MAGISTRATES COURT
LEBSANFT ASM
Nos 464-6 of 1998
CATHERINE CARNES Complainant
and
MARTIN ESSENBERG Defendant
KINGAROY
..DATE 02/09/98
DECISION BENCH: The defendant is charged that:
CHARGE That on the 23rd day of May 1998 at
Kingaroy in the Magistrates Court
District of Kingaroy in the State of
Queensland he had in his 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 he not being a person authorised
to possess the aforesaid weapon under
a license or permit or without lawful
authority justification or excuse
He is further charged: That on the 26th day of May 1998 at
Kingaroy in the Magistrates Court
District of Kingaroy in the State of
Queensland he had in his possession a
weapon namely an unknown brand of air
rifle Category A and he was not
authorised to possess the weapon
under a license or permit to acquire
or without other lawful authority or
excuse
And the final charge is: That on the 2nd of June 1998 at
Kingaroy in the Magistrates Court
District of Kingaroy in the State of
Queensland he had in his possession a
weapon namely one Gecado brand model
.25 air rifle such weapon been listed
in Category A as contained in
Schedule 1 of the Weapons Act of 1990
and he not being a person authorised
to possess the aforesaid weapon under
a license or permit or without lawful
authority justification or excuse
BENCH: Now, in the trial the onus of proof rests with the
prosecution and that is to the standard of beyond a reasonable
doubt. Witnesses called for the prosecution - there were no
witnesses actually called for the prosecution in light of the
fact that the defendant consented to the tendering of
statements of all prosecution witnesses and that is pursuant
to the provisions of section 644 of Criminal Code. He did not
require any witnesses to be present for cross-examination
purposes.
The witness for the defence was simply the defendant, Mark
Essenberg, himself. The topic of credibility of the
prosecution witnesses does not arise in light of the fact that
evidence was all tendered under the provisions of section 644
of the Criminal Code and there was no oral evidence.
Of credibility of the defence witness I found that the
defendant assisted the Court to the best of his ability. The
very nature of this trial does not require me to turn to the
credibility of that witness and his testimony in formulating
my judgment.
There was no conflict between the prosecution or defence
evidence or in the actual details of the three separate
offences. More on the topic is found at section 50 of the
Weapons Act 1990 State Legislation that is as amended and it
states that:
"A person may possess a weapon only" - subsection A - "if
the person is authorised to possess the weapon under a
license or permit to acquire" or subsection B:
"With other lawful authority, justification or excuse."
That section then goes on to detail the relevant penalties.
During the course of the trial the case law quoted to me has
been that of prisoners A to XX versus State of New South Wales
1995 79 Criminal Law Reports 377 to 389.
The defence raised by the defendant was simply being that this
Court does not have jurisdiction to deal with this matter in a
summary way. He has contended that it is his right to a trial
upon indictment by a Judge and a jury and that the State
Legislation under which he is charged does not apply.
During the trial the evidence as per the tendered statements
has not been in contention nor tested by the defendant. I
accept that evidence. It is not my intention then to deal
with that evidence in my decision as to the offences any
further. The prosecution have proven to me to the requisite
standard of proof details of the three separate charges.
Turning now to the assertion of the defendant that this Court
does not have the jurisdiction to deal with the charges. The
defendant is charged under section 50 of the Weapons Act of
1990 as amended. This is Queensland Legislation. This Act
provides that this offence is a simple offence and that
proceedings are summary proceedings. I refer to section 161
of the Weapons Act. There is no provision for proceedings
bought under section 50 of the Weapons Act to be by way of
indictment. The defendant's trial has been summary
proceedings.
Section 19 under the Justices Act, that is Queensland State
Legislation, provides that if in detailing an offence if not
stated to be indictable, as in this case it was not stated to
be indictable, then proceedings for an offence are to be a
simple offence. There is no Commonwealth Legislation on the
same topic of weapon licensing.
Should there be Commonwealth Legislation in conflict with
State Legislation, the commonwealth Legislation would be
superior to that State Legislation. This is not the case
here, there is no comparable Commonwealth Legislation. The
State Legislation is what this action is based on and what is
relied upon.
This legislation is an Act of the government of Queensland.
This government is a duly elected government of the State of
Queensland. The State of Queensland has its own constitution
and this State constitution was introduced in 1859 and the
State of Queensland became its own entity for the purpose of
law making without reference to England as of 1 January 1901.
In making the above statement and dealing with the contention
that I do not have jurisdiction to deal with the defendant, I
turn to case law including the matter of Walker versus New
South Wales 1994 ALJR at 111. This is a matter where Walker
had been charged with an offence at Nimbin - place said to be
within the area of the Banjawung nation of aboriginal people.
Walker was himself said to be a member of the Noonuccal nation
of aboriginal people.
