High Court of Australia Transcripts
Wilson v St George Bank Ltd & Anor S284/2001 (14 February 2001)
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Sydney No S284 of 2001
Between
JOHN WILSON
Applicant
and
ST GEORGE BANK LIMITED
First Respondent
STATE OF NEW SOUTH WALES
Second Respondent
Application for special leave to appeal
GUMMOWJ
CALLINAN J
TRANSCRIPT OF PROCEEDINGS
AT SYDNEY ON FRIDAY, 14 FEBRUARY 2003, AT 2.53 PM
Copynight in the High Court of Australia
MR A.J. O'BRIEN: May it please the Court, I appear for the first respondent. (instructed by St George Bank Limited)
MS C.A. WEBSTER: May it please the Court, 1 appear for the second respondent. (instructed by
Crown Solicitors Office for the State of New South Wales)
MR J. WILSON appeared in person.
GUMMOW J: Do you know if there is any appearance for the applicant?
MR O'BREEN: I think he is outside.
GUMMOW J: Yes, well call the matter, officer, outside the Court.
MR WILSON: Sorry, 1 thought your Honour had seen me.
GUMMOW J: It is all right, officers. Yes, Mr Wilson. Take a minute to unpack your things.
MR WILSON: Your Honours, this is my case, appealing against the lack of a jury. Have you read the application book?
GUMMOW J: We have.
MR WILSON: Thank you. Have you read the "Notice Of A Constitutional Matter"?
GUMMOW J: Yes, we have read all the relevant materials. Now, what do you wish to say by way of supplementary -
MR WILSON: Have you read the affidavit I filed on 6 February?
GUMMOW J: Yes.
MR WILSON: In that I refer to an Act of the New South Wales Parliament. Do you have the material, in this plastic folder?
GUMMOW J: Yes.
MR WIlLSON: You will find that particular Act is No 24 amongst the material.
GUMMOW J: Yes.
MR WILSON: That is the blatant act of betrayal, denying the people of New South Wales the right to
trial by j ury.
GUMMOW J: Now, what do you say is the error in the reasoning of the New South Wales Court of Appeal in theirjudgment which appears in the book at page 9 I think it is, in Justice Priestley's j udgment.
MR WILSON: For any judge to say that an Australian has not got the right to trial by jury and --
GUMMOW J: Well, it is just not right.
MR WILSON: Pardon? It is not --
GUMMOW J: It is not correct. Section 80 of the Constitution makes certain provision in criminal matters.
MR WILSON: In section 80 of the Constitution to constitute the Commonwealth of Australia is one part of the
Constitution of Australia. It is only one single document. In fact, the right to trial by jury is well established as a constitutional law, constitutional law.
GUMMOW J: Look, you can try and lecture us about these matters if you wish.
MR WIlLSON: Pardon?
GUMMOW J: You can try and lecture us about these matters if you wish, Mr Wilson.
MR WILSON: Well, obviously the judiciary is in gross error and gross ignorance.
GUMMOW J: That would be fairly unlikely. You might have --
MR WIlLSON: It is not - I have been fighting for the right to trial by jury.
GUMMOW J: You continue with what you say --
MR WIlLSON: Can I say - this is my 20 minutes. Can I say my 20 minutes?
GUMMOW J:
Just listen to me for a minute and you might be better off. You proceed to say what you wish for the next 20 minutes, right, which is your time. Now, go ahead.
MR WIlLSON: Well, the right to trial by jury is far more
than an entitlement precious to Australians. It is the only way to guarantee truth, justice and freedom. Thomas Jefferson said trial by jury is the only anchor yet imagined by man which can hold a government to the principles
of its Constitution. Sovereignty lies with the people of Australia, and it is the will of the people that governs this nation. Sovereignty does not lie with the Parliament nor the judiciary. They swear an oath to be faithful
and they have true allegiance and well and truly serve Queen Elizabeth the Second of England who -
GUMMOW J: No, not Queen Elizabeth the Second of England.
MR WILSON: Queen Elizabeth the Second of England.
GUMMOW J: No, there is no such person. In the first place, Her Majesty's sovereignty is the United Kingdom of Great Britain and Northern Ireland and in the second place, relevantly for this, she is the Queen of Australia.
MR WILSON: The first Queen Elizabeth was Queen of England.
GUMMO.W J: Of course, before the union of the Crowns. in 1603.
MR WELSON: So therefore Queen Elizabeth the Second is the second Queen to be called
Elizabeth of England, not of Australia. She is not Queen Elizabeth the Second of Australia. You have sworn an oath to Queen Elizabeth the Second, have you not?
GUMMOW J: Do not ask questions of the Bench, please.
MR WIlLSON: You refuse to answer? Okay, so sovereignty does not lie with the Parliaments nor the judiciary. They swear an oath to be faithful and bear true allegiance and well and truly serve Queen Elizabeth the Second of
England, who has in turn sworn to govern the peoples of Australia according to our laws and customs. The way in which she has done this is laid out in the words of the Coronation ceremony. I have included that as one of the
documents for your enlightenment.
GUMMOW J: Do not use expressions like that either, please.
