There have been some changes in the format of this document due to HTML format.
I have also corrected 2 mis-quotes that were in the transcript. The court reporters had included my next statement into my quote from another source.
COURT OF APPEAL
McMURDO P
McPHERSON JA
CHESTERMAN J
CA No 135 of 1999
CA No 136 of 1999
CATHERINE MARY CARNES
v.
MARTIN ESSENBERG- Applicant
JOHN PAUL LEWIS
v.
MARTIN ESSENBERG
BRISBANE
..DATE 23/08/99
..DAY 1
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APPLICANT conducted his own case
MR M COPLEY (instructed by Director of Public Prosecutions(Queensland)) for the respondent
THE PRESIDENT: Now, Mr Essenberg, you're asking for leave
to appeal from the decision of His Honour Judge Boyce below.
So, your job is to show this Court where His Honour Judge
Boyce made a mistake such that would warrant the granting of
leave to you.
Now, you've put in an outline of your argument which we
have. We've also got the record book which you also have
and there has been some material put in by Mr Copley on
behalf of the respondent. Is that what you're relying on,
Mr Copley?
MR COPLEY: Yes, Your Honour.
THE PRESIDENT: So, you have your opportunity now to present
your argument. You can understand that we have read your
outline and we're familiar with the record book.
APPLICANT: Your Honour, I seek leave to appeal the decision
of Judge Boyce in the Kingaroy District Court on 22 March
1999. Your Honour, although I meet the criteria for legal
aid I've been unable to attain-----
THE PRESIDENT: No, you don't need to read - just read
through-----
APPLICANT: I couldn't possibly remember this if I didn't.
THE PRESIDENT: No, no, that's all right. I'm just saying
there's no need for you to read every word. You can take it
that we have read it. So, you're really better off speaking
to us. Just telling us what your main points are and
emphasising your main points rather than just reading every
word because we've already read that.
APPLICANT: Well, that's - you've read the outline?
THE PRESIDENT: Yes.
APPLICANT: This isn't the outline.
THE PRESIDENT: This isn't the outline.
APPLICANT: I've sort of changed things a little bit
THE PRESIDENT: All right, then.
APPLICANT: Because I'm not really familiar with the system
and because I'm not experienced at this type of thing. I'm
really probably even better off reading it otherwise I will
totally lose the track. I do apologise for the-----
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THE PRESIDENT: Well, can I just clarify one thing. As I
understood it you're really only complaining about the
conviction itself. You're saying that it's not an offence.
APPLICANT: I'm saying the law is invalid.
THE PRESIDENT: Yes. You're not complaining about the
sentence that was imposed, it's the conviction itself that's
your point?
APPLICANT: As I will say here when I read this I'm
complaining about the sense of even one dollar because it is
a conviction.
THE PRESIDENT: Well, I'll just let you go on then.
McPHERSON JA: Well, I'd like to ask you something.
APPLICANT: Yes, Your Honour.
McPHERSON JA: You were charged under a Statute. I take it,
it was the Firearms Act but whatever it was it was a Statute
that created an offence. You seem to be saying that the
Statute that created the offence is invalid because it's in
conflict either with Magna Carta or the Bill of Rights 1688.
Now, that's the point at which I'm afraid you're not going
to succeed because the view is quite clearly established
that those two pieces of legislation are susceptible to
being overturned or departed from by legislation in
Australia. There is no doubt about this. You cannot rely
on those two pieces of legislation if there is later
legislation in Australia that departs from them. For
example, by creating an offence which is inconsistent with
either of those two older English statutes. Now, how are
you going to meet that?
APPLICANT: Well, Your Honour, I can just read my documents
because-----
McPHERSON JA: Well, that's no good if it doesn't meet this
point.
APPLICANT: Well, I hope to do so when I read my documents
but I can't do it on an ad hoc basis because I'm not-----
McPHERSON JA: I've read your outline and it confronts the
problem that there is legislative power in Australia in
either or both of the Federal parliament and the State
parliament to create offences which are inconsistent with
the two earlier English statutes and no amount of reading
from your document or reading outside it will make any
difference to that result. That is the law; the law is the
Federal parliament and the State parliament - either one of
them or both together can pass legislation which is
inconsistent with those two earlier English statutes and
they've done so here.
