LEBSANFT, A/Magistrate

No 1070 of 2000

MARK WILLIAM SHIELDS Complainant

and

MARTIN ESSENBERG Defendant

NANANGO

..DATE 14/12/2000

..DAY 1

SGT M S G STANTON for the prosecution

DEFENDANT conducted his own case

LESLIE SHANE POLZIN APPOINTED AS RECORDER

BENCH: I take the charge against Martin Essenberg. That's your name, sir?

DEFENDANT: Yes, your Worship.

BENCH: You are charged:

BENCH: The matter has been set for hearing. Do you continue with your plea of not guilty to this charge?

DEFENDANT: I plead not guilty, your Worship.

BENCH: Now, Mr Essenberg, you've indicated that you're pleading not guilty to this matter and the matter is set for trial. You're in a position to proceed, are you, Sergeant?

SGT STANTON: Yes, I am.

BENCH: Yes. Just before we go anywhere, though, so that the record is clear then, Mr Essenberg, the actual - the manner in which the trial will proceed is this: you appear without a solicitor. You are not wanting to speak to a solicitor or have a solicitor appear for you?

DEFENDANT: Your Worship, I have applied for legal aid but it has been disallowed.

BENCH: All right. And you are in a position to proceed today, then?

DEFENDANT: Yes, your Worship.

BENCH: Without legal representation?

DEFENDANT: Well, I have no other choice.

BENCH: All right. Yes. So today in an attempt to prove the prosecution case against you the Prosecutor will lead evidence against you by way of witnesses. Now, it's not for you to prove this matter - prove yourself innocent of this matter, it is for the Prosecutor to prove the case against you. You are innocent till proven guilty. Now, the evidence which the Prosecutor will lead is called evidence-in-chief.

Before I go any further I think I should make it clear on the record so that the record reads clearly, by the very nature of the Weapons Act charge that you face and, I, having previously adjudicated in a matter of this nature, and found against you on that particular matter, not on credit - not on credit - as a matter of some type of law I found against you, do you seek to have another Magistrate hear this matter, sir?

DEFENDANT: No, your Worship, I found that you have been the most considerate of all - all the people of the judiciary I've had to face.

BENCH: All right. Beside from the fact whether I'm considerate it's whether or not you seek to have another Magistrate hear this matter.

DEFENDANT: No, your Worship, I'm quite satisfied with you.

BENCH: All right. I just want the record to be clear on that. And I want the record to be clear in that it is not a question of credit that I ruled against this defendant previously on.

So just getting back to the short story which I was about to go into, in that it is not for you to prove yourself innocent, it's for the Prosecutor to prove the case against you. If you do that the Prosecutor will lead evidence against you, it's called evidence-in-chief. How many witnesses are you going to call, Sergeant?

SGT STANTON: One witness, your Worship.

BENCH: One witness. That particular witness is obviously the constable who's on your right and he will be - he will enter the witness box, he will give his evidence, that's

evidence-in-chief, and at the conclusion of that evidence-in-chief then it will be an opportunity for you, sir, to ask questions of that particular witness.

Now, the purpose of your asking questions - and it's to ask questions and not make statements to, it's ask questions of the particular witness.

DEFENDANT: Your Worship, I have read the witness' statements before we came into the Court.

BENCH: No, that's all right.

DEFENDANT: I have no problems with them at all.

BENCH: Yes.

DEFENDANT: My entire issue is constitutional law rather

than - that was - is my stock of a rifle.

BENCH: All right. So-----

DEFENDANT: I do not believe I am breaking any law.

BENCH: You - so you understand the procedure?

DEFENDANT: Yes, your Worship.

BENCH: Yes. So you're not requiring me to continue with my explanation of the mode of hearing here?

DEFENDANT: Sorry, I shouldn't have interfered.

BENCH: No, I'm simply going to have the record clear that the witness will give his evidence-in-chief, you will - have an opportunity to ask questions of, that's called

cross-examination, and the purpose of the cross-examination is to elicit information from the witness which may be beneficial to you or to cast doubts in the accuracy of the evidence that that witness may give. Now, you state that you've already read his statement and it's - you don't - you're not taking point with his evidence, but you're taking point with constitutional law.

DEFENDANT: Yes, your Worship.

BENCH: At the close of the evidence from that particular witness, and there is only the one witness for the prosecution, then, sir, you will have an opportunity to either address by way of submission - making a submission of no case to answer or giving evidence, yourself. Now, if you make a submission of no case to answer I will rule one way or another on that at the time. If you are successful well, then, the matter will be struck out and we can all go home. If you are unsuccessful then you must make a decision whether or not you wish to give any evidence, sir. And if you choose to give evidence from the witness box, well, then, by doing that you'll give your evidence-in-chief and then the good Sergeant, the Prosecutor, will be able to ask questions of you by way of cross-examination. And, of course, that is to elicit information which may be beneficial, helpful to their case, and further to cast doubts on any of the information which you may have already given. Do you understand that, sir?

DEFENDANT: Yes, your Worship.

BENCH: If you have a differing set of versions of the actual facts then whilst the constable is giving his evidence you must actually ask him to comment on your version of events. Once evidence is concluded there will be an address, summation of the evidence, and then the judgment will be given in relation to this matter. There will be exhibits tendered by the Prosecutor along the way, and the purpose of that, of course, is to assist with the prosecution case against you, sir. Do you have any questions at all?

DEFENDANT: No, your Worship.

BENCH: At all times you may make notes. You have pen and paper or you're right, you're right that way? All right, then. So, certainly, as we go if you wanted to make notes you certainly do so.

All right. Now, the two gentleman in the back of the courtroom they're not going to be called as witnesses at all?

DEFENDANT: No, your Worship, they're just here to see the proceedings.

BENCH: All right. That's okay. Just take a seat there, thank you.

SGT STANTON: Just one - one preliminary matter, your Worship. Martin - and I know from past experience with Martin, your Worship, and I also am aware that your Worship has ruled on this point before, Martin, as a part of this mission will be - and it's included in his full submission - is that he should be afforded the right of trial by a Judge and jury. Your Worship, I oppose that application, section 161 of the Weapons Act is quite clear. The proceedings for an offence against his Act other than section 65 may be prosecuted in a summary way under the Justices Act of 1886. I am just wondering, your Worship, whether your Worship is satisfied this matter can be dealt with today by way of summary jurisdiction before we commence the proceedings.

BENCH: Do you wish to be heard on that at all, sir?

DEFENDANT: Yes, your Worship. It comes down to the word "may" which I have quite a bit of detail in and a submission here to you. Would you like me to give you this now or later or-----

SGT STANTON: May I make a suggestion, your Worship, on that?

BENCH: Now, a suggestion or a submission, what's-----

SGT STANTON: A suggestion, your Worship.

BENCH: All right, then.

SGT STANTON: Martin has provided quite a lengthy submission including his appendixes which he's going to submit to the Court and my intention - I have no objection to the tendering of the - of his submissions and the documents in their written forms to [indistinct] your Worship to consider the material at your leisure if need be, your Worship.

