And what it states clearly is that if there is a state law that is in conflict with that Commonwealth law, the Commonwealth law overrides the state law. However, there is no Commonwealth law in conflict with section 50 of Weapons Act of 1990 of Queensland. Therefore these charges must proceed under this state law.
Mr Essenberg has provided an affidavit dated 7 August 1998. Consideration of the assertions in this affidavit, and they are assertions only at this point, Your Worship, and I'll - I will look at each assertion within the affidavit. Point 1, Mr Essenberg is a resident in the state of Queensland. He is bound by the laws and the statutes of this state and its jurisdiction. On point 2, Mr Essenberg has no lawful grounds on which to challenge or [indistinct] the right of the parliament of the state of Queensland in this instance.
Point 3: he presents no proof of seditious intention by the state of Queensland which can be considered in this jurisdiction. On the fourth point, there is no act made contrary to Federal law in this instance. On the fifth point, he raises no lawful grounds to challenge the purchasing of weapons for destruction. In fact, the purchasing of those weapons is fully supported by our Commonwealth government. As such, there is no way our - our government, our state government could be considered guilty of treachery.
The same must apply to point 3, referring to an act of sedition, when the state government is fully supported in its action by the Commonwealth. On point 6, there are no grounds. I've already stated on point 5, that Mr Essenberg has no lawful ground to challenge the purchasing of weapons for destruction. On point 7, it again deals with sedition under 24A of the Crimes Act of 1914. There is no proof of seditious intention by the state of Queensland and it cannot be considered in this jurisdiction.
Point 8 is the same. Point 9: Mr Essenberg presents no lawful basis for this assertion. Point 10 - points A and B, Your Worship, Mr Essenberg refers to the Magna Carta and the Confirmatio Quitarum. They have no effect upon the laws of this state as they provide no statutory basis in this jurisdiction. In essence, Your Worship, we are a statute state. We draw our laws from statute, not from common law. However, if refer Your Worship as to a decision in New South Wales, that is, The prisoners A to XX Inclusive against New South Wales 1995, 79 Australia Crim Reports at 377 to 389.
Your Worship, this was a decision where the New South Wales Court of Appeal had rejected a submission that the failure or refusal by prison authorities to supply or permit the possession and use of condoms by prisoners was a contravention or threatened contravention of chapter 20 of the Magna Carta. Whilst accepting that the Great Charter was confirmed in section 3 of the petition of right, 1627, which, along with the Magna Carta is mentioned in part 1 of the second schedule to the Imperial Acts Application Act 1969 in New South Wales, and so is in force in New South Wales. Judge Scheller, with whom Judges Meagher and Powell agreed stated: I quote -
"Whatever may have been intended by the drafters of the Magna Carta in 1215 or on the occasions when it was subsequently confirmed, it has influenced the development of current common law. It does not, however, in my opinion, provide a statutory basis for saying that the denial by prison authorities of access by prisoners to condoms is unlawful."
Old law is good law, Your Worship, but it isn't always that good. The Magna Carta and the Confirmatio Quitarum, they have the same effect on our statutory laws as the Bible, Your Worship. They have influenced the development of our statute laws. However, they have no statutory basis in this jurisdiction. On point 10C, Mr Essenberg states that the Australia constitution says, "Trial on indictment of any offence against any law of the Commonwealth shall be by jury".
This offence is - is not against any law of the Commonwealth. I have referred to the - excuse me, Your Worship - the Crimes Act of 1914. It is a Commonwealth statute. This matter is brought under a state statute, not a Commonwealth law. Also, Your Worship, this is an - these are not indictable offences. They are simple offences which would be - which may be dealt with summarily within a Magistrate's Court, not by a jury. Section 80 Commonwealth of Australia Constitution Act does not apply in that instance.
Point 10D, Clause 5 of the Constitution Act has no bearing in this instance. I've already covered reasons. Clause 3 is the same. Clause F, the Magna Carta has no statutory basis in this state. Point 11, again, the Magna Carta has no statutory basis in this state. On point 12, we've already - I've already discussed, the constitution, the Confirmatio Quitarum, trial by jury. Those assertions are incorrect. I've already discussed reasons why.
