The following is copied from a computer disk supplied to me by the Courts. Alterations of format have occurred due to additions of HTML code. Wording is unaltered..
I would like to express my appreciation of the fairness of both the Magistrate and the Prosecutor .
MAGISTRATES COURT
LEBSANFT ASM
No 464-6 of 1998
CATHERINE MARY CARNES- Complainant
and
MARTIN ESSENBERG- Defendant
KINGAROY
..DATE 07/08/98
..DAY 1 SGT M S G STANTON for the prosecution
DEFENDANT conducted his own case
LESLIE SHANE POLZIN APPOINTED AS RECORDER
PORTION OF RECORDING INDISTINCT
BENCH: Your name, sir?
DEFENDANT: Yes, sir, thank you, Your Worship.
BENCH: Mr Essenberg, you are charged:
CHARGES That on the 23rd day of May 1998 at Kingaroy in the Magistrate's Court District of Kingaroy in the State of Queensland you had in your possession a weapon namely a 22 long rifle single shot unknown make such weapon being listed in category A as contained in schedule 1 of the Weapons Act of 1990 and you not being a person authorised to possess the aforementioned weapon under a licence permit or without lawful authority justification or excuse
You are also charged sir:
That on the 26th day of May 1998 at Kingaroy in the Magistrate's Court District of Kingaroy in the State of Queensland you possessed a weapon namely an unknown brand air rifle category A and you not authorised to possess the weapon under a licence or permit to acquire or without other lawful authority or excuse
And the final charge, sir is:
That on the 2nd day of June 1998 at Kingaroy in the Magistrate's Court District of Kingaroy in the State of Queensland you had in your possession a weapon namely one Gecado G-E-C-A-D-O brand model .25 air rifle such weapon being listed in category A as contained in schedule 1 of the Weapons Act 1990 not being a person authorised to possess the aforementioned weapon under a licence or permit or without lawful authority justification or excuse
The matters have been listed for trial today. Sir - now, you stand here today without legal representation on these charges, that's correct?
DEFENDANT: Yes, Your Worship.
BENCH: And these matters were before the Court on 25 June 1998 and set on - for today's date for trial. Now, in perusing the - the file, I do note, however that you have on 5 August 1998 filed with the Registry of this Court an application for an adjournment-----
DEFENDANT: Yes, Your Worship.
BENCH: -----in relation to attempting to seek legal aid and an - and an affidavit under your hand and a notice under section 78B of the Judiciary Act-----
DEFENDANT: That's correct, Your Worship.
BENCH: -----903, Commonwealth legislation. In relation to your application for adjournment, you - you outline the grounds for your - for your adjournment, sir, on today's date then, I must hear from you, firstly in relation to your application and the affidavit material. That's under section 78B of the Judiciary Act and I must be satisfied there before I go in any other direction. And sir, I'll - I'll hear from you now.
DEFENDANT: Okay. If you don't mind I'll have to read this because I'm not that familiar with Courts, but-----
BENCH: No, sir, that's-----
DEFENDANT: -----Your Worship.
BENCH: -----that sir, that's okay.
DEFENDANT: I have an application. I apply for an djournment on the following grounds. I have been denied legal aid and therefore I am unable to obtain legal representation, and therefore any verdict that you reach is unsafe. I respect with-----
BENCH: I - I - you - just - you made an application for legal aid?
DEFENDANT: Yes.
BENCH: And who was that through, please?
DEFENDANT: I've applied to the Legal Aid Queensland-----
BENCH: Mmm.
DEFENDANT: They rejected me. I appealed and on - on the 5th, which was Wednesday, they rejected the appeal. They said, however, on being convicted, I could once again apply for legal aid. I've also applied to the Wakka Wakka Legal Aboriginal Corporation for legal aid [indistinct] we might - oh no, wouldn't be [indistinct] there. Do you want to see the letter for the application for the Wakka?
