11 August 98
I was convicted of unlicenced possession of a .22 cal, single shot, bolt action rifle (with no barrel) and Fined A$400 (US$240) I will be appealing the decision.
In the Magistrates court
held at Brisbane on 11 August 1998
The Queen ( in right of the State of Queensland) V Martin Essenberg
APPLICATION FOR ADJOURNMENT
Application is made to the Magistrates Court situated at Brsbane for an adjournment of this action on the grounds that I am still attempting to obtain legal aid from the Wakka Wakka Legal Aboriginal Corporation. I have lodged an application with the Anti-discrimination Commission to facilitate this
Orders Sought:
1. An order that the matter be adjourned for one month
SIGNED
Martin Essenberg
4 August 98
I thank the person who supplied the information below.
In the Magistrates court
held at Brisbane.
The Queen ( in right of the State of Queensland) V Martin Essenberg, a subject of the Queen of Australia.
AFFIDAVIT
I, MARTIN ESSENBERG of Lot 7 Runnymede est Rd, Nanango in the State of Queensland, make oath and say as follows :
1.I am the DEPONENT and a citizen of the Queen in Right of the Commonwealth.
2. I challenge as "ultra vires" the right of the Parliament of the State of Queensland to pass laws to the prejudice of the Queen of Australia and my right to assist Her in the defence of the Realm.
3. The State of Queensland has made an Act of Sedition contrary to Section 24 A Crimes Act 1914 by passing an Act contrary to federal Law
. 4. An Act made contrary to Federal Law is not an Act enforcible in any Court of Queensland.
5. It is one thing to offer to purchase weapons from the population for the purposes of defending the Realm but is an Act of Treachery to do an Act of purchasing weapons for the destruction thereof which diminish and undermine the Capability of the Queen of Australia to carry out Her obligations under the Constitution to defend the States of Australia as She has taken upon Herself in Section 51 Placitum (VI) Constitution.
6. Every citizen has a duty to take up arms and present himself for military service in cases of emergency and any Act of Parliament made by a State of the Commonwealth which diminishes the capability of a citizen to do his or her public duty effectively and quickly is the Act of a traitor.
7. The Act of the Queensland Parliament has successfully promoted feelings of ill will and hostility between different classes of her majesty's subjects so as to endanger the peace, order and good government of the Commonwealth by making a law that contravenes Section 24A (g) Crimes Act 1914.
_________________________________________________________
Deponent
A Justice of the Peace.
8. Any person involved in an illegal attempt, or who has illegally passed a bill to give effect to a seditious intention has committed a crime against the laws of the Commonwealth and the parliament of the State of Queensland has attempted to undermine and destroy the rights of the Queen of Australia and as such, the members of Parliament who have attempted seition should be charged.
9. Lawlessness by a State Government and its servants, the Police Officers cannot be tolerated because the very fabric of society demands obedience to the law by everybody.
10.I truly believe it is my right as a subject of the Queen and an Australian citizen to have a trial by jury for the charge of illegal possession of Firearms because:
(a)The MAGNA CARTA, CAP. XXIX says: "NO freeman shall be taken, or imprisoned, or be disseised of his freehold, or his liberties, or free customs, or be outlawed, or exiled, or in any other wise destroyed, nor will we pass upon him nor condemn him (a, unless by the lawful judgment of his Peers, or by the law of the land. To no one will we sell, to no one will we deny or delay, Right or Justice."
(b)The CONFIRMATIO CARTARUM, CAP. II says: "AND we will, that if any Judgments be given from henceforth contrary to the Points of the Charters aforesaid by the Justices, or by any other Officers that hold the Plea before them against the Points of the Charters, they shall be undone, and holden for nought."
(c)The AUSTRALIAN CONSTITUTION (63 and 64 Vict.), Commonwealth of Australia (CH 12) Constitution Act s.80 says: "The trial on indictment of any offence against any law of the Commonwealth shall be by jury, ...".
(d)Clause 5 of the CONSTITUTION ACT says: "This Act, and all laws made by the Parliament of the Commonwealth under the Constitution, shall be binding on the courts, judges, and the people of every State and of every part of the Commonwealth, notwithstanding anything in the laws of any State: ...".
(e)Clause 3 of the CONSTITUTION ACT proclaimed "that ... the people of New South Wales, Victoria (etc) ... shall be united in a Federal Commonwealth under the name of the Commonwealth of Australia."
(f)The lack of a trial by jury would undermine our existing rights enshrined for seven centuries since Magna Carta.