On point 13, Mr Essenberg is unable to provide a legitimate basis for this assertion, and as such, the adjournment cannot be considered. Point 14, the state provides legitimate reasons for the seizure of weapons. It's not bound by the constitution in this instance. In fact, Your Worship, the weapons have been seized under the Weapons Act as evidence in these proceedings. If, at the end of these proceedings Mr Essenberg is convicted, I will then make application to this Court for forfeiture of those weapons. But at this point, those weapons are here as evidence.
Point 15, Your Worship, for reasons already discussed, this is not a matter for consideration by the Attorney-General. Point 16, Your Worship, Mr Essenberg asserts that he - unless he consents, the materiality of the lawlessness of the state of Queensland raised by this application must be determined by a jury. Your Worship, Mr Essenberg is bound by the laws of this state whether he consents to them or not. Point 17: Mr Essenberg asked us to refer to the laws of the USA and the Supreme Court. The laws of the USA do not apply to this state.
Mr Essenberg further, Your Worship, in his oral application, he refers to the right to bear weapons under the Bill of Rights. Again, Your Worship, it is - it has the same effect in this state as does the Magna Carta. It was no statutory basis in this state and these laws. Also, Your Worship, Mr Essenberg raised this himself. The Bill of Rights states that he has the right to bear arms suitable to the conditions and as allowed by law. The law does not permit him to hold those weapons unless he is licensed.
And Your Worship, the realm was repealed by the Criminal Code of 1899. I believe section 3. I confirm that, Your Worship. No - yes, Your Worship, the Criminal Code Act of 1899,
"The several statute of the realm mentioned in the second schedule to this act shall be repealed so far they are enforced in Queensland to the extent in the said schedule indicated."
They have been repealed by our code.
I have covered all other points Mr Essenberg has raised. Your Worship, upon consideration of all these factors, the Court cannot be satisfied that Mr Essenberg's assertions involve matters arising under the constitution or involving its interpretation, is therefore not bound by the provisions of 78B of Judiciary Act of 1903. As such, the prosecution objects to the granting of an adjournment, submits that this - this matter proceed today. Thank you, Your Worship.
BENCH: Thank you. Yes, Mr Essenberg?
DEFENDANT: Well, Your Worship, that was certainly a mouthful. It was very well done. I requested an adjournment on the basis that I need time to consider my position.
BENCH: I'll - sir, I'll grant you a - a brief adjournment here now just so that you can gather your thoughts. All right? After that address by the prosecution.
DEFENDANT: Thanks very much, Your Worship.
BENCH: Right.
SGT STANTON: Thank you, Your Worship.
THE COURT ADJOURNED
THE COURT RESUMED
BENCH: Yes, thank you. Now, Mr Essenberg, you've heard - you had the opportunity firstly to address. Now the prosecutor has replied and I give you the opportunity sir, to - to touch on matters that the prosecutor has raised.
DEFENDANT: Thank you, Your Worship. Well, I want an adjournment because I need to collect further witnesses to rebut the arguments of the prosecution. As it should be obvious, that I am not competent to fully unravel all the legal complexities of this issue and I believe this issue is of greatest national importance touching as it does upon our most fundamental blood-bought freedoms.
BENCH: Anything further, sir?
DEFENDANT: That's for the - request for adjournment-----
BENCH: Yes.
DEFENDANT: -----as - is it, yes.
BENCH: Yes. But the actual - so that's - on the topic of the adjournment itself, in relation to-----
DEFENDANT: Right.
BENCH: -----the material that the sergeant has raised where he has referred to your affidavit.
DEFENDANT: Okay. Okay. The statement that the government may - that supports the state in this issue, the government is simply something that's elected for a term of three years. All the parliamentarians can agree what they want, but the idea of entrenched law, as I understand it, is that it was to make it so that it would - that despite the governments falling and rising there - that these laws would be known to stand for all time. This was the intention when they created these laws. The Magna Carta was due to a civil war when they forced the - the king, King John to say this is - we - we want henceforth trial by jury, was one of the issues.
The civil wars that resulted in William of Orange, he was forced to sign the Bill of Rights to become sovereign of - of the country to replace James II. The course of the civil war being created on, in particular in those grounds, in religious grounds. So the - currently have a Liberal/National government. Next - next election we'll have a Labor government. Who knows, we may have a One Nation government. They're all temporary things. The facts from the point of view of people who are against parties like One Nation, possibly all these people do need the right to bear arms if they are really afraid that One Nation is what it says it is, which I don't particularly believe so myself.
