Porter v Kelly [2024] WASC 282

We have a serious problem in Western Australia (and every other state and territory in the Commonwealth) and the sooner “We the People” start to wake up to this, the better.

It all boils down to this simple fact – there is no separation of power between the parliament, the police and the judiciary!

The politicians in parliament make the rules, the police enforce the rules made by the politicians in parliament and the judiciary are the gatekeepers to ensure these rules created by the politicians are adhered to. They all work strategically together to maintain a system that control ‘we the people!’.

COMPLY OR SUFFER THE CONSEQUENCES!

I recently ‘appeared’ in the Supreme Court as a respondent (for a change). The department of transport appealed a decision made by Magistrate Oliver where Dawn Michelle Kelly was acquitted in the Magistrates Court – PE3280 of 2023.

The Department of Transport was successful and their appeal was granted! A year and a half later I find myself back in the magistrates court defending a claim made by the Department of Transport that I did not pay a licence or registration, when I actually did! Trial number 2… Watch this space!

Transcript SC/CIV/PE/SJA 1002 of 2024 – Page 18 – 27

KELLY, MS: The Supreme Court should not grant leave for the appeal to overturn Magistrate Oliver’s decision of acquittal in PE3280 of 2023. The learned magistrate did not err in law finding that the respondent had not – had not a case to answer. The appellant’s points for leave of appeal – sorry, the respondent’s submissions are Department of Transport could not prove beyond reasonable doubt the averments of facts of the certificate of evidence by Monica Lewis without the cross-examination of a witness-in-chief.

The Department of Transport may establish the elements of the offence, the elements being physical and fault elements pursuant to the Criminal Code to prove beyond a reasonable doubt. Now, there has to be a reasonable doubt as a standard of proof. A person charged with a criminal offence, guilt is established on evidence proving the charge was perpetrated by the accused. Reasonable doubt falls on the evidence and the burden of proof lies with the prosecution to establish beyond reasonable doubt that the evidence against the charge substantiates proof of the required level that the prosecution is correct against the accused.

A higher standard is placed on any evidence placed at trial to adduce the evidence of the alleged offence to have been committed by the accused. On the balance of probabilities beyond a reasonable doubt, the evidentiary paperwork alone, being a certificate of evidence, did not establish the appellant’s case against the accused.

So the physical element is the paper, the certificate of evidence. The fault element is what is written on the paper. The certificate of evidence states the offence but does not prove the offence. It is an alleged offence against the accused on paper alone. The particulars of the notice within the certificate of the evidence does not prove anything beyond an averment, as the magistrate stated. Doubt prevailed, and the verdict stood, resulting in the acquittal.

The prosecution could not prove beyond reasonable doubt that the certificate of evidence – that the respondent did not make a payment due to the Department of Transport for the transfer of licence and duty and tax. Without a witness to cross-examine, a certificate of evidence is an averment of a fact, hearsay evidence that is inadmissible in a criminal trial pursuant to section 59 of the Evidence Act, Commonwealth, as a standalone affirmation.

The Department of Transport proceeded as if this were a criminal trial, and as pursuant to the transcript the – her Honour said:

“The burden of proof of the charge against you rests with the department. They must prove each of the elements beyond a reasonable doubt because you have the right to silence. You cannot be compelled to give evidence at trial and no adverse inference can be drawn against you, and you can – if you choose not to give evidence.”

Now, it was very clear in this matter that Ms Valu [sic] was relying upon the accused to give evidence, when we had the right to remain silent.
So her Honour said my – the accused:
Will there be any witnesses today?

Her Honour said:
“Yes, I imagine the prosecution will call witnesses. There is no other way that they can get evidence in”.
And Ms Veloo stated:
“Well, a certificate of evidence is what we rely on, your Honour. No actual witness”.
So the accused:
“Who would I question then?”
Well, that’s a very good question – says her Honour. I feel like it’s a storybook. Sorry. I’m composing myself. I do apologise. (I was laughing at this point!!!)