The - that point I raise in fairness to Martin for your Worship to consider fully. It is quite a lengthy submission, your Worship, and it does cover all the - all the points that I understand Martin wishes to raise in support of his case as he has already stated. It is a point of law that he disputes not the evidence itself. Would your Worship - my suggestion in that case, your Worship, is perhaps if that point could be stood aside. The evidence can be presented to the Court.

BENCH: I will proceed that way. I think that will be a - otherwise a half-day trial could blow right out and that can be addressed, ultimately, in final judgment.

SGT STANTON: Yes, your Worship. That was my suggestion. That way the evidence can be presented to the Court. Martin's submission will be placed before the Court for your Worship's consideration.

BENCH: I'll receive it, there's no problems whatsoever.

SGT STANTON: Now or later?

BENCH: Now.

SGT STANTON: Well, I was going to suggest-----

BENCH: That-----

SGT STANTON: -----suggest that-----

BENCH: Is that the total submission?

SGT STANTON: That's correct, your Worship.

BENCH: No, I'll leave it. I'll receive it. I'll get you to hand it up, ultimately, not throw it up. All right, then. Yes, that will be - and for the purpose of the record this particular action is one brought under the section 50 of the Weapons Act, an unlicensed person charged and one able to be dealt with in a summary matter, and has - like charges have been dealt with a summary matter in the past though it is clear from the sergeant has said it was not mandatory, it is possible that matters may go and be determined in a higher jurisdiction, and the submission of Mr Essenberg would certainly address that point. And that very point the jurisdiction of this tribunal can be addressed and will be address then, ultimately, in my final judgment. All right? Whether or not if I should continue we should deal with this matter in a summary way or committal to the District Court. All right. You understand that, sir?

DEFENDANT: Yes, your Worship. So I can deal with the fact that it should not be dealt with in a summary fashion later?

BENCH: That's in your submissions? That's coming in your submissions?

DEFENDANT: Yes, your Worship.

BENCH: Yes. And I'll receive all that and address that totally in my final judgment. All right?

DEFENDANT: All right.

SGT STANTON: And that's why I made that suggestion, your Worship.

BENCH: Yes.

SGT STANTON: Certainly, your Worship is entitled to make a determination on whether the matter can be dealt with summarily and not prior to any decision as to guilt or innocence.

BENCH: Yes, totally.

SGT STANTON: Thank you, your Worship.

BENCH: And that would be the time frame which I would be putting it all in.

SGT STANTON: Thank you, your Worship. Your Worship, prosecution are in a position to proceed with this matter. There is one witness for the prosecution and that being Constable Mark Shields. I now call that witness.

MARK WILLIAM SHIELDS, SWORN AND EXAMINED:

SGT STANTON: Constable, please state your full name, rank and station to the Court?-- My full name is Mark William Shields. I'm a constable of police registered number 10423, I'm currently attached to the Kingaroy Police Station.

Constable, you know the defendant Martin Essenberg presently before the Court?-- Yes, I do.

Constable, you are the investigating officer in relation to the charge that is presently before the Court?-- Yes, I am.

And that Thursday, 24 August 2000 was the date on which you commenced this investigation?-- That's correct.

By consent, your Worship, I will show the witness his original statement, that is a three-page statement and I seek to tender that statement under section 644 of the Criminal Code, which is tendering of a statement by consent with the defendant.

BENCH: Now, just before we do that then, Mr Essenberg, it is by consent then that this - there will be the tendering of this statement?

DEFENDANT: Yes, your Worship. I've read it outside. It was quite acceptable. They could do with a spell check on their spelling but-----

BENCH: I won't be doing that.

SGT STANTON: Thank you, your Worship.

DEFENDANT: It's quite acceptable to me, your Worship.

BENCH: Thank you.

SGT STANTON: Constable, please confirm that that is the original statement in relation to your investigation of this matter?-- This is my statement.

I tender that report, your Worship.

BENCH: I'll receive that. That will be Exhibit 1.

ADMITTED AND MARKED "EXHIBIT 1"

SGT STANTON: Constable, your investigation entailed the execution of a search warrant under the Police Powers and Responsibilities Act of 2000, under section 69?-- That's correct.

I'll show you the original search warrant duly executed by yourself?-- Yes.

I'll show you that original search warrant?-- Thank you. Yes, this is the search warrant that I executed.

Thank you. I tender that report, your Worship.

BENCH: That will be marked Exhibit 2.

ADMITTED AND MARKED "EXHIBIT 2"

SGT STANTON: Constable, as a result of your investigation or during your investigation you completed a record of interview as such with the defendant?-- That's correct.

This was in the form of perhaps the best terminology of that of a field tape?-- That's correct.

I'll show you a C90 cassette, that is a copy of that conversation?-- That's it.

And included in that conversation were you - well, as a result of that you subsequently completed a transcript of that interview?-- That's right.

And that interview have you listened to the tape and read the transcript?-- Yes, I have.

In that conversation if you could confirm was yourself, Constable Shields, Detective Ryan-----?-- Yes.

-----Detective Patterson-----?-- Yes.

-----and the defendant Martin Essenberg?-- That's right.

I'll show you a C90 cassette and the transcript of that interview?

BENCH: I'll just - wait a moment. Thank you, proceed?

WITNESS: Yes, this is the tape and this is the transcript of that interview.

SGT STANTON: Your Worship, I don't believe there's any objection to the-----

DEFENDANT: Transcript, no, not at all.

SGT STANTON: Thank you, your Worship. And given that situation I would not be seeking to play the tape in Court.

BENCH: All right, then. Yes. Both the transcript and C90 will be collectively admitted and marked as Exhibit number 3.

ADMITTED AND MARKED "EXHIBIT 3"

SGT STANTON: Thank you, your Worship. Your investigation circles around a wooden and metal rifle stock, is that correct, Constable?-- That's correct.

I'll show you the wooden and metal rifle stock. Do you confirm that that is the item that was seized from the property?-- That is.

And it is recorded on Queensland Police Service property tag A442067?-- That's correct.

I tender that to the Court, your Worship.

BENCH: Well, there's certainly no need to make sure it's made safe. That will be marked Exhibit number 4.

ADMITTED AND MARKED "EXHIBIT 4"

SGT STANTON: I'll just place this in Mr Polzin's [indistinct]. Mark, I'm sorry, Constable Shields, is there anything further you wish to add to the evidence that is before the Court at this stage?-- Not at this point.

Thank you. Your Worship, that's the evidence-in-chief of the officer.

BENCH: Now, Mr Essenberg, as I indicated to you, sir, and in my initial address to you, this is an opportunity now for you to ask any questions of this particular witness that you may want to put to him. Just remember questions and not statements?

DEFENDANT: Thank you, your Worship, I have no need to ask the witness questions because the transcripts are reasonably accurate.

BENCH: All right. So there's no questions.

DEFENDANT: No questions, your Worship.

BENCH: All right. And there's nothing in your mind whereby you have a differing set of events or something like that to that which - or to the evidence which this witness has given? You don't want to-----

DEFENDANT: No, your Worship.

BENCH: -----put any differing versions to this witness now?

DEFENDANT: No, your Worship.

BENCH: All right, then. Yes, thank you, then. Just be seated. You may leave the witness box.

