CHARALAMPOS MARIS In Person v COMMISSIONER OF POLICE [2025] SASC 131

On Appeal from MAGISTRATES COURT OF SOUTH AUSTRALIA (MAGISTRATE BASHEER) MCCRM-22-018048 Appellant: CHARALAMPOS MARIS In Person Respondent: COMMISSIONER OF POLICE Counsel: MS L WILLOWS - Solicitor: CROWN SOLICITOR (SA) Hearing Date/s: 30/01/2025 File No/s: SCCRM-24-012722 B SUPREME COURT OF SOUTH AUSTRALIA (Magistrates Appeal: Criminal) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment. The onus remains on any person using material in the judgment to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court in which it was generated. MARIS v POLICE [2025] SASC 131 Judgment of the Honourable Justice McDonald 14 August 2025 MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - GROUNDS - CONVICTION ON EX PARTE HEARING This is an appeal against conviction for the offences of driving an unregistered motor vehicle (contrary to s 9(1) of the Motor Vehicles Act 1959 (SA)), failing to provide personal details to a police officer on request (contrary to s 40V(4)(b)(i) of the Road Traffic Act 1961 (SA)), and failing to comply with a direction to stop a vehicle for the purpose of an alcotest (contrary to s 47E(2) of the Road Traffic Act 1961 (SA)). The notice of appeal was filed out of time. An extension of time was granted. The notice of appeal contains eight grounds. Although there are eight grounds of appeal the central issue is a complaint that the Magistrate proceeded ex parte, resulting in an unfair trial. It is necessary to mention that the appellant was in fact present in the body of the court throughout the trial, but refused to answer to his name and/or enter a plea. Central to the main issue are the decisions of Vandongen J in Kelly v Fiander [2023] WASC 187 and Peek J in Adelaide City Council v Lepse [2016] SASC 66. In Kelly v Fiander, Vandongen J held that the Magistrate was in error in finding that a defendant had not appeared, on the basis that the defendant in that case was present in the courtroom, no one else claimed to the be the defendant, and the relevant provisions of the Criminal Procedure Act 2004 (WA) do not explicitly say that a person who is before a court, is required to acknowledge that they are the person named in the prosecution notice. In Adelaide City Council v Lepse, Peek J held that the Magistrate was correct in requiring that the defendant approach the bar table and confirm that they were the person named on the Information, -- 1 of 30 -- and that their repeated refusal to do so justified the Magistrate proceeding to convict the defendant in accordance with ss 62(1)(b) and 62BA of the Summary Procedure Act 1921 (SA). There are marked similarities in the manner in which the appellant and the defendants in Kelly v Fiander and Adelaide City Council v Lepse presented themselves, and as to how events unfolded before the respective Magistrates. Factually, there are limited distinctions between these cases and, consequently, the decisions cannot be reconciled. The reasoning and outcome in Adelaide City Council v Lepse is preferred to the decision in Kelly v Fiander. There is no merit to the remaining seven grounds of appeal. Held: 1. The Magistrate in the present case correctly determined to proceed in circumstances in which the appellant refused to engage in the process, such that the Magistrate could be satisfied that he had appeared and submitted himself to the jurisdiction of the Court. It was open to the Magistrate to find that the appellant had failed to appear at the hearing and proceed ex parte. 2. The appeal is dismissed. 3. The parties will be heard as to costs. Criminal Procedure Act 1921 (SA) ss 4, 62(1)(b), 62A, 62BA; Criminal Procedure Act 2004 (WA) s 55, div 2 sch 1 cl 4; Motor Vehicles Act 1959 (SA) s 9(1); Road Traffic Act 1961 (SA) ss 40V(4)(b)(i), 47E(2); Summary Procedure Act 1921 (SA) ss 62(1)(b), 62BA; Supreme Court Rules 1987 (SA) r 75.14, referred to. Adelaide City Council v Lepse [2016] SASC 66; SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362, applied. Kelly v Fiander [2023] WASC 187, not followed. CBFC Ltd v Charitopoulos [2009] SASC 30; Krysiak v McDonagh [2012] WASC 270; Tey v City of Gosnells [2010] WASC 96, discussed. -- 2 of 30 -- MARIS v POLICE [2025] SASC 131 Magistrates Appeal: Criminal McDONALD J. 1 Mr Maris has filed a notice of appeal against his conviction for the offences of driving an unregistered motor vehicle,1 failing to provide personal details to a police officer on request,2 and failing to comply with a direction to stop a vehicle (for the purpose of an alcotest).3 He was convicted of these offences on 31 January, 2024, following a trial that proceeded ex parte in the Magistrates Court sitting in Kadina. 2 The notice of appeal was filed out of time. I determined to proceed first with the argument on the question of whether an extension of time should be granted. Having heard submissions, I granted the extension of time on the basis that there was a reasonable explanation for the delay, the prosecution was in no way prejudiced and that it “could not be said that the appeal was entirely without merit”. The grounds of appeal 3 The notice of appeal contains the following grounds:4 1. The judge did an ex parte trial while I was in the courtroom and this is against the “Kelly v Fiander” [2023] WASC 187 (Sec. 47, 48, 51, 95, 96, 97) case of Supreme court. The “Kelly v Fiander” [2023] WASC 187 case was filled [sic] for this matter before this trial (“31st of January”), and 2. Under “South Australian Criminal Trials Bench Book” the judge is responsible for a fair trial, and 3. A Notice of Counterclaim was filled [sic] for this matter, before this trial (“31st of January”), and was heard in the courtroom for public record the date of this trial but the judge did not take any action for the crimes that were in this Notice, and 4. A Notice of Instructions was filled [sic] for this matter, before this trial (“31st of January”), and was heard in the courtroom for public record the date of this trial but the judge ignored it, and 5. An Interlocutory Application with an Affidavit were filled [sic] for the hearing for this matter but the judge proceeded with this case, and 6. From the time of the unlawful arrest, until the time of the court proceedings, everything was under duress and it was written in the Police/Court documents and it has been heard in the courtroom for public record, and 1 Motor Vehicles Act 1959 (SA) s 9(1). 2 Road Traffic Act 1961 (SA) s 40V(4)(b)(i). 3 Road Traffic Act 1961 (SA) s 47E(2). 4 FDN 2. -- 3 of 30 -- [2025] SASC 131 McDonald J 2 7. A Notice of Injunction was filed for this matter before this trial (“31st of January”) but it was ignored, and 8. This matter was not under Equity Law. 4 Although there are eight grounds of appeal, the central issue is a complaint that the Magistrate proceeded “ex parte” resulting in an unfair trial. Having said that, Mr Maris was present in the body of the court throughout the trial, however, he refused to answer to his name and/or enter a plea. Factual background 5 On 11 December 2022, police stopped Mr Maris’ vehicle on the Spencer Highway between Wallaroo and Moonta. A registration check had been conducted as police passed the vehicle. That check revealed that the vehicle was unregistered, the registration having expired on 6 April 2022. Police approached the driver’s side window and Mr Maris responded by winding it down by about 10 centimetres. Police asked Mr Maris to put the window down further so that he could submit to an alcotest, and a licence check. He refused. Mr Maris told the police that he would undertake an alcotest if he was paid “a performance fee” of $150,000. Mr Maris repeatedly stated that “he had done nothing wrong and for a crime to be committed there must be a victim”.5 6 It was the police allegation that when they directed Mr Maris to provide his personal particulars, he refused. Mr Maris’ account is that he produced a form of identification, however, it was an identification card that he had created himself, which incorporated his photograph, thumbprint and signature. The police told Mr Maris that if he continued to fail to comply with the direction, and did not produce a recognised form of identification, he would be arrested. Mr Maris remained non-compliant. As a consequence, the police used a glass breaker on the rear passenger window, in order to gain access to the vehicle for the purpose of unlocking the car doors to arrest Mr Maris. He was subsequently arrested and taken to the Kadina Police Station, where he was granted police bail. The trial 7 The trial was listed to commence at 11.00am, on 31 January 2024. The matter was called on at about 11.30am. Mr Maris’ name was called in the usual fashion. Mr Maris entered the courtroom. Upon his entry, the Magistrate enquired as to whether he was Charalampos Maris. Mr Maris replied, “I am Charalampos, and I am here as executor of Charalampos Maris estate”. The following exchange then took place:6 Q. How do I spell that name? 5 FDN 2, Facts of Charge filed 28 December 2022, MCCRM-22-018048. 