Carnes v Essenberg - [1999] QCA 339

99.339

COURT OF APPEAL
McMURDO P
McPHERSON JA

CHESTERMAN J

CA No 135 of 1999

136 of 1999

CATHERINE MARY CARNES
v.

MARTIN ESSENBERG	Applicant
JOHN PAUL LEWIS v. MARTIN ESSENBERG

BRISBANE
..DATE 23/08/99
230899 T13-14/HMH8 M/T COA202/99
CHESTERMAN J: On 2 September 1998 the applicant was convicted
in the Magistrates Court at Kingaroy of three offences against
section 50 of the Weapons Act. The charges were that on 23
May 1998 the applicant possessed a .22 long rifle single shot,
on 26 May he possessed an air rifle and on 2 June he possessed
an air rifle. The applicant was not licensed to possess any
of the weapons. On 11 August 1998 at the Magistrates Court in
Brisbane the applicant was also convicted of another offence
against the Weapons Act. This was that on 10 June 1998 he
possessed a .22 rifle while not licensed to do so.

In relation to the charges dealt with at Kingaroy, the applicant was convicted and fined $650 in default of imprisonment for 28 days. The penalty was converted to a fine option order by which the applicant was to perform 94 hours of community service. The charge dealt with in Brisbane resulted in a fine of $400 in default of imprisonment for one month.

The applicant appealed against his convictions to the District Court which on 22 March this year dismissed the appeals. The applicant did not contest any of the facts alleged against him in respect of the three charges heard on 2 September 1998, nor in relation to the other charge heard in Brisbane on 11 August. In that case the prosecution led its evidence-in- chief. It was uncontroverted by the applicant.

Indeed, with respect to that offence, it appears that the
230899 T13-14/HMH8 M/T COA202/99
applicant attended police headquarters in Brisbane and advised
two officers that he was in possession of a rifle for which he
had no licence. The gun was in the boot of his car, which was
parked nearby. He showed it to the police, who took
possession of it.

Although the applicant seeks leave to appeal against his convictions and the sentences imposed, it should be noted that the appeals to the District Court were against conviction only. The applicant does not appear to have complained about the sentences which were imposed. The orders he sought from the District Court were that the appeals be allowed and the matters remitted to the Magistrates Court for determination in accordance with law by a jury of the applicant's peers. The appeal against conviction on 2 September also sought a declaration that The Queen in Right of the State of Queensland must obey the laws forming the Constitution of Queensland and Australia.

The applications for leave to appeal against the orders of the
District Court are totally without merit and can be disposed
of briefly. Mr Essenberg has two points. He maintains that
Magna Carta was and remains a pre-eminent source of legal
obligation binding all Courts and…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Carnes v Essenberg

Details

AGLC: Carnes v Essenberg & Ors [1999] QCA 339
Case: [1999] QCA 339
Decision Date: 23/08/1999

CaseChat Overview and Summary

In the matter of Carnes v Essenberg, the applicant, Martin Essenberg, appealed against his convictions and sentences for firearm possession offences under the Weapons Act 1990. Essenberg had been convicted of possessing a .22 long rifle and air rifles without the necessary licenses on multiple occasions. The District Court dismissed his appeal against conviction, leading to this Court of Appeal proceeding. Essenberg sought to appeal on the basis that Magna Carta and the Bill of Rights 1688 should have precluded his conviction and sentencing under the Weapons Act. These historical documents, he argued, should have protected his rights to bear arms and to trial by jury.

The Court of Appeal found Essenberg's arguments to be without merit. The Court noted that while Magna Carta and the Bill of Rights have significant historical importance, they are not immutable laws that override modern legislation. The Australian Courts Act 1828 and subsequent statutes, including the Australia Act 1986, established that colonial and state parliaments have the power to alter or repeal received English laws. Therefore, the Weapons Act, which restricts firearm possession and allows summary prosecution, is a valid piece of Queensland legislation.

The Court also dismissed Essenberg's claims relating to trial by jury, noting that the manner of prosecution and the rights of defendants are governed by contemporary Queensland statutes, not historical English law. The Court concluded that Essenberg was fairly tried under the laws in force at the time, and his appeal against both conviction and sentence must be refused. The Court's order dismissed the application for leave to appeal.

Orders