His statement of claim alleged that the common law was only
valid in its application to aboriginal people to the extent to
which it had been accepted by them. He had appealed to the
High Court of Australia. At page 112 Mason CJ commented:
"The legislation of New South Wales has power to make
laws for the peace, welfare and good government of New
South Wales in all cases what so ever. This was by the
New South Wales Constitution Act of 1902. The
proposition that these laws could not apply to particular
inhabitants or particular conduct within the State must
be rejected. "
And as Gibbs J said in Coe versus the Commonwealth 1979 53
ALJR 403 at 408:
"The aboriginal people are subject to the laws of the
Commonwealth and of the States or Territories in which
they respectively reside."
Mason CJ continues at page 113 then:
"So in Quan Yick versus Hinds Griffith CJ when dealing
with the more general question whether the entirety of
Imperial Law was in force in Australia stated: 'It has
never been doubted that the general provisions of the
criminal law were introduced by the Australian Courts Act
of 1828. Even if it be assumed that the customary
criminal law of aboriginal people survived British
settlement it is extinguished by the passage of criminal
statutes of general application.'"
Then, from the case of the Queen versus Dennis Bruce Walker at
CSM 6 of '89 dealt with in the Queensland Court of Criminal
Appeal on 1 December 1989 wherein Walker was appealing after a
trial before a Judge and jury in the District Court in
Brisbane on charges of wilful damage, Walker appealed on the
ground that - the first ground was: that the District Court
had no jurisdiction and two, that the trial was not conducted
in accordance with law in that under the provisions of chapter
39 of the Magna Carta he was entitled to but had not received
the trial by a jury of his peers.
In the December of Mcpherson J he made the following comment
on the arrangements of the State of Queensland to make
legislation effecting the citizens of Queensland:
"The separation letters patent and the government and
legislature for which they provided thus owe their
validity to the two Imperial Acts so far mentioned. The
laws and the judicial power of the colony which is the
point to which these reasons are tending owe their
existence to a combination of these and other sources.
Another Imperial Enactment, the Australia Courts Act of
1928, provided in section 24 for the laws of England to
be applied in the administration of justice in the Courts
of New South Wales. Those laws, together with the
subsequent statutes of that colony were at separation
maintained in force in Queensland by article 20 of an
order in council published on 24 December 1859 Queensland
Government Gazette, volume 1 at pages 7 to 9 but taking
effect simultaneously with publication of the letters
patent article 24 and article 22 of the Order in Council
declared that the legislation of the colony should have
full power to alter or repeal its provisions. This was
done by the Constitution Act of 1967 which in section 2
thereupon repealed the power contained in the former to
make laws for the peace, welfare and good government of
the colony in all cases whatever. Such now as the case
of the Queensland Government making the present
legislation for the Weapons Act of 1990."
Mcpherson J continues on page 5 of the CSM 6 of 1989 and this
is following a description of the Magna Carta, he says:
"It is not necessary to consider the Magna Carta in
further detail because even if by force of section 24 of
the Australia Courts Act of 1928, the provisions of
chapter 39 of the Magna Carta have ever formed part of
the law of Queensland, they have long since been
displaced by local statutes."
I also note from the matter of Skyring 1994 68 ALJR 618 at 619
Dawson J stated:
"The only other matter raised by the applicant on the
Courts was an argument as to costs which he put in his
application for an extension of time to appeal against
the order of Dowsett J in Skyring versus Australia and
New Zealand Banking Group Limited. There he argued that
the trial Judge erred in awarding costs against him as
the unsuccessful party to the action. He submitted that
such an order was inconsistent with the Magna Carta. I
do not think that there is any inconsistency between the
Magna Carta and an award of costs against an unsuccessful
litigant. But even if there were it is clear that a
subsequent statute can displace the Magna Carta."
Dawson J continued - the references are Chia Gee versus Martin
1905 3 CLR 649 at 653 and re Cusack 1985 60 ALJR 302 at 304:
"The argument that the Magna Carta remains a force and
entity in Australia and more so in Queensland has been
debated on many occasions. Earlier Courts have refused
to accept that argument. The weight of reported cases
from Superior Courts in refusing to accept this argument
is increasing."
I, too, refuse to accept that argument that it is not in the
jurisdiction of the Australia or Queensland government to make
legislation on the topic of weapon control. Nowadays the
Magna Carta has no relevance to the right of the individual to
carry arms in Australia. The Weapons Act of 1990, Queensland
State Legislation, the statute under which the defendant has
been charged is irrelevant legislation and by that legislation
summary trial is the mode for hearing. I hold that references
made by the defendant in his affidavit of topics such as acts
of sedition, contrary to section 24A of the Crimes Act,
Australia Constitution section 78B the Judiciary Act, Magna
Carta and Confirmation Carton are totally superious, misguided
and off the point.