11. The MAGNA CARTA, CAP. I says: "We have granted also, (and given) to all the freemen of our realm, for us and our Heirs for evermore, (all the) liberties underwritten, to have and to hold to them and their Heirs, of us and our Heirs, for evermore."
12. Therefore, this, with the Australian Constitution and the 1988 referendum and the Confirmatio Cartarum, establishes the fact that trial by jury for illegal possession of firearms cannot be made obsolete.
___________________________________________________________
Deponent
A Justice of the Peace
13. This Action by the State of Queensland is alleged to be in Contravention of the Constitution and involves its interpretation, and by virtue of section 78B Judiciary Act 1903 it is the duty of the Magistrates Court to adjourn the matter for such time as to allow a notice under section 78B Judiciary Act 1903 to be made and delivered to the Attorneys general of the States and the Commonwealth.
14. It is illegal for a State to take property of an individual without granting just terms by section 51 Placitum 31 Constitution. Unless a State has a legitimate reason to take property and offers reasonable compensation then it is bound by the Constitution to desist from compulsory acquisition of any property.
15. The Attorney-General of the Commonwealth or any Attorney-General of any State, or the High Court itself, may move for the removal to the High Court of the Commonwealth of this entire matter and it is neccessary for an adjournment to allow the prospective parties to examine and consider their positions.
16. Unless I consent the materiality of the lawlessness of the State of Queensland raised by this application must be determined by a jury.
17. It has been held in the USA in the Supreme Court that the system of law we have adopted in Australia includes the right to have the validity or not of the laws passed by Parliament determined as a material fact.
Taken and sworn before me at this day of August 1998.
Deponent
A Justice of the Peace.
(Justice of the Peace/Solicitor)
Address for service
Phone no.
In the Magistrates court
held at Brisbane
The Queen ( in right of the State of Queensland) V Martin Essenberg APPLICATION FOR ADJOURNMENT
On the grounds contained in the accompanying affidavit:
Application is made to the Magistrates Court situated at Brisbane for an adjournment of this action and a consolidation of all other actions based upon the same Act of the Queensland into one action to allow the Attorneys -general of the states and the Commonwealth to respond to a Notice under section 78B Judiciary Act 1903 requesting intervention to resolve the conflict between the political powers of the Parliament of Queensland and the political powers of the Commonwealth.
Orders Sought:
1. An order that the matter be adjourned for one month to allow notices to be sent under section 78B Judiciary Act 1903 to the Attorney-General of the Commonwealth and the other Attorneys-General.
2. An order under section 32 Judiciary Act 1903 consolidating all actions under the Weapons Act 1990 as amended against me that the High Court may fulfil its obligations by granting complete relief in one Action.
SIGNED
Martin Essenberg
In the Magistrates court
held at Brisbane
The Queen ( in right of the State of Queensland) V Martin Essenberg
NOTICE UNDER SECTION 78B Judiciary Act 1903
NOTICE IS HEREBY GIVEN to the Attorneys-General of the Commonwealth and the States that the action against Martin Essenberg is alleged to be in breach of the Constitution in regard to the passage of the Weapons Act 1990 as amended.
The Validity of the act is challenged as being contrary to validly enacted Commonwealth law.
Signed
Martin Essenberg.
Address for service.
10 JULY 98
ILLEGAL POSSESSION of FIREARM CHARGES
As expected my hearing on 9th July was adjourned so I could continue to attempt to get legal aid. The Police prosecutor a friendly chap named Geoff was quite amenable. The case was adjourned until 11 August 98 at No. 5 Magistrates court, Brisbane.
The visit to court was worth while. I found out that to make submissions to the magistrate I must do an affidavit. For probably logical reasons they won't accept pieces of paper.
It seems that there is a fault in the society in that ignorance of the law is no excuse in a court yet after 44 years of living in this society I am totally ignorant of how the court system works. How can there be justice when many people give up their rights because of the cost of the legal profession. And how can it be anything but costly when the legal representatives sit around in court all day twiddling their thumbs until their case is called before the magistrate. Possibly there should be training in school on the court system.
My next court appearance is on 7th August 98 at Kingaroy.
7 JULY 98
SUBMISSIONS to Magistrate
1) I request that due to my not having been able to obtain legal Aid at the present time I be given an Adjournment to a later date.
2) I request that due my not having legal representation that the case be dismissed. If this case were to proceed any judgement against me would be legally unsound.
3) I request that due to my being unable at the present time to obtain legal representation that the court appoint a legal person to represent me. If this case were to proceed without me having representation any judgement against me would be legally unsound.