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APPLICANT: Well, Your Honour, I believe I'm trying to in
this to say that they can't.
McPHERSON JA: On what ground? Is it because we never
acquired legislative power from the imperial authority? Is
that the basis for it?
APPLICANT: I believe the Bill of Rights cannot be used to
give the parliament that sovereignty, yes.
McPHERSON JA: The Bill of Rights cannot be used to give
parliament sovereignty.
APPLICANT: To change the Bill of Rights.
McPHERSON JA: But, you realise of course that both the Bill
of Rights and Magna Carter have actually been repealed in
England. Do you know that?
APPLICANT: Well, if there's an error been made that cannot
be used as a precedent-----
McPHERSON JA: I see.
APPLICANT: -----as I understand.
McPHERSON JA: How can we tell that it was an error?
APPLICANT: Well, that's what I'm trying to prove here, Your
Honour.
McPHERSON JA: Yes. Well, I think, you're wasting your time
but, I suppose, we only waste more time by talking to you
about it but bear in mind what you've got to establish is
that there is no power in any legislative body in Australia
to repeal those two English Acts; Magna Carta and Bill of
Rights. You will have to go as far as that. All right.
THE PRESIDENT: Yes, go on.
APPLICANT: Thank you. Let's see - I was - I propose - I
rely on the principle that I have the right to present my
case in person. I believe it is a duty of this honourable
Court to guide me and not simply reject my submissions on
the grounds that it has not been presented in the correct
manner.
McPHERSON JA: I tried to do that but you aren't prepared to
accept it. Go on.
APPLICANT: Your Honour, I am aggrieved by the decision
because Judge Boyce has failed to adequately justify his
reasons for stating that the relevant provisions of the
Magna Carta have not since been displaced by local statutes
made by the parliament of Queensland.
Surely, I am entitled to know what the law is so I can plan
my actions accordingly. How am I to adequately appeal
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against his Judgment when no basis for a lawful Judgment was given.
Judge Boyce has stated that the Magna Carta is totally
irrelevant as far as the offences provided by the Weapons
Act of 1990. Judge Boyce said, "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 as is stated the relevant
provisions have long since been displaced by local statutes
made by the Parliament of Queensland. The Queen - anything
- is the Magna Carta it is said to be on the offences
provided by the Weapons Act 1990 is totally irrelevant."
Your Honour, I understand that the judicial notice shall be
taken of all acts of parliament and all regulations. The
Magna Carta 1297 and the Bill of Rights Act 1688 are both
confirmed by the Imperial Acts Applications Act 1984 which I
have a copy here.
Therefore the judiciary must take judicial notice of them.
I don't believe Judge Boyce QC did this and there's an error
and consequently there was a miscarriage of justice in my
conviction. It would be inconceivable that the Magna Carta
and the 38 subsequent confirmations of it were not intended
to mean anything. Judge Boyce seems to have simply
dismissed them out of hand.
He should have considered the spirit, meaning and intent of
these constitutional documents when acting in judgment.
Judge Boyce has decided the word "may" in legislation means
that the Magistrate may do as he chooses to the detriment of
the appellant.
Judge Boyce said, "Section 161 of the Weapons Act 1990
provides that a proceedings for an offence against the Act
other than section 65 may be prosecuted in a summary way
under the Justices Act. In summary, i the circumstances
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 not declared to be an indictable offence, the matter
may be hard as determined by the Magistrates Court in a
summary manner."
Surely, the word "may" can be interpreted for the benefit of
the appellant with more justification given the requirements
of justice. surely, it is more just to grant a trail by
jury when requested than to reject it. Judge Boyce has
given inadequate reasons for his rejection of my arguments.
