The matter has been appealed with the documents below but no date has yet been set for the case.
IN THE COURT OF APPEAL QUEENSLAND
State of Queensland- Complainant
V
Martin Essenberg- Defendant
NOTICE OF APPLICATION FOR LEAVE TO APPEAL AGAINST A DECISION OF THE DISTRICT COURT
To the Registrar of the Court of Appeal.
I Martin Essenberg, of Lot 7 Runnymede Est Rd, Nanago, 4615
Having been convicted of the offence of UNLICENCED POSSESSION OF A FIREARM at the Magistrates Court held at KINGAROY on the 2nd day of September 98 and having appealed to the District Court held at Kingaroy on 22 day of March 99 give you notice that I hereby apply to the Court of Appeal for leave to appeal so that I may give notice of Appeal( or notice of application for leave to appeal) on the following grounds.
The applicant is aggrieved by the decision because Judge Boyce –
1) Has failed to adequately justify his reasons for stating that the relevant provisions of Magna Carta have long since been displaced by local statutes made by the Parliament of Queensland.
2) Has stated that the Magna Carta is totally irrelevant as far as the offences provided by the Weapons Act of 1990.
3) Has decided that the word “may” in legislation means that the Magistrate “may” do as he chooses to the detriment of the appellant.
4) Has failed to accept that there is an inconsistency between the statute law of Queensland on this matter and the statute law of the Commonwealth of Australia.
5) Has sworn to uphold the laws that I relied on, but has failed to do so
When requested to obey the validly enacted statute The Magna Carta, as set out in the Imperial Acts Application Act 1984 Schedule 1 (1297) 25 Edward 1 ch 29 MAGNA CARTA did refuse to follow the said Act and did thereby fail to obey a Statute forming part of the Constitution of Queensland
The order of the District Court was that the appeal against the Magistrates order be dismissed
Reasons why the Court should grant leave for this further appeal to be brought.
Judge Boyce QC did not correctly assess the arguments presented. If this judgement is allowed to stand then the Right to a Jury is minimised and the Courts can be seen to be servants of the Government and not independent.
Dated this 16th April 1999
Appellant
Signature and address
Of Witness attesting
Form III
In the Court of appeal of Queensland
The State of Queensland
V
Martin Essenberg- Appellant
NOTICE OF APPEAL OR APPLICATION FOR LEAVE TO APPEAL AGAINST CONVICTION OR SENTENCE
To the Registrar of the Court of Appeal:
Name of Appellant: MARTIN ESSENBERG:
Convicted at Magistrates Court held at KINGAROY
Appeal dismissed at District Court KINGAROY
Offence of which convicted: UNLICENCED POSSESSION OF FIREARMS
Sentence- $650 fine and $56 costs
Date when Convicted : 2nd September 98
Date when Sentence passed: 2nd September 98
Date when District Court appeal dismissed- 22nd March 99
Name of Prison: Not applicable
I, the above named Appellant, hereby give you notice that I desire to appeal to the Court of Appeal against my sentence on the grounds hereinafter set forth
Dated 16 April 99
The appellant must answer the following questions
1 Did the judge before whom you were tried grant you a certificate that it was a fit case to appeal—NO
2 Have you applied for legal Aid---------YES
3 Do you desire to be present when the court considers your case-----YES
4 Do you desire to apply for leave to call any witnesses on your appeal--------NO
Grounds of Appeal
1. Under the laws of England I am entitled to keep and bear arms suitable for my defence. As a loyal subject of the Queen I am subject to the laws of England, including the Magna Carta and the Bill of Rights, and am entitled to the rights of law and protection. These laws are Perpetual Contracts.
2. The laws relied on are the laws of God and of Queensland and of the Commonwealth of Australia.
3. The Commonwealth of Australia's Constitution is section 9 of the Act of the appeal of the British Parliament, 9 July 1900, and as such it is strictly bound and totally bound by the laws of England, as are always the laws of Queensland.