So, it is all the people - these entrenched laws give all the people of Australia continued reliable protection against whatever the government might try to do. That's - relates to the section 3, I think and 5, there's no grounds. Well, the - you know, if the governments may support - that's not a problem. Well, no proof of seditious intention - the parliamentarians of the State of Queensland did pass these - the new gun laws and we believe that since it is against 24A that we should be - have - have weapons, then as far as we're concerned it must be seditious, because it is against 24A.
The one on condoms, I couldn't quite fathom. Perhaps the prosecutor be asked at some stage to explain what that related to as far as the Magna Carta. I don't think King John really had much in - in mind about condoms at the time.
BENCH: Perhaps they meant - well, I'll that one there.
DEFENDANT: Sorry?
BENCH: I'll leave that one there.
DEFENDANT: Okay. Okay, I'll just start - read this bit then. Doesn't really relate to what the prosecutor said, I guess, but, I'm a free citizen and a subject of the British Crown, [indistinct] just give you these - proof of this with my birth certificate and my electoral registration. Yes, I agree, I am subject to all validly enacted laws, and I claim the rights enshrined in common law. I believe this is not a validly enacted law, the gun laws. The sovereign is bound by the Bill of Rights 1688, the Magna Carta's 1297 and the Bill of Habeas Corpus 1640.
The current Queen is sworn to uphold and 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 suitable to their condition and as allowed by law. If this is not so, well, I believe that self-defence is a suitable reason for having a weapon. If we're not allowed weapons, what are we able to defend ourselves with? You know, does it come down to we have to - where we're not allowed to use a shoe? Does it come down to fingernails? I take the view that suitable conditions is that whatever is common in society, and as allowed by law, you know, is the state may allow us additional rights to have weapons, but not take all rights from - of weapons from us.
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 and Magna Carta, the Weapon - Weapons Act is therefore invalid and [indistinct]. That's all that, you know, Your Worship, that I can possibly think of saying.
BENCH: Thank you. All right then, sir. And [indistinct]-----
DEFENDANT: I think I've said enough, Your Worship.
BENCH: Thank you. Excuse me. Thank you. Matters I have before me here today are three matters which are brought under the provisions of section 50 of the Weapons Act, section 50A, and that's three charges against the defendant of - of possession of a firearm whilst unlicensed. Of course, this is - this is state, Queensland state legislation that I'm referring to. I've heard at length from Mr Essenberg on the topic of his application, firstly, for an adjournment, and during that address he touched on his application for legal aid, which was refused, which was - he asked for a review, and which was ultimately refused and then ongoing contact he has had with Wakka Wakka Legal Corporation here in - in Kingaroy, Murgon, and seeking assistance through their office.
Further, I have also heard from him on the topic of the affidavit lodged by him, his affidavit of 5 August 1998 and the crux of that affidavit comes by way of a notice under section 78B of the Judiciary Act of 1903. And section 78B of the Judiciary Act, Commonwealth legislation says in subsection 1:
"Where a cause pending in a Federal Court, including the High Court, or in a Court of a state" (as in this case) "or territory involves a matter arising under the constitution or involving its interpretation, it is the duty of the Court" (all right, it's the duty of the Court) "not to proceed in that cause unless and until the Court has" (on convening here today) "is satisfied that notice of the cause specifying the nature of the matter has been given to the Attorneys-General of the Commonwealth and of the states, and a reasonable time has elapsed since the giving of the notice for consideration by the Attorneys-General of the question of intervention in the proceedings or removal of the cause to the High Court."
And in the notice give under section 78B of the Judiciary Act, Mr Essenberg has given notice that - given notice 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 of 1990 as amended. The validity of the act is challenged as being contrary to validly enacted Commonwealth law. I have heard - I have already indicated, as the record will illustrate, from Mr Essenberg, from Sergeant Stanton, and then again by way of reply from Mr Essenberg.
The - and after hearing that material - hearing the argument and viewing the material that has been tendered, I am not satisfied that I am - there is annexure, sufficient annexure in the argument advanced by Mr Essenberg for me to delay and give notice pursuant to the provisions of 78B of the Judiciary Act, and I reject the argument for an adjournment to give such notice.
Of the second topic, as for an - a request for an adjournment today's proceedings to allow Mr Essenberg to seek legal advice.
I note that the matter was set on 25/6/98. The application from material that I've viewed, supplied to the Court by Mr Essenberg was that he applied for legal aid on 19/6/98. He was notified that that application was not successful and he appealed that on 29/6/98. he was given notice that it was to be reviewed on 5/7/98 and by way of letter dated 27/7/98 he was notified that his review was not successful.
