TRANSCRIPT of APPEAL AGAINST WEAPONS OFFENCES
Below is the transcript of my Appeal in the District Court in Kingaroy, Queensland, Australia. I will be appealing against the decision so if any knows anything that might assist me in winning this case please e-mail me.
DISTRICT COURT
CIVIL JURISDICTION
JUDGE BOYCE QC
Appeal No 2 of 1998
MARTIN ESSENBERG Appellant
and
CATHERINE MARY CARNES Respondent
Appeal No 3 of 1998
MARTIN ESSENBERG Appellant
and
JOHN PAUL LEWIS Respondent
KINGAROY
..DATE 23/03/99
..DAY 1
220399 D.1 Turn 1 vss (Boyce DCJ)
APPELLANT conducted his own case
MR C HEATON (instructed by the Queensland Director of Public
Prosecutions) for the Crown
HIS HONOUR: You're Martin Essenberg, are you?
APPELLANT: Yes, Your Honour.
HIS HONOUR: You're appearing for yourself on these two
appeals, are you?
APPELLANT: Yes, Your Honour.
HIS HONOUR: Mr Heaton, you're for the Crown?
MR HEATON: Yes, thank you, Your Honour.
HIS HONOUR: Yes, all right. Well, Mr Essenberg, I will
hear what your submissions are. You have filed some
submissions. I have read those and I will hear anything
further you want to say in the matter.
APPELLANT: Now?
HIS HONOUR: What you have to do is satisfy me that there is
some legal reason why the Magistrate's decision ought to be
interfered with. So that's what I need to know.
APPELLANT: Your Honour, I'm not represented in Court. In
November I was granted Legal Aid by Legal Aid Queensland,
however they decided they had made a mistake and revoked my
Legal Aid on 4 March 1999. I am appealing that decision,
which of course is not likely to be successful. I hope Your
Honour understands that I am not experienced in law. All my
documents have come from sites on the Internet. I am
unfamiliar with the procedures of the Court and hope that
Your Honour will make allowance for my ignorance.
Your Honour, as a Constitutional Monarchist I am a loyal
subject of the Queen, and as such I am guaranteed all the
rights that flow from the laws of England. I was tried in
the absence of a jury, although I asked for one. I was not
given the opportunity to accept or reject trial by a
Magistrate.
2
220399 D.1 Turn 1 vss (Boyce DCJ)
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, which includes laws 1, 2, 3,
and included are Perpetual Contracts. The laws relied on
are the laws of God and of Queensland and of the
Commonwealth of Australia.
Your Honour has sworn to uphold the laws that I rely on.
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.
Your Honour, as I understand it, 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.
Your Honour, 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.
Your Honour, here, as I understand the authority
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 a prima facie presumption
that the permissive or facultative expressions operate
according to their ordinary, natural meaning. The
authorities clearly indicate that it relies 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
Cousins J 1907 VLR 368 at page 373. 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 any particular
manner, must be solved from the context of the particular
provisions, or from the general scope of the object
conferring the power, Per Lord Selbourn, Julius v. Bishop of
Oxford, 1885, 214 at page 235."
3
220399 D.1 Turn 1 vss (Boyce DCJ)
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 decided
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." 1880 LR 5AC at page 225.
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".
With the Imperial Acts Application Act, there is a clear
indication of the legislature intended that I have a fair
and impartial jury adjudicate my case.
I choose, Your Honour, that I may have a jury trial. The
other documents you can read yourself.
HIS HONOUR: Yes, all right? Mr Essenberg, you have got two
appeals before me, and they're both deemed for hearing
today. That's right, is it?
APPELLANT: Yes, Your Honour, they're both the same cause.
HIS HONOUR: Yes, all right.
APPELLANT: Same argument applies in both.
HIS HONOUR: Yes, all right. Well, is there anything
further that you want to say in those appeals?
APPELLANT: Your Worship, as I said, I am not knowledgeable
of the law. I have done my best. I have given you the
documents. I can only leave it to you because I have
nothing further to say that I know anything about.
