DISTRICT COURT

CIVIL JURISDICTION

JUDGE ROBERTSON

No K18 of 2001

MARTIN ESSENBERG Appellant

and

MARK SHIELDS Respondent

KINGAROY

..DATE 31/05/2001

..DAY 1

31/05/2001 D.1 vms Turn 1 (Robertson DCJ)

MR P KELLY (instructed by the Director of Public

Prosecutions (Queensland)) for the respondent

APPELLANT appeared on his own behalf

HIS HONOUR: Mr Essenberg?

APPELLANT: Your Honour.

HIS HONOUR: Yes. This is your appeal. I've waded through

your outline of argument.

APPELLANT: It's fairly thick, sir.

HIS HONOUR: Which is 421 paragraphs. I can't say I've read

it all, Mr Essenberg, but I've tried.

MR KELLY: Your Honour, Mr Essenberg is asking for an

adjournment of this matter.

HIS HONOUR: Yes, Mr Essenberg.

APPELLANT: Your Honour, right through the appeal process

I've complied with the practice directions in the District

Court. I have yet to receive - to be served by the DPP with

the information they gave me in this case.

HIS HONOUR: Have you got their outline?

APPELLANT: I've got their outline only because I collected

it from the Court, your Honour, and according to the

practice directions there's supposed to be a conference to

discuss the issues. There's supposed to be certificates of

readiness and then, of course, I'm supposed to be given 21

days from the notification of-----

HIS HONOUR: I've read your letter.

APPELLANT: Yes.

HIS HONOUR: So it's clear the DPP have not complied with

the practice direction. I'll accept that. You don't have

to convince me of that.

APPELLANT: I would ask your Honour that the DPP be required

to comply with the bits of the practice direction.

HIS HONOUR: But you've got their outline. When did you get

that?

APPELLANT: I got that eight days ago.

HIS HONOUR: So you had time to consider that?

APPELLANT: Well, your Honour, it says in the practice

directions that after the - when I get notified of the Court

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date I should have 21 days beyond that to be prepared.

HIS HONOUR: The issues are straightforward. You're

obviously on top of them from the book like submissions.

I've never had submissions like that on a 222 appeal. I'm

not going to give you an adjournment. I am going to proceed

with the appeal.

APPELLANT: Your Honour, for a start, there was - this was

only applied for mention and a mention is simply to find out

when there is appropriate time for a Court file-----

HIS HONOUR: The whole purpose of the appeal and the fact

that you've complied with the practice direction is that all

the arguments that the appellant wants to advance are put in

writing, so the oral side of it is a very minor thing,

indeed, and litigation like this should be determined. It

shouldn't be allowed to drift on and I'm not blaming you for

the DPP's complete failure to comply with the practice

direction, but the issues are identifiable and very clear.

You're obviously on top of them, on top of them much more

than probably most people and I've read them and I think

your interests are fully protected by your written

submissions. Now, I'm going to proceed with the appeal. So

if you want to add to those by way of oral submissions you

can, if you don't, that's all right by me.

APPELLANT: Your Honour, I will do so if I have to, but I

think this is abusive process.

HIS HONOUR: Well, that's all right, Mr Essenberg, you can

think that and you can complain to the Court of Appeal if

you want to appeal from that aspect in my decision. It's a

matter for you.

APPELLANT: Yes, your Honour.

HIS HONOUR: So do you want to add to your written

submissions?

APPELLANT: Yes, your Honour.

HIS HONOUR: And I don't want a rehash. I've read all your

arguments about the Magna Carta and I think your major

problem, as far as I can see, is overcoming the Court of

Appeal decision which you are appealing, the same issues

which were ventilated and which the decision was against

you. That decision binds the Magistrate, it binds me. I

don't see how we can get beyond it.

APPELLANT: Your Honour, as far as the Essenberg v. Kahns in

the High Court, I believe in other Court cases - I haven't

found it, unfortunately, which one. I've read it somewhere.

When a litigant is unrepresented the case may be legally

prospect. So that's, you know, one issue about the thing.

HIS HONOUR: Sorry, I don't understand that. I thought - do

you want to have legal representation, do you?