6 T2. -- 4 of 30 -- [2025] SASC 131 McDonald J 3 A. Charalampos, you can say Harry because it is easier. It’s my sole name. You can call me Harry. Q. I will ask you again, are you the defendant, Charalampos Maris. A. I am the executor of the estate that supports the accused here. Q. Just so I can understand, are you saying that you are not Charalampos Maris? A. What I am saying is I’m Charalampos and I’m the executor of the Maris estate. Q. We have a trial ready to commence against a defendant who is name is Charalampos Maris. A. Yes, this is the estate. 8 Despite Mr Maris failing to directly respond to her enquires, the Magistrate took a pragmatic approach and asked Mr Maris whether he was willing to enter into the dock, state his name as Charalampos Maris and enter a plea of guilty or not guilty. 9 Mr Maris declined. There was then a further exchange during which Mr Maris continued to refuse to answer to his name. The Magistrate asked Mr Maris whether he understood that if he continued to refuse to comply, the trial may commence in his absence. Mr Maris responded, “well I don’t understand that” and went on to explain “because I serve you a notice of instruction. I have to read it for the record”. 10 The Magistrate permitted Mr Maris to read the “Notice of Instructions”. Although the meaning of what was read was largely unintelligible, it was apparent that he was espousing sovereign citizen ideology and was refusing to submit to the jurisdiction of the Court, saying that the matter should be heard in the “local sovereign court” and “only with a jury of 12 living man and women … the jury of the living man and women be from the nation tribes as they are the people that have authority on this land”.7 11 On completion of reading out the “Notice of Instructions”, Mr Maris enquired of the Magistrate whether she had the “Counterclaim”. The Magistrate responded by asking whether Mr Maris intended to read out every document he had at the bar table. Upon receiving a non-responsive answer, the Magistrate attempted to progress the matter and the following exchange took place:8 HER HONOUR: I suspect you are Charalampos Maris but if you are unwilling to acknowledge that, I need to warn you that there are consequences. Now the consequences are these, I can ask for your nonappearance to be proven. I can issue a warrant for your arrest, and I’m also empowered under the Criminal Procedure Act to proceed to trial in your absence. I will ask you one final time, are you Charalampos Maris? 7 T3-4. 8 T4-6. -- 5 of 30 -- [2025] SASC 131 McDonald J 4 UNNAMED PERSON: I am the executor of Maris estate. HER HONOUR: Alright, I think the effort to identify you has gone far enough. What I would ask you to do now, is to step back from the bar table. You can remain with your friends in the court in the public gallery if you wish. If you do not wish to do so, you can leave the court precinct. UNNAMED PERSON: Of course. HER HONOUR: Would you now please leave the bar table. UNNAMED PERSON: Of course. HER HONOUR: Would you like to remain in the public gallery to watch the proceedings from here. UNNAMED PERSON: I’m here to represent - to represent as executor of estate. HER HONOUR: Please answer my question. Would you like to remain inside the court and watch these proceedings from the public gallery or not? You may remain in the courtroom, or you may leave the courtroom those are your two choices, please tell me which you would prefer. UNNAMED PERSON: I want to know because it’s the court of the state here it’s served by the first nation … law that the corporation don’t have standing in this land, do you know about this? Do you have the - did you receive the grandma’s law notice? HER HONOUR: I will not be answering your questions. I have given you an opportunity to answer to the name I suspect you are, that is Charalampos Maris. If you are unwilling to do so you now - UNNAMED PERSON: This is a name. HER HONOUR: - step back from the bar table. UNNAMED PERSON: This is a name, he’s not a living being. HER HONOUR: I don’t need to hear any further. UNNAMED PERSON: This is a name. HER HONOUR: Mister sheriff, would you please take the defendant and - UNNAMED PERSON: Don’t touch me … Don’t touch me. HER HONOUR: - either he can stay - UNNAMED PERSON: Don’t touch me. COURT OFFICER: Just have a seat back there, sir. HER HONOUR: I do authorise you to physically escort him to the back of the courtroom or he may leave the courtroom. UNNAMED PERSON: Yeah, okay, okay, okay. Don’t touch me. -- 6 of 30 -- [2025] SASC 131 McDonald J 5 COURT OFFICER: Go back with your friends that would be the best idea, thanks. UNNAMED PERSON: Before I go, I have to read the notice of counterclaim. HER HONOUR: How many pages is in the notice of counterclaim? UNNAMED PERSON: Two pages. HER HONOUR: Alright, you may read the notice of counterclaim, then you will sit quietly at the back of the courtroom, please. 12 Mr Maris then read out the “Notice of Counterclaim”. This was a document that set out, in sovereign citizen terms and terminology, Mr Maris’ account of 11 December 2022. Generally, the narrative of events mirrored that provided by the police, however, the “Counterclaim” included a series of sovereign citizen “defences”. By way of example, Mr Maris provided an explanation for why he requested a fee before undertaking an alcotest. He said (referring to the female police officer):9 As she does not have any authority over me, nor over any other living being, she tried to force me to do things without my will and these are violations of international law and divine rights. Because she wanted to do business with me, I regarded a fee for my performance, maxims of commercial law, a workman is worth of his hire to the alcohol test and did not refuse to do it. 13 On the issue of being unregistered, Mr Maris explained:10 About the registration, I told her that I have sent notice with my fee schedule to the living man known as Grantley John Stevens acting as Police Commission of South Australia Police, the private owned corporation with ABN registered for GST as I told you before and to the living man known as John Whelan acting as Chief Executive Officer of the Department of Infrastructure and Transport the private owned corporation with ANB 92 366 288 135 and registered for GST, that I would not longer require any service from them and I would be now using my private motor properties automobiles in the road lawfully with my automobile where insured for third party insurance. The service SA, a private owned corporation with ABN 47 958 010 688 and registered for GTS, can sell only CTP insurances and this is an absence of competition and a breach of the monopolies act when only one corporation, service SA, can say something from other companies. 14 After permitting Mr Maris to read out the entirety of the counterclaim, (which appears to have taken some time), the Magistrate returned to the topic of Mr Maris’ identity. Her Honour warned Mr Maris “… unless you are willing to answer to the name Charalampos Maris, I cannot have regard to any of the material you have read out in court so I will ask you one final time, are you Charalampos Maris?”.11 9 T6-7. 10 T7-8. 11 T10. -- 7 of 30 -- [2025] SASC 131 McDonald J 6 15 Mr Maris replied “For and on behalf of the estate Charalampos Maris”. The Magistrate tried again and repeated “Are you Charalampos Maris?”. He responded “It’s a given name, Charalampos of the house of Maris”. 16 After this exchange, the Magistrate asked the sheriff’s officer to escort Mr Maris to the public gallery and told him that he and his two companions could remain in court on the condition that they did not interrupt proceedings. 17 Mr Maris responded with “I do not consent with this proceeding”. I note that it is not clear whether Mr Maris was objecting to the proceedings in a general sense or to the matter proceeding in his absence. 18 The Magistrate then asked the sheriff’s officer to call Mr Maris’ name again, at which point Mr Maris interjected and said, “I am here as the executor of Charalampos Maris”. 19 The sheriff’s officer called Mr Maris’ name three times, Mr Maris did not respond, and his non-appearance was proved by the sheriff’s officer on oath. 20 The Magistrate then determined to proceed in Mr Maris’ absence pursuant to s 62A of the Criminal Procedure Act 1921 (SA) (‘CP Act (SA)’) noting that he had been arrested and released on bail, which is a pre-condition to proceeding in the absence of a defendant. Section 62A provides: (1) If a person who has been apprehended (whether under a warrant or without a warrant), and released on bail fails to appear at the time and place appointed for the hearing of an information laid or to be laid against him, the Magistrates Court may in its discretion hear the information in the absence of the defendant, and may adjudicate thereon as fully and effectually, to all intents and purposes, as if the defendant had appeared at that time and place. (2) This section shall apply whether the defendant is discharged pursuant to powers granted by this or any other Act. 21 The Magistrate found that Mr Maris had deliberately and consciously absented himself from the trial, and that he had demonstrated that he did not wish to engage with the trial process.12 22 The trial proceeded with the prosecution presenting its case in an orthodox manner, with the tendering of various certificates and the calling of relevant witnesses. 