4
220399 D.1 Turn 1 vss (Boyce DCJ)
HIS HONOUR: Yes, all right. So there is nothing further
you want to say?
APPELLANT: No, Your Worship.
HIS HONOUR: Yes, all right. Look, I don't need to hear
from you, Mr Heaton.
TAKE IN ORDER
5
TRANSCRIPT OF PROCEEDINGS
DECISION
HIS HONOUR: these are 2 appeal under section 222 of the Justices act, and I propose to give reasons for judgement ex tempore in this matter. These are proceedings against the accused for breaches of the Weapons Act1990. The accused was convicted before a magistrate and a penalty imposed. There are a number of matters that have been raised by the Appellant. One matter is the question whether the accused was entitled to be tried by a jury. Section 161 of the Weapons act 1990 provides that, " A proceeding for an offence against the act other than section 65 may be prosecuted in a summary way under the Justices act".
In the circumstances there, there is no right to trial by jury in the matter. Accordingly the learned magistrate was entitled to hear and determine these proceedings in a summary way.Section 19 of the Justices act provides that, " where an offence under any act is no declared to be an indictable offence, the matter may be heard and determined by the magistrates court in a summary manner."
The appellant also relies on the Magna Carta. It is not necessary to consider the Magna Carta in any detail. Whatever may have been the provisions of the Magna Carta, the relevant provisions have long since been displaced by local statutes made by the Parliament of Queensland.
Accordingly anything that is in the Magna Carta that is said to bear on the offences provided by the Weapons Act of 1990 is totally irrelevant.
There is further an argument raised that goes along these lines, that there is an inconsistency between the statute law of Queensland on this matter and the statute law of the Commonwealth of Australia
Accordingly, I am of the opinion that there is no substance whatsoever in any of the grounds of appeal that have been raised in this matter and in each of these two appeals I dismiss the appeal.
Now, whats the position as to costs, Mr Heaton, are you seeking any order for costs?
MR HEATON: No, I'm not, your honour.
HIS HONOUR: Yes, all right, no order is made to costs
SPEECH by me at court follows
SPEECH IN MADE IN COURT
This may be slightly different from court transcript due to errors in the transcript, differences in wording as I spoke on the day etc.
Your Honour, I am not represented today in court. In November I was granted Legal Aid by Legal Aid, Queensland however they decided they had made a mistake and revoked my legal aid on the 4th of March 99. I am appealing that decision.
I hope your honour understands that I am not experienced in law and that all my documents have come from sites on the internet. I am unfamiliar with the procedures of the court and hope that your honour will make allowances for my ignorance.
Your honour, as a constitutional Monarchist, I am a loyal subject of the Queen and as such am guaranteed all the rights that flow from the laws of England.
1.I was tried in the absence of a jury although I asked for one.
2. I was not given the opportunity to accept or reject trial by a
magistrate.
3. Under the laws of England I am entitled to keep and bear arms suitable for my defence
4. 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 protection of the Laws of England which include the rights covered by 1,2,3 above. The Magna Carta and the law of the Australian Constitution are perpetual contracts.
5. The Laws relied on are the laws of God and of Queensland and of the Commonwealth of Australia.
6. Your honour has sworn to uphold the Laws that I rely on.
7. The Commonwealth of Australia Constitution is section 9 of an Act of the Imperial British Parliament 9 July 1900 and as such is strictly bound and totally limited by The Laws Of England as is all the laws of Queensland.
Your honour as I understand it-
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 is to offend section 204 Criminal Code of Queensland and is an indictable offence
However, summary offences are only offences that MAY be prosecuted without a jury. If one is asked for, the defendant has an absolute right to get his jury for a trial, and the findings of the jury bind the Sovereign. That ensures fairness and impartiality
Your Honour the Weapons Act Section 137(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 I am entitled to be tried on indictment.
Your honour here is, I understand the authority.
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. "
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 .
"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 .
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)
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 the 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".
With the Imperial Acts Application Act there is a clear indication that the Legislature intends that I have a fair and impartial jury adjudicate my case.
