APPLICATION FOR LEAVE

OR SPECIAL LEAVE TO APPEAL

Form 61

O.69A,R.2(1)

No of 2002

BETWEEN

Martin Essenberg

Applicant

and

The Queen

Respondent

1. The Applicant applies for leave to appeal the whole part of the judgement of McPherson JA, Williams JA and Ambrose J sitting as the Criminal Court of Appeal in Brisbane on 31 January 2002.

1. That there is an inconsistency of law as applied in the laying and determination of the original charges discloses a cause of action.
2. The principle question remains as to the Constitutional legitimacy of the right to bear arms for the purpose of suitable defence as allowed by the law of the land
3. Such a premise speaks to the grundnorm principles imbued to the Constitutional matrix of Australia.
4. A second question runs to jurisdiction, which continues to remain in the first, and now the second, instance, forming an inter se question (Pirrie v McFarlane ((1925) 36 CLR 170)
5. The Criminal Court of Appeals Judges were in error in failing to take heed of additional arguments as to the Validity of the Australia Act (Request)(1986) (Qld) and the position of State Governor.
6. His Honour erred in setting aside the principle of consuetidinal rights in favour of purported paramountcy of statute law in regard to ancient custom declared by Magna Carta. Consuetidinal law is antecedent to statute law and is not bound by it thereby. a customary right when enacted by statute is simply declared and confirmed by enactment and not diminished by it
7. His Honour erred in law in contradistinction to settled law time out of mind, and supporting authorities in respect of trial by jury. Sir James Mackintosh "history of England" vol 1 pg 219-220, Hallam "Middle ages" vol 2 pg 327, Coke "II Institute"- "Trial by peers was very ancient"
8. His honour erred in taking notice of a High Court directions unknown to the law to not refer cases to this court at the discretion of the lower court in contriety to statutory authority under the Justices act 1903. It is enough that Constitutional issues be raised to justify action under sec 78B. They exhibited patent bias in imputing notoriety to applicants from Queensland.
9. At page 22 in the lower court proceeding His Honour Justice McPHERSON JA said: "the High Court has told us that we are not to refer matters to them, or rather to act under section 78B, if the arguments put before us are simply unsustainable."
10. The Criminal Court has no jurisdiction in Federal Constitutional matters and can therefore not judge whether my arguments on the validity of the Australia Act (1986) (C’wealth) are unsustainable.
11. His honour erred in procedural law in not deferring the matter until the Sharples case had been examined or alternatively in respect of an automatic 78B application on supporting grounds in the first instance. Sue V hill and Sharples v Arnison are misapplied.
12. Their Honours erred in not seeking to confine the matter under section 604 Queensland Criminal Code as per the supplementary notice attached to the submission, entitled ‘Jurisdiction’. The Supreme Courts of the States are precluded by virtue of section 77(2) of the Constitution from determining any matter arising under the Constitution or involving it’s interpretation & section 78B is automatically enlivened thereby, as is sec 39(2)c
13. His Honour determination is not assisted by reliance upon Durham Holdings for whilst an exigency obtained for further adminicle assistance, correspondingly it is insufficient to rely upon trite opinion in lieu of diligent and even handed inquiry (" opinion is not law")----(Walsh V Johnson (1925) 37 CLR at 51)
14. We draw the courts attention to a supporting reference relied upon by the respondent in that matter in reference to Sir Edward Coke (page 25 top para) taken from the work of O. Hood Philip’s (Constitutional Law of Great Britain and the Commonwealth- second edition), in contrast to the fulsome work of Catherine Drinker Bower whose biography of Sir Edward Coke "the Lion and the throne" is materially more substantive on which to draw any opinion.
15. Similarly Hood Phillips observations regarding Magna Carta are cursory and offer no intelligent discussion on the subject (at page 22 Durham)
16. Further in the course of those proceedings, in a discussion of fundamental rights, reliance was placed on Essenberg v Queen (22 June 2000), to purportedly disestablish Magna Carta as having any constraint over statute law, (at page 22 Durham) yet throughout the proceedings adverse admissions are made by the respondent in favour of the common law presumption of super antiquas stare vias, and further page 22 Justice McHugh and Kirby plainly refer to acknowledged fundamental principles which undergird the Constitution that is the grundnorm.