4, By Sections 51 and 259 Supreme Court Rules consent must be had by a judge, before he can decide Questions of Fact in any case before the court.
5. A magistrate is unable to sit without a jury without offending the Magna Carta unless the accused grants him jurisdiction. This was not done and Judge Boyce confirmed that decision.
6. This provision is to prevent corruption and the usurpation of the role of the citizen in self-government, and prevent the oppression of minorities by majorities.
7. The argument on this action is wholly concerned with obedience to Statute Law.
8. The Question whether the State of Queensland must obey the Laws of the Commonwealth is central to this case.
9. The Opinion of the High Court of Australia is that the State of Queensland must obey Federal law first and only State law when it is not in conflict was decided in RE THE RESIDENTIAL TENANCIES TRIBUNAL OF NEW SOUTH WALES and HENDERSON &ANOR EX PARTE THE DEFENCE HOUSING AUTHORITY FC. 97/033 High Court of Australia (1997) .
10. It has further been declared by the High Court of Australia that the Constitution is a self-executing document not requiring a Court Order for obedience. See University of Wollongong V Metwally (1984) High Court of Australia.
11. The State of Queensland is a party to that document and absolutely bound by it.
12. The State of Queensland is bound by federal Acts of parliament absolutely as if it was a citizen of the Commonwealth by section 5 of the Constitution.
13. Summary proceedings are consent proceedings in all Courts and unless the consent of the defendant is obtained, it is the law that a jury be empanelled under the Imperial Acts Application Act 1984. To say otherwise, to offend section 204 of the Criminal Code of Queensland, is an indictable offence. However, summary offences are only offences that may be prosecuted without a jury. The operative word being "may". If one is asked for the defendant has an absolute right to get the jury for a trial and the findings of the jury bind the sovereign. That ensures fairness and impartiality.
14. The Weapons Act, section 137, part 1, has the word "may" in it. "May" means that it is not compulsory for the offence I allegedly committed to be tried in a summary manner. It means that if I ask for a jury trial, that I am entitled to be tried on indictment.
15. WARD v. WILLIAMS (1955) 92 CLR 496 at 8.
In considering the correctness of this interpretation it is necessary to bear steadily in mind that it is the real intention of the legislature that must be ascertained and that in ascertaining it you begin with the prima facie presumption that permissive or facultative expressions operate according to their ordinary natural meaning. "
16. The authorities clearly indicate that it lies on those who assert that the word 'may' has a compulsory meaning to show, as a matter of construction of the Act, taken as a whole, that the word was intended to have such a meaning" - per Cussen J. : Re Gleeson (1907) VLR 368, at p 373 .
17. "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 any particular manner, must be solved from the context, from the particular provisions, or from the general scope and objects, of the enactment conferring the power" - per Lord Selborne : Julius v. Bishop of Oxford (1880) LR 5 AC 214, at p 235 .
18. One situation in which the conclusion is justified, that a duty to exercise the power or authority falls upon the officer on whom it is conferred is described by Lord Cairns in his speech in the same case. His Lordship spoke of certain cases and said of them "(they) appear to decide nothing more than this: that where a power is deposited with a public officer for the purpose of being used for the benefit of persons who are specifically pointed out, and with regard to whom a definition is supplied by the Legislature of the conditions upon which they are entitled to call for its exercise, that power ought to be exercised, and the Court will require it to be exercised" (1880) LR 5 AC, at p 225 . (at p506)
19. One situation in which the conclusion is justified that a duty to exercise the power or authority falls upon the officer on whom it is conferred, is described by Lord Cairns in his speech in the same case. His Lordship spoke of certain cases and said of them: "They appear to 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 supplied by the legislature of the conditions upon which they are entitled to call for his exercise, that power ought to be exercised and the Court will require it to be exercised." per Lord Selborne : Julius v. Bishop of Oxford (1880) LR 5 AC 214, at p 235.
