b>
I went to court on the 22 March 99 in the District court Kingaroy, Queensland, today. 5 friends had come along to see how things went. They included the editors of the papers “National Focus”, Peter Davies, and “Its Time”, Ray Smyth. Both are pro-Monarchist/ pro-gun/ pro-family/ anti-N.W.O. publications.
I had previously given the court the argument and the reply to respondent’s argument supplied by my supporters.
TRANSCRIPT of APPEAL AGAINST WEAPONS OFFENCES
Below is the transcript of my Appeal in the District Court in Kingaroy, Queensland, Australia. I will be appealing against the decision so if any knows anything that might assist me in winning this case please e-mail me.
DISTRICT COURT
CIVIL JURISDICTION
JUDGE BOYCE QC
Appeal No 2 of 1998
MARTIN ESSENBERG Appellant
and
CATHERINE MARY CARNES Respondent
Appeal No 3 of 1998
MARTIN ESSENBERG Appellant
and
JOHN PAUL LEWIS Respondent
KINGAROY
..DATE 23/03/99
..DAY 1
220399 D.1 Turn 1 vss (Boyce DCJ)
APPELLANT conducted his own case
MR C HEATON (instructed by the Queensland Director of Public
Prosecutions) for the Crown
HIS HONOUR: You're Martin Essenberg, are you?
APPELLANT: Yes, Your Honour.
HIS HONOUR: You're appearing for yourself on these two
appeals, are you?
APPELLANT: Yes, Your Honour.
HIS HONOUR: Mr Heaton, you're for the Crown?
MR HEATON: Yes, thank you, Your Honour.
HIS HONOUR: Yes, all right. Well, Mr Essenberg, I will
hear what your submissions are. You have filed some
submissions. I have read those and I will hear anything
further you want to say in the matter.
APPELLANT: Now?
HIS HONOUR: What you have to do is satisfy me that there is
some legal reason why the Magistrate's decision ought to be
interfered with. So that's what I need to know.
APPELLANT: Your Honour, I'm not represented in Court. In
November I was granted Legal Aid by Legal Aid Queensland,
however they decided they had made a mistake and revoked my
Legal Aid on 4 March 1999. I am appealing that decision,
which of course is not likely to be successful. I hope Your
Honour understands that I am not experienced in law. All my
documents have come from sites on the Internet. I am
unfamiliar with the procedures of the Court and hope that
Your Honour will make allowance for my ignorance.
Your Honour, as a Constitutional Monarchist I am a loyal
subject of the Queen, and as such I am guaranteed all the
rights that flow from the laws of England. I was tried in
the absence of a jury, although I asked for one. I was not
given the opportunity to accept or reject trial by a
Magistrate.
220399 D.1 Turn 1 vss (Boyce DCJ)
Under the laws of England I am entitled to keep and bear
arms suitable for my defence. As a loyal subject of the
Queen I am subject to the laws of England, including the
Magna Carta and the Bill of Rights, and am entitled to the
rights of law and protection, which includes laws 1, 2, 3,
and included are Perpetual Contracts. The laws relied on
are the laws of God and of Queensland and of the
Commonwealth of Australia.
Your Honour has sworn to uphold the laws that I rely on.
The Commonwealth of Australia's Constitution is section 9 of
the Act of the appeal of the British Parliament, 9 July
1900, and as such it is strictly bound and totally bound by
the laws of England, as are always the laws of Queensland.
Your Honour, as I understand it, summary proceedings are
consent proceedings in all Courts and unless the consent of
the defendant is obtained, it is the law that a jury be
empanelled under the Imperial Acts Application Act 1984. To
say otherwise, to offend section 204 of the Criminal Code of
Queensland, is an indictable offence. However, summary
offences are only offences that may be prosecuted without a
jury. The operative word being "may". If one is asked for
the defendant has an absolute right to get the jury for a
trial and the findings of the jury bind the sovereign. That
ensures fairness and impartiality.
Your Honour, the Weapons Act, section 137, part 1, has the
word "may" in it. "May" means that it is not compulsory for
the offence I allegedly committed to be tried in a summary
manner. It means that if I ask for a jury trial, that I am
entitled to be tried on indictment.
