[2002] QCA 4
COURT OF APPEAL
McPHERSON JA
WILLIAMS JA
AMBROSE J
CA No 163 of 2001
THE QUEEN
v.
MARTIN ESSENBERG
Appellant
BRISBANE
DATE 31/01/2002
#DATE 31:01:2002
JUDGMENT
McPHERSON JA: The applicant applies for leave to appeal against his
conviction before a Magistrate of an offence under the Weapons Act 1990 of
possessing a weapon while unlicensed. He appealed against that decision to the
District Court, where the appeal was dismissed. He now applies for leave to
appeal against that decision.
There was and is no dispute about the facts going to constitute the offence
in question, and the submissions, such as they are, that have been advanced by
the applicant in person before us today really come down to three matters or
grounds intended to support the application to appeal.
The first is that the applicant did not receive a trial by jury, which is
said to be contrary to the provisions of Magna Carta. I suppose it will help no
one to be told that as a matter of history Magna Carta did not guarantee trial
by jury because, at the time Magna Carta was introduced, there was no such thing
as a jury. But that is history, and is really, in a sense, beside the point. The
simple fact is that it is enough to say here that the legislatures of the
Australian States and, in particular, of Queensland because it is the one
involved here, have complete power to repeal Magna Carta or to amend it, either
expressly or by passing legislation like the Weapons Act 1990 that is or may be
inconsistent with it.
If authority is needed for that it is enough to refer to the recent High
Court decision in Durham Holdings Pty Ltd v. The State of New South Wales (2001)
75 ALJR 501. There are other decisions of Courts to similar effect including one
in the English Court of Appeal entitled Queen (Bancoult) v. Secretary of State
[2001] 2 WLR 1219.
The Weapons Act, in conjunction no doubt with the Justices Act, provides for
a summary hearing of cases of this kind, and, in so far as that is in any way
inconsistent with Magna Carta, it overrides it.
The second ground of appeal is that the State Governor of the time, that is,
at the time when the Weapons Act or any amendment to it was assented to, was not
validly appointed, so that he could not properly assent to that Act, or to do
any other act in the way of administering the Government of this State.
This point has been exhaustively considered and disposed of in no fewer than
four decisions of Judges of this Court sitting whether as a Court of Appeal or
as single Judges. The most recent of those decisions is one entitled Sharples v.
Major General Peter Arnison, Beattie & O'Shea [2001] QCA 518, in which
judgment was delivered in this Court on the 23rd of November 2001. We were told
that Mr Sharples, as one might expect, has applied for special leave to appeal
to the High Court of Australia. The application to that effect has not yet been
heard or the decision given.
It would not be right to defer our decision in this matter pending the
outcome of the application for special leave to appeal. The proper course for a
Court is to decide a matter before it according to its own view of the law,
except in extraordinary cases where a discretion is exercised to defer a matter
pending a decision of a higher Court. In this instance we do not know if Mr
Sharples will obtain leave to appeal or will succeed on the appeal if he obtains
it.
Consequently, this Court must follow its usual course, which is to accept
that it is bound by its own decisions unless it is demonstrated quite clearly
that they are almost certainly wrong. Nothing of that kind has been demonstrated
by the applicant in the present case, who, in fact has, whenever questioned
about the matters appearing in written submissions that he has relied on,
constantly disavowed any knowledge of what they mean.
The result is, for my part, that I would not be prepared to overrule, or
even, on the material put before us, consider overruling, the Sharples decisions
raising the same points as are raised here in the way that they have.
Now, the only other matter that has been put before us is a general complaint
that the applicant was unrepresented in the Court below; that having regard to
the decision of the High Court in Dietrich v. R (1992) meant that he was not
fairly heard, tried or convicted; and that his Honour, it was added, also acted
in some way that was unfair to the applicant. So far as the Dietrich case is
concerned, that case applies to serious offences only. This case would certainly
not answer that description the more so as the applicant was fined only $400.
So far as the conduct of Judge Robertson is concerned, the complaint really
comes down to this; that he failed to follow or enforce the guidelines or
practice directions that the District Court has published for the hearing of
appeals and other proceedings before it. In the last resort it would appear that
the applicant's only complaint in that regard is that he was given a fewer
number of days after receipt of the Crown's submissions in the matter than the
practice directions would have allowed him. In so far as this is correct as a
matter of fact, and assuming also that he was in some way disadvantaged by that
lack of time, it is clear that he has had since May 2001 to prepare in the
fullest possible way any arguments that he is interested in presenting to this
Court and is able to elucidate in the ordinary way. There can be no disadvantage
to him from any lack of time in the District Court to argue his case when
something like eight months or so has passed since that hearing, within which he
would have been able to present his application to us in the fullest possible
way.
An application for leave to appeal in matters of this kind is an application
which calls on the discretion of the Court to allow an appeal to proceed after
two previous hearings have already determined it. In my view there are no
matters that would activate the discretion of the Court to hear this appeal, or
which would encourage this Court to grant leave to appeal, in a case in which
the law has already been so clearly established by decisions of this Court. I
would therefore dismiss the application.
WILLIAMS JA: The applicant has raised a number of matters of complaint but I
am not satisfied that the applicant has identified any point of law which would
justify granting leave to appeal pursuant to section 118 of the District Court
Act. Leave should be refused.
AMBROSE J: I agree. On the stated authority binding this Court and all Courts
in Queensland the decision of the learned District Court Judge was clearly
correct and it is not a case in which leave ought to be granted to reconsider
that matter.
McPHERSON JA: The order of the Court is that the application for leave to
appeal is refused. Are you asking for costs?
MR COPLEY: Not any more.
McPHERSON JA: That is the order of the Court.