Surely, I'm entitled to a reasoned rebuttal of what appears
to be valid arguments. Surely, it shows disdain for the
Judge - for justice when arguments put by the appellant are
simply ignored. Your Honour-----
CHESTERMAN J: Mr Essenberg, do you accept that parliament
can change laws that parliament has made?
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APPLICANT: The parliament can change statute law.
CHESTERMAN J: Yes. Well, isn't the Magna Carta a statute?
APPLICANT: It's doubly entrenched, Your Honour.
CHESTERMAN J: Well, whether it is or not isn't it a
statute?
APPLICANT: I believe it is a - there's a word for it and
I've forgotten. It's not directly a - it's not a statute,
it's an enactment. A contract between the Monarch and the
people which-----
CHESTERMAN J: Which is how statutes were made in those
days. What about the Bill of Rights, is that a statute?
APPLICANT: No.
CHESTERMAN J: It's not.
APPLICANT: I believe not. Not according to my reading.
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CHESTERMAN J: So on what basis do you say that Parliament can change Acts a Parliament has made but it can't change either of those?
APPLICANT: Can you just repeat the question, sir?
CHESTERMAN J: Why can't Parliament, which you admit has
power to alter parliamentary statutes, change those two
things?
APPLICANT: Because I believe that they are doubly
entrenched and I got a definition of that which you would
have had in the outline - of entrenchment. And the
committee that was looking into the changes of the
Queensland constitution went into great detail as to how
they would retain the entrenchments that were already
existing in the previous documents of the Queensland
constitution. So as I understand both the Magna Carta and
the Bill of Rights 1688 were entrenched by the final
paragraph of each document which says that anything that
contradicts these things will be null and void.
CHESTERMAN J: So are you saying that Parliament could
repeal both Magna Carta and the Bill of Rights but has to do
so in a particular manner?
APPLICANT: According to the definition of entrenchment that
is correct. The thing is neither of those had any options
so there was - if it had been entrenched with the provision
that it can be changed by referendum or it can be changed by
Parliament or whatever, with a two-third majority say, then
that would give an out. But in neither of those other two
documents, the Bill of Rights or Magna Carta, there is no
out to change either document.
Okay. The respondents - Your Honour, the respondent's
arguments as why leave to appeal should not be granted are
woeful. They expended 52 words on a case which seeks to
overturn the new gun laws.
Firstly, the respondent says that I should not be given
leave to appeal because I didn't complain about the sentence
imposed before the District Court. Your Honour, I did so in
that I'm opposing any sentence. If I had been fined $1 I
would be opposed because in order to impose that sentence I
have to be found guilty. I truly believe I am not guilty of
any offence because I do not accept the legal validity of
the new gun laws.
Secondly the respondent says the appeal has no chance of
success. Surely this is up to the Court to decide after
hearing my arguments. How can my chances of success be
judged before my arguments are presented? No doubt Eddie
Marbo was told the same before he unexpectedly achieved
success in Court with the Marbo Decision. Likewise Nicholas
Toonan was no doubt told the same until his successful Court
action forced Tasmania to change its laws on homosexuals.
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Your Honour, there is a community perception that there is one law for the wealthy and powerful and another for the poor. On TV I see people like Senator Mal Colston not be charged for allegedly stealing tens of thousands of dollars.
I see members of Parliament, Peter Costello and other
republicans, publicly breaking their oaths of allegiance to
the Queen of Australia and not be brought to account.
I see the wealthy and the privileged go to Court on assault,
tax evasion, corruption or theft of millions and they get
off or face minimal penalties. Yet I who oppose what I
believe to be an unjust law by breaking it must plead to be
heard. Your Honour, I'm a poor citizen attempting to
achieve a redress of a wrong done to me and fellow gun
owners by Parliament.
Why is it that I'm expected to obey the laws of thieves and
traitors? Why is it that the laws that I rely upon for my
freedoms have been made invalid along with the laws that
should have found my superiors accountable for their
misdeeds?
