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IN THE SUPREME COURT
OF NEW SOUTH WALES
SYDNEY REGISTRY
COMMON LAW DIVISION File No; 20137/00
AFFIDAVIT
I, John Wilson of 19 Elm Place, North Rocks in the State of New South Wales, say on oath:
1. I am the Deponent.
2. I truly believe that I have been denied natural justice by being
unlawfully imprisoned and, in support of this belief, I have composed the following Affidavit which consists of:-
Part I, which is made up of extracts from commentaries on the trial by jury by three authorities who are (i) Sir William Blackstone (1723 - 1780); (ii)Alexander Hamilton (1755 - 1804); and (iii) Lysander Spooner (1808 - 1887);
Part II, which is the text of the argument I filed in the High Court of Australia in the matter of S127/98;
Part III, which is the text of the argument I filed in the NSW Court of Appeal in the matter of CA40731/99; and
3. Part I:-
(i) SIR WILLIAM BLACKSTONE (1723 - 1780)
Extracts from "COMMENTARIES ON THE LAWS OF ENGLAND":
3.1 BOOK I, CHAPTER I, PAGE 118:-
the primary and principal objects of the law are RIGHTS,
and WRONGS.....3. Private wrongs, or civil injuries; with the means of redressing them by law. 4. Public wrongs, or crimes and misdemesnors; with the means of prevention and punushments.
3.2 PAGE 123:-
FIRST, by the great charter of liberties, which was obtained, sword in hand, from king John;
and afterwards, with some alteration, confirmed in parliament by king Henry the third, his son. Which charter contained very few new grants; but, as sir Edward Coke observes, was for the most part declaratory of the (PAGE 124) principal grounds of the fundamental laws of England. Afterwards by the statute called confirmatio cartarum, whereby the great charter is directed to be allowed as the common law; all judgments contrary to it are declared void; ........... Then, after a long interval, by the petition of right; which was a parliamentary declaration of the liberties of the people, assented to by king Charles the first in the beginning of his reign. Which was closely followed by the still more ample concessions made by that unhappy prince to his parliament, before that fatal rapture between them; and by the many salutary laws, particularly the habeas corpus act, passed under Charles the second. To these succeeded the bill of rights, or the declaration delivered by the lords and commons to the prince and princess of Orange 13 February 1688;..
3.3 PAGE 125:-
1. THE right of personal security consists in a person's legal and uninterrupted enjoyment of his life, his limbs, his body, his health, and his reputation.
3.4 PAGE 130:-
5.
THE security of his reputation or good name from the arts of detraction and slander, are rights to which every man is entitled, by reason of natural justice; since without these it is impossible to have the perfect enjoyment of any advantage or right.
11.NEXT to personal security, the law of England regards,
asserts, and preserves the personal liberty of individuals. This personal liberty consists of the power to loco-motion, of changing situation, or removing one's person to whatever place one's own inclination may direct; without imprisonment or retraint, unless by due course of law. Concerning which we may take the same observations as upon the preceding article; that it is a right strictly natural; that the laws of England have never abridged it without sufficient cause; and that in this kingdom it cannot ever be abridged at the mere discretion of the magistrate, without the explicit permission of the laws. Here again the language of the great charter is, that no freeman shall be taken or imprisoned, (PAGE 131) but by the lawfuljudgment of his equals, or by the law of the land. And many subsequent old statutes expressly direct, that no man shall be taken or imprisoned by suggestion or petition to the king, or his council, unless it be by legal indictment, or the process of common law. ...............OF great importance to the public is the preservation of this personal liberty; for if once it were left in th power of any, the highest magistrate to imprison arbitrarily whomever he or his officers thought propoer, (as in France it is daily practiced by the crown) there would soon be an end of all rights and immunities..................To bereave a man of life, or by violence to confiscate his estate, without accusation or trial, would be so gross an act of despotism, as must at once (PAGE 132) convey the alarm of tryanny throughout the whole kingdom. But confinement of the person, by secretly hurrying him to goal, where his sufferings are unknown or forgotten; is a less public, a less striking, and therefore a more dangerous engine of arbitrary government."
3.5 BOOK III, CHAPTER 23:-
PAGE 349:-
"...the trial by jury;
called also the trial per pais or by the country. A trial that hath been used time out of m ind in this nation, and seems to have been co-eval with the first civil government thereof.....(PAGE 350) .. the truth seems to be, that this tribunal was universally established among all the northern nations, and so interwoven in their very constitution,. It's establishment however and use ... was always so highly esteemed and valued by the people, that no conquest, no change of government, could ever prevail to abolish it. In magna carta it is more than once insisted on as the principal bulwark of our liberties;........the more it is searched into and understaood, the more it is sure to be valued. And this is a species of knowledge most absolutely necessary for every gentleman in the kingdom: as well because he may be frequently (PAGE 351) called upon to determine in this capacity the rights of others, his fellow-subjects; as because his own property, his liberty, and his life; depend upon maintaining, in it's legal force, the constitutional trial by jury."
3.6 PAGE 365:-
We may here again observe,
and observing we cannot but admire, how scrupulously delicate and how impartially just the law of England approves itself, in the constitution and frame of a tribunal, this excellently contrived for the test and investigation of truth; which appears most remarkably, 1. In the avoiding of frauds and secret management, by electing the twelve jurors out of the whole panel by lot. 2. In it's caution against all partiality and bias......
3.7 PAGE 370:-
"...the jury from other circumstances will judge of their credibility (ie: of the witnesses' credibility) ..."