SGT STANTON: I'm just trying to prepare, given that Martin is unrepresented, whilst the officer is still under oath and before he is released from the witness box, I - it would perhaps be fair to Martin if I do make - make a short submission in relation to why this charge is brought before the Court to permit Martin to cross-examine the officer should he wish. Would that - I appreciate that that is as your Worship can see that is a rifle stock, it is not a complete weapon, and that would permit Martin the opportunity to

cross-examine the officer on the reasons why this charge was brought. And I appreciate that that is outside the normal proceedings which a submissions is made at the end of the presentation of all of the evidence.

BENCH: I know what you're driving at. I truly - I don't have any problems with it. You understand what the sergeant's driving at?

DEFENDANT: Not really.

SGT STANTON: Excuse me, I'll explain.

BENCH: Yes.

SGT STANTON: Your Worship, the - this charge is brought under section 50 of the Weapons Act. I'll refer to the relevant legislation that we rely upon and the reasons why Mr Essenberg has been charged with this matter.

Section 5 of the Weapons Act is the definition. I refer to the Weapons Act of 1990:

Section 161 of the Weapons Act, I'm sorry. Section 5 also refers to that of a firearm and - excuse me, your Worship:

Or there is (b), your Worship, I don't rely upon that.

What we submit is that the rifle stock is a major component of the firearm or a component part of the firearm.

The evidentiary provisions, your Worship, are contained in section 163 - I'm sorry, I'll go back, your Worship.

Section - now that - now that is the definition of a firearm. Also included in the definitions of section 5:

What we've - the reason for the charge being brought, your Worship, is that the rifle stock is a major component part of a firearm. By definition a firearm is a weapon and in the - in the transcript Martin makes admissions that the rifle

stock - and I - excuse me, your Worship?

Yes, your Worship, page 4 of the transcript refers to the stock where it says that the stock, the wooden stock we'd taken possession of, "Could you reassemble that if you so wished?" Martin says, "Oh, yeah, yeah, that's only a stock." Ryan says, "Oh, so, the particular parts of that weapon, the barrel" now that refers to another weapon, your Worship, which he was not charged with. And Martin says, "The barrel one?" and Ryan says, "No." Martin says, "The semi-automatic one." Ryan says, "The stock." Martin says, "Yeah, stock. Yeah, stock. That's a functioning weapon." Ryan says, "Yeah, the barrel, the firing mechanism?-- Yes, it's altogether, yes. Yes." Ryan says, "But it's not here?" and Martins says, "Correct." Ryan says, "And do you know where it is?" and Martin says, "Yes." Ryan says, "And if you so wished you could go and assemble that?" and Martin says, "Yes." Ryan says, "And put it back on that stock?" and Martin says, "Yes." Ryan says, "And so then it would be functional and operational?" Martin says, "Mmm, mmm."

Martin admits that he is not the licensed holder - a holder of a weapons licence under the current legislation. He argues a point in relation to a pre-existing licence that he held.

Your Worship, there is no certificate in relation to that weapon here today. However, I refer you to section 163 of the Weapons Act of 1990 and in that legislation, your Worship, it states at paragraph 4:

And it refers to (a) a weapon or (b) a firearm. I'd submit your Worship is entitled to take judicial notice and it is quite clear from admissions and from viewing the item that that is a rifle stock that is before the Court as Exhibit 4.

Your Worship, in view of the legislation and although that is not a complete firearm, it is a part of a firearm and Martin admits that it - he has the other parts and he can - and he could put it altogether again to make a complete firearm. In view of that Martin was charged under section 50 of the Weapons Act.

Thank you, your Worship, I don't know if Martin wishes to cross-examine the officer as a result of that submission.

DEFENDANT: Your Worship, that's a correct statement. I don't need to question the officer.

BENCH: You don't need to.

DEFENDANT: Pardon?

BENCH: Sorry, you don't need to?

DEFENDANT: Don't need to.

BENCH: All right.

DEFENDANT: Because that is correct, the stock is my stock and it belongs to my rifle which is currently buried and may not work because it may have rusted up by the time I get to pick it up again.

SGT STANTON: Point of interest, your Worship, I have offered on previous occasions to go and assist Martin to dig it up and make sure it is again operational, but he has declined.

BENCH: A supply of WD40, perhaps. All right, then. Thank you. You are free to step down from the witness box.

WITNESS EXCUSED

SGT STANTON: Your Worship, that is the evidence of the prosecution.

BENCH: All right. There's nothing further to be adduced. All right. So now at this juncture you - I indicated to you earlier, Mr Essenberg, you may make your submission of no case to answer or you may give evidence, yourself. Do you - first things first do you care to make a submission of no case to answer or do you wish to lead to evidence or further from that do you just simply wish to lead to addresses in this matter?

DEFENDANT: Your Worship, I believe I have no case to answer because I believe the weapons law are - the weapons laws are invalid for various constitutional reasons. I have this in my submission here.

BENCH: That's your ultimate submission in relation to the whole matter, is that the case or-----

DEFENDANT: Yes, sir, I mean I can speak on items of it. Like for instance the issue of "may" is covered in the submission. I believe I have a right to trial by jury and I've covered that in about two pages on the word "may" which is in the Weapons Act, and also something like 10 pages in the Bill of Rights Magna Carta. So I can read the entire submission or you can simply ask me questions about parts of it.

BENCH: You have the submission there.

DEFENDANT: Yes, your Worship.

BENCH: Of course, I'm caught in a tad of an awkward situation in that I have to rule in relation to that first matter whether or not on the topic of tribunal whether or not the matter can be - this is the right tribunal. I must deal with that. So on-----

DEFENDANT: I argue on this that this is not the right tribunal.

BENCH: Yes. Is there - and you have other argument though, of course, in relation to the whole charge though, don't you?

DEFENDANT: The weapon itself I don't cover in this much at all because the weapon is irrelevant. The law itself is the - is invalid. So-----

BENCH: So, sir, you don't have to take - you're not wishing to take this matter any further other than your final submission and this will be your final submission, is that the case? Was it your intention to give evidence yourself or not?

DEFENDANT: No, your Worship, I have no need to give evidence just a submission.

BENCH: All right, then. What I'll do I'll take the submission and I'll deal with the submission in one then. Thank you. If you - I - there's no - oh, sorry, I'll receive that.

DEFENDANT: The submission, your Worship?

BENCH: Yes. Thank you. All right. Now, do you want to speak on the topic of that submission at this stage for the purpose of the record which I believe is important?

DEFENDANT: Okay. Something which was brought up earlier about the word "may". I can read from this document because I'm not really very good at remembering all this stuff. If you care to open it you can read it - you know, read as I go. It's section - paragraph 43:

The Weapons Act, section 137, part 1, has the word "may" in it, and the prosecutor, of course, mentioned it also.

"May" means it is not compulsory if the - the offence so allegedly committed to be tried in a summary manner. The fact that it has been tried in a summary manner in the past doesn't mean it should always be tried in a summary manner.

It means that if I ask for a trial - jury trial, that I'm entitled to be tried on indictment. In Ward v. Williams: In considering the correctness of-----

BENCH: And - and what's the reference? Oh, that's it?

DEFENDANT: It's in - it's all in there. I'm just reading-----

BENCH: Ward v. Williams - yes.

SGT STANTON: Mmm. Martin's - he's reading from the - from his-----

DEFENDANT: Paragraph 46 at present.