Your Honour, I cannot afford high-priced legal assistance to
find loopholes to ensure that my case is heard. I must rely
on the Court to see that, not only is justice done, it is
seen to be done. I ask you to give me leave to present my
arguments as to why I should be granted a trial by jury.
That's all, Your Honours.
THE PRESIDENT: Yes, thank you. Well now listen to what
Mr Copley has to say and, if you wish to respond in respect
of anything he says, you'll have an opportunity after that.
Yes, Mr Copley.
MR COPLEY: My outline only dealt with the sentence point
but in relation to the question of - does the Court wish to
hear from me about the validity or otherwise of the Weapons
Act?
THE PRESIDENT: Yes, Mr Copley, thank you.
MR COPLEY: All right, thank you. In a decision called
Skyring v. The Australian and New Zealand Banking Group
Limited, appeal number 176 of 1993, the Court of Appeal was
faced with a submission from a person that he apparently
didn't have to pay some fines or other because Magna Carta
was still in force in the State of Queensland and it
over-rode or was superior to local enactments and the Court
of appeal said this:
"It is Magna Carta in the form confirmed in 1297 that
is recognised by section 5 of Imperial Acts Application
Acts 1984 as continuing in force in Queensland. That
Act treats Magna Carta as an Imperial Act. Whether it
is regarded in that light or simply as a royal charter
it remains the case that an applicable enactment,
whether Queensland, Commonwealth or imperial, is
capable in law of repealing Magna Carta either
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completely or to the extent that it is inconsistent
with that enactment."
As Griffith Chief Justice acknowledged in Gee v. Martin 1905
3 Commonwealth Law Reports, 649 at 653:
"The contention that a law of the Commonwealth is
invalid because it is not in conformity with Magna
Carta is not one for serious reputation."
My submission is that the Weapons Act of 1990 is a valid
enactment of the Queensland Parliament. The Queensland-----
THE PRESIDENT: I think Mr Skyring went to the High Court,
didn't he and had a similar ruling there?
McPHERSON JA: Well that seriously understates the position.
I think he's been to the High Court four, five, six, seven
times. I know when I came to count up the number of matters
he'd had in the Supreme Court it reached 13 before I lost
interest and asked the Registrar to proceed against him as a
vexatious litigant.
MR COPLEY: Yes, Your Honour.
McPHERSON JA: I believe he blames me for his lack of
success because I had the first case in which he appealed
against a taxation assessment.
MR COPLEY: Yes.
McPHERSON JA: And invoked section - chapter 8 of Magna
Carta and I-----
MR COPLEY: Yes. He's litigated the same issues before the
Federal Court.
McPHERSON JA: Yes.
MR COPLEY: Similarly without success from Federal Judges.
McPHERSON JA: And in proceedings against him for defacing
currency as well. But he apparently took the view that it
was my decision in the first place that Magna Carta was
impliedly over-ruled by the Income Tax Assessment Act 1936
that was responsible for his lack of success on other
occasions.
MR COPLEY: I see.
McPHERSON JA: He's expressed that view to me in this Court
and of course he might be right.
MR COPLEY: Yes.
McPHERSON JA: But so far he hasn't succeeded in providing
it. The result is that Mr Skyring's point about Magna Carta
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seems now not to be a viable one whether due to deficiencies
on my part or otherwise.
MR COPLEY: Yes. Well my submission is that the Weapons Act
is a perfectly valid enactment of the State Parliament and
it does impose a licensing regime on those who wish to
possess weapons. It's a statute that's clearly within the
legislative competence of a State Parliament to pass and the
applicant has been lawfully convicted of these offences.
Indeed it might be of interest to note that really in
neither of the appeals, 135 and 136 of 1996, did he seek to
challenge the prosecution case upon the basis that he was
not in possession of a category A weapon or that he had a
licence to do so. But of course that is presumably - comes
back to the position wherein he refuses to accept the
validity of the statute. But in any event my submission is
that it's clearly a valid enactment.
THE PRESIDENT: Indeed he went to the police with them and
said, "I've got these things. Arrest me." Didn't he?
