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R v Essenberg

 

[2002] QCA 4

 

COURT OF APPEAL

 

McPHERSON JA

WILLIAMS JA

AMBROSE J

 

 

CA No 163 of 2001

THE QUEEN

v.

MARTIN ESSENBERGAppellant

 

 

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 Mr Sharples, as one might expect, has applied for special leave to appeal to the High Court of Australia.  The application to that effect has not yet been heard or the decision given.

 

It would not be right to defer our decision in this matter pending the outcome of the application for special leave to appeal.  The proper course for a Court is to decide a matter before it according to its own view of the law, except in extraordinary cases where a discretion is exercised to defer a matter pending a decision of a higher Court.  In this instance we do not know if Mr Sharples will obtain leave to appeal or will succeed on the appeal if he obtains it.

 

Consequently, this Court must follow its usual course, which is to accept that it is bound by its own decisions unless it is demonstrated quite clearly that they are almost certainly wrong.  Nothing of that kind has been demonstrated by the applicant in the present case, who, in fact has, whenever questioned about the matters appearing in written submissions that he has relied on, constantly disavowed any knowledge of what they mean.

 

The result is, for my part, that I would not be prepared to overrule, or even, on the material put before us, consider overruling, the Sharples decisions raising the same points as are raised here in the way that they have.

 

Now, the only other matter that has been put before us is a general complaint that the applicant was unrepresented in the Court below; that having regard to the decision of the High Court in Dietrich v. R (1992) meant that he was not fairly heard, tried or convicted; and that his Honour, it was added, also acted in some way that was unfair to the applicant.  So far as the Dietrich case is concerned, that case applies to serious offences only.  This case would certainly not answer that description the more so as the applicant was fined only $400. 

 

So far as the conduct of Judge Robertson is concerned, the complaint really comes down to this; that he failed to follow or enforce the guidelines or practice directions that the District Court has published for the hearing of appeals and other proceedings before it.  In the last resort it would appear that the applicant's only complaint in that regard is that he was given a fewer number of days after receipt of the Crown's submissions in the matter than the practice directions would have allowed him.  In so far as this is correct as a matter of fact, and assuming also that he was in some way disadvantaged by that lack of time, it is clear that he has had since May 2001 to prepare in the fullest possible way any arguments that he is interested in presenting to this Court and is able to elucidate in the ordinary way.  There can be no disadvantage to him from any lack of time in the District Court to argue his case when something like eight months or so has passed since that hearing, within which he would have been able to present his application to us in the fullest possible way.

 

An application for leave to appeal in matters of this kind is an application which calls on the discretion of the Court to allow an appeal to proceed after two previous hearings have already determined it.  In my view there are no matters that would activate the discretion of the Court to hear this appeal, or which would encourage this Court to grant leave to appeal, in a case in which the law has already been so clearly established by decisions of this Court.  I would therefore dismiss the application.

 

WILLIAMS JA:  The applicant has raised a number of matters of complaint but I am not satisfied that the applicant has identified any point of law which would justify granting leave to appeal pursuant to section 118 of the District Court Act.  Leave should be refused.

 

AMBROSE J:  I agree.  On the stated authority binding this Court and all Courts in Queensland the decision of the learned District Court Judge was clearly correct and it is not a case in which leave ought to be granted to reconsider that matter. 

 

McPHERSON JA:  The order of the Court is that the application for leave to appeal is refused.  Are you asking for costs?

 

MR COPLEY:  Not any more.

 

McPHERSON JA:  That is the order of the Court.

Close

Editorial Notes

  • Published Case Name:

    R v Essenberg

  • Shortened Case Name:

    R v Essenberg

  • MNC:

    [2002] QCA 4

  • Court:

    QCA

  • Judge(s):

    McPherson JA, Williams JA, Ambrose J

  • Date:

    31 Jan 2002

Litigation History

Event Citation or File Date Notes
Primary Judgment - 05 Oct 2000 Conviction of an offence under the Weapons Act 1990: Magistrates Court.
Primary Judgment - 31 May 2001 Appeal against Magistrates Court decision; appeal dismissed: Robertson DCJ.
Appeal Determined (QCA) [2002] QCA 4 31 Jan 2002 Application for leave to appeal against District Court appeal decision; leave refused: McPherson and Williams JJA and Ambrose J.
Special Leave Refused [2003] HCATrans 836 25 Jun 2003 Special leave refused: Gleeson CJ and Heydon J.

Appeal Status

{solid} Appeal Determined - {hollow-slash} Special Leave Refused (HCA)