23 At the close of the prosecution case, the Magistrate found Mr Maris guilty of three of the five counts on the Information, and delivered detailed ex tempore reasons. 24 Mr Maris was found not guilty of the offence of driving a motor vehicle on a road while suspended from holding or obtaining a driver’s licence on the basis that 12 Magistrate reasons at [13]. -- 8 of 30 -- [2025] SASC 131 McDonald J 7 the prosecution could not prove the fourth element of the offence, that is that Mr Maris knew that he was driving on a suspended licence. The Magistrate also found Mr Maris not guilty of the offence of driving an uninsured vehicle on the road, as whilst it had been established that the vehicle was unregistered at the relevant time, there was no evidence about whether it was insured. Whilst the Magistrate contemplated taking judicial notice of the fact that a vehicle which has been unregistered for a period over 30 days thereby becomes uninsured, absent a request by the prosecution to adopt this course, the Magistrate determined not to do so. 25 It is apparent from the Magistrate’s reasons, that despite Mr Maris playing no active role in the trial, her Honour properly scrutinised the prosecution case and considered the evidence before arriving at any findings of guilt. Ground 1 – the Judge did an ex parte trial while I was in the courtroom, and this is against “Kelly v Fiander” [2023] WASC 187 26 Central to this ground of appeal is the decision of Vandongen J in Kelly v Fiander.13 This was a decision of a single Judge of the Supreme Court of Western Australia on an appeal which involved similar legal and factual issues to the appeal that has been brought by Mr Maris. Kelly v Fiander also involved an accused refusing to answer to her name, and deploying the “strawman duality theory” when she attended court for her trial.14 27 The determination of that appeal turned on the words of s 55 of the Criminal Procedure Act 2004 (WA) (‘CP Act (WA)’). Under that section a Magistrate has the power to hear and determine a charge in the absence of an accused when “the accused does not appear” on the date of trial. Section 55 of the CP Act (WA) provides: 55. No appearance by accused and no plea of guilty (1) This section applies if on a court date for a charge the prosecutor appears and the accused does not and the accused has not pleaded guilty to the charge, whether orally or by means of a written plea. (2) If on the court date the court is satisfied that the accused has been served under this Part with the prosecution notice containing the charge and a court hearing notice, or an approved notice, notifying the accused of that date and that the court may deal with the charge in the accused’s absence if the accused does not appear on that date, the court may – (a) adjourn the charge; or (b) hear and determine the charge in the accused’s absence. … 13 [2023] WASC 187. 14 Ibid at [15]. -- 9 of 30 -- [2025] SASC 131 McDonald J 8 (4) If under subsection (2) or section 51(8)(a) the court decides to hear and determine the charge in the accused’s absence and the prosecution notice is signed by a person who in the notice purports to be a person acting under section 20(3), the court – (a) must presume, in the absence of evidence to the contrary – (i) that the prosecution notice was signed by a person who was acting under section 20(3); and (ii) that the person had the authority to sign the prosecution notice; and (b) may take as proved any allegation in the prosecution notice containing the charge that was served on the accused. (5) If under subsection (4) the court convicts the accused – (a) the prosecutor must state aloud to the court the material facts of the charge; and (b) section 129(4) applies; and (c) in the absence of evidence to the contrary, the court must take as proved any facts so stated. 28 It should be noted that unlike s 62A of the CP Act (SA), s 55 of the CP Act (WA), contains not only the power to proceed in an accused’s absence, but also an aid to proof of the offence in the event that the accused fails to attend court. 29 In Kelly v Fiander, Ms Dawn Michelle Kelly (the defendant) had been charged with a number of driving offences. On the date that Ms Kelly was due to appear before the Albany Magistrates Court in relation to those charges, she engaged in conduct not dissimilar to that engaged in by Mr Maris in these proceedings. That is, she attended at court but refused to answer to her name claiming that she was “Dawn Michelle – Minister Dawn Michelle, executor for the Dawn Michelle Kelly estate”. After an unedifying exchange with the Magistrate, the defendant continued to fail to respond to her name. The following then took place:15 ORDERLY: From the K list, calling the matter of Kelly, Dawn Michelle Kelly. HER HONOUR: All right. Remain standing, please. Are you Dawn Kelly? ……, MS: I’m - on - for the record, I am Dawn Michelle – Minister Dawn Michelle, executor for the Dawn Michelle Kelly estate. HER HONOUR: All right. Well, unless you’re Dawn Kelly, you have standing [sic] to appear in court. 15 Kelly v Fiander [2023] WASC 187 at [17]. -- 10 of 30 -- [2025] SASC 131 McDonald J 9 ……, MS: Okay. HER HONOUR: If you have - are not Dawn Kelly and have no standing to appear in court, you must leave the courtroom. So either you are Dawn Kelly, or you are not Dawn Kelly. If you [are] not Dawn Kelly, please leave the courtroom. ……, MS: Under duress? HER HONOUR: Not under anything. ……, MS: Under duress? HER HONOUR: If you are not Dawn Kelly, then - if you are Dawn Kelly, you must announce your appearance in court. If you are not Dawn Kelly, you are to leave the courtroom. ……, MS: I’m Dawn Michelle, executor for the Dawn Michelle Kelly estate. HER HONOUR: I don’t recognise that in any way. All I can assume is that you are not Dawn Kelly, and you are to leave the courtroom. ……, MS: Sorry. I have - just one moment, please. HER HONOUR: Please, unless you are Dawn Kelly and answer yes or no as to whether you are Dawn Kelly - - - ……, MS: I am the natural - you know, executor for contracts for the natural private person. So that is a HER HONOUR: This court does not - - - ……, MS: Misnomer. HER HONOUR: - - - recognise - - - ……, MS: Sorry, what’s - - - HER HONOUR: - - - that sort of - - - ……, MS: - - - your name? HER HONOUR: - - - nonsense argument. ……, MS: What’s your name? … 30 The Magistrate, clearly frustrated with the situation, and at an obvious impasse, brought the matter to a head and stated:16 16 Kelly v Fiander [2023] WASC 187 at [17]. -- 11 of 30 -- [2025] SASC 131 McDonald J 10 This person is not Dawn Kelly. They have no standing to appear. They refuse to announce their appearance to the court, and they may leave. Thank you. And the matter will now be heard in the absence of any person. Thank you. Please leave, whoever you are. 31 The defendant was escorted out of the courtroom by the Sheriff’s officer. It was accepted that the defendant did not feel as though she had any choice about whether she could stay in the Court. 32 After the defendant was removed, the prosecution suggested that the matter proceed pursuant to s 55 of the CP Act (WA). The Magistrate adopted that course and provided reasons. The Magistrate said:17 I’m satisfied that there is no person who responded in a positive manner and appropriate manner recognised by the court as Dawn Kelly. On that basis, I am satisfied that there has been a notice of adjournment issues [sic] by the court on 30 August to the known address of Dawn Kelly. On that basis, I’m satisfied leave will be granted to proceed under section 55. 33 If s 55 of the CP Act (WA) applies, a Magistrate has two options, either to adjourn the charge or, alternatively, they may hear and determine the charge in the defendant’s absence. If the Court decides to hear and determine the charge (as the Magistrate did here), then sub-ss 55(4) and (5) operate to facilitate proof of the various matters referred to in those provisions. 34 Vandongen J found that the Magistrate decided to hear and determine the charges pursuant to s 55 of the CP Act (WA) in the defendant’s absence while the defendant was still present in the courtroom. It was only after the defendant was told to leave the courtroom, and was escorted out, that the Magistrate proceeded to hear and decide the matter by convicting the defendant and imposing a sentence. 