MR COPLEY: Well the Court might take the view that he dared
or he challenged the police to take some action against him
and they obliged him on the second occasion at least.
CHESTERMAN J: Wasn't it the first occasion in point of
time, wasn't it? The 11 August conviction, I thought, was
that occasion.
MR COPLEY: The?
CHESTERMAN J: I thought it was the charge dealt with on
11 August-----
MR COPLEY: Yes, he-----
CHESTERMAN J: -----that related to the visit to the police
headquarters with the gun in the boot of the car.
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MR COPLEY: It did. The decision on the offence that
occurred last in time was handed down prior to the decision
in relation to the offences committed earlier in June and
May of 1998. Now if the Court wishes, I can make some
submissions regarding the penalty.
CHESTERMAN J: Yes, the only challenge is, as I understand
it, on the basis that any penalty would have been excessive
because the law is invalid.
MR COPLEY: Yes. Well that's been confirmed by a voice to
my left.
THE PRESIDENT: Yes, I don't think we need to hear from you
further on the penalty point. Thank you. Did you have
anything to say by way of reply Mr Essenberg?
MR ESSENBERG: Your Honours, I'm aware of Skyring and the
fact that he's been called a vexatious litigant. I have
something in the other document to which the outline, which
has been changed since I handed it in last time, so I will
read that.
I believe that the State of Queensland, although competent
to amend Statute law received from Britain or New South
Wales is not competent to pass laws opposing the common laws
confirmed by the enduring enactments of the Magna Carta and
the Bill of Rights. I would characterise the attempt to
usurp these two as similarly in character to the law system
of the Nazis. To quote from the book, What is Law by Suri
Rapnapala from the University of Queensland,
"The principle chemistry will remain valid even if
it's re-classified within some other field of
learning. On the contrary, a rule of law will be
invalidated if it is found to lack the attributes
which characterise law. The Nazi regime in
Germany enacted many unjust Statutes such as those
which deprived Jews of their German nationality.
They had the appearances of law but post-war West
German Courts invalidated some of these on the
grounds that they offended fundamental justice.”
There are laws and there are laws but just because a law may be passed in conformance with a written constitution of the Commonwealth does not mean it
is constitutional.
I ask you to decline to recognise as valid laws that
conflict with long-standing fundamental - constitutional
fundamental rights contained in the Magna Carta. I believe
that precedents opposed to Magna Carta and the Bill of
Rights can be covered by the term - and I can't pronounce
this, "stare decisis" a doctrine giving to precedent the
authority of established law.
However Chief Justice Brandias said in De Santo versus
Pennsylvania, 273 US 34 1927 42,
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"Stare decisis is not a universal, inexorable
command. It does not command that we err again
when we have occasion to pass upon a different
Statute. A decision is not binding on a
subsequent Court simply because it was made in the
past."
Courts are not bound as a matter of law by the doctrine of precedent. Some decisions are to be regarded as persuasive rather than strictly binding."
I believe it is necessary to distinguish the intent of the
originators of the Magna Carta and the Bill of Rights in
allowing freedoms from subsequent decisions that may seem to
limit those freedoms. Such a distinction will allow a more
restrictive scope of interpretation of those precedents and
laws. If such an important issue is trial by jury it is not
unlikely that they got it wrong.
I ask you consider the validity of the Weapons Act and
whether it was enacted properly and with due process. Given
the important constitutional principles, discrimination and
civil rights I'm arguing, I ask that if you cannot give me a
trial by jury that you send my case to a higher Court.
Your Honours, the Queen has sworn to God to uphold the Magna
Carta. Judges are sworn to God and the Queen to uphold the
common law. I ask you to fulfil your oaths to God and the
Queen and give me my right to trial by jury.
THE PRESIDENT: Yes, thank you. We'll have a short
adjournment.
THE COURT ADJOURNED AT 12.19 P.M.
THE COURT RESUMED AT 12.26 P.M.
THE PRESIDENT: Mr Justice Chesterman will give his reasons
first.
TAKE IN JUDGMENT
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