3.8 PAGE 372:-
"THE oath
administered to the witness is not only that what he deposes shall be true, but that he shall also depose the whole truth: so that he is not to conceal any part of what he knows,
whether interrogated particularly to that point or not. And all this evidence is to be given in open court, in the presence of the parties, their attorneys, the counsel, and all by-standers: and before the judge and jury: each party having liberty to except to it's competency, which exceptions are publicly stated, and by the judge openly and publicly allowed or disallowed, in the face of the country; which must curb any secret bias or partiality, that might arise in his own breast. And if, either in his directions or decisions, he mis-states the law by ignorance, inadvertence, or design, the counsel on either side may require him publicly to seal a bill of exceptions; stating the point wherein he is supposed to err: and this he is obliged to seal by statute Westm. 2. 13 Edw. 1. C. 31 or, if he refuses so to do, the party may have a compulsort writ against him, commanding him to seal it, if the fact alleged be truly stated: and if he returns, that the fact is untruly stated, when the case is otherwise, an action will lie against him for making a false return."
3.9 PAGE 374:-
"AS to such evidence as the jury may have in their own consciences, by their private knowledge of facts, it was an antient doctrine,
that this had as much right to sway their judgment as the written or parole evidence which is delivered in court. And therefore it hath been often held, that though no proofs be produced on either side, yet the jury might bring in a verdict. For the oath of the jurors, to find according to their evidence, was construed to be, to do it according to the best of their knowledge.......(PAGE 375) .....if a juror knows any thing of the matter in issue, he may be sworn as a witness, and give his evidence publicly in court.........the judge in the presence of the parties, the counsel, and all others, sums up the whole to the jury...and giving his opinion in matters of laws arising upon that evidence."
3.10 PAGE 377:-
"... the only effectual and legal verdict is the public verdict;
in which they openly declare to have found the issue for the plaintiff, or for the defendant; and if for the plaintiff, they assess the damages also sustained by the plaintiff, in consequence of the injury upon which the action is brought."
3.11 PAGE 378:-
"...the jury may, if they think proper, take upon themselves to determine at their own hazard, the complicated question of fact and law; ...."
3.12 PAGE 379:-
"UPON these accounts the trial by jury ever has been, and I trust ever will be, looked upon as the glory of the English law. And, if it has so great an advantage over others in
regulating civil property, how much must that advantage be heightened, when it is applied to criminal cases! But this we must refer to the ensuing book of these commentaries: only observing for the present, that it
is the most transcendent privilege which any subject can enjoy, or with for, that he cannot be affected either in his property, his liberty, or his person, but by the unanimous consent of twelve of his neighbours
and equals. A constitution, that I may venture to affirm has, under providence, secured the just liberties of this nation for a long succession of ages. And therefore a celebrated French writer (Montesq. Sp.L.xi.6),
who concludes, that because Rome, Sparta, and Carthage have lost their liberties, therefore those of England in time must perish, should have recollected that Rome, Sparta, and Carthage, were strangers to the trial
by jury.
GREAT as this eulogium may seem, it is no more than this admirable constitution, when traced to it's principles, will be found in sober reason to deserve. The impartial administration of justice,
which secures both our persons and our properties, is the great end of civil society. But is that be entirely entrusted to the magistracy, a select body of men, and those generally selected by the prince or such as
enjoy the highest offices in the state, their decisions, in spight of their own natural integrity, will have frequently an involuntary bias towards those of their own rank and dignity: it is not to be expected from
human nature, that the few should be always attentive to the interests and good of the many."
3.13 PAGE 380:-
"Here therefore a competent number of sensible and upright jurymen, chosen
by lot from among those of the middle rank, will be found the best investigators of truth, and the surest guardians of public justice. For the most powerful individual in the state will be cautious of committing any
flagrant invasion of another's right, when he knows that the fact of his oppression must be examined and decided by twelve indifferent men, not appointed till the hour of trial; and that, when once the fact is
ascertained, the law must of course redress it. This therefore preserves in the hands of the people that share which they ought to have in the administration of public justice, and prevents the encroachments of the
powerful and wealthy citizens. Every new tribunal, erected for the decision of facts, without the intervention of a jury, (whether composed of justices of the peace, commissioners of the revenue, judges of a court
of conscience, or any other standing magistrates) is a step towards establishing aristocracy, the most oppressive of absolute governments.........And in every (PAGE 381) country on the continent, as the trial
by the peers has been gradually disused, so the nobles have increased in power, till the state has been torn to pieces by rival factions, and oligarchy in effect has been established, ......It is
therefore, upon the whole,
a duty which every man owes to his country, his friends, his prosterity, and himself, to maintain to the utmost of his power this valuable constitution in all it's rights "
3.14 BOOK IV, CHAPTER 10:-
PAGE 140:-
"21. THERE is yet another offence against public justice, which is a crime of deep malignity;
and so much the deeper, as there are many opportunities of putting it in practice, and the power and wealth of the offenders may often deter the injured from a legal prosecution. This is the oppression and tyrannical partiality of judges, justices, and other magistrates, in the administration and under the colour of their office. However, when prosecuted, either by impeachment in parliament, or by information in the court of king's bench, (according to the rank of the offenders) it is sure to be severely punished with the forfeiture of their offices, fines, imprisonment, or other discretionary censure, regulated by the nature and aggravations of the offence committed."
3.15 BOOK IV, CHAPTER 30:-
PAGE 383:-
"...if any judgment whatever be given by persons, who had no good commission to proceed against the person condemned,
it is void;..(PAGE 384) ..it being a high misdemesnor in the judges so proceeding, .....(PAGE 386) But when judgment, pronounced upon conviction, is falsified or reversed, all former proceedings are absolutely set aside, and the party stands as if he had never been at all accused; restored in his credit, his capacity, his blood, and his estates; ....... But he still remains liable to another prosecution for the same offence: for, the first being erroneous, he never was in jeopardy thereby."
