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
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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
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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 governments, and that any
subsequent developments of legal principle or enactments of
Parliament, that have occurred in the last 800 years that
might be thought to have diminished the force of Magna Carta,
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are invalid. By its terms he claimed a right to trial by
jury. The proceedings brought against him for contravention
of the Weapons Act were simple offences prosecuted before a
Magistrate.

Mr Essenberg has a second point. He claims that by the Bill of Rights 1688 he, as a citizen, has a right to bear arms suitable for his defence. He asserts that that right also remains untouched by 300 years of legal and political development. He argues that the Weapons Act is invalid because it takes away that right.

Magna Carta formed part of the system of imperial laws which apply to the colonies of Eastern Australia on their settlement. So did the Bill of Rights. The historical importance and the influence on the constitutional development in English-speaking countries of those two enactments are profound. However, it is completely inaccurate to say that colonial parliaments, or indeed the Parliament of Westminster, could not alter, modify or even repeal the provisions of centuries old legislation.

The Australian Courts Act 1828 was enacted by the Imperial
Parliament to allow for the establishment of an organised judiciary in the colonies and to facilitate the making of local laws. Section 24 provided that:

"All laws and statutes in force within the realm of
England at the time of the passing of this Act shall be

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applied in the administration of justice in the Courts of
New South Wales so far as the same can be applied within
the said colonies, and it shall be lawful that the
governors of the said colonies respectively with the
advice of legislative councils of the said colonies to
make and establish such limitations and modifications of
any such laws and statutes as may be deemed expedient."

The Australian Courts Act became part of the law of Queensland upon its separate establishment in 1859. It may be noted also that the Colonial Laws of Validity Act 1865 was passed by the Imperial Parliament to remove doubts about the extent to which Australian Colonial Parliaments could alter imperial legislation as it applied to the colonies. As Dr Lumb points out in his work on the Constitution of the Australian States, the result of that Act was that no colonial law was void on the ground that it was repugnant to the fundamental principles of English law.

The matter is made even more explicit by section 3 subsection 2 of the Australia Act 1986 which provides that no law and no provision of any law made after that Act by the Parliament of a State shall be void or inoperative on the ground that it is repugnant to the laws of England or to the provisions of an

existing or future Act of Parliament of the United Kingdom.

The supremacy of Parliament to make laws contrary to what had
been the Common Law is expressly recognised by the Courts. It
is enough to refer to the decision of the High Court in Kable
v. The Director of Public Prosecutions, 189 Commonwealth Law

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Reports 51 at pages 73 to 74 in the judgment of Justice
Dawson. His Honour pointed out that that champion of the
Common Law, Chief Justice Coke, had in his Institute of the
Laws of England in the early 17th century accepted that Magna
Carta could be altered by English Parliament. Indeed he
referred to Bills of Attainder which allowed for trial
contrary to Magna Carta as being lawful enactments. Justice
Dawson went on:

"Judicial pronouncements confirming the supremacy of
Parliament are rare but their scarcity is testimony to
the complete acceptance by the Courts that an Act of
Parliament is binding upon them, and it cannot be
questioned by reference to principles of a more

fundamental kind."

The passage goes on and concludes:

"There can be no doubt that Parliamentary supremacy is a
basic principle of the legal system which has been
inherited in this country from the United Kingdom."

That is enough to dispose of the arguments that Magna Carta and the Bill of Rights are untouchable and unalterable sources of private rights or immunities. The Criminal Code and the Justices Act of Queensland have changed the manner in which prosecutions may be brought. The Weapons Act has abrogated the right of citizens to go armed in public.

The applicant had a right to be tried according to the laws of
the State of Queensland in force in 1998. He was justly tried
in accordance with those laws. His claim to enjoy some
special protection conferred in legislation necessary to deal
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with particular social and political circumstances some
centuries ago in a faraway country should be rejected as
foolishness. The judgment of the District Court was clearly
right.
The applicant also seeks leave to appeal against the sentences
imposed but as he did not complain about them in his appeal to
the District Court and advances no satisfactory reason why he
did not do so, those applications should be refused. In fact,
it appears that the complaint about sentence is really part
and parcel of the complaint about the convictions, the
applicant taking the view that any sentence imposed would have
been excessive because he ought not to have been convicted.
In my judgment the applications for leave to appeal against
conviction and sentence should be refused.

THE PRESIDENT: I agree that the application for leave to appeal under section 118 of the District Court Act 1967 should be refused for the reasons given by Mr Justice Chesterman.

McPHERSON JA: Yes, I also agree. The applicant submitted before us that Magna Carta and the Bill of Rights were, in some sense, fundamental law of England which, once adopted here, prevailed over local law including local legislation.

It is, I think, true that those two statutes or laws have to
some extent been carried to Australia as part of the reception
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of English law in this country. However, the view adopted in
the United States, where a similar process has occurred, is
that pre-settlement English law, whether it is common law or
legislation, was received in the settlement or colony in the
character of common law. I consider that view to be correct.

In Australia it derives some force from the decision of the

High Court in Booth v. Booth (1935) 53 CLR 1, particularly in the judgment of Mr Justice Starke at p.32; but, in whatever character English law including Magna Carta and the Bill of Rights, was received here, they became liable to alteration or abolition by local legislation once the full power to legislate was transferred from Great Britain to Australia, including Queensland.

Mr Justice Chesterman has referred to the relevant statutes by
which that was done, and by which the power to legislate was
given precedence over law that was adopted in this country by
its reception from England. That being so, it cannot possibly
be doubted that the provisions of the Weapons Act, namely
those that make it an offence to have a firearm in possession
without an appropriate licence and those which enable offences
of that nature to be prosecuted summarily rather than on
indictment before a jury, are valid. In consequence, the
application for leave to appeal, whether as to the substantive
offence or as to penalty, is misconceived, and must be
dismissed.
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THE PRESIDENT: The order is: the application for leave to
appeal is refused.

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