BENCH: Not necessary, sir, no.
DEFENDANT: Okay. And at this present time I haven't received a reply from them. I have contacted them - them on a number of occasions and I'm sending an application to the Anti-discrimination Commission.
BENCH: The - your initial application was through what firm? Or was it made direct to legal aid?
DEFENDANT: Directly to legal aid, my - Your Worship.
BENCH: And they rejected your application. You appealed rejection.
DEFENDANT: That's correct, My Lord.
BENCH: And then on 5 August you received notification that your appeal had been refused.
DEFENDANT: Yes, I spoke to the appeals officer. I can show you the documents. I have the documents if you wish to see them.
BENCH: Do you have them handy, sir?
DEFENDANT: Yeah, just [indistinct] here. Could I?
BENCH: No, leave the - I'd ask the prosecution to peruse that.
DEFENDANT: Mmm, sure.
BENCH: Anything - to your benefit, anything that you intend handing up to me, the prosecution must be allowed to peruse that-----
DEFENDANT: Mmm.
BENCH: -----so that they can then speak on that topic.
DEFENDANT: I'm on a steep curve, Your Worship.
SGT STANTON: No objection, Your Worship. Mr Essenberg would like that material back, but I've-----
BENCH: Yes. Excuse me. Oh no, you're right, sorry. I've perused that material. Firstly, the legal aid application and the documents there, then the documentation in relation to Wakka Wakka Legal Service. Now, sir, you - you are continuing with your application by way of an application for - under the discrimination and sexual harassment complaint form.
DEFENDANT: Yes, Your Worship, I was just going to check again on today after the Court. Ring the Wakka Wakka, and if I had no response I was going to send it off.
BENCH: Mmm. All right, then. Have you - have you approached any other legal firms for advice?
DEFENDANT: I have been advised, which is the basis of the affidavit and the other two documents on the file, but I have not got anyone who can actually be in the Court. The advice is mainly from people I know on the Internet and they're in other places in Australia.
BENCH: Mmm.
DEFENDANT: I certainly didn't make those documents myself. I have no - I'm totally legally illiterate.
BENCH: All right then. And - right, now, so we - I'll continue with the other material that's on file then, your application under section 78B of the Judiciary Act.
DEFENDANT: Yes, Your Worship.
BENCH: Now, what - what I'm asking you to illustrate to me-----
DEFENDANT: Mmm, mmm.
BENCH: -----sir, is the annexure between these charges which are brought under the provisions of section 50, sub A of the Weapons Act, that's Queensland legislation, and the annexure between that and the matters raised in section 78B of the Judiciary Act.
DEFENDANT: Okay.
BENCH: And - and - and for your assistance, I note that - your affidavit on file.
DEFENDANT: Yes. The - effectively, as I understand it, because the state law contradicts Federal law, which - for instance, part 6 of the affidavit, "Every citizen has a duty to take up arms and present himself for military service in case of emergency". And any act of parliament made by a state or the Commonwealth which diminishes the capability of the citizen to do his or his public duty effectively and quickly is an act of a traitor. You know, pretty severe stuff, but that's what it says. So this state act in itself contradicts that part of, well, wherever they got that from anyway. The act of the Queensland-----
BENCH: Contradicts - you're trying to say it contradicts the Commonwealth legislation?
DEFENDANT: Yeah, contradicts the-----
BENCH: Mmm.
DEFENDANT: -----yeah. Let's see - I think it was 24A of the Crimes Act that that refers to, that we should be armed. Let's see - the - another part of the constitution says it's illegal for a state to take property of an individual without granting just terms by section. You know, it was my - my weapon has been confiscated. It was not to do with the buy back. I'm afraid, Your Worship, I'm sort of only vaguely familiar with what I'm - have here.
BENCH: Yeah. That - can you point me to that paragraph number there please?
DEFENDANT: Right, okay. Paragraph 14.
BENCH: Fourteen.