(ii) ALEXANDER HAMILTON (1755 - 1804)
Extracts from FEDERALIST PAPERS No. 83:
3.16
"A power to constitute courts is a power to prescribe the mode of trial; and consequently, if nothing was said in the Constitution on the subject of juries, the legislature would be at liberty either to adopt that institution or to let it alone. This discretion, in regard to criminal cause, is abridged by the express injunction of trial by jury in all such cases;.....The friends and adversaries of the plan of the convention, if they agree in nothing else, concur at least in the value they set upon the trial by jury; or if there is any difference between them it consists in this: the former regard it as a valuable safeguard to liberty; the latter represent it as the very palladium of free government. For my own part, the more the operayion of the institution has fallen under my observation, the more reason I have discovered for holding it in high estimation; and it would be altogether superfluous to examine to what extent it deserves to be esteemed useful or essential in a representative republic, or how much more merit it may be entitled to, as a defense against the oppressions of an hereditary monarchy, than as a barrier to the tyranny of popular magistrates in a popular government.....Arbutrary impeachments, arbitrary methods of prosecuting pretended offenses, and arbitrary punishments upon arbitrary convictions, have ever appeared to me to be the great engines of judicial despotism; and these have all relation to criminal proceedings.....The strongest argument in its favour is, that it is security against corruption. As there is always more time and better opportunity to tamper with a standing body of magistrates than with a jury summoned for the occasion, ... the trial by jury must still be a valuable check upon corruption. It greatly multiplies the impediments to its success. As matters now stand, it would be necessary to corrupt both court and jury; .....By increasing the obstacles to success, it discourages attempts to seduce the integrity of either...."
(iii) LYSANDER SPOONER (1808 - 1887)
AN ESSAY ON THE TRIAL BY JURY, 1852:-
THE RIGHT OF JURIES TO JUDGE OF THE JUSTICE OF LAWS.
3.17
"For more than six hundred years - that is, since Magna Carta, in 1215 - there has been no clearer principle of English or American constitutional law, than that, in criminal cases, it is not only the right and duty of juries to judge what are the facts, what is the law, and what was the moral intent of the accused; but that it is also their right, and their primary and paramount duty, to judge the justice of the law, and to hold all laws invalid, that are, in their opinion, unjust or oppressive, and all persons guiltless in violating, or resisting the execution of, such laws.
3.18
Unless such be the right and duty of jurors, it is plain that, instead of juries being a "palladium of liberty" - a barrier against the tyranny and oppression of the government - they are really mere tools in its hands, for carrying into execution any injustice and oppression it may desire to have executed.
3.19 "The trial by jury", then, is a "trial by the country" - that is, by the people - as distinguished from a trial by the government.
3.20
How is it possible that juries can do anything to protect the liberties of the people against the government; if they are not allowed to determine what those liberties are?
3.21
In short, if the jury have no right to judge of the justice of a law of the government, they plainly can do nothing to protect the people against the oppressions of the government; for there are no oppressions which the government may not authorize by law.
3.22 The jury are also to judge whether the laws are rightly expounded to them by the court.
3.23 They must also judge whether there realyy be any such law,..
3.24
The jury must also judge of the laws of evidence. If the government can dictate to the jury the laws of evidence, it can not only shut out any evidence it pleases, tending to vindicate the accused, but it can require that any evidence whatever, that it pleases to offer, be held as conclusive proof of ay offence whatever which the governemnt chooses to allege.
3.25
It is manifest, therefore, that the jury must judge of and try the whole case, and every part and parcel of the case, free of any dictation or authority on the part of the government................By such trials the government will determine its own powers over the people, instead of the people's determining their own liberties against the government; and it will be an entire delusion to talk, as for centuries we have done, of the trial by the jury, as a "palladium of liberty", or as any protection to the people against the oppression and tyranny of the government.
3.26 The question, then, between trial by jury, as thus described, and trial by the government, is simply a question between liberty and despotism.
3.27 Those who are capable of tyranny, are capable of perjury to sustain it.
3.28
The trial by jury is based upon a recognition of this principle, and therefore forbids the government to executed any of its laws, by punishing violators, in any case whatever, without first getting the consent of "the country", or the people, through a jury. In this way, the people at all times, hold their liberties in their own hands, and never surrender them, even for a moment, into the hands of the government.
3.29
And if there be so much as a reasonable doubt of the justice of the laws, the benefit of that doubt must be given to the defendant, and not to the government. So that the government must keep its laws clearly within the limits of justice, if it would as a jury to enforce them.
3.30
The legal effect of these constitutional recognitions of the right of individuals to defend their property, liberties, and lives, against the government, is to legalize resistance to all injustice and oppression, of every name and nature whatsoever, on the part of the government.
3.31
The bounds set to the power of the government, by the trial by jury, as will hereafter be shown, are these - that the government shall never touch the property, person, or natural or civil rights of an individual, against his consent, (except for the purpose of bringing them before a jury for trial,) unless in pursuance and execution of a judgment, or decree, rendered by a jury in each individual case, upon such evidence, and such law, as are satisfactory to their own understandings and consciences, irrespective of all legislation of the government.
3.32
As a moral proposition, it is perfectly self-evident that, unless juries have all the legal rights that have been claimed for them in the preceding chapters, -- that is, the rights of judging what the law is, whether the law be a just one, what evidence is admissible, what wright the evidence is entitled to, whether an act were done with a criminal intent, and the right also to limit the sentence, free from all dictation from any quarter, -- they have no moral right to sit in the trial at all, and cannot do so without making themselves accomplices in any injustice that they may have reason to believe may result from their verdict. It is absurd to say that they have no moral responsibility for the use that may be made of their verdict by the government, when they have reason to suppose it will be used for purposes of injustice.