I do not intend touching on each point further, I have earlier
ruled on the relevance of section 78B of the Judiciary Act,
that is Commonwealth Legislation, to these proceedings. It
has been admitted by the defendant during the trial that these
are references with which he is in the main unfamiliar. These
are references which he has simply adopted from the material
or other persons and which are nothing but a smoke screen
designed to simply hide the fact that the defendant is a
conscientious objector the State requirement that for a person
to possess a weapon in Queensland they must be licensed.
Overall, my finding is that the defendant is guilty of the
three offences as charged.
SGT STANTON: Your Worship, the defendant has no previous
history to allege. Prosecution do seek the forfeiture of the
items that were seized. Thank you, Your Worship.
BENCH: Yes, Mr Essenberg, by way of mitigation this is an
opportunity for you to address the Court now.
DEFENDANT: Your Worship, this is a time where I understand
the lawyers of normal felons tell you what fine fellows their
clients are and how their clients intend to be better citizens
in future. Unfortunately, Your Worship, all I can say is that
I'm a conscientious objector the new gun laws, believing as I
do that I had a right granted by the Bill of Rights to self
defence with a weapon.
I'm here because Prime Minister John Howard has forced his ill
conceived idea of uniform gun laws on the States. Parts of
these laws state that self defence is not a reason to possess
a weapon. This, I believe, illegally attempts to negate the
Bill of Rights. The elites of Australia who can afford to
contest the Constitutional validity of the gun laws have
failed their fellow Australians by not doing so.
Today, again, I am here unrepresented because Prime Minister
John Howard, in addition to creating the problem of gun laws
has also reduced access to legal aid by cutting funding. How
can poorer Australians who are aggrieved by the actions of
government fight complex and hence expensive constitutional
issues if legal aid, who'll provide competent counsel to
represent their interests, is denied?
The gun laws are, I believe, an evil law which represent an
attack on the liberty of the Australian people. Many
previously law abiding Australians have become criminals or
are potentially subject to prosecution since the introduction
of these laws because they, like I, believe in their rights to
self defence with a weapon and the government does not.
I do not fear the consequences of my action. In the last
world was my Dutch father spent several years as a slave
labourer in Germany. I understand that around 60 Jewish
relatives of my aunt were gassed. In this Court there is
nothing to fear. I have found the prosecution friendly and
helpful and you, Your Worship, have gone to some trouble to be
fair. There is no need to ask for mercy in an Australian
Court because unlike in other countries of the world mercy
here seems to be an entitlement.
I do not fear imprisonment. I've been there before paying a
fine for living in a garage without a council permit. Then,
as now, when authority told me I must obey that which I
thought unfair I said that I will not and suffer the
consequences. If I must become a political prisoner for my
beliefs, then that is the price I believe I must pay for
freedom. That is all, Your Worship.
BENCH: Thank you. Yes, just excuse me. Yes, Mr Essenberg,
if you could stand again, Sir. Sir, after having heard from
the prosecution in this - in the trial and I have heard from
you and having given my decision in this matter, having found
you guilty of the offences as charged, the prosecution are not
tendering any previous against you and on today's date
certainly the Courts in this country would seem to be a lot
more merciful than perhaps Courts in other countries.
And that is something that one would long hold to. Today's
date, Sir, after having heard these matters, a conviction is
recorded on today's date. I utilise the provisions of section
49 of the Penalties and Sentences Act. There are - and what
that means is that by that provision I am imposing one penalty
only on you. I am not imposing three separate penalties on
you.
The penalty imposed will be on Court file 465 of '98 and that
file will be noted that the defendant is fined, is convicted,
conviction is recorded and is fined the some of $650 and is
ordered to pay costs of Court in the sum of $56. In default
of payment in the allotted time, he is to be imprisoned for a
period of 28 days. I order forfeiture of the weapons the
subject of the charge.
Now, Sir, that is $706, what time would you be seeking to pay
that, Sir? Or what would you be applying to perform unpaid
community service?
DEFENDANT: Community service, Your Worship.
BENCH: I formally allow one month in which to pay the penalty
and then commute that to an order that you shall perform 94
hours of unpaid community service.
Sir, the requirement that is to be stressed upon you here
today is that you shall report to the office of Corrective
Services in Kingaroy here around in Haly Street within today's
date - on today's date. If you speak to the office downstairs
they will give you the directions how to find it.
Do you have any other questions at all, Sir?
DEFENDANT: Thank you, Your Worship. The - one of the items
to be confiscated, the plastic tube, the gun bearing tube is
not a prohibited item, would I possibly be able to get that
back?
BENCH: That was tendered as part of the exhibit. You - if
you are seeking to have that returned, that would not be
contemplated and that would only be contemplated by the
Registry after an appeal period has fluxed.
DEFENDANT: Yes, Your Worship.
BENCH: So, that's not an order for me to consider at this
point.
DEFENDANT: Thank you, Your Worship.
BENCH: Thank you.
SGT STANTON: That's all the matters at this point, Your
Worship.
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