The following is a transcript of the Brisbane Magistrates court of 11 August 98. Both the tape recording and Transcript were done by court officials. There may be some differences in the format from the original due to this file being changed to HTML
MAGISTRATES COURT
W J SMITH SM
No PA 15333 of 1998
JOHN PAUL LEWIS -Complainant
and
MARTIN ESSENBERG- Defendant
BRISBANE
..DATE 11/08/98
..DAY 1 CONST J W HENDERSON for the prosecution
DEFENDANT conducted his own case
JENNY LYNNE STEEL APPOINTED AS RECORDER
CONST HENDERSON: Your Worship, if we may deal with the matter of Martin Essenberg.
BENCH: Thank you.
CHARGE That on the 10th day of June 1998 at Brisbane in the Central Division of the Brisbane Magistrates Courts District in the State of Queensland you Martin Essenberg possessed a weapon namely a .22 calibre rifle you Martin Essenberg not being authorised to possess the weapon under a licence or permit to acquire or without other lawful authority justification or excuse
BENCH: Mr Essenberg, do you understand the charge?
DEFENDANT: Yes Your Worship.
BENCH: How do you plead to that? Do you plead guilty or not guilty?
DEFENDANT: I plead not guilty Your Worship.
BENCH: Thank you, you may be seated. Constable Henderson.
CONST HENDERSON: Your Worship, the prosecution call John Paul Lewis.
JOHN PAUL LEWIS, SWORN AND EXAMINED:
CONST HENDERSON: Could you state your full name, rank and station?-- My name is John Paul Lewis, I'm a plain-clothes constable currently attached to the Brisbane City CIB.
Now do you know the defendant?-- Yes I do.
Could you identify him for me please?-- Martin Essenberg.
Now, do you recall 10 June 1998?-- Yes I do.
You were rostered to perform duties from 8 a.m. to 4 p.m?-- That's correct.
At around about 11.30 a.m. you were in company of Detective Senior Constable Ray Burdis?-- That's right.
And you attended the police headquarters at Roma Street in Brisbane?-- Yes, that's correct.
And there you spoke to the defendant?-- Yes.
And at that time the defendant had an item with him?-- yeah, that's correct.
Can you recall what that item was?-- Yeah, it was a Boltray .22 calibre rifle.
Now the actual conversation you had with the defendant, that was recorded?-- Yes, it was recorded by means of micro-cassette.
Now, I've just placed in front of you, a C90 cassette tape. What can you tell me about that cassette tape?-- This C90 cassette is a copy of the micro-cassette of the conversation between myself, Detective Burdis and Martin Essenberg. Also from this C90 cassette, a transcript of the conversation was made.
Now I've just handed you a document. Can you tell me what that document is?-- Yes. This document's a transcript of the tape-recorded interview between myself, Detective Burdis and Martin Essenberg.
And you've listened to the tape and the transcript?-- Yes and they're correct.
They're an accurate copy of each?-- That's right.
Your Worship, I tender that audio cassette tape and further I tender the transcript as an aid.
BENCH: The tape is admitted and marked Exhibit number 1. I'll place the transcript with Exhibit number 1.
ADMITTED AND MARKED "EXHIBIT 1"
CONST HENDERSON: Your Worship, I'd seek to have that tape played.
BENCH: You may be seated. Exhibit 1 will be played to the court. I will now hear what you have to say Mr Essenberg.
DEFENDANT: Your Worship, I have an application. I'd like an adjournment on the following grounds: one, I've been denied legal aid, therefore I'm unable to obtain legal representation and therefore any verdict that you may reach is unsafe.
I respectfully demand that I be accorded my right to trial by jury. If convicted, I will be liable to criminal penalty and possibly imprisonment and therefore, I am entitled by common law, expressly by virtue of entrenched rights provided for in the ancient Statutes of The Realm, to a trial by jury.
I have a couple of applications on the file for the adjournment.
BENCH: Thank you. Constable, do you wish to be heard in relation to the application for adjournment?
CONST HENDERSON: Yes Your Worship. As you are aware, the prosecution is in a position to proceed. We have our witness ready to give evidence. Your Worship, the prosecution will be formally opposing any application for an adjournment.