3.33
It is absurd, also, to say that jurors have no moral responsibility for any cruel and unusual sentence that may be inflicted even upon a guilty man, when they consent to render a verdict which they have reason to believe will be used by the government as a justification for the infliction of such a sentence.
3.34
The same principles apply to civil cases as criminal. If a jury consent, at the dictaion of the court, as to either law or evidence, to render a verdict, on the strength of which they have reason to believe that a man's property will be taken from him and given to another, against their own notions of justice, they make themselves morally responsible for the wrong.
3.35
Every man, therefore, ought to refuse to sit in a jury, and to take the oath of a juror, unless the form of the oath be such as to allow him to use his own judgment, on every part of the case, free of all dictation whatsoever, and to hold in his own hand a veto upon the verdict that can be rendered against a defendant, and any sentence that can be inflicted upon him, even if he be guilty.
3.36
The only oath which it would seem that a man can rightfully take as a juror, in eith a civil or criminal case, is, that he "will try the case according to his conscience." Of course, the form may admit variation, but this should be the substance. Such, we have seen, were the ancient common law oaths."
4. Part II:
IN THE HIGH COURT OF AUSTRALIA
SYDNEY OFFICE OF THE REGISTRY
No. S 127 of 1998
BETWEEN JOHN WILSON
Applicant
and
THE PROTHONOTARY
Respondent
A BRIEF STATEMENT OF THE APPLICANT'S ARGUMENT
4.1 MAGNA CARTA & REASONS FOR GRANTING SPECIAL LEAVE
CAP XXIX of the Magna Carta 1297 says:
"To no one will we sell, to no one will we deny or delay, Right or Justice." and the reasons for granting leave to appeal, as stated in Supreme Court Procedure (NSW) Part 7 - Appeal to the Court of Appeal, s. 101.4 Appeal from interlocatory order at 1164.1 Butterworths, are (a) "the determination of substantive rights" and (b) to avoid "a substantive injustice".
4.2THE PROTECTION OF MAGNA CARTA
Magna Carta is protected by section 43 of the Imperial Acts Application Act 1969 No. 30 which says: "Any person guilty of any offence under any Imperial
enactment included in Part 1 of the Second Schedule for which no punishment is otherwise provided is liable to imprisonment for a term of not more than five years or to a fine not exceeding 20 penalty units,
or to both imprisonment and fine.".
Justice Peter Hidden has denied the applicant the right to trial by jury and should be indicted to face trial by jury for that offence. Handley JA and Stein JA have endorsed Justice Peter Hidden's actions by refusing leave to appeal and have made themselves party to the offence.
4.3 ABSOLUTE POWER OF JUDGES
Judges must never be given nor allowed to assume absolute power whereby they can conceal their own incompetence and their own corruption.
Judges are not above the law nor are they unaccountable to the people.
4.4 JUDICIAL OATH & SAVING RIGHTS
Judges swear before God an Oath to "well and truly serve" Her Majesty Queen
Elizabeth II who has sworn, also before God, to govern the people of Australia in Law and Justice and with Mercy. She cannot extinguish the rights of Her subjects and nor can judges. To
extinguish or override the rights of the people is an act of tyranny and oppression. Not even the repealing of legislation can extinguish the rights of the individual and proof of this reality is seen in the
"Savings" section of the Imperial Acts Application Act 1969 No. 30 which says: "9. (1). The repeal by this Act of any Imperial enactment does not: ..(c) affect any right,
privilege, obligation, or liability acquired, accrued, or incurred under any Imperial enactment so repealed:".
4.5 TRIAL BY JURY IN THE U.S.A.
Article the eighth (Amendment VI) of
the United States of America's Bill of Rights says "the accused shall enjoy the right to a speedy and public trial, by an impartial jury" and Article the ninth (Amendment VII) similarly says that
"the right of trial by jury shall be preserved". Is an Australian less equal before the law than an American?
4.6 MAGNA CARTA & THE RIGHT TO TRIAL BY JURY
CAP XXIX of the Magna
Carta 1297 says:
"NO freeman shall be taken, or imprisoned, or be disseised of his freehold, or his liberties, or free customs, or be outlawed, or exiled, or in any other wise destroyed, nor will we pass upon him nor condemn him unless by the lawful judgement of his Peers or by the law of the land.".
4.7 THE LAW OF THE LAND
The law of the land is the Commonwealth of Australia Constitution Act 1900 which says,
in clause 5 that "This Act, and all laws made by the Parliament of the Commonwealth under the Constitution, shall be binding on the courts, judges, and people of every State and of every part of the Commonwealth, notwithstanding anything in the laws of any State:".
4.8 THE CONSTITUTION & THE JUDICIARY ACT & THE CRIMES ACT
The Constitution says in section 80,
about trial by jury, that: "The trial on indictment of any offence against any law of the Commonwealth shall be by jury," and contempt of court is an offence against a Commonwealth law, being section 24 of the Judiciary Act 1903, and section 4A of the Crimes Act 1914 (a Commonwealth law) says that: ""indictment" includes an information and a presentment".
4.9 SECTION 109 OF THE CONSTITUTION
The Constitution says in section 109 that:
"When a law of a State is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid.". Therefore, because contempt of court shall have trial by jury under a Commonwealth law, contempt of court shall have trial by jury under a State law.
4.10 THE IMPERIAL ACTS APPLICATION ACT & GALEA
As far as section 6 of the Imperial Acts Application Act 1969 No. 30 is concerned,
any State law which is invalid by virtue of being inconsistent with a Commonwealth law cannot affect an Imperial enactment such as Magna Carta. Therefore, Justice Peter Hidden's referral to Galea v New South Wales Egg Corporation (C of A, unreported, 21 November 1989) has no substance and his argument that "any guarantee of trial by jury in Magna Carta can be, and has been, overridden by the Supreme Court Act and Rules as far as contempt is concerned." is wrong.