17. In particular Justice Kirby's statements at page 16 and 25 (paras 4 and 9 respectively) are unequivocal on the issue of antecedent principle which, as McHugh J stated at page 21 para 2 "is not necessarily going to be found in decided cases."
18. Justice Kirby said " that the fundamental foundation of our constitution is…but the will of the sovereign people of Australia and that the people of Australia have reserved certain rights to life, liberty and property to themselves and have not given them to the legislatures, Federal or State. That has to be the way in which the theory…has to be grounded in a principle consistent with the Constitution, that is implied in the grundnorm,…of the Australian constitution" page 16)
19. At page 22 Kirby J says "the basic sense of Justice- is that too ethereal to appeal to? It is a fundamental principle that you do not take people’s lives or their properties without due process of law."
20. At the same page McHugh said "What is put against the respondent is that it was accepted by a lot of eminent people in the 17^th century and even later and in the professional opinion of Inns of Court, for example, cannot be lightly disregarded. It was Maitland who said that common law was rooted in the year books, rooted in the Inns of Court, rooted in the centuries. It is not necessarily going to be found in the decided cases
21. On the issue of inadequate time to prepare for the District court as discussed in the court below, their Honours erred in not giving due regard to the inequity of the Respondents delinquent disregard of Practice directions, which prejudiced the applicants right to a fair hearing. This courts general view on the subject can be further be found in the Durham pleadings at page 3 para 1, where Justice McHugh admonishes one of the parties for failing to comply with the rules for being "unfair to the other side who comply with the rules"
22. Their honours erred in failing to acknowledge an equitable right to due process pertaining to natural justice and remitting the matter to be heard again in the lower court subject to S 604 of the Queensland Criminal Code
23. Further his honour erred in not giving due regard to the inequity of delinquent disregard of practise directions which prejudice the appellants rights to a fair hearing.
24. This court's general view on the matter can further be found in the Durham pleadings (page 3 para 1) where Justice McHugh admonishes one of the parties for failing to comply with the rules of being "unfair to the other side who comply with the rules"
25. His honour erred in failing to acknowledge the right of due process pertaining to natural justice.
26. The Dietrich case goes to the heart of the right to trial by jury, and we also question the constitutionality of summary jurisdiction and absolute liability simple offences, by which combined mechanism, constitutional plinth are brought within the competence of subordinate legislatures.
27. The upholding of inappropriate precedent for the sake of uniformity within the hierarchical system of jurisprudence, speaks of judicial compromise of law and independence. Their Honours are not bound by legal real-politik, but by law. It was Sir Edward Coke who said "Constant allowance… doth make law" (II Institute)
28. The applicant’s case was not assisted by excessive intervention by the bench. (GIO (NSW) V Glassock (1991)(unreported) Court of Appeal)

3) ORDERS SOUGHT

1. That Special Leave to Appeal be granted.
2. An order that the Appeal be allowed and the matter remitted back to the District court for determination in accordance with law by a jury of my peers.
3. An order that the Crown in Right of the State of Queensland must obey the laws forming the Constitutions of Queensland and Australia.
4. An order that the Constitution of Queensland be enforced and that the Bill of Rights be enforced and that inherited common law be enforced.

25 February 2002

____________________

(Applicant)

To The Respondent

TAKE NOTICE: Before taking any step in the proceedings you must, within 14 DAYS after service of this application, enter an appearance in the office of the Registry in which the Application is filed, and serve a copy on the applicant.

THE APPLICANTS ADDRESS FOR SERVICE IS:

Martin Essenberg

Lot 7 Runnymede Est Rd

Nanango, 4615.

Queensland.