DEFENDANT: "It is illegal for a state to take the property of an individual without granting just terms by section 51 [indistinct] 31 of the constitution. Unless the state has a legitimate reason to take property and offers reasonable compensation it is bound by the constitution to desist from compulsory acquisition of any property."
BENCH: And-----
DEFENDANT: So my weapons have been confiscated and obviously I'm not being given compensation, so I'd say it's - it's really a technicality to say, [indistinct] you know, even if they do confiscate them, they've got to pay me for the weapons. Therefore if they don't pay me for the weapons, therefore it's, you know, against the constitution again of the Federal government, of the state of Australia.
BENCH: Yes, sir, continue.
DEFENDANT: Okay.
BENCH: I'm wanting to give you every opportunity, sir.
DEFENDANT: Yes, I know. This is why I need legal representation, My Lord. I'm - I'm a nut. This [indistinct]. Okay. Okay, number 5 of the affidavit. "It is one thing to offer to purchase weapons from the population" [indistinct] - oh yeah, yeah, "for the purpose of defending the realm but it 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 taken upon herself in section 51", which is mentioned for number 14. So, it's - if the - since - if the - if the weapons have been stored, and in this case the - the purchasing of the weapons as - and it's been quite obvious on TV, has been done for the destruction, so this - this is again - this is an act of treachery to destroy the - them. You know, one is an act of treachery to take them from me, and then to destroy them is a second act of treachery.
BENCH: Sir, forgive me for interrupting. The matters raised in paragraph 10 of your affidavit, 10 - 10A-----
DEFENDANT: Mmm.
BENCH: -----and then it goes on.
DEFENDANT: Yes.
BENCH: The - the annexure there, please. You're speaking there in 10A of the Magna Carta.
DEFENDANT: Yes.
BENCH: 10B, Confirmatio Quitarum. Can you - can you speak on that topic there please?
DEFENDANT: The Magna Carta apparently is quite a long document. But one of the cornerstones of it, the fact that it's the cornerstones of British law was "no free man shall be taken or imprisoned or be deceased of his freehold or his liberties or free customs or be outlawed or exiled or otherwise destroyed nor will we pass upon him nor condemn him unless by lawful judgement 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 of justice". The - a part of this of course, is that Your Worship is obviously doing what is according to the law of Queensland, but I am also requesting a trial by jury, a trial by my peers in this issue, which is what this particular section is - refers to. In fact the - the - [indistinct] the part B, "If any judgement be given henceforth contrary to the points of the charters aforesaid by Justices or by any other officers that hold the plea before them against the points of the charters they shall be undone and hold them for naught". Which means that if I - I'm requesting a trial by a jury, and anything that says that I can't have a trial by jury I believe says that it's invalid. Section C also says, "The Australia constitution, the Commonwealth of Australia Constitution Act, section 80 says, "The trial indictment of any offence against any law of the Commonwealth shall be dealt with by a jury". Well, it's not really a law of the Commonwealth, this particular case, but this law of the Weapons Act is in breach of Commonwealth law.
BENCH: Can you - can you talk further on that precise thing? How the state - the state law, the Weapons Act-----
DEFENDANT: Mmm, mmm.
BENCH: -----is in breach of Commonwealth law. Can you point me to the relevant Commonwealth law, please?
DEFENDANT: Commonwealth law. I'm sure it's 24A.
BENCH: You're referring there to the-----
DEFENDANT: Well, perhaps number 3, "The State of Queensland has made an act of sedition contrary to section 24A of the Crimes Act 1914 by passing an act contrary to Federal law". And I think it was number 5, the destruction of weapons is contrary to - to Federal law as is the - the confiscation of the weapon is - is contrary to Federal law. So, it's 24A of the Crimes Act 1914.
BENCH: You've only touched then on the - on the destruction of the weapon and the confiscation of the weapon.
DEFENDANT: Yes.