The Galea proceedings were to do with a "Motion for leave to appeal out of time against the orders of Needham J dated 9 February 1988" (with no mention of the right to trial by jury) and to an
"Appeal from the orders of Needham J of 19 August 1988" as to whether the Egg Industry Act 1983 met the requirements of s. 5 of the NSW Constitution Act 1902 in regard to the counting of hens and eggs.
4.11 THE INTERPRETATION ACT SAVING RIGHTS
The Galea judgement did quote section 30 of the Interpretation Act 1987 No. 15 which says:
"(1) The amendment or repeal of an Act or statutory rule does not: ... (c) affect any right, privilege, obligation or liability acquired, accrued or incurred under the Act or statutory rule,". This restates the same protection of rights found in section 9 of the Imperial Acts Application Act 1969. Therefore, the Supreme Court Act and Rules cannot take away the right of the individual to trial by jury.
4.12 THE CONSTITUTION & STATE JUDICIAL PROCEEDINGS
Section 118 of the Australian Constitution says that: "Full faith and credit shall be given, throughout the Commonwealth to the
laws, the public Acts and records, and the judicial proceedings of every State.", and section 51 (xxiv) says the Federal "Parliament shall, subject to this Constitution,
have power to make laws ... with respect to ...The service and execution throughout the Commonwealth of the civil and criminal process and the judgements of the courts of the States:".
These reinforce
sections 80 and 109 of the Constitution which ensure that contempt of court shall proceed by trial by jury.
4.13 SECTION 5 OF THE NSW CONSTITUTION & TELECASTERS
Handley JA, on 24 AUG 1998,
was wrong when he said that: ".. in the Constitution nor in an Act made in Canberra is there a law, ...., that is a Commonwealth law, which says there must be trial by jury for state offences. That's a matter which under our federal system is left to the states.". The New South Wales Constitution Act 1902 No. 32, General legislative powers, section 5. says: "The Legislature shall, subject to the provisions of the Commonwealth of Australia Constitution Act, have power to make laws for the peace, welfare, and good government of New South Wales in all cases whatsoever:". Because of section 109 and 80 of the Australian Constitution, New South Wales cannot make a law to deny trial by jury for contempt of court. Therefore, such "a matter" is not "left to the states" and when in United Telecasters Sydney Limited v Hardie (1991) 23 NSWLR 323 Meagher JJA said; "Contempt committed in the face of a State court, whatever jurisdiction is being exercised, is a matter for State law.", the State law must be consistent with Commonwealth law, ie: there must trial by jury for both the Commonwealth offence of contempt of court and the State offence of contempt of court to be consistent (section 109 of the Australian Constitution).
4.14 COURTS DECLARING LAWS VOID
In the Annotated Constitution of the Commonwealth of Australia, p. 791, John Quick and Robert Randolph Garran say: "In the exercise of the duty of
interpretation and adjudication not only in the High Court,
but every court of competent jurisdiction, has the right to declare that a law of the Commonwealth or of a State is void by reason of transgressing the Constitution. This is a duty cast upon the courts by the very nature of the judicial function. The federal Parliament and the State Parliaments are not sovereign bodies; they are legislatures with limited powers; and any law which they attempt to pass in excess of those powers is no law at all it is simply a nullity, entitled to no obedience.".
Section 31 of the Interpretation Act 1987 No. 15 says:
"(1) An Act or instrument shall be construed as operative to the full extent of, but so as not to exceed, the legislative power of Parliament.".
Parliament does not have the power to extinguish
the right to trial by jury which is an integral part of the common law which "was assumed by,
and controlled, the Constitution" (Sir Owen Dixon - Jesting Pilate, pp 198 - 202, 203 - 13) ( from The High Court and the Constitution by Leslie Zines p 400 ).
4.15
JUDGES DON'T MAKE LAWS & THE REFERENDUM OF 1988
Nor is the judiciary a sovereign body having the ultimate authority to make and impose laws.
They must comply with the law of the land, being the Australian Constitution, which embodies the will of the people. Article 21.3 of the United Nation's Universal Declaration of Human Rights says that: " The will of the people shall be the basis of authority of government:" and the will of the people was expressed in Referenda before the Constitution Bill could be made the law of the land and again in 1988 when a proposed law to alter section 80 of the Constitution to exclude contempt of court from trial by jury was defeated in every State. The published "WHY YOU SHOULD VOTE 'NO' - ON TRIAL BY JURY" in newspapers at the time immediately prior to the referendum said that the proposed law "would undermine our existing rights enshrined for seven centuries since Magna Carta. At present, a person charged with any serious offence has the right to a jury trial.". The voters rejected excluding contempt of court from trial by jury. Government and the judiciary must obey the will of the people.
4.16 JUDGEMENTS REPUGNANT TO MAGNA CARTA ARE VOID
CAP II of the CONFIRMATIO CARTARUM 1297 says that "AND we will, that if any Judgement be given from henceforth contrary to the
Points of the Charters aforesaid by the Justices,
or by any other Officers that hold Plea before them against the Points of the Charters, they shall be undone, and holden for nought.". Therefore, no court has jurisdiction to conduct a trial for contempt of court against me unless it accords me my right to a jury trial.
"The consent to be tried summarily must be clear and unequivocal and a failure to carry out the procedures for obtaining the consent will deprive the court of jurisdiction to determine the matters
summarily." - Halsbury's Laws of Australia, para (130 - 13460) at 250,997.
4.17 TRIAL BY JURY NOT "OBSOLETE" ...... WILLESEE
Justice Peter Hidden was wrong when on 16 MAR 98 he
said, when referring to The Registrar of Court of Appeal v Willesee & Ors (1984) 2 NSWLR 378,
that: "Willesee is clear authority for the proposition that trial by jury for contempt is obsolete ..." because Magna Carta, in CAP I, granted that right "for evermore" -which means it can never become "obsolete".