BENCH: Thank you. Mr Essenberg, the application for adjournment is formally refused. The Court record is noted that on 10 June 1998, the matter was listed for hearing on 9 July 1998. That matter was then adjourned to a further date being today, 11 August 1998, so there has been ample time for you to arrange legal representation, either through Legal Aid or through your own means of obtaining a solicitor.
Having regard to the nature of the offence, it certainly would appear that you can appropriate evidence in relation to whether or not you were licensed, authorised or otherwise justified to have possession of the weapon, if in fact such weapon was in your possession. You may be seated.
Exhibit 1 will be played to the Court.
TAPE RECORDING CEASED AT THE DIRECTION OF THE BENCH
TAPE RECORDING RESUMED AT THE DIRECTION OF THE BENCH
BENCH: You may continue.
CONST HENDERSON: I'm sorry Your Worship. At the conclusion of that conversation, yourself and Detective Burdis and the defendant attended at the car park situated in [indistinct]?-- Yes, that's correct.
And at that time you observed the blue Ford Fairlane with the registration 089-CYV?-- That's correct.
Now the defendant opened the boot of the vehicle?-- Yes.
And inside the boot was a PVC plastic pipe?-- That's right, yeah.
And inside that plastic pipe was a stock of a .22 calibre rifle and a breech?-- Yes that's right.
Now, could you describe the Court the item that's before you now?-- What I have here is the three items that made part of this firearm that Mr Essenberg had in his possession. When we were at police headquarters, Mr Essenberg had the bolt on him when we were speaking to him and then when we attended at the vehicle, located in the vehicle was the rest of the firearm which was the stock here and the breech which was located in the boot of the vehicle.
Your Worship, I tender that.
ADMITTED AND MARKED "EXHIBIT 2"
CONST HENDERSON: Now you identified that rifle and you asked the defendant who it belonged to?-- That's correct.
And what did he say about that?-- Oh he stated it was his and that no, he didn't have a licence for it.
Now you asked the defendant if he was prepared to accompany you back to the City CIB to sort the matter out further?-- That's right, yes.
And you in fact did return to the office of the Brisbane City CIB, in company with the defendant and Detective Burdis?-- That's right.
You made some further inquiries?-- Yes.
And issued the defendant with a property receipt in regards to that exhibit?-- That's right.
Now, you asked the defendant if he would formally interviewed in regards to the matter?-- Yes, that's right.
And what did he say in response?-- The defendant declined to be formally interviewed and stated that he would have his say in Court.
Now you arrested the defendant in regard to this matter?-- That's right.
And you subsequently lodged the component parts of that firearm?-- Yes I did.
Now, as a result of further inquiries, did you have cause to seek any further information?-- Yes I did. I attended at the Weapons Licensing Section and had a certificate issued from Inspector John McCombe in relation to the verification of the unlicensed Martin Essenberg at the time of the offence.
Is that that certificate before you now?-- Yes, that's right.
This is the original certificate.
I tender that Your Worship.
ADMITTED AND MARKED "EXHIBIT 3"
CONST HENDERSON: Now you further - you took the rifle to the scientific section?-- That's correct.
What was the result of that rifle being taken to the scientific section?-- The examination was conducted by Sergeant David Neville who stated that the items that he examined, being the stock receiver and breech bolt, found - however, he found the receiver and breech bolt constituted a firearm and that they were major component parts of a firearm and fall within category A of the schedule of the Weapons Act 1990 and this is an original statement. It's also had Justices Act acknowledgment on the rear of it.
I tender that document Your Worship.
ADMITTED AND MARKED "EXHIBIT 4"
CONST HENDERSON: Now, did you have any further dealings in regard to this matter?-- No I haven't.
Your Worship, that is the evidence-in-chief of this witness.
BENCH: Thank you. Mr Essenberg, any questions of the witness?
DEFENDANT: Yes Your Worship.
CROSS-EXAMINATION:
DEFENDANT: Read the transcript, on the fourth page, at the bottom of the page it says "I want to remove these guns." Actually I believe on the tape it came across quite clearly, "I want to remove these gun laws" not, "I want to remove guns"?-- Oh okay, sorry about that.
Your Worship, the facts that constitute the offence are not disputed.
BENCH: Well Mr Essenberg, now is the time to cross-examine the witness on the evidence that he's given.