31/05/2001 D.1 vms Turn 1 (Robertson DCJ)

APPELLANT: Your Honour, I have had applied for legal

representation with legal aid and it's been refused.

HIS HONOUR: What, on the ground of lack of merit? It

doesn't matter, Mr Essenberg.

APPELLANT: Well, it's actually quite important.

HIS HONOUR: I think you've clearly shown-----

APPELLANT: I've been refused by Criminal Law summary

hearing as, "Legal aid is not provided for Magistrate Court

trials unless you have details of your offence to show you

have a reasonable prospect for success and if you are

convicted you may go to prison." Now, your Honour, although

I wasn't - it was argument to a fine, the potential penalty

was a prison sentence of six months as to the reasonable

prospects of success. If I had - could prove I had

reasonable prospects of success I wouldn't need legal aid,

so it's sort of like - it's basically giving nothing.

HIS HONOUR: But you won't get any argument from me about

applying a merit test to people getting legal aid, but

unfortunately that's just the way it is. I can't do

anything about that. There's a shortage of money for

legal aid. There's an appalling shortage, but people like

you should be lobbying the Attorney-General and people like

that, but there's nothing I can do about it. I think it's

terrible that decisions about legal aid are made about

grounds of merit, in other words, an administrative person

somewhere behind a desk who is not making decisions in

public is deciding cases, exercising judicial function, but

I don't want to give you another idea, but-----

APPELLANT: Your Honour, I believe in the case of

Dietrich v. The Queen - I have a spare copy.

HIS HONOUR: I know Dietrich. I know it well, Mr Essenberg.

APPELLANT: Okay. I believe chapter 12 - it says or

paragraph 12, "The advantages of a representation by counsel

are even more clear today than they were in the 19th

century. It is in the best interests not only of the

accused, but also administration of justice that the accused

be so represented. Indeed, where there is no legal

representation, saving in the exceptional case of the

litigant, the adversary system whether or not it remains in

theory, in practice, breaks down."

HIS HONOUR: The Dietrich authority is for one simple

proposition, that is, in a complex case and an indigent

accused, that is, someone who is without funds should be

entitled to legal representation, but this is not a

complicated case. This is a simple as you get.

APPELLANT: Your Honour, I am indigent. I am unemployed. I

haven't got legal aid. As for it being a complex case it is

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not about me having a stock or not having a stock. I had

that stock.

HIS HONOUR: Yes, it is about that.

APPELLANT: It is about the entire validity of the

Weapons Act.

HIS HONOUR: See, Mr Essenberg, the problem for me is that

your arguments before me - I've read what Justice Chesterman

said in Kahns v. Essenberg and, no doubt, you've read it.

APPELLANT: Yes.

HIS HONOUR: The President and Justice McPherson agree with

Justice Chesterman. He rejected those arguments in relation

to the prosecution against you under the Weapons Act, that

binds me, you see. Now, you talk in your outline about

precedence, that's the whole principle. It binds me, it

bound the magistrate. Well, I can't go beyond that.

APPELLANT: Your Honour, I think Chesterman was the one who

talked about the Colonial Laws Validity Act.

HIS HONOUR: He rejected your argument that somehow or other

the Magna Carta and the Bill of Rights were applicable more

in Queensland. In effect, your arguments of Weapons Act

wasn't a proper exercise of legislative power by the

Parliament of Queensland. He rejected that and you argued

before him that under the Weapons Act you are under trial by

jury and you rejected that and they're the same issues that

we raise here and I'm bound by it, you see.

APPELLANT: I did introduce in this document - appeal

document additional things about the validity of the

Governor and, therefore, if the Governor is invalid then, of

course, the Weapons Act is invalid too. I introduced the

fact the Australia Act is invalid-----

HIS HONOUR: The Governor is invalid? I actually saw him at

a concert on Sunday, he looked valid.

APPELLANT: Which he might have been. The Governor,

apparently he's only an administrative officer. The basis

of the invalidity of the Governor is the fact that the

Australia Act was passed in 1986.

