R v Essenberg - [2002] QCA 4

[2002] QCA 4

COURT OF APPEAL

McPHERSON JA
WILLIAMS JA
AMBROSE J

CA No 163 of 2001

THE QUEEN

MARTIN ESSENBERG Appellant

BRISBANE

..DATE 31/01/2002

JUDGMENT

McPHERSON JA: The applicant applies for leave to appeal against his conviction before a Magistrate of an offence under the Weapons Act 1990 of possessing a weapon while unlicensed. He appealed against that decision to the District Court, where the appeal was dismissed. He now applies for leave to appeal against that decision.

There was and is no dispute about the facts going to constitute the offence in question, and the submissions, such as they are, that have been advanced by the applicant in person before us today really come down to three matters or grounds intended to support the application to appeal.

The first is that the applicant did not receive a trial by jury, which is said to be contrary to the provisions of Magna Carta. I suppose it will help no one to be told that as a matter of history Magna Carta did not guarantee trial by jury because, at the time Magna Carta was introduced, there was no such thing as a jury. But that is history, and is really, in a sense, beside the point. The simple fact is that it is enough to say here that the legislatures of the Australian States and, in particular, of Queensland because it is the one involved here, have complete power to repeal Magna Carta or to amend it, either expressly or by passing legislation like the Weapons Act 1990 that is or may be inconsistent with it.

If authority is needed for that it is enough to refer to the recent High Court decision in Durham Holdings Pty Ltd v. The State of New South Wales (2001) 75 ALJR 501. There are other decisions of Courts to similar effect including one in the English Court of Appeal entitled Queen (Bancoult) v. Secretary of State [2001] 2 WLR 1219.

The Weapons Act, in conjunction no doubt with the Justices Act, provides for a summary hearing of cases of this kind, and, in so far as that is in any way inconsistent with Magna Carta, it overrides it.

The second ground of appeal is that the State Governor of the time, that is, at the time when the Weapons Act or any amendment to it was assented to, was not validly appointed, so that he could not properly assent to that Act, or to do any other act in the way of administering the Government of this State.

This point has been exhaustively considered and disposed of in no fewer than four decisions of Judges of this Court sitting whether as a Court of Appeal or as single Judges. The most recent of those decisions is one entitled Sharples v. Major General Peter Arnison, Beattie & O'Shea [2001] QCA 518, in which judgment was delivered in this Court on the 23rd of November 2001. We were told that…

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 R v Essenberg

Details

AGLC: R v Essenberg [2002] QCA 4
Case: [2002] QCA 4
Decision Date: 31 January 2002

CaseChat Overview and Summary

In the matter of the appeal of Martin Essenberg, the Court of Appeal, consisting of McPherson JA, Williams JA, and Ambrose JCA, considered the applicant's application for leave to appeal his conviction for possessing a weapon while unlicensed under the Weapons Act 1990. Essenberg's appeal against his conviction before a Magistrate was dismissed by the District Court, and he now seeks leave to appeal that decision.

The primary legal issues before the Court were the validity of the applicant's contentions that his rights were breached due to the absence of a trial by jury, the lack of a validly appointed Governor to assent to the Weapons Act, and the perceived unfairness of his unrepresented status during the trial. The Court addressed each of these points, finding that the Weapons Act's provisions for summary hearings override any potential conflict with Magna Carta, and that the validity of the Governor's appointment was settled in prior case law. Additionally, the Court noted that the Dietrich v. R decision, which mandates legal representation for serious offences, did not apply to Essenberg's case due to the minor nature of the offence.

The Court found that the applicant had not demonstrated any valid legal grounds to support his appeal. They held that the legislative power of the Australian states, including Queensland, allows for the modification or repeal of Magna Carta and that the established legal precedents provided a clear legal framework. Furthermore, the Court considered that the applicant had ample time to prepare for the appeal after the District Court's decision. Given the established legal positions and the lack of merit in the applicant's arguments, the Court dismissed the application for leave to appeal.

The Court's order was that the application for leave to appeal was refused. No further orders for costs were requested or granted.

Orders