SGT STANTON: -----written submissions, your Worship.

BENCH: All right. Well, I - I must just-----

Open it up.

SGT STANTON: It's the-----

DEFENDANT: I think that's the top.

SGT STANTON: There's a cover sheet, your Worship; just a blank piece of paper.

BENCH: This is it?

SGT STANTON: Yes, your Worship. At paragraph 43, it commences.

BENCH: All right.

DEFENDANT: Starting at 43. I'm up to 46.

BENCH: Oh, just wait one-----

DEFENDANT: Your Worship, I've learnt a fair bit going all the way to the High Court on the last gun offences, and you're now the recipient of all I've learnt.

BENCH: All right. Continue, thank you.

DEFENDANT: So para 46. In Ward v. Williams: In considering the correctness of this interpretation it is necessary to bear steadily in mind that it is the real intentions of legislature that must be ascertained that ascertaining [indistinct] can begin with a prima facie presumption the permissive or [indistinct] expressions operate according to their ordinary natural meaning.

The authorities clearly indicate that it lies on those who assert the word "may" has a compulsory meaning to show as a matter of construction of the act taken as a whole whether a word was intended to have such a meaning.

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 in particular manner must be solved from the context from the particular provisions or from the general scope of objects of the [indistinct] conferring the power. Per Lord Selberg.

One situation which the conclusion is justified that [indistinct] exercise the power or authority falls upon the officer on whom it is conferred is described is described by Lord Kansing's speech on the same case. His Lordship spoke of certain cases and said of them: They appear to decide 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's 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 to be exercised.

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".

The respondent's argument in the District - in the Kingaroy District Court - Essenberg v. Kham - included the word "may". Section 161 of the Weapons Act provides that the proceedings for an offence under this section other than section 65 may be prosecuted [indistinct] way.

The second argument of the prosecution was section 19 of the Justices Act where an offence under any act is not [indistinct] an indictable offence the matter may be heard and determined by a Magistrates Court in a summary manner.

So where does it say the trial by jury is precluded in my case?

"May" is a word, a decided judicial import. If a discretion is not consented to - and your Worship, I don't, you know, consent to a summary trial - it is the duty of the Court to treat all offences with a [indistinct] over three months as indictable offences as indictable offence to avoid the stigma of corruption overhanging the Court.

Now, I believe, your Worship, that - that - I think there's at least a six month potential penalty for my unlicensed possession of weapons, and if not, a maximum, of two years, I - I - perhaps Sergeant Stanton could correct me on that. Six months to two years' prison as a potential sentence?

SGT STANTON: Actually, your Worship, I do - I do have - for a category A or B weapon, your Worship, it is 20 penalty units or six months' imprisonment.

BENCH: That's correct.

DEFENDANT: This is a Category D weapon.

SGT STANTON: Oh, category-----

That's a semi-automatic - stock.

SGT STANTON: No, no. The - the charge, your Worship, is that of a Category A weapon, your Worship - a bolt action rifle, not the semi-automatic.

BENCH: Category A.

DEFENDANT: Well, it wasn't. It's a semi-automatic, your Worship. So, was that six months, you said?

SGT STANTON: Well, your Worship, for a Category D, H [indistinct] R weapon, it's 100 penalty units or two years in prison.

DEFENDANT: Two years? So therefore, it's over the three months by a bit. And I point out, your Worship, this - this is my third offence, you know, so you'll have to deal harshly - harshly with me.

SGT STANTON: If convicted, your Worship.

DEFENDANT: Okay, so, finish on para 30 - 53. The Criminal Code, section 204, why does the magistrate set the matter down on the request of any defendant for a jury trial or offence section 200 Criminal Code - refusal of public officer to perform - perform duty.

So that's on the issue of "may".

I also under the Bill of Rights and the Magna Carta believe I also should have a trial by jury. Do you want me to go to those sections?

BENCH: If you - if you want to address them, you address them, sir.

DEFENDANT: Okay. Let's see. Where I do start this off?

BENCH: Well, just wait for a moment, sir. We have to change the master tape.

DEFENDANT: Oh, it'll give me time to find-----

BENCH: We'll just pause. Certainly - upon resumption - change of the master tape - very well - certainly, if you wish to draw my attention to - to any particular thing, you may, or if you wish to make a general statement in relation to various topics, you may, without going into it in depth and then rely upon your submission that you have-----

DEFENDANT: Well, the - that's - it's really a lot to do with the - the Bill of Rights and Magna Carta. This is just in generalness. Back in 1670, there was a fellow named William Penn. You've got the - some details of that in one of the [indistinct] there. He was charged with holding a public meeting under the - what's called the Conventicle Act which was an act passed by parliament so that only people of the Church of England could legally have meetings.

Mr Penn was quaker, and he held a meeting and then he was tried by the judges. Now, at that time, he was guaranteed a trial by jury under Magna Carta, but at that time, the judicial system had become corrupted, such that although he was allowed a jury, the jury were not actually allowed to find a person not guilty if the judge said not - said so because otherwise they were penalised.

In the Penn case, the jury refused to find Penn guilty for three days, and each time the - the magistrate - the judge refused to accept the decision and sent them back to the jury room without food and water to - to rethink their issue.

Eventually, they found him not - William Penn - not guilty, and they were all fined for having disobeyed the judge. So the corruption was that, yes, you may have a jury in 1670, but you will - the judge - the judge says you will do what we say.

What has occurred since then is, we - we - they separated things from everyone having a jury to indictable offences and summary offences. And we're getting more and more of this type of thing coming up where, really, when summary offences were introduced, they were there for the convenience of people who didn't want a jury, who didn't - who wanted to plead guilty or - or something and just wanted to throw themselves at the mercy of the Court.

And what we now have is a case where the system is trying to make it compulsory we don't have juries. That's the corruption of the system. And this is, sort of, something that's developed over some hundred years.

In paragraph 36, for instance: There can be no doubt that an equity Court was required to sit with a judge and jury in Queensland at the formation of the Commonwealth in 1901. There can be no doubt that section 118 - constitution - gives that law full faith and credit throughout the Commonwealth. There'd be no doubt if - that if there is a conflict between law and equity, equity should prevail.

By the [indistinct] - 37 - okay, pass that word - Due to [indistinct] Acts 1876, the functions of equity were vested in the Court with a jury, not in a judge. The collective consciences of 12 jury persons was seen as equal to the collective conscience of the church and the Archbishop of Canterbury.

The evidence that juries were the norm in trials of common law and compulsory in New South Wales in 1900 is contained in the Volume 21 MS WR 1 1900: A magistrate is unable to sit without a jury without offending the Magna Carta unless the accused grants him jurisdiction. The consent to be tried summarily must be clear and unequivocal and a failure to carry out the procedures for obtain consent would deprive the Court of jurisdiction to determine the matter summarily.

Halbury's Law of Australia paragraph 130 to - must be two noughts - This provision is to prevent corruption usurpation of the role of the citizen in self-government to prevent the oppression of minorities by majorities. When a judge sits alone without consent, he's administrative officer, not a judicial officer. He's a justice, not a judge. Either - until he either obtains consent to act as a judge by all parties or empanels a jury to give the State power to make orders which are prejudicial to the sovereign members of our State.