HIS HONOUR: That goes back to your argument of the

Weapons Act is an illegitimate exercise of - well, the

parliament had no power to pass the Weapons-----

APPELLANT: I'm also saying, your Honour, the Governor had

no power to sign the Weapons Act into law. Not only is

parliament not supreme, but the Governor is currently

illegitimate.

HIS HONOUR: What about, you didn't raise before the

Magistrate - you don't raise on your ground of appeal

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straight forward argument about whether a stock is a weapon.

The Magistrate seemed to deal with that. You don't seem to

argue against that, I don't know.

APPELLANT: Well, your Honour, I am not concerned whether it

was a stock or a return spring or the entire 105 millimetre

Howitzer.

HIS HONOUR: So you don't raise that as an argument before

me?

APPELLANT: No, your Honour. I base it on the fact that the

Weapons Act is invalid for a variety of reasons including

the Australia Act is invalid because of the lack of a

referendum of the people of Queensland and a further

referendum of the people of Australia and, as such, the

Colonial Laws of Validity Acts comes into play and Sir Joe

in his speech to parliament said the Colonial Laws of

Validity Act was a major impediment to the State passing

laws since the entire opposition argument is that the

Australia Act is valid, therefore, the Weapons Act is

invalid. If the-----

HIS HONOUR: Which opposition is this? Mr Kelly?

APPELLANT: The DPP.

HIS HONOUR: Mr Kelly just says you were properly convicted,

that's all.

APPELLANT: No, he says, "The proposition sought is to be

relied upon by the applicant 32. The proposition relied

upon the applicant floundered totally upon the list

provisions of Australia Act of 1986. Subsection 2 of

section 3 of that Act provides: if the Australia Act is

invalid, therefore, the Colonial Laws of Validity Act dated

65 applies and, therefore, the Weapons Act is also invalid."

Now, that is the basis of their argument. I say the

Australia Act is not valid, they say it is.

Well, I've presented many arguments in this document as to

why it's invalid. The fact that the Governor of Queensland

is invalid the Australia Act had been invalid because it had

a referendum in the federal parliament. So that was a new

argument that wasn't presented in the criminal Court of

Appeal last time.

HIS HONOUR: Right. Thank you, Mr Essenberg. Mr Kelly, I

don't think I need to hear from you.

TAKE IN ORDER

His Honour: On 25 January 2001 following a summary trial in the Nanango Magistrates Court the appellant was convicted of one charge of a possession of a weapon pursuant to section 50 of the Weapons act 1990. He was convicted and fined $400 in default, 16 days in Prison

At the trial the appellant represented himself. He did not contest any of the evidence led by the prosecution and indeed, in cross examiniation he agreed with the version of facts put to him by the prosecutor. The basic facts of the prosecution case are that during a search of his residence pursuant to the Weapons act on 24 August 2000 the appellant produced to Police a .22 calibre rifle stock. The learned magistrate found that the stock was a weapon and, indeed his finding is not challenged on the appeal.

I invited Mr Essenberg to explore that point before me, but he declined to do so. A stock is not referred to in the definition of major component part in the act, but the definition is an inclusive, not an exclusive definition. There’s no document tendered in terms of section 164 (2)(iii) nor did the magistrate deem it necessary in the interest of Justice to proceed under section 163 (3), rather he acted under section (164 (4) and decided that the stock was a weapon. There is no challenge to that line of reasoning. The magistrate found that all the elements of the offence were made out beyond reasonable doubt and convicted the appellant.

The grounds of the appeal relate to a number of arguments advanced by the appellant before the magistrate to the effect that the Weapons Act was an invalid exercise of the legislative of the Parliament and that he is entitled to a trial by jury. He advances the same arguments on appeal and further arguments, difficult to understand, that effectively comes down to the proposition that the Australia Act 1986 is invalid.

Most if not all of these arguments were ventilated in the Court of Appeal in Kahns V Essenberg and others in 1999. QCA339 (23 August 1999). The learned Magistrate correctly rejected the arguments by reference to that authority which binds him and which binds me and which Mr Essenberg is clearly familiar with because he was a party.

The argument relating to the Australia Act for similar reasons should be rejected. The appeal has no merit. It is dismissed. Because of the respondents complete failure to comply with the practice directions number 4 of 1997 I will make no order as to costs.