DEFENDANT: Oh okay, well, on the evidence he's given. Can I ask him other questions Your Worship?
BENCH: If it pertains to any defence you have, you can certainly ask those questions.
DEFENDANT: Yes Your Worship. Your Worship, could I tender a copy of the Bill of Rights, 1688 to the Court?
CONST HENDERSON: Your Worship, I must object to that. The witness can't comment on the Bill of Rights.
DEFENDANT: Well Your Honour, the Bill of Rights is relevant to whether I should have a gun or not.
BENCH: Well it's not relevant in relation to these proceedings. The statutory law of the State says unless you're licensed, it's unlawful to have possession of it.
DEFENDANT: Right. So, well Your Honour, I sort of say in my affidavit that the law of the State is ultra vires.
BENCH: Well I disagree with you. The law as it stands, is lawful.
DEFENDANT: Uh-huh. Well, would I be able to offer a copy of the Magna Carta then?
BENCH: It achieves no purpose Mr Essenberg. I can pass you a copy of the Weapons Act if you want to sight that. It's a valid law, passed by the Parliament of this State.
DEFENDANT: Well-----
CONST HENDERSON: Your Worship, I must object. Is the witness required at the moment in time Your Worship? If I could request that the defendant please direct questions towards the witness?
BENCH: Mr Essenberg.
DEFENDANT: I was going to ask the questions about the Bill of Rights and the Magna Carta.
BENCH: I won't demand an answer to either of the questions.
DEFENDANT: Right. Okay. Constable Lewis, are you familiar with the new gun laws?-- No, I'm only familiar with the Weapons Act in relation to this offence.
If I came to you - if you were my local constable and I said I wanted a gun for self-defence, what would you say?
CONST HENDERSON: Your Worship-----
BENCH: Well-----
CONST HENDERSON: -----I must object. This is all hypothetical and has very little to do with the relevance of this matter.
BENCH: The question is hypothetical. You can relate it to the facts and evidence so given.
DEFENDANT: I don't think I'm able to Your Honour in this case.
BENCH: You have no further questions of the witness?
DEFENDANT: That's correct Your Worship.
BENCH: Thank you. You may be seated.
CONST HENDERSON: Your Worship, I have no re-examination.
WITNESS EXCUSED
CONST HENDERSON: Your Worship, that is the evidence-in-chief in regards to this matter Your Worship.
BENCH: Thank you. Is this the close of the prosecution case?
CONST HENDERSON: Yes, that's correct Your Worship.
BENCH: Thank you. Mr Essenberg, do you wish to give evidence in defence of the complaint brought against you?
DEFENDANT: Yes Your Worship.
BENCH: Please come to the witness box.
MARTIN ESSENBERG, SWORN AND EXAMINED:
BENCH: Please tell the Court your full and correct name, address and ccupation?-- My name is Martin Essenberg. I live at Lot 7, Runnymead Estate Road, Nanango and I'm currently employed a mine worker.
Thank you. I'll hear your evidence in defence of the complaint alleging that on 10 June 1998, you had possession of a .22 calibre rifle. You were not uthorised, licensed or justified to have possession of such weapon.
Mmm?-- Your Honour most of the facts that constitute this offence are not disputed. I am a free citizen and a subject to the Crown. I am subject to all validly and acted laws and I claim the rights enshrined in common law.
Just one moment. This is a prepared speech-----?-- Yes Your Worship.
I don't want to hear the prepared speech. I will hear your evidence in relation to the facts which were purported to constitute an offence under section 50 of the Weapons Act 1990?-- Well Your Worship my defence is that the gun laws are illegal.
Well I can indicate to you if that's the basis of your argument, the Weapons Act is a valid piece of legislation in this State. It has not been held by the High Court of Australia, nor by the Supreme Court of Queensland to be unlawful. So it's a valid enactment and if that's the basis of your claim then there is no point in going any further?-- Yes Your Worship, that is the basis of my claim.
So your allegation is that the provisions of section 50 of the Weapons Act 1990, is an invalid law?-- That is correct Your Worship.
Thank you. I will hear submissions on that but it's not a point for evidence to be given. What evidence do you wish to give to contest any of the facts relied upon-----?-- I'm not contesting the----------by the prosecution?-- -----facts at the present Your Worship.