4.18 FAILURE TO INFORM OF RIGHTS
Justice Peter Hidden went on to say: "..and that summary trial is now the normal procedure.". But if summary trial was not elected by the
accused because he/she was not informed of their inalienable rights, then those judgments (no matter how many) are "to be undone and holden for nought".
4.19
HANDLEY JA & NORMAN GALLAGHER
Handley JA (24 AUG 98) said of a case against Norman Gallagher "about 10 or 12 years ago",
"he was tried for contempt of the Federal Court by the federal Court and without a jury.". I replied: "Was he given the choice, was he given an election?". Handley JA said: "I don't believe he was given any choice.". I said: "Well, I'd say his rights were infringed if he wasn't.". Handley JA said: "He didn't argue, his counsel didn't argue that he was entitled to a trial by jury.".
4.20 FAILURE TO INFORM OF RIGHTS
This is the deplorable situation of Australian citizens not knowing of their Constitutional and inherited rights and, at the same time,
judges and lawyers being equally ignorant or else failing to advise the accused person of their rights.
4.21 WORKING TO IMPOSE A SUBSTANTIVE INJUSTICE
Besides "the determination of a
substantive right",
the other main criterion for granting leave to appeal is that the judgement appealed from "must also work to impose a substantive injustice:" (Supreme Court Procedure, Part 7, s.101.4 Appeal from interlocatory order) . The injustice which would result if leave to appeal is not granted is that bank fraud, in the form of variable interest rate loans, would continue to be concealed by the corrupt practices of the judiciary which presently places the entire system of justice in Australia in jeopardy.
4.22 CONCEALING JUDICIAL CORRUPTION
Justice Peter Hidden's judgement imposes "a substantive injustice" in that it serves to protect the concealing of extensive judicial corruption
which was the subject of the proceedings heard by Acting Justice Brian Murray and which gave rise to the incident of the 5th of September, 1997.
Judicial corruption comes under Part III of the Crimes Act
1914 which is a Commonwealth law "binding on the courts, judges, and people of every State and of every part of the Commonwealth, notwithstanding anything in the laws of any State;".
4.23
CONCEALING FRAUD
The injustice also extends to victims of bank fraud in the form of variable interest rate loan contracts being denied restitution because corrupt judges refuse to declare that variable
means uncertain and certain means not variable and,
therefore, variable interest rates render a loan contract void for uncertainty. This is the claim which originally drew me to the courts in 1996 to establish this simple truth.
4.24
JURIES DO WHAT JUDGES DON'T FOR JUSTICE
"For more than six hundred years 0 that is, since Magna Carta, in 1215 -- there has been no clearer principle of English or American constitutional
law, than that, in criminal cases, it is not only the right and duty of juries to judge what are the facts, what is the law, and what was the moral intent of the accused;
but that it is also their right, and their primary and paramount duty, to judge the justice of the law, and to hold all laws invalid, that are, in their opinion, unjust or oppressive, and all persons guiltless in violating, or resisting the execution of, such law." - An Essay on The Trial By Jury by Lysander Spooner, 1852.
"Trial by jury has long been considered a fundamental safeguard of fairness and impartiality in the administration of justice,
especially of criminal justice. Jury trial stemmed from a deep-seated conviction about the exercise of judicial power, that it should not in matters affecting the liberty of the subject be entrusted unchecked to any official, judge or administrator but should be vested in ordinary citizens." - The Laws of Australia 21.6, Part D, (38), p. 47.
4.25 JUDGES OUGHT NOT HEAR THIS CASE
Under the Supreme Court Rules,
Part 51, rule 23.8, it says that "A judge ought not hear a case if there is a reasonable apprehension that an impartial mind will not be brought to bear on the resolution of proceedings.". I have already expressed such an apprehension when I filed an Affidavit in the Court of Appeal to support a Notice of Motion to that effect on 26 JUN 98 to which I annexed one of my leaflets entitled "BANK FRAUD & CORRUPT JUDGES".
4.26 WITHDRAWAL OF FIRST CHARGE GOING TO A JURY & INJUSTICE
The first charge imposed on the Applicant,
under section 326 of the Crimes Act 1900, over the incident of 5 SEP 97 was withdrawn by the Public Prosecutor on 19 MAR 98 in the Downing Centre Local Court when it was proceeding to trial by jury. I had made it clear in the Downing Centre that I would be presenting evidence of judicial corruption to a jury and that a jury should hear "The truth, the whole truth and nothing but the truth". During those proceedings, on 26 SEP 97, the magistrate in the Downing Centre imposed additional and oppressive terms to the bail to imprison me in the Silverwater Remand Centre for the period 26 SEP 97 to 28 SEP 97 when a friend guarantied surety for me. I truly believe this action also constitutes a violation of my human rights by wrongful imprisonment.
4.27 THE INJUSTICE IS THE PERVERSION OF JUSTICE
Whilever the right to trial by jury,
which is the tribunal of the people, is denied and judges continue to use their authority to perpetuate the lie that "the rate itself is indeed certain" and to protect themselves, there can be no justice.
4.28 INALIENABLE RIGHTS
Rights granted by Imperial enactments such as Magna Carta cannot be taken away or "overridden" by politicians, bankers or judges.
4.29
TABLE OF AUTHORITIES, ETC.
1.Magna Carta 1297, CAP XXIX, CAP I.
2.Supreme Court Procedure (NSW), Part 7, s. 101.4.
3.Imperial Acts Application Act 1969 No. 30, s. 43, s. 9(1), s. 6.
4.Judicial Oath.
5.Coronation Oath.