BENCH: What of the unlicensed possession by you of the weapon?
DEFENDANT: The Bill of Rights-----
BENCH: In relation to section 24A.
DEFENDANT: Well the Bill of Rights-----
BENCH: I'm not trying to confuse you, sir-----
DEFENDANT: Oh, I'm confused already. I know - I know you're not trying. You wouldn't have to try hard. Actually, Your Worship, you're doing the right thing by me as I see it, because you're giving me a fair go. Let's see, the Bill of Rights. Okay, the Bill of Rights upholds the right of free citizens to bear arms for self-defence suitable for their conditions as allowed by law. The - so, it's not to do with 24A. The fact that I have a right to self-defence. Now, part of the - the-----
BENCH: Sorry, what - what paragraph was that again?
DEFENDANT: Oh sorry, Your Worship, this is another - this is this other piece of paper I have here. This isn't mentioned in the affidavit.
BENCH: It's not in the affidavit?
DEFENDANT: No, my apologies. I don't think the Bill of Rights is mentioned in the affidavit at all. Well, Your Worship, the Bill of Rights though is important because although it's not mentioned in the Australia constitution, it's part of the entrenched laws that - that Australia received when we were a colony and - so - so it still applicable. I understand that former premier Wayne Goss was charged with libel, and he was able to - I think it as libel, in parliament and he was able to prove that the Bill of Rights, which also gives parliamentary privilege, was still applicable. I under that Denver Beanland, when he was Minister - Attorney-General, was it? Attorney-General, did confirm the Bill of Rights was still applicable. And so therefore, if I have a right to a weapon - see the problem is with the - the - the new gun laws, as I say, you do not have a right to self-defence and they say you must get a permission to have the weapon at all, whereas the Bill of Rights says you have a right to have a weapon, and - and says, "and as allowed by law". But this is "and in additional is allowed by law". For instance, in the - in the - I've read about England. At one stage they were suppressing the Catholics, which is what the entire Bill of Rights was all to do with getting weapons between Catholics and Protestants.
BENCH: Well sir, can you - can you, on the topic of the Bill of Rights, relate that to any current or recent past Court actions where the Bill of Rights has been raised?
DEFENDANT: The Bill of Rights, I understand, was raised in the action against Wayne Goss.
BENCH: Oh.
DEFENDANT: As far as the parliamentary privilege, which is also part of the Bill of Rights.
BENCH: Can you - do you have any more information on that?
DEFENDANT: No, I'm sorry Your Worship.
BENCH: Continue, sir.
DEFENDANT: Well, I understand, in England the - the - so the Bill of Rights was brought in because the Catholics already had arms and the Bill of Rights allowed the Protestants also to have arms for their self-defence. Subsequently the Catholics were causing some type of a revolt and although they - the - the law said that they couldn't stockpile arms, which was what - so - but they were still allowed to have their personal arms for self-defence. So what the unfortunate - the new gun laws are doing is saying we do not have a right to self-defence. This is one of the sort of - the first lines of the - of the law, and you know, not just to stockpiles of arms, but we do not a right to self-defence. And this is a - a principle of the Bill of Rights, that we - we may have weapons to - as a - for self-defence.
BENCH: All right, sir. Is there anything further?
DEFENDANT: Not that I can think of at present, Your Worship.
BENCH: All right then. Well I'll - I'll take-----
DEFENDANT: Did I actually read the second bit about the jury? No, I didn't. I think that we - we were on - still on section 1.
BENCH: You have referred to-----
DEFENDANT: Yeah.
BENCH: -----the - the part whereby - it's 10, para 10C-----
DEFENDANT: Mmm.
BENCH: -----that's in relation to the Australia constitution and it raises the trial on indictment of any offence any law of the Commonwealth-----
DEFENDANT: Mmm, mmm.
BENCH: -----shall be by jury.