Judges may, however, give administrative directions to enable the Court to be created and brought into existence. It is not a Court until it either has been sent to jurisdiction or empanels a jury of 12 sovereign electors to perform the judicial function of finding fact for the Court.

The difficulty Australians are facing today is that the governments of the Commonwealth and other states have meddled with the legal system so that no - no Court now sits in equity with criminal and civil jurisdictions combined, or has the benefit of the combined consciousness of 12 average Australians of the same peer group as those who are before the Court.

That's on that one. Oh, well, one other issue is the constitutional argument. The - oh, yeah - in Felton v. Monnigan - parts - paragraph 88: Once federal jurisdiction has attracted even in a point raised in defence, the jurisdiction exercised throughout that - the case - will remain a federal jurisdiction.

Your Worship, I have always maintained in the previous Court cases that this was a constitutional issue and still maintain that. As such, I am raising federal jurisdiction. In - son in Felton v. Monnigan, it says, well, as soon as you - one party says this is so then it is so.

So I can tell you that federal jurisdiction having been thus invoked, the substance of my claim is the conflict of law should have been examined - it should be examined. A summary trial not proceeded with until the validity of the act in question was determined.

My defence in previous trials has consistently found on the question of constitutionality. All persons are equal before the law, and if one person who is equal to another person asserts that the constitution applies and another asserts that it does not, as the prosecution do, then a justiciable dispute arises within the original jurisdiction of the High Court of Australia by reference to section 30 Judiciary Act 1903, and it is a dispute involving the contract between the State of Queensland and the Commonwealth of Australia made for the benefit of Australia citizenry. It is a basic right of all citizens to a jury trial in such a dispute.

Your Worship, a magistrate is not a judge, and as such, cannot exercise a federal judicial function at all, so, effectively, if I declare this is a federal jurisdiction is attracted, then I need a higher Court.

I further contend given the criminal tenure of the act on which I am charged I should be afforded a jury trial [indistinct] given the [indistinct] arrangements were in the federal and state governments under - covering clause 5 of the constitution, the Queensland government's restrained from passing legislation conferring jurisdiction upon a state Court incompatible exercise of federal judicial power.

Effectively, I seek is that if I can be potentially gaoled for two years, it's really an indictable issue, not a summary issue. Now, hopefully, of course, your Worship won't gaol me for two years, but the potential is there.

In the case of Brown v. the Queen, the judges in the High Court emphasised the important role the trial by jury has in the administration of justice. Chief Justice Gibbs said the requirement there should be a trial by jury was no - not merely arbitrary and pointless. It must be inferred that the purpose of a section must be to protect the accused. In other words, provoke - provide the accused with a safeguard against the corrupt and overzealous prosecutor and in case the client bias of a [indistinct] judge.

He goes on to say: The jury is a bold work of liberty, a protection against tyranny and arbitrary oppression and an important means of securing a fair and impartial trial. It is true that the jury system is thought to have collateral badges. It involves ordinary members of the public in a judicial process and may make some decisions more acceptable to the public.

And that's on that one. Somewhere around is Dietrich. Where's Dietrich? Dietrich was an important case. It was obviously a - a - a - this is to do with legal representation, your Worship. I can't quite seem to find it. But it essentially goes in Dietrich, he was - did not have legal representation. He was on a severe - serious charge.

Again, I'm on a charge which is potentially up for two years. I'd applied for legal aid. I wasn't - I can't get legal aid. I applied to the Human Rights and Equal Opportunities Commission and they won't represent - they - they won't get involved. And I'm asking you in - in this submission to make a ruling as to whether you think that the - my application for legal aid under the Human Rights and Equal Opportunities Commission Act are - should be taken notice of.

Now, I don't know what happens then, but the idea being that what's the point of having a federal act that says - let's see, what does it say? Very broadly - Human Rights - mmm, mmm. Oh, yeah, here it is. Section 209 is the Human Rights and Equal Opportunities Commission - starting 209 - 212's the one I'm actually after. In the - got that [indistinct]?

BENCH: I have, yes.

DEFENDANT: In the - so this a schedule to section 3 international covenant and civil political rights part 2. Now, the ICCPR is schedule 2 of the Human Rights and Equal Opportunities Commission Act and part - part of the definition is if the schedule is part of the Act as much as the Act is, if that - if that makes any sense to you.

In a determination of any criminal charges against him, everyone shall be entitled to the following minimum guarantees - in full equality - to be informed properly and in detail in a language understood by him of the nature and cause of the charges against him - not a problem - to have adequate time and facilities for the preparation of his defence, to communicate with counsel of his own choosing, to be tried without undue delay. There's been no problem so far. To be tried in his presence and to defend himself in person or through legal assistance of his own choosing, to be informed if he does not have legal assistance, of this right and finally, and - and this is the important one - I mean, all the others you've covered - no problems - and to have legal assistance assigned to him in any case where the interests of justice so require and without [indistinct] by him in any such case if he does not have sufficient means to pay for it.

Australia is a signatory and a fully committed member of the United Nations and has undertaken to honour and obey the international covenant on civil and political rights.

Now, your Worship, I have applied for legal aid. Economically, I - I qualify, but the legal aid people usually take the view that unless I can prove that I have a chance of success, they won't give me legal aid. Well, if I could have a chance of success, I wouldn't need legal. I'd - I'd - you, sort of - it's a circular argument.

I'll find it - oh, yes, here it is. This is an older one. I missed the - "We regret to advise that legal aid has been refused in relation to your matter of criminal law appeal. Legal aid had been refused for the following reasons: On the information provided, this office does not consider your appeal likely to succeed.".

Now, I'm for a potential two years. How, you now, I am supposed to prove to these people that it can succeed, and if I don't - can't prove it - well, you know, I'm trying to prove that to you now.

So since the, you know, Human Rights and Equal Opportunities Commission won't get involved, I'm stuck here without legal aid. It's obviously a case that is of significant importance, not just to me, but to also the many other gun owners, 'cause I don't know if you have friends that basically have - it's a common knowledge around the place that everyone - a lot of people have unlicensed weapons. There is widespread - well, you - you can ask the - Mark Stanton about this - there is widespread disobedience to this law. So large numbers of people are affected by this law. It is a - I see it as a constitutional issue, not a issue of: Yes that is my stock. I don't deny it, but it is my stock legally. I have no case to answer.

But how can I prove that without legal assistance?

I go into it a bit further than that. Oh, perhaps I should just mention about Judge McHugh I was in the High Court with. In Essenberg v. the Queen in the High Court. Judge McHugh states: The Magna Carta and Bill of Rights are not documents - this is paragraph 5 - Magna Carta and Bill of Rights are not documents binding on Australian legislatures in the way the constitution is binding on them.

Any legislature acting within the powers [indistinct] by the constitution can legislate and disregard Magna Carta and Bill of Rights. At the highest, those two documents express a political ideal, but they do not legally bind the legislatures of this country or for that matter, the United Kingdom, nor do they limit the powers of legislations of Australia or the United kingdom.

So the problem with this judgment - actually a big problem to a lot of people about the judgment is the killing of the blue eyed babies. As he - McHugh said that parliaments were supreme and that they could pass a law to kill blue eyed babies - the transcript's there - you have.