OUTLINE OF ARGUMENT BY RESPONDENT with reply
RESPONDENT The appellant was convicted and sentenced on 3 counts personate to
section 50 of the Weapons act 1990. Section 161(1) of the Weapons act
provides that a proceedings for any offence under this act, other than
section 65, may be prosecuted in a summary way under the Justices act
1886 act. There is no provision for proceedings brought under section 50
of the Weapons act to be by way of indictment.
APPELANT Answer> 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
Schedule. The Magna Carta. To say otherwise is to offend section 204
Criminal Code of Queensland and is an indictable offence.
RESPONDENT Lehane: Section 19 of the Justices Act 1886 provides that 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
manner.
APPELANT Answer: "May" is a word of decided judicial import. If the discretion
is not consented to, it is the duty of the Court to treat all offences
over 3 months as indictable offences to avoid the stigma of corruption
overhanging the Court. The Criminal Code Section 204 obliges the
magistrate to set the matter down on the request of any defendant for a
jury trial, or offend section 200 Criminal Code. Refusal of Public
officer to perform duty .
It is the duty of a magistrate under the Imperial Acts Application
Act to grant a jury trial on request by any defendent.
RESPONDENT Lehane: In the respect of the appellants argument that that he was
entitled to a trial by jury personate to the provisions of chapter 39 of
the Magna Carta, the respondents argument is that the Magna Carta does
not override the Justices act 1886 or the Weapons act 1990 and has been
displaced by these statutes.
R v Walker (1989) 2 Qd R 79
Re Skyring (1994) 68 ALJR 618
APPELANT answer- This argument is spurious. The Magna Carta was reenacted and declared to be the law in 1984. It is a Constitutional enactment and as such can only be altered by a referendum under the Queensland Constitution
Act 1867. Courts cannot find as fact that a Statute is not a law.
For the edification of the learned Mr Lehane, the active Magna Carta
section is Chapter 29 of the Act of 1297. The Imperial Acts
application Act 1984 declares it to be so. It is res judicata.
RESPONDENT Lehane: In the respect of the appellantís argument that the state of
Queensland must obey the laws of the Commonwealth, the respondentís
argument is that there is no inconsistency between the Queensland state
law and Commonwealth law in the present case.
APPELANT Answer: This is a broad unsubstantiated statement. Mr Lehane is in
Contempt of the Commonwealth Constitution by making this assertion,
because the state of Queensland is just as bound as the Commonwealth by
the Constitution by reference to Section 5 of the preamble to the
Constitution, Section 51 Placitum XXXI of the Constitution binds the State of
Queensland to provide just terms before it confiscates any property from
any Commonwealth citizen. Just because a person is a Queenslander does
not deprive him of the protection of the Constitution.
RESPONDENT Lehane: Further the respondents argument is that there is also no
inconsistency between the relevant state law and the Constitution of the
Commonwealth of Australia.
APPELANT Answer. The respondent is irresponsible to say this as the state law
now does not provide just terms for acquisition. It did but does not now
do so and as such is now unconstitutional.
RESPONDENT Lehane: In Respect of the appellants argument that the court had a duty to adjourn the matter personate (Pursuant) to section 78B of the
Commonwealth Judiciary act 1903, the respondents argument is that no
notice was required personate (pursuant) to section 78B, as it was not
established that the present case involved a matter arising under the
constitution or involving its interpretation. The respondent argument is
that a cause does not ìinvolveî a matter arising under the constitution
or involving its interpretation merely because someone asserts it does.
APPELANT Answer: The respondent is again exhibiting a basic ignorence of the law, in that all persons are equal before the law and if one person who is equal to another asserts that the Constitution applies and another asserts that
it does not, 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 the Australian citizenry. It is a basic right of all citizens
to a jury trial in such a dispute.
Section 58, Judiciary Act 1903, allows the applicant to bring an
action for breach of contract against the State of Queensland because
Statutes are basically either contracts of record enacted by the
Parliament, or facts found by the Parliament in their collective
judgement, that no Court is competent to ignore or find contrary to.