MUSIKANTH J: That’s all right. I have read the transcript and the exchange which you – – –

KELLY, MS: Okay. But for the purpose of the gallery who haven’t – – –
MUSIKANTH J: Yes. You only have to address me.

KELLY, MS: Okay. I’m addressing – yes. So the person – so Ms Valu [sic] said the section 110 is what allows us – they rely on it. That certificate – the certificate of evidence not averments stated by her Honour. So, effectively, her Honour said:
“What you are trying to do is state a whole series of facts that you would rely upon to prove your case as an averment taken to be proven, a certificate of evidence in this context for the purpose of providing the vehicle was registered or was not registered, and who the registered holder of the vehicle licence was, for example. It is not so that you can just state every fact that you say is relevant to the matter based on somebody – this person, Monica Lewis. Presumably looking at the records and making these statements up – of facts.
So – and Ms Value [sic] stated:
“There is no authority. They could not find an authority:
I have been told historically this is how we have been able to rely on a certificate of evidence and this court has always accepted it.”

Now, her Honour stated again:
“This matter in – with notices are posted, that it is a – it is required to be explained by a witness. So as we were – proceeded criminally, the – the sentence of a criminal trial does apply. It needs to apply for fairness at law.
The prosecution could not prove that a payment of duty, 110, and the registration of $200 in relation to the Holden Combo van was not made within the 28 day period. The full amount was paid in good faith and clean hands, demanded by the Department of Transport.

Page 51 of the discovery document supplied by Bhavani Valu [sic]prove that the Department of Transport had received a money order on 1 August 2022, an Australian money order, a true bill of exchange, legal tender dated and stamped 1 August 2022, was posted to the Department of Transport and was accepted, then returned with the form to Dawn Michelle Kelly. And the Australian money order evidenced in discovery documents sent by the Department of Transport’s lawyer in relation to the Holden Combo van that we privately purchased. This rendering any purported notice sent to the Department of Transport regarding this matter defective, null and void.

A certificate of evidence provided by Monica Lewis does not have firsthand knowledge of the relevant facts in this matter, and cannot be relied upon as standalone evidence in criminal prosecution. A witness must be presented to be cross-examined and to give evidence-in-chief. So there is – so her Honour:

So, effectively, what you’re trying to do is state a whole series of facts that you would rely upon to prove your case as an averment is taken to be proven.

Her Honour – this person, Monica Lewis, presumably looking at the records making up these statements of facts, your Honour. Section 110, subsection (5) of the Road Traffic (Administration) Act provides – yes, but her Honour was saying that:

You don’t get to (5) until you satisfy (3), according to the Evidence Act.
So – and also her Honour brought up a valid point, how do – how does – how does she know that these – these facts have not been altered. And they did in fact reject legal tender. You see my – you have seen the postal order.
Magistrate did not err in law in finding that there was no evidence that the facts specified in the certificate of evidence were facts that appeared in or were derived from the vehicle licence register maintained under section 14 of the Vehicles Act. And she – I would like to draw attention to her Honour’s findings:

The broadness of the term “records” is therefore restricted for the purposes of section 110 subsection (1) to only those records kept under road law. For the purposes of subsection 110 subsection (1) it does not extend to any other business record kept by the CEO or the commissioner in the course of conducting their business.

She has reviewed the Act and – the Administration Act being the two Acts of relevant in this particular case, and have not identified any reference to a requirement of the CEO or the Commissioner to maintain any records in those Acts, other than a record of vehicle licences under section 14 of the Act. A broader review of the legislation forming part of the road law (indistinct) reveals that the road traffic authorisation to drive creates an obligation to maintain a driver’s vehicle register in section 4 and a demerit point register in section 40.