35 The critical issue in Kelly v Fiander was whether the Magistrate erred in finding that the defendant did not “appear” for the purposes of s 55(1) of the CP Act (WA). If the defendant did “appear” then s 55(1) was not engaged, and did not apply. Consequently, it would not have been open to the Magistrate to decide to hear and determine the charges in the defendant’s absence pursuant to s 55(2) or to convict her under s 55(4). 36 As a preliminary issue, Vandongen J gave consideration to the basis upon which the Magistrate had determined that the defendant did not “appear”. There were two possibilities: either the Magistrate had formed a positive view that as a matter of fact the defendant had not appeared or, alternatively, that the Magistrate found that the defendant did not “appear” because she would not answer to her name. There was of course no dispute, by the time of appeal, that it had in fact been Ms Kelly who was present in court. 37 Vandongen J found that based on all of the positive indicators that the person present in court was Ms Kelly, the Magistrate must have found “that the 17 Kelly v Fiander [2023] WASC 187 at [17]. -- 12 of 30 -- [2025] SASC 131 McDonald J 11 [defendant] did not ‘appear’ because the person before the court insisted that she was ‘Dawn Michelle, executor for the Dawn Michelle Kelly estate’, and would not clearly acknowledge that she was the person named in the prosecution notice, namely Dawn Michelle Kelly (or Dawn Kelly)”.18 38 In Kelly v Fiander, Vandongen J concluded that the Magistrate was in error in adopting such an approach in that “an accused person who is before the court ‘appears’ for the purpose of s 55(1), even if they refuse to accept or clearly acknowledge that they are the person named in the relevant prosecution notice, or that they identify themselves with that name”.19 Vandongen J further observed that:20 If a court is unsure about whether a person who is before the court is the person who was alleged in the prosecution notice to have committed the offences charged, it would be open to the court, in the exercise of the implied power to regulate its own procedure, to adopt another reasonable means, appropriately adapted to the circumstances of the case, to decide that question. 39 Vandongen J found that, as a consequence of the manner in which the Magistrate conducted the proceedings, a miscarriage of justice had occurred, because the defendant had come forward when the matter was called on and no one else claimed to be Dawn Michelle Kelly. Further, the Magistrate found that it could readily be inferred that the defendant intended to contest the charges, albeit in a misguided way. When she was directed to leave the courtroom, the defendant made it clear that she did not wish to do so and, as she left, she told the Magistrate that she had “put documents in, which were sent to your email address”. 40 Vandongen J determined that the Magistrate was in error in finding that the defendant had not appeared, as all of the matters that had been identified:21 … should have led the magistrate to be sufficiently satisfied that the person who was alleged in the prosecution notice to have committed the offences (the ‘accused’)was the person before the court. At the very least the circumstances should have persuaded the magistrate that she could not be positively satisfied that the appellant ‘does not [appear]’, for the purposes of s 55(1), particularly as such a finding may have led to the appellant being summarily convicted. 41 In arriving at this decision, Vandongen J gave consideration to the proper construction of s 55(1) of the CP Act (WA). His Honour noted that the word ‘appear’ was not defined anywhere in the CP Act (WA) and that none of the provisions in the Act specified any procedure to be followed in determining whether a person had appeared. In particular, that there was no statutory requirement that a person, who is before a court, is required to acknowledge that 18 Kelly v Fiander [2023] WASC 187 at [44]. 19 Kelly v Fiander [2023] WASC 187 at [60]. 20 Kelly v Fiander [2023] WASC 187 at [65]. 21 Kelly v Fiander [2023] WASC 187 at [42]. -- 13 of 30 -- [2025] SASC 131 McDonald J 12 they are the person named in the prosecution notice containing that charge, or that they are required to give such an acknowledgment in any particular way. 42 In arriving at his interpretation of s 55(1), Vandongen J also placed weight on cl 4(2) in div 2 of sch 1 to the CP Act (WA), which recognises that it will not always be possible to identify an accused by reference to their name and provides for alternative forms of identification in the following manner: 4. Accused to be identified (1) A prosecution notice or indictment must identify the accused — (a) if the accused is an individual, by means of the accused’s full name and, if known, date of birth and usual place of residence; (b) if the accused is a corporation, by means of its name and, if it has one, the ACN given to it under the Corporations Act 2001 of the Commonwealth. (2) If the circumstances so require, an accused who is an individual may be identified, additionally or alternatively to the requirements of subclause (1)(a), by one or more of the following — (a) a photograph of the accused, attached to the prosecution notice or indictment; (b) a print of the accused’s hands (including fingers), feet (including toes), or ears, that will identify him or her, attached to the prosecution notice or indictment; (c) a reference to the accused’s DNA profile in the prosecution notice or indictment. 43 Based on that provision, Vandongen J stated that:22 It is not easy to justify a conclusion that it is necessary for an accused who is present before the court to clearly identify themselves in answer to questions from the court before they can be considered to have ‘appeared’, for the purposes of s 55, when the CP Act expressly recognises that there may be occasions on which such identification will not be possible. 44 For those reasons Vandongen J concluded that:23 … A person ‘appears’ when they are personally before the court at that time or, if they are not personally before the court, they are nevertheless represented by counsel. They will also ‘appear’ when they (or their counsel) are permitted to be before the court via an audio or video link. Importantly, an accused person who is before the court ‘appears’, for the purposes of s 55(1), even if they refuse to accept or clearly acknowledge that they are the person named in the relevant prosecution notice, or that they identify themselves with that name. The issue for the court to decide is whether it is sufficiently satisfied that the person who is before them is the accused who is named in the prosecution notice; that they are the person who is alleged to have committed the specified charge or charges. 22 Kelly v Fiander [2023] WASC 187 at [55]. 23 Kelly v Fiander [2023] WASC 187 at [59]-[60]. -- 14 of 30 -- [2025] SASC 131 McDonald J 13 (Footnotes omitted; emphasis in original) 45 Vandongen J however accepted that there remains an obvious need to confirm whether it is the accused who is present before the court and “[i]f a court is unsure about whether a person who is before the court is the person who was alleged in the prosecution notice to have committed the offences charged, it would be open to the court, in the exercise of the implied power to regulate its own procedure, to adopt another reasonable means, appropriately adapted to the circumstances of the case, to decide that question”.24 46 It should be noted however cl 4 in div 2 of sch 1 to the CP Act (WA) does not relate to the identification of an individual presenting themselves in court, but rather, to the means of identifying a person who is charged with the offence in the indictment. It can be assumed that the alternative, or additional means of identification, set out in cl 4(2), are designed to ensure that the person against whom the State has laid the charge is correctly and adequately identified. The mischief at which this is aimed is the possibility that another individual may be incorrectly charged, potentially putting their liberty at peril. That is a different proposition to a consideration of whether a person attending at court is the person who is subject of the charge. 47 In addition to this, there is no equivalent or even similar provision in the South Australian Legislation. Section 4 of the CP Act (SA) relatively provides: 4—Interpretation (1) In this Act, unless inconsistent with the context— … defendant means person charged with any offence or against whom relief is sought or granted; … 48 There is no reference to any additional or alternative means to identify the person who is the subject of the charge on the Information. 49 During the course of submissions in Kelly v Fiander, reference was made to an earlier Western Australian decision of Em Heenan J in Krysiak v McDonagh.25 In that case, consideration had also been given to the question of what amounts to a failure to appear in court. The appeal related to two sets of proceedings in the Magistrates Court, at the conclusion of each the defendant was found guilty. In the particular proceedings that are relevant to the issues currently under consideration, when the Magistrate called the case on, the defendant came forward, and upon being asked to identify himself, he refused and instead said “I reserve all 24 Kelly v Fiander [2023] WASC 187 at [65]. 