Now, we haven't really come far since Herod if that's the - the case. But the thing is, Judge McHugh himself has been in cases where he has allowed common law particularly in Plenty v. Gillam. They - the case traces the history of the law and supporting ruling precedents back to the Magna Carta in 1215.

In other cases where - perhaps where Judge McHugh was not involved - well, Standbridge v. Scotts is a good one, where they say Article 9 of the Bill of Rights was used to say that Wayne Goss could say what he said in parliament and Dennis Standbridge couldn't prosecute him about the issue.

So that was - now the - the important thing, of course, is what - he also mentions in Stanbridge v. Scotts is Pepper v. Hart. Now, Pepper v. Hart is an English case which essentially says that you - when there's a doubt about what legislation really means, you have to go back to the Hansard of what the - the parliamentarians said when they brought in the legislation. And I'm not suggesting we discuss the Weapons Act because the - the powers that be were all quite unanimous in their decisions on the Weapons Act - corrupt lot. Well, more likely is - is the - the - the Bill of Rights itself the - because at - in the Bill of Rights in the Hansard apparently it's quite plain that what they were intending to do was give people inalienable rights that could not be changed by - by anybody.

Anyway, the issues where there's been - in Brofay v. Western Australia, there was discussions of [indistinct] by the Crown dealing with common law and things. Holdings v. Jenning, they upheld again Article 9 of the Bill of Rights of 1688.

So here we have the Bill of Rights being used as a precedent, yet finally, when it comes to the High Court and Judge McHugh says: Oh, no, the Bill of Rights has absolutely no application.

In Emmerson in the - in the USA - In Emmerson v. United States of America, there's a good discussion of the - in - in relation to the second amendment of the Americans which gives them the right to bear arms going back to England because what the - the American anti-gun people are trying to prove is that the right to bear arms was for a well-ordered militia which is a group right at the state, whereas in Emmerson v. United States, the judge is - goes on to prove that it was an individual right because the - England at that time was a unitary state, i.e. there was no states to have gun - you know, guns. It had to be an individual right. So that's quite a good one, that.

Oh, another thing about the Bill of Rights of course is Denver Beanland, when he was Attorney-General, confirmed that the Bill of Rights was still applicable in Queensland under the Appeal Acts Application Act. The current Attorney-General, Matt Foley, when asked by Dorothy Pratt, MLA, in a question on notice which is attached, seems to advocate his responsibilities to the High Court. He just simply refuses to give an answer that makes any sense.

Well, in a - Justice Sir Samuel Griffith confirmed the common law in 1915. So there's whole heaps of cases where the common law, where the Bill of Rights and Magna Carta are used. There's one in Queensland - sorry, my apologies - Northern Territory. [indistinct], I think it's called - gets someone else - where they're discussing the Magna Carta in relation to - the aboriginals up there are claiming rights, not only of the land, but also the sea bed of the land because they say, well, we have traditional, you know, use of this land. And they go back to the Magna Carta to try to prove that the rights we have to the Territory are, you know, sort of, in a certain fashion and therefore native title does or not come into control of the sea.

Well, your Worship, you know what I'm like in waffling like, so it's appropriate I'm reading the document and checking and addenda.

BENCH: All right, then. Well-----

DEFENDANT: Have I covered - is there any questions-----

BENCH: Well, it's not for me to ask questions of you.

DEFENDANT: No, I mean - if - to clarify what I've said.

BENCH: I - I get the thrust of your argument.

DEFENDANT: Oh, I'm glad. I get so confused about it myself.

BENCH: There are a number of points which you raise there and - so the document - the document which you have been referring to, so it is clear to me when-----

DEFENDANT: Yes.

BENCH: -----when I'm going through it-----

DEFENDANT: [Indistinct].

BENCH: That's very timely. The document you're referring to - are your submissions titled "Essenberg v. Shields,

14 December 2000"?

DEFENDANT: Yes, your Worship.

BENCH: And - and then the other documents which you have handed up are ones which are referred to throughout your actual submissions?

DEFENDANT: Yes, your Worship.

BENCH: Okay.

DEFENDANT: Unfortunately, I didn't have the time - I was typing this up at 5 o'clock this - typing some of this up at 5 o'clock this morning - I didn't have the time to actually annotate the page numbers in each particular case when I, say, refer to something, so you might have a bit of trouble with the coherency of the - you now, so I do - but it's the best I could do given that I have no legal qualifications, no legal representation, and only three months to work on it.

BENCH: You certainly would have a better grasp of the law after this particular matter. All right. There's nothing further from you?

DEFENDANT: Nothing your Worship, I can think of.

BENCH: All right. All right, then. Thank you. Sergeant?

SGT STANTON: Yes, your Worship, there are points. The - the point that Martin raises is that there is no case to answer here and he refers to the Magna Carta and the Bill of Rights.

Your Worship, if I could make use of Martin's documentation which he places before you. If I could refer your Worship to it - at the - at the head of it. It is the-----

BENCH: Oh, just excuse me. Yes, continue, thank you.

SGT STANTON: Thank you, your Worship. If I can refer your Worship to the - it's the Supreme Court of Queensland Court of Appeal document that Martin has tendered within his index.

DEFENDANT: Is that the Supreme Court order?

SGT STANTON: This is Carnes-----

DEFENDANT: Oh, yeah - yeah, right.

SGT STANTON: Yes. This is Carnes against [indistinct], your Worship, Court of Appeal number 135 of 1999, 136 of 1999. Your Worship, Mr Chesterman - Judge Chesterman refers - if you could turn to page 3 of 4.

BENCH: Yes, all right. Yes?

SGT STANTON: Your Worship, this is a - a submission of no case to answer by Martin that this Court does not have the jurisdiction to hear and determine this matter.

I refer you to that Court of Appeal matter, and at page 3 of that document, your Worship, Judge Chesterman states: The Australian Courts became part of the law of Queensland upon a separate establishment in 1859. It may be noted also that the Colonial Laws Validity Act of 1865 was passed by the imperial parliament to remove doubts about the extent to which Australian Colonial Parliaments could alter imperial legislation as it applies to the colonies.

As Dr Lum points out in his work on the constitution of the Australian states, the result of that act was that no colonial law was void on the ground that it was repugnant to the fundamental principles of English law.

The matter is made even more explicit by section 3, subsection 2 of the Australia Act of 18 - of 1986 which provides that no law and no provision of any law made after that act by the parliament or the state shall be void or inoperative on the ground that it is repugnant to the laws of

England or the provisions of an existing or future act of parliament of the United Kingdom.

The supremacy of parliament to make laws contrary to that to what had been the common law is expressly recognised by the Court. It is enough to refer to the decision of the High Court in [indistinct] against the Director of Public Prosecutions, 189 Commonwealth Law Reports, 51 at pages 73 to 74. In the judgement of Justice Dawson, his Honour pointed out that the champion of the common law, Chief Justice [indistinct] had in his institute of the laws of England in the early 17th century accepted the Magna Carta could be altered by English parliament. Indeed, he referred to bills of [indistinct] which allowed the trial contrary to Magna Carta as being lawful enactments.