The Department of Transport proceeds on section – on a section of the Act prosecutorial. Now, a failure to apply for a transfer of a vehicle within 28 days after the issue of a notice under section 10 subsection (3)(b) of the Road Traffic (Vehicles) Act 2012, Department of Transport’s paper case relies solely on the interpretation of section 110 subsection (2) of the Road Traffic (Administration) Act to prosecute. The accused is prosecuted at trial criminally stating (1)(d) that – in their submissions that:

Accordingly, the evidence as tendered by the prosecution was capable of establishing the elements of the offence beyond reasonable doubt.
Now, the department relied only on the certificate of evidence to prove their case and did not prove physical and fault elements beyond a reasonable doubt.

The Department of Transport was required, as ordered by the magistrate, to provide a witness that, in cross-examination, can be questioned on the physical and fault elements of the allegation. An inference drawn can be made you cannot cross-examine a bit of paper. The prosecution’s of modus operandi is to make an averment of facts by providing a piece of paper, certificate of evidence, not to be questioned. The prosecution suggests that the accused be called to the stand to support the prosecution’s case wholly, as per the transcript. The accused avails the rights to remain silent and cannot be forced by prosecution to the stand. Burden of proof rests with the prosecutor to prove their case pursuant to the rules of a fair trial.
The prosecutor’s evidence must stand alone without assistance of the accused in support to prove beyond reasonable doubt. The evidence substantiates the prosecution charge. And, as stated, that would be so – Ms Valu [sic]:
That would be produced during the – – –
By who?
By the prosecution during – – –
Who?

– – cross-examination.
Which witness?
And Ms Valu [sic] states that:
When Ms Kelly – as she was expecting me to take the stand:
Don’t have a witness, do you? You have this page.
So that’s what your – her Honour stated.

The magistrate did not err at law or erred in judgment. The Justice of the Supreme Court consider all evidence in relation to the certificate of evidence against the witness to verify, not just solely on a certificate standing alone. Department of Transport claim that they do not need to present a witness during a purported criminal trial to verify their claim. Information was omitted from the certificate of evidence that would impact the department’s claim of events. It must be taken into consideration whether or not the department has incentive to omit evidence from the certificate of evidence pursuant to section 79F of the Evidence Act.

Monica Lewis’ certificate of evidence is a statement derived from reading information off a screen to create a certificate of evidence. Monica Lewis does not have firsthand knowledge of the woman, Dawn Michelle, executed trustee of the Dawn Michelle Kelly Estate Trust. We have never met her nor the Department of Transport data entry employee who typed in the information into the computer to record the event. Important information is missing from the certificate of evidence.

The department’s expedient and cost-effective interpretation of the Act serves only to benefit the department’s profit margin, and is not in line with the public’s best interests of a fair trial. The department should not continue prosecuting under the merits of the certificate without the ability to cross-examine a witness against the certificate of evidence, as the learned magistrate ruled.

And the accused, in the transcript, states they rejected legal tender. So a postal order was sent in and they sent it back. So that’s not my problem, if they are choosing not to accept legal tender, and that’s their policies. So as – you know, we are referring to specific case law. You know, we cite Supreme Court ruling Penhallow v Doane’s Administrators. We also cite Neale v Cruden:

Every man is independent of all laws except those prescribed by nature. He is not bound to any institution formed by his fellow men without consent.

We were actually forced to pay this, otherwise there would be consequences to us, so under duress we paid. And even though we did pay, there is still – there is still problems. They – they still prosecute. Agents of Peter Woronzow, the CEO of the Department of Transport, used the court as the stepping stone to initiate the prosecution unnecessarily in litigation. It is the abuse of power and failure to withdraw.

Lawful and reasonable attempts were made to settle this matter out of court by way of three legal notices and an estoppel. Notices were sent on 22 October 2022, 8 December 2022, 17 December 2022 and on 31 December 2022. They received – and they have – came back – they have come back date-stamped 6 December 2023. An irrevocable estoppel to cease and desist final demand payment of transfer of licence, not negotiable, was received by the Department of Transport on 6 January.