25 [2012] WASC 270. -- 15 of 30 -- [2025] SASC 131 McDonald J 14 my rights and I am best described as the authorisation to the accused with limited liability”.26 50 The Magistrate refused to allow the defendant to speak further unless he clearly identified himself, and directed him to sit at the back of the court. The defendant did so, albeit reluctantly. The Magistrate, having observed that there was no person in the court who had identified themselves as having the name Krysiak, directed that the case should proceed in the absence of the defendant under s 55 of the CP Act (WA). 51 The Magistrate then afforded the defendant a second chance and told him that if he identified himself as that person, he could participate in the proceedings but, if not, the matter would be dealt with under s 55. At that point, the defendant chose to identify himself, and when asked who he was he appeared to resile from that position and said “I am commonly known as Tadeusz-Edmund Krysiak”.27 When asked if that was his name, he said “I don’t have a name, sorry, your Honour”.28 At that point, the Magistrate determined to proceed under s 55, as previously proposed and found that the allegations had been proved. 52 In approving of the course adopted by the Magistrate, Em Heenan J endorsed the observation made by White J in this Court in CBFC Ltd v Charitopoulos:29 In the context of r 75.14 it is clear enough that parties may “appear” in the relevant sense either in person or by counsel. That is to say, there are two means by which a party may appear. However, whichever means is used, parties “appear” in the requisite sense only if they present themselves for the trial. Parties who are present in the body of the courtroom when the action is called on for trial but who do not announce themselves, in person or by counsel, do not “appear” in the sense required by r 75.14. Nor do parties who present at the bar table (in person or by counsel) but only for the purposes of seeking an adjournment of the trial. Such persons do not “appear” before the court for the trial. 53 Em Hennan J also referred to Tey v City of Gosnells,30 and his discussion in that case of the need for the Court to retain control of proceedings in circumstances in which a defendant refuses to appropriately engage in the process. His Honour said:31 … a court cannot be allowed to have its procedures frustrated by the refusal of a litigant to participate and a court is entitled to ensure the efficient running of its business by requiring an accused properly to identify himself when called upon. 54 Em Hennan J found that in Krysiak, the defendant had been given every opportunity to “appear” in the proceedings in the Magistrates Court. His Honour said that the defendant had declined this “by persisting in a tendentious argument 26 Krysiak v McDonagh [2012] WASC 270 at [7]. 27 Krysiak v McDonagh [2012] WASC 270 at [8]. 28 Krysiak v McDonagh [2012] WASC 270 at [8]. 29 [2009] SASC 30 at [19]. 30 [2010] WASC 96 at [38]. 31 Krysiak v McDonagh [2012] WASC 270 at [48]. -- 16 of 30 -- [2025] SASC 131 McDonald J 15 that he should be addressed, not by his name, but by a combination of words which gave recognition to an unjustifiable and amorphous status which he asserted as part of his misguided appreciation of legal forms and procedures”.32 55 For that reason, Em Hennan J found that there was no basis to conclude that a miscarriage of justice resulted as a consequence of the procedure adopted by the Magistrate. 56 Vandongen J declined to follow Krysiak on the basis that it was distinguishable for three reasons. The first was that, in Krysiak, no attempt had been made to construe s 55(1) of the CP Act (WA) and it therefore was not authority for the proper construction of s 55(1) of the CP Act (WA). 57 The second was that, unlike in Kelly v Fiander, no miscarriage of justice was found to have been occasioned by the procedure adopted by the Magistrate in that case. 58 Finally, to the extent that the Court in Krysiak referred to White J in CBFC Ltd, that case had no bearing in that it was concerned with a specific South Australian Supreme Court rule. South Australian authorities 59 Although the Magistrate in this case utilised s 62A of the CP Act (SA) on the basis that Mr Maris had been arrested and released on bail, s 62(1)(b) and s 62BA also empower a Magistrate to proceed in the absence of an accused. 60 Although s 62(1)(b) and s 62BA relate to circumstances in which an accused fails to appear in obedience to a summons, both powers take effect in circumstances in which an accused “fails to appear” when required to attend at court. 61 In Adelaide City Council v Lepse,33 Peek J was required to consider the meaning of the terms “attending” or “appearing in court” in response to a summons as contained in s 62(1)(b) and s 62BA. This was an appeal against conviction after a trial in the Magistrates Court. 62 Initially, the matter had been listed before a Magistrates Court Special Justice. When the matter was first called on, the defendant stood just inside the court near to the door and said:34 32 Krysiak v McDonagh [2012] WASC 270 at [48]. 33 [2016] SASC 66. 34 Adelaide City Council v Lepse [2016[ SASC 66 at [13]. -- 17 of 30 -- [2025] SASC 131 McDonald J 16 I am here. I am the personal representative of Waltraud Lepse. My name is called Traudi. Would you be so good as to call Traudi instead of Waltraud Lepse as I am here to represent in this case. Is this a court a record? Is this a court of record?35 (Footnote in original) 63 The defendant then left the courtroom. She subsequently returned and took up the same position just inside the door. The Special Justice went through the formal process of proving the non-appearance of the defendant. Following that, the following exchange took place:36 MS TRAUDI: Is this a court of record? HIS HONOUR: Yes it is. COURT OFFICER 2: Service is in order to the extent that a copy has been left at the address – MS TRAUDI: I object. I object. MR MUSCAT: Your Honour, if Waltraud Lepse, as named in the complaint is not present, then I would seek ex-parte leave. HIS HONOUR: Ex-parte leave granted. MS TRAUDI: I object. Waltraud Lepse is present, here. Birth certificate. This is a legal fiction that I am representing. This is the birth certificate of Waltraud Lepse. Waltraud Lepse is present. I am a personal representative. HIS HONOUR: No. She has to appear. Unless you are a lawyer acceptable to the bar, you cannot represent the defendant. MS TRAUDI: I am here under Common Law and I actually am here under full reservation of unalienable rights. MR MUSCAT: Unless this person is Waltraud Lepse, if that is who this person is – MS TRAUDI: Are you denying me my rights to represent Waltraud Lepse as a, as a – under full reservation of unalienable rights under Common Law? HIS HONOUR: How is court 2? Is court 2 busy, or 3? COURT OFFICER 2: We will just make an enquiry. MR MUSCAT: I have had some representations previously, your Honour, where a person attends court who is the defendant but claims that they are separate from the defendant, so if this person will either state 35 The twice expressed question is reproduced in the transcript as ‘Is this a court of reference?’ The defendant and the solicitor for the Council agree that the word spoken was ‘record’, which is internally consistent with what followed. 36 Adelaide City Council v Lepse [2016] SASC 66 at [14]. -- 18 of 30 -- [2025] SASC 131 McDonald J 17 whether or not they are Waltraud Lepse. If that person is Waltraud Lepse then they can appear. If that person is not Waltraud Lepse, then I will proceed ex-parte. MS TRAUDI: I object. Is he trying to coerce me into taking the mantle of a legal fiction called Waltraud Lepse? I am entitled to be here as a personal representative of the person Waltraud Lepse in her private capacity in being. That is my right. HIS HONOUR: The matter will be heard in court 2. (Emphasis in original) 64 The matter was then transferred to a Magistrate and the defendant continued to behave in a similar manner. When the matter was called on in that Court, the following took place:37 DEFENDANT: Sir, is this a court of record? HIS HONOUR: Yes. DEFENDANT: Sir, would it be alright with you if I entered this room and engaged in the proceedings with full reservation of my unalienable rights? HIS HONOUR: I’m not sure what you mean by that but this is what I think you were saying, that anything you say today shouldn’t be used in a trial against you if you make any admissions. Is that what you’re saying? DEFENDANT: I’m saying I’m here under a common law court proceeding. HIS HONOUR: No, you’re here under the Magistrates Court Act and also the Summary Procedure Act and they are all