Sorry?-- I'm not contesting the facts Your Worship.
Thank you, well you're excused as a witness. You may return to the Bar table.
WITNESS EXCUSED
BENCH: Mr Essenberg I will hear the basis of your claim that section 50 of the Weapons Act 1990 is not a valid enactment.
DEFENDANT: Your Worship most of the facts that constitute this offence are not disputed. I am a free citizen subject to the British Crown. I am a subject to all validly enacted laws and I claim the rights enshrined in common law. The sovereign is bound by the Bill of Rights 1698, Magna Carta 1297 and the Bill of Habeas Corpus 1640. The current Queen has sworn to uphold, not derogate from the entrenched rights contained in the aforementioned contracts.
The Bill of Rights upholds the rights of free citizens to bear arms for self-defence, suit [indistinct] condition and as allowed by law. The Queen through her representative was in breach of her Coronation Oath when she assented to the Weapons Act in that she did not uphold the rights of her subjects as enshrined in the Bill of Rights of Magna Carta.
The Weapons Act is therefore invalid and ultra vires.
I mention this for various reasons why the Weapons Act is illegal in my affidavit Your Worship.
BENCH: Thank you. Is there anything further you wish to put?
DEFENDANT: Not at the present time Your Worship.
BENCH: Thank you, you may be seated. Constable?
CONST HENDERSON: Your Worship the onus is on the prosecution to prove each and every element of the offence beyond a reasonable doubt. Your Worship has heard the evidence of the plain-clothes constable and from the defendant today in the witness box. Your Worship there appear to be no elements in contention in regards to this matter. The defendant readily admits that on the actual day in question, namely 10 June 1998 he, at Brisbane, he possessed a 22 calibre rifle whilst not being authorised to possess the weapon under a licence or permit to acquire.
Furthermore Your Worship, it is the prosecution's submission that he has not provided a lawful authority, justification or excuse. As such it is the prosecution's submission that the defendant is guilty of this offence as all elements have been made out.
Your Worship unless I can be of any further assistance to the Court. Thank you.
TAKE IN DECISION
MAGISTRATES COURT
W J SMITH SM
No PA 15333 of 1998
JOHN PAUL LEWIS- Complainant
and
MARTIN ESSENBERG- Defendant
BRISBANE
..DATE 11/08/98
DECISION BENCH: In relation to the charge before the Court that on the 10th day of June 1998 at Brisbane in the Central Division of the Brisbane Magistrates Court District in the State of Queensland one Martin Essenberg possessed a weapon namely a .22 calibre rifle. The said Martin Essenberg not being authorised to possess the weapon under a licence or permit to acquire or without other lawful authority, justification or excuse.
The Crown must prove such case and all the elements of the alleged offence beyond reasonable doubt. I am left in no doubt on the evidence adduced by plain-clothes Constable John Paul Lewis and on the acknowledgement made by Martin Essenberg on Oath, that on 10 June 1998 at Brisbane he did in fact have possession of a weapon namely a .22 calibre rifle being components of the weapon, one wooden stock, one receiver, one bridge bolt and such items constituting the major components of a firearm falling in category A of schedule 1 of the Weapons Act 1990.
It is clear from exhibit 3, the certificate of John Howard McCoomb an authorised officer under the provisions of section 163 of the Weapons Act 1990 that on 10 June 1998 there was not in force any licensed permit, approval or other authority issued under the Weapons Act to Martin Essenberg, date of birth 22 August 1954.
The challenge to the offence before the Court made by Mr Essenberg is that the enactment, being section 50 of the Weapons Act 1990, is not a valid enactment. This Court finds that section 50 of the Weapons Act 1990 is a valid law passed by the Parliament in Queensland. The passing and the holding of such legislation to be valid has not been challenged in the Supreme Court of Queensland nor in the High Court of Australia and I thus rule that the legislation is in fact valid.
No defence has been raised under the provisions of the Criminal Code and I find that Martin Essenberg was not the holder of a licence on 10 June 1998. That he did have, in fact possessed the major components of the .22 calibre rifle and that he had no other lawful authority, justification or excuse under chapter 5 of the Criminal Code.
I therefore find Martin Essenberg criminally liable for the offence under section 50 of the Weapons Act and I find him guilty of the offence outlined in the complaint before this Court.