20. 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".
21. With the Imperial Acts Application Act, there is a clear indication that the legislature intended that I have a fair and impartial jury adjudicate my case.
22. The other documents I provided, including of course the respondent's argument, both include the word "may". It says - section 161 of the Weapon's Act provides that, "A proceeding for an offence under this Act other than section 65 may be prosecuted in a summary way." The second argument of the Prosecution was section 19 of the Justices Act, "Where an offence under any Act is not declared to be an indictable offence, the matter may be heard and determined by a Magistrates Court in a summary matter."
23. Australia is a signatory and fully committed member of the United Nations and has undertaken to honour and obey the International Covenant on Civil and Political Rights.
24. It has been enacted into law as Shedule 2 of the Human Rights and Equal Opportunity Commission Act of 1986 the said covenant.
25. The Acts Interpretation Act 1901 declares that a Schedule to an Act is part of the Act and is law.
26. In 1994 Nicholas Toonen of Tasmania Australia successfully complained that his Human Rights were violated by the Tasmanian Criminal Code and the United Nations Human Rights Commission in Geneva upheld his complaint and Tasmania agreed to repeal the offending legislation.
27. My civil rights have been successively violated by the failure of the legal system in Queensland to honour and uphold the principles outlined in the Human Rights and Equal Opportunity Commission Act of 1986. Schedule 2.
28. By Article 50 of the Human Rights and Equal Opportunity Commission Act of 1986. Schedule 2, Queensland is bound by the Covenant..
29. The Violations that have occurred are,
(a) In Part 2 Article 1, I has been discriminated against by Judge Boyce because I did not have legal representation being in a lower socio economic class than the State of Queensland which can afford the most expensive, thereby being denied equality of opportunity to receive justice.
(b) In Article 2 Queensland and Australia has undertaken to promote equality of opportunity and Queensland has in place laws, Sections 51 and 243 of the Supreme Court Act 1995 which recognise the equality of the said Martin Essenberg and Judge Boyce and require those judicial persons to obtain the consent in writing to sit without a jury before they may make any binding order. This Right was violated on every occasion.
(c) In Article 3 of Part II the State of Queensland and the Commonwealth of Australia agree that all persons are equal including Judges and since only a jury can determine facts in Queensland, except when the person before the Court consents thereto, by acquiescence in the decision, the decision is offensive to the Human Rights and Equal Opportunity Commission Act of 1986. Schedule 2. A Commonwealth Act.
(d) Article 5 (2) recognises the fundamental Human Right to be adjudged by a jury of ones peers. and to that extent the Federal Court of Australia Act of 1976 is in conflict with the Covenants, as is the Civil Right of All Queenslanders.
(e) Article 7 is violated when Justice is delivered in a degrading way, without the consent of the litigant. It is Internationally accepted that it is not degrading to be adjudged by a jury of one's peers.
(f) Article 14 makes it clear that all persons are equal before the Courts and are entitled to a competent, independent, and impartial tribunal established by law. In Queensland that tribunal must consist of a Judge and jury unless the parties consent in writing to allow a judge to sit alone. Section 118 of the Constitution guarantees the correctness of that assertion.
(g) Article 26 Affirms that all persons are equal before the law and are entitled without discrimination, to the equal protection of the law. In Queensland, the fundamental protection against abuse of civil rights by the Lawyer class, which includes all judges is the provision of a
trial by jury in all cases unless consent in writing is first had.
(h) Articles 28, The fundamental Human Rights of all individuals is enforced by an International Committee based in Geneva..
(i) Australia and the State of Queensland have agreed to submit reports on their compliance with their international obligations whenever required to do so.
The APPLICANT CLAIMS
An order that the Appeal be allowed and the matter remitted back to the Magistrates court for determination in accordance with law by a jury of his peers.
A order that the Queen in Right of the State of Queensland must obey the laws forming the Constitutions of Queensland and Australia.
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