the Crown.

The plaintiff sought a certified copy of the original certificate of proclamation for the legislation relied upon by the prosecution to found the charge. It also sought certified copies of any act, enabling act, instrument, bill or legislation assented to,  to which the court responded that under section 143 of the Evidence Act 2011 (ACT), proof is not required about the provisions and coming into operation of an Act of the Territory, a Commonwealth Act or a regulation or rule made under an Act, and a judge may inform themselves about those matters in any way the judge thinks fit.

There were arguments that the Australian Road Rules as applied in the Territory either did not apply to him (because they do not specify that they apply to subjects of the Queen) or were inconsistent with section 117 of the Constitution, which were held to be without merit.

Only one of the numerous complaints raised by the plaintiff had been substantiated, which did not warrant the court to exercise its discretion to grant relief, and accordingly, the application for judicial review was dismissed.

Click to access jakaj-v-kinnane-2019-actsc-71.pdf

In Jakaj v Kinnane [2020] ACTCA 19 the applicant filed a Notice of Appeal from this decision, seeking 23 “coram judice orders”, including certain declarations, undertakings and orders to produce evidence, preliminary to an ongoing appeal. The submissions included the premise that the magistrates and judges were “coram non judice”. to which the court responded:

“At a preliminary level, I make two comments. According to the Butterworth’s Australian Legal Dictionary, 1997 edition, the Latin phrase “coram judice” means “before a judge”; unsurprisingly, “coram non judice” means “not before a judge”. It is tolerably clear that in those orders where the applicant seeks a “coram judice order”, he is seeking an order compelling the court or judicial officer to which the order is directed to produce evidence that they had jurisdiction to hear or otherwise deal with the charges against him.”

The applicant sought declarations including “a coram judice order that will be validated by the signatures of the judges and which will bear the coat of arms that the Court is executing judgment under”; that the court is a Chapter III court, that the participating judges have not “taken oaths with explicit reference to Her Majesty Queen Elizabeth ll under the Crown of the United Kingdom as required under Section 42 of the Commonwealth of Australia Constitution Act 1900 UK..” that the applicant is  “loyal subject of Her Majesty Queen Elizabeth ll under the Crown of the United Kingdom within the protection of the Commonwealth of Australia Constitution Act 1900 UK were exposed to a coram non judice ‘court’ that it would be evidence of an attempt to pervert the course of justice and/or be evidence of an attempt to pervert the judicial power” and many others.

The application was dismissed as the applicant failed to identify any power which may be exercised by the ACT Court of Appeal to make the orders sought, and it is inappropriate to make the orders sought in advance of the hearing of the appeal.

Click to access jakaj-v-kinnane-2020-actca-19.pdf

This judicial review was appealed in Jakaj v Kinnane (No 2) [2020] ACTCA 28, but the judges could find no error in either the judicial review of the primary magistrates decisions, and the appeal was dismissed. The court concluded with the recent remarks by Harrison J in the Supreme Court of New South Wales in Flowers v State of New South Wales [2020] NSWSC 526 (at 19). and noted that not all, but a large part of his Honour’s observations are applicable here:

“Finally I should note that Mr Flowers has appeared throughout in these proceedings without legal advice or assistance or representation. The courts necessarily extend significant latitude to people in his position in order that indolence or suspicion or even choice should not frustrate the prospect of securing the protection of the law and the vindication of a right or access to justice. However, Mr Flowers is not alone in craving his day in court. The resources of this Court and others like it are finite and delays are often unavoidable despite the best efforts of all concerned. Mr Flowers wants his case heard and the State of New South Wales evidently shares his view. In such circumstances it is very important that Mr Flowers not become diverted by unhelpful voices chattering on the sidelines or by loud drums being beaten by folk with unhelpful agendas that are inevitably destined to frustrate his progress before eventually discarding him and moving on to their next target. There must necessarily be a limit to the amount of valuable court time Mr Flowers (or anyone like him) can be permitted to dedicate to silly arguments or confected obsessions that clog the court and waste everybody’s time without advancing his case.”

Click to access jakaj-v-kinnane-no-2-2020-actca-28.pdf

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