Justice Dawson went on: Judicial pronouncements confirming the supremacy of parliament are rare. Their scarcity is testimony to the complete acceptance by the Courts that an act of parliament is binding upon them and it cannot be questioned by reference to principles of a more fundamental kind.

The passage goes on and concludes: There can be no doubt that parliament [indistinct] supremacy is a basic principle of a legal system which has been inherited in this country from the United Kingdom.

That is enough to dispose of the arguments that Magna Carta and the Bills of Right are untouchable and unalterable sources of private rights or immunities.

The Criminal Code and the Justices Act of Queensland have changed the manner in which prosecutions may be brought. The Weapons Act has abrogated the right of citizens to go armed in public.

Your Worship, that refers - that is one point that refers directly to Martin's matter.

Your Worship, the - well, to my knowledge, as high as you can go in this country.

DEFENDANT: Can I answer that one before we go any-----

BENCH: No.

SGT STANTON: Well, I'll keep going.

DEFENDANT: Oh, okay - sorry.

SGT STANTON: Your Worship-----

DEFENDANT: [Indistinct].

SGT STANTON: -----I refer you to the next document: High Court of Australia transcripts, Essenberg against the Queen, B55 of 1999, 22 June 2000. I'm sorry, your Honour, on - on the Court of Appeal matter, Justice McPherson stated - this is on page 4 [indistinct]: And whatever character English law including Magna Carta and the Bill of Rights was received here they became liable to alteration or abolition by local legislation once the full power to legislate was transferred from Great Britain to Australia including Queensland.

They go on. In the last paragraph: It cannot possibly be doubted that the provisions of the Weapons Act, namely those that make it an offence to have a firearm in possession without an appropriate licence and those which enable - which make it an offence to have a firearm in possession without an appropriate licence - I'm sorry - and those which enable offences of that nature to be prosecuted summarily rather than on indictment before a jury are valid.

In consequence, the application for leave to appeal whether as to the substantive offence or as to penalty is misconceived and must be dismissed.

Your Worship, Martin's appeal was dismissed on those grounds.

Now, that matter was taken further, and I refer you to the next document. That is Essenberg against the Queen, B55 of 1999. And this is a transcript of Martin's discussions with their Honours. And on page 2, your Worship, Justice McHugh and states, when discussing the issue with Martin: That is not the problem you face that the Magna Carta and the Bill of Rights of 1688 are not documents binding on Australian legislatures in the way the constitution is binding on those legislatures.

Any legislature acting within the powers allotted to it by the constitution is entitled to legislate in total disregard of the Magna Carta and the Bill of Rights as in - as is the United Kingdom parliament. He refers to the situation in Northern Ireland and goes on: If you go back to Magna Carta which I suppose is really the heart of your argument, it is really more a statement of political ideals. They are not constitutional documents in the sense that the Australian constitution and the United States constitution are.

Your Worship, again, they actually refer to the points that Martin has referred to and they do consider numerous cases, the essence, your Worship, and Justice McHugh states in his findings: Magna Carta and the Bill of Rights are not documents binding on Australian legislatures in the way that the constitution is binding on them. Any legislature acting within the powers allotted it by the constitution can legislate in disregard of Magna Carta and the Bill of Rights. At the highest, those two documents express a political ideal. They do not legally bind the legislatures of this country or for that matter, the United Kingdom, nor do they limit the powers of the legislatures of Australia or the United Kingdom. That being so, an appeal would have no prospect of success for that reason. Special leave to appeal is refused.

Your Worship, my submission is those points had been considered by a far superior course to - to our jurisdiction here today, and they have found against Martin's submission that this Court does not have the jurisdiction to hear and determine this matter. That being so, your Worship, I would submit that the section 161 of the Weapons Act of 1990 and [indistinct] for an offence against this Act other than section 65 may be - may be prosecuted in a summary way under the Justices Act 1886.

My submission, your Worship, is that it is the discretion of your Worship as to whether this matter can be adequately dealt with in this jurisdiction. That being so, your Worship, the prosecution, I submit, have proven a prima facie case against the defendant, Martin Essenberg, and if your Worship considers that you do - you are able to consider this matter, it is in - within the - within this jurisdiction to consider the matter, I'd submit that there is a case to answer and this matter should proceed.

BENCH: Yes, thank you. Yes, by way of reply?

DEFENDANT: Your Worship, I'm indebted to the prosecution for bringing those things up. As - as far as the - the Criminal Court of Appeal judge referring to Dawson, Dawson was a - one of - was a minority judgment. It is not a majority judgment.

As far as the Colonial Laws Validity Act 1865, I covered much of that in this document you have. Paragraph 258: Much discussion, both historical and legal has been had re the Colonial Laws Validity Act 1865. However, the general view that this Act limited the scope of colonial legislature or as to make laws repugnant to the - England - is only partially correct.

I believe that the - a Criminal Court of Appeal judge was in error. There are two types of English law, one is common law. This 1865 did not restrict the colonial, that is, state and commonwealth - and [indistinct] my interpretation - governments and Courts creating common law unique to one's area in each colony state in Australia.

Two [indistinct] which arises from bills passed in the imperial parliament was [indistinct] by the Crown. However, the three types of statute laws of the imperial parliaments; statute law would extend to the colonies. Statute law is operative throughout the Empire, other statute laws applicable to Great Britain.

The differentiation between these types of statute laws is of critical importance. The vagaries, the interpretation, the validity of the law of colonial legislature meant by the middle of the 19th century great confusion and as to the - as to the extent of a prohibition and vague limitations lead to the Colonial Laws Validity Act 1865 which restricts the prohibition.

Section 2 - I won't read section 2. Section 3 provides that no colonial law should be brought on the grounds of a repugnancy to the law of England unless it is apparent some act of parliament or irregulation as aforesaid.

When this act was passed, it was not regarded as a curtailment of legislation empowering the colonies. It took [indistinct]. In fact, look at pointers in one of the charters of colonial [indistinct] independence next imports the famous [indistinct] Act which Britain - British parliament prompted by lessons the American rebellion renounced its intention it were going to tax the colonies.

It - it removed all the [indistinct] to the powers the colonial legislation to appeal or - alter or appeal the general mass of English law not made [indistinct] by statute [indistinct] empire.

In so far as the Colonial Laws Validity Act in the context the learned judge has cited that being - with reference to section 3 it cannot be expressly applied in isolation to section 2. Section 3 simply reiterates section 2. And it goes on to powers - 260. Section - in 261 - in other words, any colonial law shall be read subject to repugnancy of the Imperial Acts allowing for the parts that are severable and the repugnancy to stand while the remainder is a void for it.

What the judge seemed to have done, after I talked to people about it afterwards, he ignored section 2 and went on section 3 when section 3 is merely a modifier to section 2.

This - so this section does - section 3 does not stand alone by virtue of the very addition of the final wording as aforesaid. Again, it's like that word "may" where we have to, sort of, take into context everything that was said rather than just some of them.

Had these words not been included then the construct would plainly be independence of colonial or irrespective of its badness, and would render the previous section redundant. But it is ancillary to section 2, and is not in the obvious meaning of the Act have a life of its own.

To read otherwise is to subvert its plain intent. Thus it does not derogate from section 2 but confirms it, and it cannons upon which the responsibility of [indistinct] remain acknowledged and unimpeded in the life of - of the colony and carried in to the compact of states.