BENCH: The written-----
SGT STANTON: Excuse me Your Worship, I think Mr Essenberg - the date-----
DEFENDANT: Your Worship, the letter of the 27th indicated the review would be held on the 5th. I was allowed to contact the reviewing officer and I was notified verbally on the 5th when I spoke to the reviewing officer and answered a few questions that my application was unsuccessful. So, it was rejected on the 5th, Your Worship.
BENCH: I - I - yes. I was going to continue in that-----
DEFENDANT: Oh, sorry [indistinct].
BENCH: -----in that you were notified on the 5th of the unsuccessful situation, sir. Your written - or Mr Essenberg's written application then for a - an application and also the application under section 78B of the Judiciary Act were received on 5 August 1998 by the registry her at Kingaroy, and these proceedings are of course, on even date, that's 7 August 1998. I also note, and as has been outlined by Mr Essenberg, the contact that he has had with Wakka Wakka Legal Corporation and - which has been ongoing since 28 June 1998.
He has approached them on a number of occasions and those occasions would appear from the documentation to have been 6 July '98, 10 July '98, 15 July '98, 20 July '98 and 3 August '98, and Mr Essenberg is, by his address, currently looking at an application to the Anti-discrimination Queensland here in - sorry, Commission, in Queensland. There are other legal practitioners, of course, practising in the defendant's home town area of Nanango as well as in Kingaroy. Further afield there are solicitors in towns such as Dalby, Toowoomba or Brisbane, and all points in between.
I refer to the matter of Cameron v. Cole, C-O-L-E, 1944, 68 CLR at 571. The brief note is:
"Defendants should at all times be given reasonable and only a reasonable opportunity of appearing and presenting a case."
It was held that it is a principle - sorry, I'll start again. It is held it is a fundamental principle of natural justice applicable to all Courts, which superior or inferior, that a person against whom a claim or charge is made must be given reasonable opportunity of appearing and presenting his case. In view of the - and I'm talking only on the topic of the adjournment, seeking an adjournment now. In view of the material that has been tendered and the argument that has been presented, I hold that Mr Essenberg has had sufficient time to gather his information, to brief solicitors in this matter. That has not been put in place. Today's date matters have been set for trial and the matters will proceed to trial.
DEFENDANT: Thank you, Your Worship.
BENCH: Now, having said that, going to have to take a brief adjournment. I understand there's some - something that requires my urgent attention.
SGT STANTON: Thank you, Your Worship.
THE COURT ADJOURNED
THE COURT RESUMED
BENCH: I apologise for that delay. It wasn't as urgent as I - led to believe, but anyhow, nevertheless. So, just to recap then, gentlemen, I am refusing the application by Mr Essenberg for firstly the Court to adjourn to allow notice to be given pursuant to section 78B of the Judiciary Act, and secondly I am refusing an adjournment on today's date. The matter is to proceed.
SGT STANTON: Thank you, Your Worship. The prosecution are in a position to proceed, Your Worship. The-----
BENCH: And just at this point in time, of course, I formally note the files whereby pleas of not guilty have been entered by Mr Essenberg. Mr Essenberg, I understand that you - you are maintaining your plea of not guilty then?
DEFENDANT: Yes, Your Worship.
BENCH: Thank you.
SGT STANTON: Your Worship, I have had previous discussions with Mr Essenberg and this is by consent. I make application to tender statements of the prosecution in lieu of oral testimony and the - this is, I understand by consent and I will tender them under section 644 of the Criminal Code, which reads:
"An accused person may by himself or by his counsel admit on the trial of any fact alleged against him and such admission is sufficient proof of the fact without other evidence."
I will explain that perhaps a little further, and Mr Essenberg can confirm or deny this. Mr Essenberg does not dispute the actual police evidence, and he advised me that he does not wish the police to be available for cross-examination, and as such, he consents to the tendering of original statements of the prosecution witnesses in lieu of their oral testimony. Your Worship, I tender for the record-----
BENCH: Oh, yes, well wait one, please. Yes, Mr Essenberg, if you'd just stand, sir. Sir, the provisions - I understand you've had a discussion then, with the prosecutor, in relation to the evidence?
DEFENDANT: That is correct, Your Worship.