valid Acts as far as the court’s concerned. Just come forward. DEFENDANT: So are you denying me my unalienable rights? HIS HONOUR: No, you’ve got rights under those Acts. Come forward please. DEFENDANT: I need to have ... HIS HONOUR: If you do not come forward I am not going to deal with your matter and it might get dealt with in your absence. So if you don’t come forward I’m going to get you to leave and if you leave prosecution – DEFENDANT: I do not consent to your jurisdiction. I’m here to – I have claim by the reservation of unalienable rights and it’s my right to give your Honour the common law. HIS HONOUR: I’m not accepting that so you’ll have to leave. DEFENDANT: No, I don’t have to leave. I’m here as a woman – 37 Adelaide City Council v Lepse [2016] SASC 66 at [16]. -- 19 of 30 -- [2025] SASC 131 McDonald J 18 HIS HONOUR: I can see that. DEFENDANT: Okay, I’m here as a woman and I reserve my unalienable rights to this matter. HIS HONOUR: As I said to you, I don’t know what you mean by that and I – DEFENDANT: Then I ask the case to be dismissed. HIS HONOUR: I’m not going to do that. I’m asking you to simply come forward and obey an order of the court to come forward and sit down. DEFENDANT: I can’t do that. I’m sorry sir. HIS HONOUR: Well then I can’t deal with – DEFENDANT: I need assurance from you that I’m here with full reservation of my unalienable right which is my right to do so. HIS HONOUR: I’ll tell you for the last time. I don’t understand what you mean and if you don’t come forward then these gentlemen – DEFENDANT: Are you denying me my rights? HIS HONOUR: I think it’s easier gentlemen if she’s just – DEFENDANT: Is there someone that does know what I’m talking about? HIS HONOUR: I just ask you to leave madam and it will proceed in your absence. DEFENDANT: Sir, do you withhold your oath of office. HIS HONOUR: Take her out please. DEFENDANT: Do you have – DISCUSSION BETWEEN SHERIFF’S OFFICERS AND DEFENDANT DEFENDANT: Do you uphold your oath of office. HIS HONOUR: Otherwise you’ll be in contempt of court. DEFENDANT: Do you uphold your oath of office. HIS HONOUR: Take her out please. DEFENDANT REMOVED FROM COURT MR MUSCAT: Just a little background on that. These are what are sometimes referred to overseas as pseudo-legal commercial complainants. I had a similar one before the Magistrates Court a few weeks ago. It was a trial. HIS HONOUR: It’s a flesh and blood defence. -- 20 of 30 -- [2025] SASC 131 McDonald J 19 MR MUSCAT: The flesh and blood theory. This is what it’s about. They get it off the internet. I’m assuming this was in fact the defendant but they will not concede to it. They try to separate their identities. (Emphasis in original) 65 The Magistrate proceeded to hear the allegations and evidence, and found the offences proved. 66 The defendant appealed to this Court. In her grounds of appeal, she complained about the procedures adopted in the Magistrates Court. 67 In considering the merits of the appeal, Peek J found that the Magistrate correctly declined to hear the defendant after she unequivocally refused to go to the bar table, and that the Magistrate had correctly utilised the procedure in s 62(1)(b) and s 62BA of the Summary Procedure Act 1921 (SA). 68 Peek J, in dismissing the appeal, concluded that the Magistrate acted entirely appropriately in requiring the defendant to approach the bar table and confirm that she was the person named on the Information, and that her repeated refusal to do so justified the Magistrate proceeding to convict the defendant in accordance with s 62(1)(b) and s 62BA. Peek J found that the defendant by her conduct was plainly disrupting court proceedings and defying the Magistrate’s lawful orders, and therefore “[s]ections 62(1)(b) and 62BA of the Summary Procedure Act 1921 were plainly engaged by the defendant’s failure to appear in obedience to the summons in that she refused to proceed to the bar table as directed by the Magistrate and thus refused to attend or appear before the Court”.38 Peek J went on to observe:39 … that the defendant has wasted the Court’s time, and abused the process of the Court, by seeking to engage in pseudolegal arguments that lack any substance, by submitting nonsensical documents and by surreptitiously altering a substantive part of a court- approved document. 69 Most relevantly to the matter before me, Peek J found that by her actions, the defendant had refused to “appear” before the Court. 70 As previously mentioned, in CBFC Ltd v Charitopoulos,40 White J also considered the meaning of the word “appear” in the context of an application for a default judgment under r 75.14 of the Supreme Court Rules 1987 (SA). In that case, two of the three defendants failed to attend court for the trial and the third left the courtroom and failed to return after his applications for a stay or adjournment were rejected. 38 Adelaide City Council v Lepse [2016] SASC 66 at [54]. 39 Adelaide City Council v Lepse [2016] SASC 66 at [55]. 40 [2009] SASC 30. -- 21 of 30 -- [2025] SASC 131 McDonald J 20 71 At the time r 75.14(1) provided: (1) If, when an action is called on for trial the plaintiff appears and the defendant does not appear, then the plaintiff, in all cases in which he, she or it would have been entitled to final judgment for the whole or any part of their claim had default been made in filing a notice of address for service, shall be entitled to judgment for the whole or such part of their claim, and in other cases may prove their claim so far as the burden of proof lies upon them. 72 White J was satisfied that the conduct of each of the three defendants amounted to a failure to appear. His Honour explained his reasoning:41 The word “appear” and its cognates as used in r 75.14 is capable of more than one meaning. As was pointed out by Street CJ in Reg v Gobert: The word “appear” in its ordinary use in the English language means “to show oneself; to come forth into view”, and obviously, in the common use of the word, a person cannot “show” himself unless he is there present in person. But in legal proceedings “appearance” has a more special meaning. It may be no more than the mere filing of a document in court, and this amounts to an appearance for certain purposes. So also in the conduct of proceedings in court an appearance may be made either by the party appearing in person or appearing by counsel or solicitor. If counsel appears in court for a party, then that party is taken to have appeared in the proceedings. (Footnotes omitted) Was the Magistrate in error in finding that Mr Maris failed to appear? 73 Underpinning this ground of appeal is the contention that the Magistrate erred in failing to follow Kelly v Fiander. 74 There are marked similarities in the manner in which Mr Maris and the defendants in Kelly v Fiander, and Adelaide City Council v Lepse presented themselves, and as to how events unfolded before the respective Magistrates. 75 Each of the defendants attended at court on the day upon which their matter had been listed for hearing and entered the courtroom. A point of difference is that Mr Maris approached the bar table, whilst Ms Lepse remained in the vicinity of the courtroom door. It is not clear from the judgment, which position Ms Kelly took up in the courtroom. For current purposes, this difference is unimportant as each came into the courtroom and entered into an exchange with the Magistrate. 76 Each of the defendants announced their appearance in a similar fashion: “I am Charalampos, and I am here as executor of Charalampos Maris estate”, “I am here. I am the personal representative of Waltraud Lepse. My name is called Traudi. Would you be so good as to call Traudi instead of Waltraud Lepse as I am here to represent in this case”, and “I am Dawn Michelle – Minister Dawn Michelle, executor for the Dawn Michelle Kelly estate”. 41 CBFC Ltd v Charitopoulos [2009] SASC 30 at [18]. -- 22 of 30 -- [2025] SASC 131 McDonald J 21 77 Each of the Magistrates made genuine and concerted efforts to obtain clarification of whether the person appearing in front of them was in fact the defendant, which on each occasion, was met with a lack of meaningful response. 78 Each of the defendants were forewarned that in the event that they did not identify themselves as the accused, the matter would proceed ex parte. They each, by their conduct, refused to comply and the proceedings were heard ex parte. Ms Lepse and Ms Kelly were removed from the court, however Mr Maris remained physically present throughout his trial, although unable to actively participate. 79 Vandongen J found that in Kelly v Fiander, the Magistrate formed the view that the person present in court was in all likelihood the accused. Similarly, I am prepared to infer from the exchanges that transpired, that the Magistrates in Ms Lepse’s and Mr Maris’ proceedings also came to the view that the person appearing before them was likely to be the accused, however, despite attending, they did not ‘appear’ and submit to the jurisdiction of the Court. 