Furthermore, on 22 November 2022, a notice of copyright was sent, and received by the Department of Transport. This information was confirmed in the court of discovery document sent to the Department of Transport lawyer, Ms Valu [sic], as part of the legal proceedings. Three attempts were made – was offered to the Department of the Transport to prove their case, and ultimately failed against the respondent’s verdict of acquittal delivered.
The magistrate’s grace to allow the department was lenient. When considered against the burden placed upon the respondent’s defence to answer in continuance of litigation, we are now – this has been a year and a half. And we actually paid it. We attended Perth Magistrates Court four times regarding the prosecution initiated by Department of Transport on 28 March 2022, 5 July 2023, 29 August 2022, and 15 December 2022. And now here we are in the Supreme Court.

As we say in – in the transcript on page 2:
We answer to that name out of necessity under duress, reserving all our rights.

The Department of Transport – and also I would like to highlight the lengthiness of this. So on the transcript, page 17, her Honour states:
Okay. So as I indicated, in my view, that the legislation is not designed to be used in the way the prosecution is using it. But I need to give some consideration to that. And as it has obliviously been flagged, the department want me to give them a lesson in the law about why things can be tendered in that way or not – so that they can appeal me, no doubt, which they did.

So the magistrate did not err at law, and did not err in judgment. Again, proceeding in a criminal matter, the standard rules of a criminal trial need to be upheld if that’s what they’re calling it. The Department of Transport requested that the learned magistrate give them a lesson in the law – magistrates’ words:

…at the expense of the respondent in this matter.
At the request of Bhavani Valu, the magistrate’s decision to teach to the department they cannot rely solely on a certificate of evidence in a criminal trial was in the interests of judicial fairness. The department’s prosecution practices of solely relying on a certificate of evidence – although we nor the learned magistrate were not happy with the pathway, it is clear that the department’s legal team need clarification on this issue, asking for assistance.

Administrative error, breach in – breach – to breach natural justice, improper exercise of power by the CEO of the Department of Transport to continue the prosecution rather than withdraw through lack of evidence. Deceptive and misleading prosecution adopted by the Department of Transport’s prosecution, and then Perth Magistrates Court.

Misrepresentation of parties under the guise of a criminal prosecution by the West Australian Police. We were unable to – they were unable to prove guilt beyond reasonable doubt when scrutinised by the magistrate who adjudicated as if it was a criminal trial, following the principles of law applied to a real criminal trial.

Correct and fair service of discovery documents prior to trial. Prosecution of a witness – prosecution witness. The right to remain silent and not a paper quasi-criminal case. That is actually, in fact, a civil matter and should have been prosecuted as a civil matter as a breach of contract. The court’s transcript identifies WA Police with an ABN as prosecution. It was revealed in the court transcript that the West Australian Police were not the prosecutor. The Department of Transport prosecutors are not the West Australian Police prosecutors. They do not provide witnesses. They rely solely on evidence – certificates of evidence and trickery and bias, and manipulative interpretation of the Road Traffic (Administration) Act 2008.
The transcript shows the magistrate referring to Bhavani Valu as Sergeant on 25.07.2023. The transcript, page 5, lines 14 to 1. Department of Transport are not the police, and have demonstrated that they historically have never prosecuted to the same standard of proof as required in a criminal trial. Does the department prosecute expediently under the guise of criminal prosecution when all indicators show there is no physical victim harmed.
And it states here the West Australian Police on the court transcript:
Magistrates Court of Western Australia –
all caps underlined –
PE 3280 of 2023, West Australian Police –
all caps underlined –
v Dawn Michelle Kelly –
all caps underlined –
Magistrate S. Oliver. Transcript of Proceedings at Perth on Tuesday, 25 July 2023, at 10.35 am –
all caps underlined –
Ms B Valu appeared for the prosecution –
all caps underlined –
Ms D.M. Kelly appeared in-person –
all caps underlined.
We are – we have evidence stating that – that we have been corporatized without our consent under contract law. Ms Valu – your Honour, for the Department of Transport. And on page 5, lines 14 to 33:….

Full Transcript Link – Click HERE

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