Your Honour, here, as I understand the authority
Ward v. Williams, 1955, 92 CLR 496 at 8, "In considering the
correctness of this interpretation, it is necessary to bear
steadily in mind that it is the real intention of the
legislature that must be ascertained and that in
ascertaining it you begin with a prima facie presumption
that the permissive or facultative expressions operate
according to their ordinary, natural meaning. The
authorities clearly indicate that it relies on those who
assert that the word 'may' has a compulsory meaning to show
as a matter of construction of the Act, taken as a whole,
that the word was intended to have such a meaning. Per
Cousins J 1907 VLR 368 at page 373. The meaning of such
words is the same, whether there is or is not a duty or
obligation to use the power which they confer. They are
potential and never in themselves significant of any
obligation. The question whether a Judge or a public
officer to whom a power is given by such words is bound to
use it, upon any particular occasion, or any particular
manner, must be solved from the context of the particular
provisions, or from the general scope of the object
conferring the power, Per Lord Selbourn, Julius v. Bishop of
Oxford, 1885, 214 at page 235."
220399 D.1 Turn 1 vss (Boyce DCJ)
One situation in which the conclusion is justified that a
duty to exercise the power or authority falls upon the
officer on whom it is conferred, is described by Lord Cairns
in his speech in the same case. His Lordship spoke of
certain cases and said of them: "They appear to decided
nothing more than this: that where a power is deposited
with a public officer of the purposes of being used for the
benefit of persons who are specifically pointed out and with
regard to whom a definition supplied by the legislature of
the conditions upon which they are entitled to call for his
exercise, that power ought to be exercised and the Court
will require it to be exercised." 1880 LR 5AC at page 225.
If the legislature intended to have a Judge refuse a jury
trial it would have clearly indicated its intention in the
Weapons Act. A Judge can grant a jury trial and should not
refuse a jury trial to grant a benefit to one litigant over
another, particularly when the other litigant is a fellow
public officer. In such a case "may" becomes "must", or the
system is seen to be a servant of the Executive Government
and not acting impartially. If the legislature intended
that I not be entitled to a jury trial, it would have said
"must", not "may".
With the Imperial Acts Application Act, there is a clear
indication of the legislature intended that I have a fair
and impartial jury adjudicate my case.
I choose, Your Honour, that I may have a jury trial. The
other documents you can read yourself.
HIS HONOUR: Yes, all right? Mr Essenberg, you have got two
appeals before me, and they're both deemed for hearing
today. That's right, is it?
APPELLANT: Yes, Your Honour, they're both the same cause.
HIS HONOUR: Yes, all right.
APPELLANT: Same argument applies in both.
HIS HONOUR: Yes, all right. Well, is there anything
further that you want to say in those appeals?
APPELLANT: Your Worship, as I said, I am not knowledgeable
of the law. I have done my best. I have given you the
documents. I can only leave it to you because I have
nothing further to say that I know anything about.
220399 D.1 Turn 1 vss (Boyce DCJ)
HIS HONOUR: Yes, all right. So there is nothing further
you want to say?
APPELLANT: No, Your Worship.
HIS HONOUR: Yes, all right. Look, I don't need to hear
from you, Mr Heaton.
TAKE IN ORDER
TRANSCRIPT OF PROCEEDINGS
DECISION
HIS HONOUR: these are 2 appeal under section 222 of the Justices act, and I propose to give reasons for judgement ex tempore in this matter. These are proceedings against the accused for breaches of the Weapons Act1990. The accused was convicted before a magistrate and a penalty imposed. There are a number of matters that have been raised by the Appellant. One matter is the question whether the accused was entitled to be tried by a jury. Section 161 of the Weapons act 1990 provides that, " A proceeding for an offence against the act other than section 65 may be prosecuted in a summary way under the Justices act".
In the circumstances there, there is no right to trial by jury in the matter. Accordingly the learned magistrate was entitled to hear and determine these proceedings in a summary way.Section 19 of the Justices act provides that, " where an offence under any act is no declared to be an indictable offence, the matter may be heard and determined by the magistrates court in a summary manner."
The appellant also relies on the Magna Carta. It is not necessary to consider the Magna Carta in any detail. Whatever may have been the provisions of the Magna Carta, the relevant provisions have long since been displaced by local statutes made by the Parliament of Queensland.
Accordingly anything that is in the Magna Carta that is said to bear on the offences provided by the Weapons Act of 1990 is totally irrelevant.
There is further an argument raised that goes along these lines, that there is an inconsistency between the statute law of Queensland on this matter and the statute law of the Commonwealth of Australia
Accordingly, I am of the opinion that there is no substance whatsoever in any of the grounds of appeal that have been raised in this matter and in each of these two appeals I dismiss the appeal.
Now, whats the position as to costs, Mr Heaton, are you seeking any order for costs?
MR HEATON: No, I'm not, your honour.
HIS HONOUR: Yes, all right, no order is made to costs
Links to other sites on the Web
© 1997 marsiegen@burcom.com.au
Get your own Free Home Page