80 Factually, there are limited distinctions between the three cases, such that the decision of Peek J in Adelaide City Council v Lepse and Vandongen J in Kelly v Fiander are clearly at odds. The two decisions cannot be reconciled. In my view the reasoning and outcome in Adelaide City Council v Lepse should be followed in preference to the approach adopted in Kelly v Fiander. 81 Proceedings before any court should be conducted with a degree of decorum and formality, as is appropriate to the relevant jurisdiction. A judicial officer has the inherent power to control the proceedings in their court, to ensure that the objectives of a fair, orderly and efficient justice system are met. 82 As is the case under the CP Act (WA), the CP Act (SA) contains no definition for what amounts to failing to appear. It follows that, as in Kelly v Fiander, the resolution of the issue turns on the proper construction of s 62A of the CP Act (SA). 83 Statutory construction requires attention to the text, context and purpose of the Act. As Kiefel CJ, Nettle and Gordon JJ recently explained in SZTAL v Minister for Immigration and Border Protection:42 The starting point for the ascertainment of the meaning of a statutory provision is the text of the statute whilst, at the same time, regard is had to its context and purpose. Context should be regarded at this first stage and not at some later stage and it should be regarded in its widest sense. This is not to deny the importance of the natural and ordinary meaning of a word, namely how it is ordinarily understood in discourse, to the process of construction. Considerations of context and purpose simply recognise that, understood in its statutory, historical or other context, some other meaning of a word may be suggested, 42 (2017) 262 CLR 362 at [14]. -- 23 of 30 -- [2025] SASC 131 McDonald J 22 and so too, if its ordinary meaning is not consistent with the statutory purpose, that meaning must be rejected. (Footnotes omitted) 84 Section 62A falls within ‘Part 4 – Summary jurisdiction, Division 3 – Hearing of summary offence’ of the CP Act (SA). It forms part of a series of provisions that enable a Magistrate to effectively and efficiently determine the outcome of proceedings for those charged with summary offences. The means by which it does so includes by providing a regime to enable proceedings to be finalised in circumstances in which a defendant fails to appeal. 85 It is for a Magistrate to determine whether a defendant has failed to appeal. In order to be so satisfied, the Magistrate relies upon the individual presenting to the court and engaging with appropriate enquiries, most commonly to answer to their name. It should be noted that, in this case, the Magistrate went a step further and offered the alternative option of stepping into the dock and entering a plea of ‘guilty’ or ‘not guilty’, and Mr Maris declined to do so. Mr Maris went so far as to positively assert that he did not consent to the proceedings. 86 Although a Magistrate may suspect, or suppose that the individual, in this case Mr Maris, is the defendant, it is not incumbent upon them to embark on some sort of fact finding enquiry to determine the true identity of the person presenting in court, who is refusing to engage in lawful court processes. It is for the defendant to submit to the authority of the court to hear and determine the matter. In the event that occurs, the Magistrate can be satisfied that the defendant has “appeared” or “failed to appear” in court and can proceed accordingly. 87 As I have said, it is not for the Magistrate to second guess or conduct an enquiry into the identity of an individual. In some cases it may be obvious, in others less so. To provide two examples: a person may be sitting in the body of the court wearing a T-shirt stating “I am John Smith” but remain mute to questioning from a Magistrate; in another, a person may enter the court building but refuse to enter the courtroom, only communicating through an intermediary. Is it then for the Magistrate to conduct some form of hearing in order to be satisfied that the person presenting is in fact the defendant? In my view, it is not. It is for the Magistrate to be satisfied that the defendant has appeared in court and the manner in which that satisfaction is achieved is through the ordinary court processes. It is not for a defendant to dictate the means by which that is to occur, attempt to negotiate an alternative, or to insist on some other form of pseudolegal proceedings dictated by their own system of belief. 88 I agree which the observation made by Peek J in Lepse that the propounding of such “baseless” arguments is “highly disruptive and time-wasting” in a busy court with limited resources.43 43 Adelaide City Council v Lepse [2016] SASC 66 at [27]. -- 24 of 30 -- [2025] SASC 131 McDonald J 23 89 In my view, the Magistrate in the present case correctly determined to proceed ex officio in circumstances in which Mr Maris refused to engage in the process, such that the Magistrate could be satisfied that he had appeared and submitted himself to the jurisdiction of the Court. It was open to the Magistrate to find that Mr Maris had failed to appear at the hearing and proceed ex parte. Ground 2 - Under “South Australian Criminal Trials Bench Book” the judge is responsible for a fair trial 90 ‘The South Australian Criminal Trials Bench Book’ has no legal status. The Foreword to the First Edition contains the following statement of its intended use and purpose: The South Australian Criminal Trials Bench Book has been prepared primarily to assist Supreme Court and District Court judges in preparing their directions for juries. However, it is also being made more generally available in the hope that practitioners may also find it useful in making submissions as to the directions that are appropriate in a given case. The suggested directions and accompanying commentary in the Bench Book are not intended to constitute an authoritative statement of the law. They are intended merely as guidelines to assist judges and practitioners in the conduct of criminal trials. While care has been taken to achieve directions and commentary that accurately reflect the current state of the law, the Bench Book has no formal status in this respect. 91 Having said that, there is no doubt that a judicial officer is required to act fairly, regardless of the nature of the proceeding. The complaint underpinning this ground of appeal is in the decision of the Magistrate to proceed ex officio. 92 Given my decision in respect to ground 1, there is no basis for ground 2. 93 I dismiss ground 2. Ground 3 – A Notice of Counterclaim was filled [sic] for this matter, before this trial (“31st of January”), and was heard in the courtroom for public record the date of this trial but the judge did not take any action for the crimes that were in this Notice 94 As previously set out, after the initial exchange during which Mr Maris refused to answer to his name, the Magistrate asked Mr Maris to step back from the bar table. Mr Maris requested that before he did so, he be given the opportunity “to read the notice of the counterclaim”.44 95 The Magistrate afforded Mr Maris that opportunity. The Counterclaim appears to set out Mr Maris’ version of events, including various allegations against the police who arrested him. Once Mr Maris completed reading the document the Magistrate said:45 44 T6. 45 T10. -- 25 of 30 -- [2025] SASC 131 McDonald J 24 Thank you, unless you are willing to answer to the name Charalampos Maris, I cannot have regard to any of the material you have read out in court so I will ask you one final time, are you Charalampos Maris? 96 The Magistrate was correct that in determining to proceed ex parte, it was not open to have regard to material that Mr Maris sought to put before the Court. It is therefore unclear as to why the Magistrate permitted Mr Maris to read out the document. It is likely that she was endeavouring to take a pragmatic approach, in the hope that the issue could be brought to a head and Mr Maris would agree to submit to the Court’s processes. That did not eventuate. 97 I make the observation that even had the matter proceeded with Mr Maris participating in the proceedings, it would not have been open for him to hand up or tender the notice of counterclaim If he wished to put his version of events before the Court, it would have been necessary for him to have given sworn evidence. 98 In such circumstances, given my decision in relation to ground 1, there can be no suggestion that the approach adopted by the Magistrate resulted in a miscarriage of justice. 