BENCH: And the provisions of section 644 of the Criminal Code are that whereby an accused person, as you stand here today, may by yourself, herself, or the person's counsel admit on the trial any fact alleged against the - against you, and that admission is sufficient proof of the fact without other evidence. Sir, is it then that you consent to the tendering of statements through the prosecutor in lieu of the oral testimony of the witnesses from the witness box?
DEFENDANT: Yes, Your Worship, I consent to this information being given to you, yes.
BENCH: Thank you then, sir. Yes, if you'd just take a seat then.
SGT STANTON: Thank you, Your Worship. I tender a - and I'll tender it as one - one - in one group, Your Worship.
BENCH: Mr Essenberg's been supplied with a copy of this?
SGT STANTON: Yes, he - he has, Your Worship.
BENCH: That's correct, sir?
DEFENDANT: Yes, Your Worship.
BENCH: Thank you.
SGT STANTON: Your Worship, I tender a two-page statement under the hand of Catherine Mary Carnes, constable of police, stationed at Kingaroy police station. I tender a three-page statement under the hand of Andrew John Graham, sergeant of police, Kingaroy police station. I tender a two-page statement under the hand of Darryl Andrew Ramsay, senior constable police stationed at Kingaroy police station. I tender two-page statement of Peter Graham Bennett, acting sergeant of police currently officer-in-charge, Cherbourg police station. Attached to that statement I tender one letter under the hand of Martin Essenberg, one-page letter and referred to in the statement of Bennett. I tender a two-page statement under the hand of Michael Bennett Keller, K-E-L-L-E-R, senior sergeant of police attached to the scientific section, Forensic Services Branch, Brisbane. Those are the statements I tender to the Court, Your Worship.
BENCH: Excuse me, I'll have the tapes turned off, so that I can peruse the material.
SGT STANTON: Your Worship-----
BENCH: Wait one.
SGT STANTON: -----what I - I will - also I will tender the exhibits-----
BENCH: Yes, by-----
SGT STANTON: -----referred to in those statements, Your Worship. The - Your Worship, I tender one PVC tube with - don't open that again, it stinks. Don't smell the inside of that tube, Your Worship, it's the mould. I did before. I made the mistake before, Your Worship. But encompassed in that is the-----
BENCH: That's not - that's not an exhibit I take it?
SGT STANTON: -----that is the weapon that is referred to in the statement of Sergeant Bennett.
BENCH: What weapon is in that?
SGT STANTON: Sergeant Graham - yes, acting Sergeant Graham.
BENCH: Oh, that's the Gecado, it would appear.
SGT STANTON: Yes, Your Worship.
BENCH: The air rifle.
SGT STANTON: And it is referred to in exhibits tagged A275867.
BENCH: Very well then. The PVC tube together with that Gecado brand air rifle collectively admitted and marked as Exhibit 1.
ADMITTED AND MARKED "EXHIBIT 1"
SGT STANTON: Thank you, Your Worship.
BENCH: Oh, just leave it there thanks.
SGT STANTON: Your Worship, I tender 1.22 bolt action rifle referred to in the statement of Carnes.
BENCH: Exhibit 2.
SGT STANTON: Yes, Your Worship. It's exhibit tag A275864. With that I tender 1.22 bolt, exhibit - referred to in the statement of Bennet. Exhibit tag A275863.
BENCH: Collectively those items admitted and marked as Exhibit number 2.
ADMITTED AND MARKED "EXHIBIT 2"
BENCH: Well, lie it down, please.
SGT STANTON: Your Worship, I tender one air rifle referred to in the statement of Ramsay, exhibit tag A275872. Those are the exhibits, Your Worship.
BENCH: Yes. Yeah.
ADMITTED AND MARKED "EXHIBIT 3"
SGT STANTON: Thank you, Your Worship.
BENCH: Thank you. All right then, I'll have the tapes turned off whilst I peruse this material.
SGT STANTON: Thank you, Your Worship.
BENCH: If there's nothing further that you want to raise at this point?
SGT STANTON: No, Your Worship. That is the-----
BENCH: Yes.
SGT STANTON: -----that's the evidence of the prosecution and-----
BENCH: Yes.
SGT STANTON: -----the exhibits.
BENCH: I'll - I just want to peruse this material first, Mr Essenberg. Then I'll have the tapes re-activated and I'll - if there's anything further the Sergeant's wanting to raise and then I'll ask you to address. Right? Thank you.
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