6.U.S.A. Bill of Rights 1789, Article 8, Article 9.
7.Commonwealth of Australia Constitution Act 1900, cl. 5, s. 80, s. 109, s. 118, s. 51 (xxiv).
8.Judiciary Act 1902, s.24.
9. Crimes Act 1914, s. 4A, and Part III.
10.Interpretation Act 1987 No. 15, s. 30 (1), s.31 (1).
11.Constitution Act 1902 No. 32, s. 5.
12.Annotated Constitution of the Commonwealth of Australia by Quick and Garran, p. 791.
13.The High Court and the Constitution by Leslie Zines, p. 400.
14.Referendum 1988, Question 4 - Religion, Jury and Property.
15.United Nation's Universal Declaration of Human Rights, Article 21.3
16.Confirmatio Cartarum 1297, CAP II.
17.Halsbury's Laws of Australia, para (130 - 13460) at 250,997.
18.Transcript of 24 AUG 1998, Court of Appeal, p. 3, lines 40 - 55.
19.Supreme Court Rules, Part 51, r. 23.8.
20.An Essay on The Trial By Jury - Lysander Spooner, 1852.
21.The laws of Australia - The Law Book Company Limited, 21.6, Part D, (38), p. 47.
22.Supreme Court Rules, Part 51, rule 23.8.
23.Crimes Act 1900, s. 326.
5. Part III:-
IN THE SUPREME COURT OF
NEW SOUTH WALES
SYDNEY REGISTRY
COURT OF APPEAL File No: 40731 of 1999.
COURT BELOW File No: 12914 of 1999.
SUMMARY OF CLAIMANT'S ARGUMENT
5.1I truly believe that Justice Sully's decision to dismiss my application requisitioning trial by jury was wrong "in law and in fact", to use his words from
his judgement from the hearing of the application in the Supreme Court of New South Wales on Monday the 6th of September, 1999.
5.2. Justice Scully was wrong to say that my "submissions ... are ...
wholly and transparently without merit either in law or in fact".
5.3 Judges must never be given nor allowed to assume absolute power whereby they can conceal their own incompetence, corruption and
treachery.
Are Australian Judges and Courts Competent?
5.4 My Notice of Motion requisitioning trial by jury was filed on 19 August 1999 and accompanied by an Affidavit sworn to on 18 August 1999 which
quoted and based these particular submissions on Article 14 of the United Nations' International Covenant on Civil and Political Rights.
5.5 That United Nations' covenant is international law and is binding
on Australia which means it is as covering clause 7 of the "Draft Bill To Constitute the Commonwealth of Australia,
Victoriae Reginae A.D. 1897" says, ie: "This Constitution established by this Act, and all laws made by The Parliament of the Commonwealth in pursuance of the powers conferred by the Constitution, and all treaties made by the Commonwealth, shall, according to their tenour, be binding on the Courts, Judges, and people, of every State, and every part of the Commonwealth, anything in the laws of any State to the contrary notwithstanding; and the laws and treaties of the Commonwealth shall be in force on board of all British ships whose last port of clearance or whose port of destination is in the Commonwealth.".
5.6 The fact that the Parliament of the United Kingdom removed treaties from this paragraph 7 of the Draft Bill,
which became covering clause 5, and enacted their amended Act to Constitute the Commonwealth of Australia, 63 & 64 Victoria, Chapter 12, 19th July, 1900, without the approval by referendum of the voters of Australia, is proof that Australia was still very much a colony and subject to legislation imposed on it by the United Kingdom. In the United Kingdom, the power to make or enter into treaties belongs to the monarch, acting on the advice of government ministers. Clearly, the Parliament of the United Kingdom were not prepared to allow the Commonwealth of Australia to make or enter into treaties as a sovereign nation would.
5.7 However,
on June 28th 1919, the Australian Prime Minister, Mr. "Billy" Hughes, signed the Peace Treaty of Versailles and on January 20th 1920, Australia joined the League of Nations as a full member state. The prerequisite for becoming a member was sovereignty. Therefore, under International Law, Australia was a sovereign nation. The United Kingdom became a foreign power to Australia and United Kingdom laws, including the Act to Constitute the Commonwealth of Australia, were extinguished in line with Article X of the Covenant of the League of Nations 1919. The status of the United Kingdom as a foreign power was confirmed recently in the High Court of Australia's ruling in the Heather Hill case.
5.8 In the United Kingdom a treaty does not become part of municipal law until brought into force by an Act of Parliament. In Australia,
that protocol is said to persist, ie: that treaties are not binding on a signatory nation unless that nation creates its own specific local laws to allow the substance of the treaties to flow on to its people. Having regard to this incongruity, the United Nations' International Covenant on Civil and Political Rights can be found as Schedule 2 of the Human Rights and Equal Opportunity Commission Act 1986 (a law enacted by the Parliament of the Commonwealth of Australia). Article 14 of that covenant can be found on page 52 of Reprint No. 3, reprinted as at 31 March 1994.
5.9 Therefore, Article 14 of the United Nations' International Covenant on Civil and Political Rights has merit in law.
5.10 Whether the Australian Constitution, itself,
has "merit in law" is another question which will have to be decided by the United Nations, in time, and will form the basis of a Notice of a Constitutional Matter under section 78B of the Judiciary Act 1903 to the Federal Attorney-General.
5.11 If there is no valid Australian Constitution, Australian courts can have no credentials, competence, nor jurisdiction.
5.12 Justice Scully was wrong to say my "submissions ... are
... without merit ... in fact".
My submission is that I am "equal before the courts and tribunals" and that "In the determination of any criminal charge against (me), or of (my) rights and obligations in a suit of law, (I am) entitled to a fair and public hearing by a competent, independent and impartial established by law".