99 I dismiss ground 3. Ground 4 – A Notice of Instructions was filled [sic] for this matter, before this trial (“31st of January”), and was heard in the courtroom for public record the date of this trial but the judge ignored it 100 The Notice of Instructions sets out the following:46 The “Registrar of Magistrates Court – Port Pirie” … Date known as “January 30, 2024” Notice to Principal is Notice to Agent Notice to Agent is Notice to Principal Notice of Instructions I, the living being with incarcerated sovereign spirit with superior divine crown jurisdiction and the key principal, credit executive, beneficiary and executor of the estate and this matter, I have corrected my status as I am the superior executive, a living man, higher than this court and I am instructing you and it is my wish that the record shows that, anything else is a failure of due process and concealing the truth and law, If you believe there is a real crime with evidence, I am happy this matter to be heard in the local sovereign court, not with the “MAGISTRATES COURT” corporation or any of its agents, and only with a Jury of twelve living men and women. It is my wish that the Jury 46 FDN 12, MCCRM-22-018048, T3-4. -- 26 of 30 -- [2025] SASC 131 McDonald J 25 of the living men and women be from the Nation Tribes as they are the people that have authority on this land, I do not consent to these proceedings as I stand in higher jurisdiction, Your offer is not accepted, I do not consent to being surety for this case and these proceeding, It is my wish and I require the bond for this case, the bond for the judge, the clerk, the prosecutor and the sheriff, to see who will indemnify me if I am damaged, I invoke the oath of office to fulfill your duty to follow instructions. … 101 As is apparent, and somewhat ironically, this document appears to challenge the jurisdiction of the Magistrates Court. 102 There is no basis for such a challenge. The Magistrate was correct in failing to have regard to the Notice of Instruction. 103 I dismiss ground 4. Ground 5 - An Interlocutory Application with an Affidavit were filled [sic] for the hearing for this matter but the judge proceeded with this case 104 Unfortunately, given the nature of this appeal and the manner in which Mr Maris has endeavoured to place non-compliant documents before the Magistrates Court and this Court, it has often been unclear as to precisely which documents Mr Maris is referring to. This ground of appeal highlights the issue. 105 It would seem that there were documents filed both in the Magistrates Court and others that Mr Marris attempted to upload onto the Portal that may be the subject of this complaint, as well as documents handed up in the proceedings in this Court. 106 As far as I can conclude, there are two documents that meet the description of an Interlocutory Affidavit, although neither are compliant with the Rules and both appear to have been designed by Mr Maris. The first is entitled: Interlocutory Application “QUO-WARRANTO” “MANDAMUS” “CERTORARI” “JUS-NECESSITATIS” “JUS-NON-SCRIPTUM” “JUSTITIA-NEMINI-NEGANDA-EST” 107 It is dated 16 August 2023. This document was emailed to the Port Pirie Magistrates Court Registry on 16 August 2023. -- 27 of 30 -- [2025] SASC 131 McDonald J 26 108 Another copy of the document was handed up in this Court on 18 June 2024. On 26 July 2024, it was given an exhibit number.47 109 At no stage did Mr Maris make reference to this document during his submission, and with respect, it is contents are completely unintelligible. 110 The second document also entitled “Interlocutory Application” and purporting to be a form 92e, was handed up amongst a bundle of other documents on 18 June 2024. As with the first document, Mr Maris made no submission about it, and it is unclear what it is that Mr Maris is seeking in the application. 111 There is no basis to this ground of appeal. 112 I dismiss ground 5. Ground 6 - From the time of the unlawful arrest, until the time of the court proceedings, everything was under duress and it was written in the Police/Court documents and it has been heard in the courtroom for public record 113 During submissions Mr Maris raised the issue of the duress he has experienced since 11 December 2022. In the context of discussing Mr Maris’ belief that he was not required to submit to an alcohol test, Mr Maris said the following:48 APPELLANT: I think about the three charges and when we went to the police station we did the alcotest, we did the drug test, we did everything and it’s all clean. We didn’t do it because we’re scared that we’ll be under drugs or under alcohol you know and when we said that we’re under duress and the police commissioner lawyer said we can have a lawyer for the under duress, and we ... under duress when someone have guns and they smash your car at the end of this and then they drug you in the car with how do you call it - HER HONOUR: Handcuffs? APPELLANT: Yeah handcuff and ... that means that you’re okay ‘Yeah, la, la, la, we’re happy, yeah, let’s go’. Of course you are stressed. You are under duress because if you don’t comply, who knows what they can do, you know, that’s why it’s first time that we’re being with the police to be against police. Usually we help police because we have the shop in our town there for a few years and we have very good relationship with the police. We help them many times with incidents that happened outside our shop because of cameras and help them to many issues and also I tell you one time that one police officer, a woman, went to show my wife. She said if we were there, nothing would happen because all the incident, it was shown to the incident because I videorecord everything and a lot of people saw it and the policewoman say if we were there, nothing will happen because we know, I would know, you would know, everyone. It was something that it meant to happen, you know. We can’t change it now, it happened, yeah, but I’m telling you we had a very good name and we still have a very good name in our town there. 47 A4. 48 T32-33 (30 January 2025). -- 28 of 30 -- [2025] SASC 131 McDonald J 27 114 It would seem that Mr Maris contends that he has been under ‘duress’ since the time of his arrest and during court proceedings, however, he has not identified on what basis he asserts that he was under duress, nor has he explained the manner in which any such duress has manifested in a way that would form the basis for a ground of appeal. 115 Whilst I have no doubt that the events on the day of Mr Maris’ arrest, and what has subsequently followed, have caused Mr Maris considerable stress, that does not amount to a ground of appeal. 116 I dismiss ground 6. Ground 7 - A Notice of Injunction was filed for this matter before this trial (“31st of January”) but it was ignored 117 A document entitled “A Notice of Injunction” was provided to this Court and the respondent on 30 July 2024. It is dated 1 February 2024 and was therefore not before the Magistrates Court at the date of trial. This was one of a number of documents that I received de bene esse. On receipt of these documents, I advised that I would consider their relevance, and whether it was necessary that they satisfy the test for fresh evidence before being admitted, once I heard submissions. The Notice of Injunction is endorsed with a stamp reading “People’s Community Nation, Superior Divine Kingdom Court”. Although it is in large part difficult to follow, and is expressed in Sovereign Citizen terminology, it appears to make a complaint about the jurisdiction of the Magistrates Court. 118 It is addressed “to living man/woman acting as Registrar and clerk of the court, Judge/magistrate inferior misleading lower court / tribunal of the corporate de facto government of Australia and of the state of South Australia”. 119 It concludes with the following paragraph: Conclusion 3. This court's swift response to Strike the complaint known as docket number MCCRM-22-018048 With Prejudice avoids the conclusion that this court is wilfully involved with Conspiracy against rights; - Deprivation of rights under colour of law; - Frauds and swindle; Fictitious name or address; - Concealment, removal, or mutilation generally; - False entries and reports - Securities of the States and private entities; - Fictitious obligations; - threatening communications; - Statements or Entries Generally. 120 This document was not before the Magistrate at the date of trial. In addition, it is largely unintelligible. It follows that its relevance has not been established. 121 I dismiss ground 7. Ground 8 - This matter was not under Equity Law 122 Mr Maris has failed to explain what he means by this ground. -- 29 of 30 -- [2025] SASC 131 McDonald J 28 123 The matter currently before the Court cannot be said to fall into the category of equity law. 124 If, by this ground, Mr Maris is asserting that the proceedings in the Magistrates Court were not conducted equitably, or fairly, or due process has not been followed, he has not set out the basis of that submission, other than that the Magistrate proceeded ex parte. That complaint has been addressed in relation to ground 1. 125 I dismiss ground 8. Conclusion 126 There is no merit to any of the grounds of appeal. 127 I make the following orders: 1. The appeal is dismissed. 2. I will hear the parties on the issue of costs. -- 30 of 30 --