Is there any previous against Mr Essenberg?
CONST HENDERSON: Your Worship the defendant has no previous history. Your Worship an order is sought in regards to the forfeiture of the rifle.
BENCH: Thank you. Mr Essenberg is there anything you wish to put before the Court in relation to the matter of penalty?
DEFENDANT: Yes Your Worship I would like to say that I am a conscientious objector to the gun laws. I believe it is an evil, destructive, reprehensible law which represents an attack on the liberty on the Australian people.
To comply with this law would represent betrayal by me of the principles of freedom to which I and many other subscribe. I believe that the compact between the Sovereign and the Free People of The Realm has been broken and the full consequences and ramifications of this attack on our liberty will be felt for generations. I am unable in good conscience to comply with the laws and inform the Court that I have no intention of complying in future.
My remaining guns will remain buried.
BENCH: Mr Martin Essenberg in relation to your political statement from the Bar table this Court might well consider a term of imprisonment. You have indicated that you will continue to breach the statutory provisions of section 50 of the Weapons Act.
I will hear you in relation to the matter of imposing imprisonment. Do you have a wife and family?
DEFENDANT: No Your Worship.
BENCH: Do you have any business commitments at Lot 7, Runnymeade Estate Road, Nanango?
DEFENDANT: Other than employment Your Worship.
BENCH: I am sorry?
DEFENDANT: Other than employments in the area Your Worship.
BENCH: Right, how many hours a week do you work?
DEFENDANT: It varies, depending on the employer. It sometimes is all week, sometimes not.
BENCH: Right. You are no doubt aware of the provisions of section 50 and the penalties that can be opposed? I will just pass to you the provisions.
CONST HENDERSON: Your Worship I may be of assistance. I have a copy of the Weapons Act.
BENCH: Just show the - Courts will not accept Mr Essenberg, any threat that you will continue to breach the laws. If you want to be made an example of this Court will accede to your request. If you wish to become what could be termed a political prisoner then this Court will oblige. The penalty in relation to a category A or B weapon is 20 penalty units or six month's imprisonment. So there is nothing you wish to put before the Court in relation to imprisonment?
DEFENDANT: Your Worship as I say I am a conscientious objector. I cannot do anything else.
BENCH: Very well. You may be seated for a moment. Mr Essenberg what is your annual income on your employment?
DEFENDANT: In the first six months of this year it was about $10,000.
BENCH: Thank you, so you have an ability to pay a fine if a fine was imposed?
DEFENDANT: Yes Your Worship.
BENCH: Thank you, you may be seated.
Mr Essenberg the Court takes into account the facts and circumstances outlined in the case before you. I take into account that as part of Exhibit 1 you stated that your possession of the firearm was a publicity stunt. You have certainly achieved your request to get publicity.
This Court finds clearly that it is the stupidity of your argument that has encouraged Australian State Parliaments to impose or attempt to achieve uniform gun laws. Your purported excuse offered to the police in relation to protection and self-defence is a reason why a person such as yourself should not have a licence for a firearm.
In relation to the matter upon the finding of guilt you are convicted. The conviction is recorded. You are fined $400 in default of payment to be imprisoned for one month. I order that the components of the .22 calibre rifle presented as an exhibit in the Court be forfeited to the Crown forthwith.
The Court has indicated to you that the penalties for such an offence include imprisonment. If you come back before a Magistrates Court for a like offence on another publicity stunt be prepared to go to gaol. You have been given one opportunity. It will not be afforded to you on the second occassion.
Mr Essenberg do you want some time to pay the $400 fine?
DEFENDANT: Yes Your Worship.
BENCH: How soon could it be paid?
DEFENDANT: Six months Your Worship?
BENCH: I will not give you six months. I will give you two months, okay?
DEFENDANT: Is community service in lieu suitable Your Worship?
BENCH: Well you can make application to do unpaid community service if you wish, but I can indicate to you if the application is made today this Court will find that you are not a fit person to perform community service. You can bring the application by writing to the Clerk of the Court in this building before the expiration of the two months allowed for payment.
DEFENDANT: Thank you Your Worship.
BENCH: I will endorse the record that no application is made today. You can bring that application before another Magistrate.
-----
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