DEFENDANT: Mmm. Okay. Well could I just read this, Your Worship? "I respectfully demand that I be accorded my right to trial by jury. If convicted I will be liable to criminal penalty and possible imprisonment and therefore am entitled to common law and expressly by virtue of entrenched rights provided in the actual statutes of the realm to a trial by jury".
BENCH: Anything more at this point? Look, I'll take the step-----
DEFENDANT: No, Your Worship.
BENCH: -----if - if you just take a seat for a moment then, sir.
DEFENDANT: Thank you, Your Worship.
BENCH: And I just simply want to read into - into the record, of course - I didn't do so at the outset. The documentation that Mr Essenberg has referred to, the application for adjournment and the affidavit material received at this office on 5 August 1998. And I understand, sergeant, that a copy of that documentation, the affidavit material was supplied to you.
SGT STANTON: That's correct, Your Worship.
BENCH: Yes, thank you. Do you have anything that you want him to raise in relation to the matters discussed by Mr Essenberg.
SGT STANTON: Dealing firstly, Your Worship, Mr Essenberg is seeking an adjournment of these matters today. The rosecution object to an adjournment and I make my submission on these grounds. Dealing firstly with the application for legal aid, Your Worship.
BENCH: Mmm, mmm.
SGT STANTON: This matter has been set since 25 June 1998. There has been ample opportunity for Mr Essenberg to make his application for legal aid to the Legal Aid office, which have denied his application. He's had ample opportunity to apply to Wakka Wakka Legal Aboriginal Corporation. They have not responded. He has had opportunity to engage a solicitor privately should he so wish. That has not been done. He appears here today unrepresented. The prosecution are in a position to proceed. I object to an adjournment on that - on the grounds, because he has had ample opportunity to engage a legal practitioner.
BENCH: And on the topic of your witnesses, what witnesses do you have?
SGT STANTON: Well, Your Worship, it is by consent today, the - with Mr Essenberg that should the adjournment not be granted that we would proceed by way of statements in lieu of oral testimony, and that would by consent under section 644 of the Criminal Code.
BENCH: And should an adjournment be granted, be it merely to allow - and I'm at this point in time only speaking on the topic of to allow legal aid or legal representation to be obtained by Mr Essenberg, would you be seeking any costs on the adjournment?
SGT STANTON: I wouldn't be in a position to make that application, Your Worship. I've - Mr Essenberg has been good enough that I've spoken to him two days ago in relation to this and he has consented to this tendering statement, so.
BENCH: All right. Because of the procedures allowed for in section 644 of the code?
SGT STANTON: Yes, Your Worship.
BENCH: Yeah, thank you, right.
SGT STANTON: So, I would not make application for costs-----
BENCH: For costs-----
SGT STANTON: -----in that respect.
BENCH: -----yeah, rightio then.
SGT STANTON: But Your Worship, an application for legal aid, it's obviously not going to be forthcoming and that would have been blatantly clear. A legal practitioner could have been privately engaged prior to today, and that has not occurred.
BENCH: Yeah, thank you.
SGT STANTON: Your Worship, with respect, the application for an adjournment-----
BENCH: I - just - Mr Essenberg, just make a note of things that you're wanting to raise. I thought you were wanting to pop up and say something there.
DEFENDANT: Yes, Your Worship.
BENCH: Well just note - please-----
DEFENDANT: Make a note, right.
BENCH: -----if - if you could just make a note. The sergeant will allow you to speak free, without interruption. I'd ask you do that, thank you.
SGT STANTON: Thanks. Your Worship, the - the Court can't be held up because a person's rejected for legal aid. The application's been made. It's been rejected. An appeal's been lodged. It's been rejected. It's obviously clear that legal aid will not be forthcoming. The Court process can't be held up for every person that wants to appeal every time they get knocked back by legal aid. Our - our Courts would just grind to a halt. We can't - we just can't stop as - and allow adjournments under those circumstances.