5.13 At the hearing of the Motion for Trial by Jury, on Monday 6 September 1999, in the Supreme Court of New South Wales,
I said, "In the Courts of Australia, there are two forms of trial: One, trial by jury; and, secondly, trial by judge or judges. This matter is about my right to protest and take action against bank fraud, corrupt judges and how those corrupt judges are misusing the Court to oppress and victimise the people of this country.". His Honour replied: "You are saying it is your right to throw paint over a member of the Court?". I then said, "It is my right to trial by jury; and, in my defence, I will bring out all the issues.".
5.14 Magna Carta 1297 guaranties me "Right and Justice" and should this be denied,
the United Nations' Human Rights Commission will be told of all previous legal argument in my quest for trial by jury wherein the incompetence, corruption and treachery of Australian judges will be revealed to that Commission.
Are Australian Judges Independent and Impartial?
5.15 I have composed a book entitled "Banks and Judges" which covers these issues of bank fraud and judicial corruption. The ISBN is 1
74018 020 8. I will include this book as part of my presentation to the Court of Appeal should leave be granted for the Appeal.
5.16 At the same hearing, I quoted from Article 14 of the United
Nations' International Covenant on Civil and Political Rights and added, "Now that competent, independent,
impartial tribunal cannot be before a judge because of the involvement of judicial corruption." and "At my trial for contempt of court, I will subpoena the judges involved in the initial corruption, involved ... leading (to the) incident on 5 September 1997. No other judge or judges can qualify under Article 14 of the United Nations' Covenant for a competent, independent and impartial trib(un)al in the determination of my rights nor of justice. Should this application for trial by jury be dismissed, then I will appeal through the Court of Appeal to the High Court and then on to the United Nations' Human Rights Commission in Geneva in Switzerland, once all domestic remedies have been exhausted, which is the requirement to be met before their Optionl Protocol comes into effect. I would like to point out to you something in this very room. Above your head is the Royal Coat of Arms which has the inscription on it which says "God and my right". It is my right to have (a) tribunal before a jury.".
5.17 At my trial for contempt of court I will question judges on their rulings in matters numbered CL 20680/96, CA 40593/9,
S 190/96 and CL 20723/97 as to the why they lied, supported lies, and concealed fraud in the form of variable interest rate loan contracts issued by the banks. Under common law, for a contract to be created, there must be "certainty of terms". "Variable", on the other hand, means "uncertain" and "certain" means "not variable" which renders loan contracts having variable interest rates void for uncertainty.
5.18 Questioning of those judges at that time must not be before another judge or judges because such a tribunal would not be "independent and impartial".
5.19 Contempt of court concerns
"interferring with the administration of justice".
Only a jury of my peers who are "honest and true" and who are "competent, independent and impartial" can judge what are the facts, what is the law, judge the justice of the law and determine my guilt or innocence.
5.20 Those judges, whom I will question, will not be on trial on that occasion. It will I who will be on trial.
5.21 There must be no temptation for a judge or judges to obstruct the
presentation of evidence and my defence. To quote Lysander Spooner from his "Essay on the Trial by Jury" (1852), "the jury must judge of and try the whole case, and every part and
parcel of the case".
5.22 There must be no temptation for a judge or judges to violate their Oath of Allegiance
and Judicial Oath which are to "be faithful and bear true allegiance to Her Majesty Queen Elizabeth the Second" and "to do right to all manner of people after the laws and usages of this State without fear or favour, affection or ill-will, SO HELP ME, GOD" where Her Majesty, at Her Coronation, received the Holy Bible to be "royal Law" and swore to "cause Law and Justice, in Mercy, to be executed in all (Her) judgements' and received the Sword from the Archbishop of Canterbury with the prayer "that she may not bear the Sword in vain; but may use it as the minister of God for the terror and punishment of evil-doers, and for the protection and encouragement of those who do well, through Jesus Christ our Lord. Amen.". There is no greater force for evil than the banks who, through fraud, have inflicted untold deprivation, misery and hardship on ordinary men, women and children. And there are no greater evil-doers than the banks who have corrupted an entire judiciary to have them lie, commit crimes, betray their people and betray the oaths they have sworn before God.
5.23 A tribunal of a judge or judges cannot constitute "a competent, independent and impartial tribunal" for the determination of a charge of contempt of court against me or of my rights and
obligations.
5.24 The Star Chamber was banished in England in 1640 because "the Proceedings, Censure and Decrees of that Court have by Experience been found to be an intolerable Burthen to the
Subjects, and the means to introduce a arbitrary Power and Government;".
5.25 Australian judges claim some "Doctrine of Immunity" (?) which make them "immune from suit".
However, judges are not above the law but are indeed liable to punishment when they commit crimes in or out of the courtroom. To deny trial by jury in this case is to attempt to prevent evidence of judicial corruption being presented to a tribunal of the people and it is the people to whom the judges are accountable in this world.
5.26 TABLE OF AUTHORITIES, ETC.
1.United Nations' International Covenant on Civil and Political Rights, Article 14.
2.Draft Bill to Constitute the Commonwealth of Australia, Victoriae Reginae A.D. 1897, Covering Clause 7.
3.Human Rights and Equal Opportunity Commission Act 1986.
4.Act to Constitute the
Commonwealth of Australia, 63 & 64 Victoria, Chapter 12, 19th July, 1900, Covering Clause 5.
5.Peace Treaty of Versailles, Covenant of the League of Nations, 1919.
6.The Royal Coat of Arms.
7."Essay on the Trial by Jury" by Lysander Spooner, 1852.
8."Banks and Judges" by J. Wilson, 2nd ed., 1999.
.........John Wilson..........
Sworn at ......North Rocks..................
on ...18th May..... , 2000
before me ...A Burrows.....................
(Justice of the Peace 7100108)
......................................................
Claimant
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