4) I request that as this case is not about just my criminality but about the legal validity of the New Gun laws under which I am prosecuted that I be allowed a trial by JURY as allowed under MAGNA CARTA (1215) As I understand that this cannot be done in a magistrates court I request that you pass this case on to a higher court.
5) I request that the case against me be dismissed as I have a legal right to have the weapon for which I am being prosecuted under the Bill of Rights (1689)
6) I request that the case against me be dismissed because in the Bible (Luke 22:36) Jesus said to his followers for them "to sell his cloak and buy a sword, if he has none" That the possession of a weapon is a matter of religious freedom and as such to restrict the ownership of weapons is an infringement of religious rights.
7) I request that the case against me be dismissed because as there was no barrel on the so-called illegal weapon it was totally non-functional and therefore was merely a piece of steel and wood
ILLEGAL POSSESSION of FIREARM CHARGES
I am due for a hearing at No 5 Magistrates Court, Brisbane on 9th July 98. The following are submissions I would like to make to the Magistrate. As I am not a legal person I would like the assistance of people who know more than I. Could any-one who is able to correct my statements and return them to me with their advice on whether I should proceed on each at this hearing.
I have been knocked back by Queensland Legal Aid and have sent a request to them to reconsider. I have applied to the Wakka Wakka Legal Aboriginal Corp for Legal aid but haven't yet heard back from them. So in court I will need an adjournment. I would also like to make other submissions. These are as follows-
NB- advice from others in Brackets ( )
SUBMISSIONS to Magistrate
I request that due to my not having been able to obtain legal Aid at the present time I be given an Adjournment to a later date.
I request that due my not having legal representation that the case be dismissed. If this case were to proceed any judgement against me would be legally unsound.
I request that due to my being unable at the present time to obtain legal representation that the court appoint a legal person to represent me. If this case were to proceed without me having representation any judgement against me would be legally unsound.
I request that as this case is not about just my criminality but about the legal validity of the New Gun laws under which I am prosecuted that I be allowed a trial by JURY as allowed under MAGNA CARTA (1215) As I understand that this cannot be done in a magistrates court I request that you pass this case on to a higher court.
(You can not have trial by jury while case is in magistrates court. To get trial by jury you have to move the case to a higher court. Mechanisms vary state to state but you may be able to appeal to bypass lower court or appear unrepresented to minimise costs and appeal negative decision to higher court- P.B.)
I request that the case against me be dismissed as I have a legal right to have the weapon for which I am being prosecuted under the Bill of Rights (1689)
(that the subjects which are Protestants, may have arms for their Defence suitable for their Conditions, and as allowed by law........Bill of Rights (1689) NB Catholics were already armed according to preamble of the bill- T.P.)
(English Bill of Rights operates through common law if not over-ridden by legislation. You would need to get wording of B of R and check Aust Constitution and Legislation to determine if wording is negated by Aust law if not you could operate through common law rights. However most magistrates disregard common law.- P.B.)
I request that the case against me be dismissed because in the Bible (Luke 22:36) Jesus said to his followers for them "to sell his cloak and buy a sword, if he has none" That the possession of a weapon is a matter of religious freedom and as such to restrict the ownership of weapons is an infringement of religious rights.
I request that the case against me be dismissed because as there was no barrel on the so-called illegal weapon it was totally non-functional and therefore was merely a piece of steel and wood
Finally I need monetary support. Some generous people have already offered me assistance but previously I had declined. Now I need your assistance.
If you are able, please send cheques made payable to:-
Roberts, Mason & co, Solicitors, Trust Account
P.O. Box 235
Kingaroy, Queensland, 4610
Attention P. Kuskie - Re Martin Essenberg Defence Fund
Please help me out in my pro-gun campaign by e-mailing your pro-gun friends. If you receive this e-mail from some-one and want to be on my mailing list send me your e-mail address. If you want to be deleted from my mailing list let me know.
Re: legal advice. You can not have trial by jury while case is in magistrates court. To get trial by jury you have to move the case to a higher court. Mechanisms vary state to state but you may be able to appeal to bypass lower court or appear unrepresented to minimise costs and appeal negative decision to higher court.
English Bill of Rights operates through common law if not over-ridden by legislation. You would need to get wording of B of R and check Aust Constitution and Legislation to determine if wording is negated by Aust law if not you could operate through common law rights. However most magistrates disregard common law.
Suggest consult Community Legal Advice service for low cost opinion re application of common law.
If you get to a jury trial use a lawyer to help select jury to obtain sympathetic panel. Note also possible common law provision for jury to determine law has been broken but no crime committed, but again you will need legal representation to make that one work.
P.B.
© 1997 marsiegen@burcom.com.au
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