[Indistinct] the next one. Going back to - what appears to be the problem is that - and it's [indistinct] later in a - a - a term called stare decisis. I'd used in fact precedents in the - in my arguments, you know, Stanbridge v. The Premier, to say, look, here's a precedent says the Bill of Rights exists.

But - but what also the judiciary have done is often used precedents, more recent precedents to move the original intent of law to somewhere else. And, this is sort of seems to be what's happened that they've used section 3 of the colonial laws of the Liberty Act to say we have the power.

And then after a bit no-one gets to - think about section 2 because it's then the commonly perceived thing that oh, we've all got all these judgments that rely on section 3 being the power, i.e. we are free [indistinct] what.

That's like [indistinct] for instance. For 200 years everyone, all the judiciary said oh, the place was vacant. Now it's only 200 years later they say - say oh, heck, all those things we've - all those judgments we've done for 200 years are now turned on their head and it's all wrong because terra nullius is no longer a valid thing.

So, we've got error on top of error on top of error because the colonial - colonial governments and the colonial judiciary wanted to have the power. They didn't want their laws to be overturned because they were open to the laws of England. And so they created a situation where they said, oh, the colonial laws of the Liberty Act is what we say it is 'cause we're the High Court, we're the [indistinct] Court or Supreme Court.

Now, if that's the case, if - if there's no point in putting arguments to a Court because they have a preconception of these things, well, one might as well - it's a military state.

You know, we've got to be able to say excuse me, but you've made a mistake here, that - that some of these precedents are incorrect and you then use them to create other precedents and create more law. And, being realistic, surely if the - if the High Court can say that the - the - the legislators can - [indistinct] might even read that one out actually. Da - da - da. Don't think you read the [indistinct] bit out, did you Mark?

CONST SHIELDS: No.

DEFENDANT: Oh, so whilst I get back to that - Northern Ireland situation. Again the High Court mentions in the situation in Northern Ireland. Northern Ireland was a state of war for - particularly after the Bill of Rights was signed, so the Bill of Rights says we all have a right to trial by jury. William of Orange choofs off to Northern - to Ireland, beats the Catholics and suddenly there isn't any trial by jury. Well, it was a situation of warfare. It was a [indistinct] military dictatorship in Northern Ireland.

It's not a good example to say therefore the Bill of Rights doesn't apply because two years later they didn't apply it. Because it simply didn't apply in some places, but it applied in England.

Now, where's the [indistinct]? Oh, yeah, here it is. Essenberg v. The Queen in the High Court, page 2 of 7. Bottom of page - towards the bottom. McHugh J:

They had - parliament forced the king to sign a contract that said that the people would have certain inalienable rights, but they didn't establish their authority over the monarch because it's the monarch who is required to make all bills into Acts - Acts of Parliament.

The monarch is the one who creates the parliament. The parliament does not create the monarch. So - so that - that is an error for a start. It didn't establish authority over the monarch. It was a contract between the monarch and the people about certain inalienable rights.

But parliament, which some people would regard as regrettable, can in effect do what it likes. As it is said, some authorities could legislate to have every blue eyed baby killed if it wanted to.

Now this particularly applies to the Queensland Parliament. Most states have bicameral houses, i.e. an upper house and a lower house. Queensland is the one that use the unicameral house where currently the Labor Party is the government because they have 45 seats, and all the opposition combined have 44.

The effect of that is that we have Jim Elder who now turns out to be a - have done corrupt things. We have four or five-----

BENCH: How far you going with this?

DEFENDANT: Oh, sorry. What I'm trying to say is we have a Legislature that is in total control and recently we've found a good number of them turned out to be corrupt. So they have been making laws, be it the - the Vegetation Management Act, the Water Act, and stuff like that. And it turns out a lot of the guys are crooks.

But, because they're a unicameral house, 45 to 44, they could pass a law to kill blue eyed babies. Is this the type of law that we think this is what law's about. This is not law, that's dictatorship. Sorry about that.

BENCH: [Indistinct]. Are you going to go much further with this?

DEFENDANT: No, I think [indistinct].

BENCH: All right.

DEFENDANT: I do lose the plot-----

CONST SHIELDS: Just a point, if I could refer your Worship to the - the two pieces that I've already referred to. The remedy, your Worship, as has been covered in those - in those documents of the Superior Courts, the remedy to Martin's concern, I'd submit, is not within the - within the realms of this jurisdiction, your Worship.

The - the remedy is the power of the ballot, and if those concerns are - we are a democracy, and if we as citizens are unsatisfied with the laws that have been passed, it is quite simply that at election time we change our government and we bring pressure upon that government to change the legislation.

However, your Worship, we, as citizens, of a democracy are bound by the legislation of our democracy, and we must follow those laws. And the laws as they stand state that this jurisdiction - this Court has jurisdiction, that is the discretion of your Worship. And those are the rules that we follow, and I as a police officer must uphold, and Martin as a citizen must obey.

BENCH: All right then. Following that-----

DEFENDANT: Your Worship, that-----

BENCH: No - no - no, I'm not seeking to hear at all from - from you on - on that topic. I'm going to adjourn this whole matter for decision.

CONST SHIELDS: Your Worship, if - and - and just on that point I'm not sure if your Worship is going to consider doing that to a - specifically to a day or to after a callover, my understanding from - from Martin, and - and he may - may object, but should your Worship find that there is a case to answer I don't know that he intends to produce any - whether he intends to give evidence or not, if your Worship finds there is a case to answer.

Excuse me. Your Worship, just from discussions with Martin, should your Worship find - and I'm not trying to pre-empt that, but should your Worship find that there is a case to answer and Martin chooses to - to give evidence on his behalf, he is - he intends to only call himself as - as a witness, and he would be offering nothing further than the - than the documents that he's already provided to the Court which he would tender as exhibits in support of his case. So, I don't know whether the matter - and - and my submissions, your Worship, I've already made on the - on the proof of the evidence that is before the Court.

BENCH: Well, it'd be dangerous to set it down after a callover date, and just looking through I'm looking at Thursday 25 January. There's nothing else set for that date, Sergeant.

CONST SHIELDS: Certainly, your Worship. That - no, that's-----

BENCH: So - so, 9.30 here [indistinct].

CONST SHIELDS: Your Worship, the matter - does your Worship wish the matter to be heard here or Kingaroy?

BENCH: I'll - I'll finalise the matter here.

CONST SHIELDS: Thank you, your Worship.

BENCH: Very well then the matter will be adjourned to 9.30 on 25 January. If you just stand for a moment then, sir. You're formally remanded to re-appear 9.30 on the 25/1/2001. You're at large.

DEFENDANT: Your Worship, I - I had intention to go to New South Wales to visit relatives at Christmas, is there any problem with that?

BENCH: No.

DEFENDANT: Good. I just thought I'd check before-----

BENCH: No.

DEFENDANT: -----I went out of the state [indistinct] trouble.

BENCH: No - no, I'll go-----

CONST SHIELDS: He should be remanded in custody, your Worship.

DEFENDANT: I'm not - you think I won't come back. Oh, I'm eager for it.

BENCH: No, we won't do that.

THE COURT ADJOURNED