The State of Queensland is in this matter, acting de facto for the
Federal government, and as such must exercise the Judicial power of the
Commonwealth in accordance with the Constitution and try the matter with
a Judge only by reference to section 79 Constitition, which says: The
Federal jurisdiction of any Court may be exercised by such number of
judges as the parliament prescribes.
If the defendent requires a jury, the Court may not be constituted
without a jury unless the defendant consents by reference to Sections 51
and 259 Supreme Court Act 1995. This Act is of full force in Federal
jurisdiction by reference to section 118 of the Constitution which says:
Full faith and credit shall be given, throughout the Commonwealth, to
the laws, the public Acts and records and the judicial proceedings of
every State.
A magistrate is not a judge and as such cannot exercise a federal
judicial function at all.
The argument of the respondent is riddled with half truths and basic
legal errors, and the matter can be easily and justly settled by setting
it down for trial in the District Court, de novo, with a jury.
Signed by Martin Essenberg in reply to Michael Lehane.
Signed by Michael Lehane Crown Prosecutor
APPEAL DOCUMENTS
The arguments for the Kingaroy appeal and the Brisbane appeal are the same. The two appeals will both be heard at Kingaroy on Friday 19th March 99
In the Magistrates Court at Brisbane in the state of Queensland
Between
State of Queensland- Complainant
and
Martin Essenberg -defendant
I the above-named defendant hereby give you notice that I appeal to a district court Judge, under the provisions of section 222 of the Justices act 1886, against the order made on:
DATE-11 August 1998
PLACE- Magistrates Court Brisbane
BY- W J Smith SM
COURT REF- 06528830 File no PA 15333/98
WHEREBY-
Fined $400, with 2 months time to pay, One month imprisonment in default.
ARGUMENT
This appeal is on the grounds that;
1. The magistrate, 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.
2, 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.
3. A magistrate is unable to sit without a jury without offending the Magna Carta unless the accused grants him jurisdiction.
4. 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.
5. The argument on this action is wholly concerned with obedience to Statute Law.
6. The Question whether the State of Queensland must obey the Laws of The Commonwealth is central to this case.
7. 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) .
8. 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.
9. The State of Queensland is a party to that document and absolutely bound by it.
10. 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.
11. The Constitution was raised in argument and the Right of the appellant to rely upon the Constitution and the obligation of the Magistrate to adjourn the matter so that the Attorneys general may be advised by reference to section 78B Judiciary Act 1903 was ignored by the Magistrate.
The appellant seeks the following order from the District court.
Appeal allowed and the matter remitted back to the Magistrates court for determination in accordance with law by a jury of his peers.
A Declaration that the Queen in Right of the State of Queensland must obey the laws forming the Constitutions of Queensland and Australia.
Dated
Signed
Martin Essenberg
This notice of appeal is filed by Martin Essenberg whose address is lot 7 Runnymede est rd Nanango, 4615, Ph- (07) 41 632-423
to the Queen in right of the State of Queensland
Take Notice that if you wish to resist the appeal or otherwise participate in the Hearing of the appeal you must, within 14 days of the date of service on you of this notice of appeal file in the Court and serve on the apellant an entry of Appearance to the Appeal which gives your address for service Otherwise the Appeal may be heard and determined without further notice to you.
The appeal shall be heard in the Court on a date to be fixed
SECTION 78B NOTICE
In The District Court
Appeal no 1998
held at Brisbane
between Martin Essenberg- Appellant
and
The Queen in right of the State of Queensland- Respondent
NOTICE UNDER SECTION 78B Judiciary Act 1903
7th September 1998 .
To the Attorney-General of the Commonwealth and of the States.
Take Notice that the action by the State of Queensland in the Magistrates Court at Brisbane, Queensland against the Plaintiff that was heard on 11 August 1998 raises questions inter se of the Sovereignty of The State of Queensland versus the Sovereignty of the Commonwealth of Australia.
A declaration is sought in accordance with decided High Court Cases that the Laws of Australia take precedence over the Laws of Queensland where there is inconsistency.
Signed
Martin Essenberg
Address for service Lot 7 Runnymede est Rd Nanango 4615
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