BENCH: I'm not going to make a ruling in relation to that until I hear fully from you on all matters and I'll make a ruling in relation to all topics.
SGT STANTON: Thank you, Your Worship.
BENCH: Yeah. So if you continue, thank you.
SGT STANTON: Dealing with the second application for adjournment by Mr Essenberg, the - the prosecution have received his notice seeking an adjournment under section 78B, Judiciary Act of 1903. I've considered that section, Your Worship, and the prosecution oppose the adjournment because Mr Essenberg's reason for seeking the adjournment he states, is because it involves a matter arising under the constitution or involving its interpretation. That assertion is rejected for these reasons.
Firstly, the matter's been set for hearing since 25 June 1998. It's allowed Mr Essenberg ample time to make his application to the Attorney-General. Notification of his intention for the adjournment was only made on 7 August. Secondly, his application is perhaps not mischievous, but it's certainly ill-conceived and ill-informed, as the charges today are brought under section 50 of the Weapons Act of 1990, a Queensland statute. They do not involve matters arising under the Australian constitution or involving its interpretation, and the Court must be convinced of that point before it considers whether an adjournment - or whether - before it is bound to grant that adjournment. .
My reasons for that submission are this. The Queensland constitution was enacted by an order in council in 1859. Queensland became a colony in its own right in 1859 from this - from England. The Criminal Code Act of 1899 was assented to on 25 November 1899. It became law of this state on 1 January 1901 and the preamble describes the basis of all our statutes since that time, and it reads:
"Whereas it is desirable to declare, consolidate and amend the criminal law, be it enacted and declared by the Queen's The Most Excellent Majesty by and with the advice and consent of the legislative council and legislative assembly of Queensland in parliament assembled and by authority of the same."
In other words, Your Worship, our laws are here because of the Queen of England and Queensland is a state in its own right. Your Worship, the Criminal Code Act of 1899 assented to 25 November 1899 becomes law 1 January 1901. Section 5 of the Criminal Code states:
"From and after the coming into operation of the code no person shall be liable to be tried or punished in Queensland as for an indictable offence except under the express provisions of the code or some other statute law of Queensland or under the express provisions of some statute of the United Kingdom, which is expressly applied to Queensland or which is enforced in all part of Her Majesty's dominions not expressly excepted from its operation or which authorises the trial and punishment in Queensland of offenders who have in places not in Queensland committed offences against the laws of the United Kingdom."
Section 5 of the Criminal Code states that offences in this state will be dealt with by our law.
The Justices Act of 1886, again enacted and declared by the parliament of Queensland commenced and took place on 1 January 19 - 1887. Section 19 states:
"Whenever by any act passed or future or by this act any person is made liable to a penalty or punishment or to pay a sum of money for any offence act or omission and such offence act or omission is not by that act declared to be an indictable offence and no other provision is made for the trial of such person the matter may be heard and determined by a Magistrate's Court constituted subject to this act by two or more Justices in a summary manner under the provisions of this act."
BENCH: That section again?
SGT STANTON: Section 19.
BENCH: Nineteen.
SGT STANTON: Justices Act 1886.
BENCH: Thank you, yes?
SGT STANTON: Your Worship, this offence before - the offences before this Court today are brought under section 50 of the Weapons Act of 1990. It is not declared to be an indictable offence and as such it may be dealt on a summary manner under the Justices Act of 1886, not as an indictable offence under Commonwealth law, therefore it cannot be heard by a jury. Lawfully it must be heard in this jurisdiction.
Your Worship, section 109 of the Federal constitution states that if the Commonwealth should make law in conflict with state law the state law should give way and become inoperative while the Commonwealth law existed. This arises - 1901 Commonwealth of Australia was created. The six states or colonies became states. Certain powers were given to the Commonwealth. Some of powers were exclusive. As such, the states have no power under those areas. However, not all powers were exclusive to the Commonwealth and this is where section 109 comes into force.
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