MR WILSON: Pardon?
GUMMOW J: Do not insult the Bench with expressions like that.
MR WILSON: What is wrong with "enlightemnent"?
GUMMOW J: Carry on.
MR WILSON: The right to trial by jury is entrenched in our laws, and anyone such as the "diverse evil counsellors, judges and
ministers", mentioned in the Bill of Rights 1688, who endeavour to "subvert and extirpate the laws and liberties" is treacherous and they must be punished according to laws for their evil doings. This is all laid
out, again, in section 43 of the Imperial Acts Application Act 1970, which carries a penalty for anybody who offends against the Imperial enactments -
GUMMOW J: No, that is a law of the Parliament of New South Wales, is it not?
MR WELSON: Yes. The Supreme Court is in New South Wales.
GUMMOW J: Yes. Controlled by the Supreme Court Act of New South Wales too.
MR WIlLSON: The Supreme Court Act of New South Wales.
GUMMOW J: Yes. Supreme Court Act.
MR WILSON: Yes, which still must observe constitutional laws such as the Confirmation of Charters, the Petition of Right,
Habeas Corpus, 1620..... There is a whole list. This is why I included this booklet - this Act - in my submissions, because it clearly states here that Magna Carta and all the other Acts - in fact in the Habeas Corpus Act of
1640 it says quite clearly that the Great Charter is "many times confirmed in Parliament"
Now, these constitutional laws --
GUMMOW J: Look, do you think that if this case had been tried in the United
Kingdom you would have had a right to trial by jury?
MR WILSON: I have got the right to trial by jury in Australia.
GUMMOW J: Because of some English laws?
MR WIlLSON: Yes, because I have inherited those laws.
GUMMOW J: Do you think they apply in England to this day?
MR WIlLSON: Pardon?
GUMMOW J: Do you think they apply in England in this day, in this way?
MR WIlLSON: I am not concerned what they do in England.
GUMMOW J: I see.
MR WIlLSON: It is my inherited right, it has been laid down in the Charters of Liberty - you can read the actual words:
"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 judgment of his Peers, or by the law of the land."
Now, this is clearly put down that it is a right which has been granted to the free men of England and to their heirs forever. It is never going to become
obsolete. It is forever. I have also included a copy of my birth certificate, just to show that I am the son of an Englishman. It says here that my father was born in London, England. So I have that right personally. But I also
have the right as an Australian because it is part of our constitutional law that we must have trial by jury. The only way that there will not be -
GUMMOW J: For all cases?
MR WIlLSON: In any action.
GUMMOW J: I see. For divorce?
MR WIlLSON: Any action at all. Any action at all. I have also included --
GUMMOW J: For traffic fines?
MR WILSON: If they so wish. In any action.
CALLINAN J: Mr Wilson,
do you not understand that New South Wales and Australia have their own parliaments and they can change the law and they have changed the law.
MR WILSON: But they cannot remove the rights of the people. They cannot
remove the right to trial by jury. There is nothing in any constitution which gives a Parliament, either State or Federal the power to make laws to take away the rights of the people. This is clearly stated in Quick and Garran.
In a full-blown appeal all these things can be gone into detail and if any attempt is made to truncate or stop that you will be denying the normal process of what is fair.
GUMMOW J: No, we will just be applying a section
in the Judiciary Act which is a law of the Parliament of the Commonwealth.
MR WILSON: It must be fair that I must be allowed a full hearing. This is natural justice. These --
GUMMOW J: No. One of the things we are obliged to do is to obey the,laws of the Commonwealth
MR WILSON: Yes.
GUMMOW J: --- insofar as they are valid under the Constitution of Australia.
MR WILSON: Yes, that
is fair enough and this is what I am insisting upon, that these laws are obeyed and to deny a person such as myself or anybody here in this room the right to trial by a jury is a violation of those laws. It is clearly
established that we have the right to trial by jury.
GUMMOW J: It is not clearly established. There is no --
MR WILSON: How many times does it have to be put in front of you that we have the right to trial by a
jury. It says:
"many times confirmed in Parliament" -
This has always been the issue. So many famous people in history have endorsed trial by a jury. I have included a chapter of Sir William.
Blackstone. Have you got a copy of that? Now, he says that trial by a jury is in fact the savour of a nation, it is the protector of liberty. Anybody who tries to take away that right to trial by jury must be regarded as
sinister and devious and basically doing wrong. You cannot take it away. This is our protection against a judiciary. The judiciary should never be given, nor allowed to assume, total power whereby they can conceal their own
incompetence, corruption and treachery. I have said that many times.
GUMMOW J: We cannot have total power, and I will not hear you use expressions like that.
MR WLLSON: It is plain English.
GUMMOW J: Talking generally about corruption.
MR WILSON: It is intended to get the message across that --
GUMMOW J: The message is one of total constitutional incoherence at the moment I am afraid I have to tell
you.
MR WILSON: The Constitution? The Constitution which has been thrown at me time and time again has been section 80 of the United Kingdom Act to Constitute the Commonwealth of Australia and they keep on saying this
over and over again but never do they say that within that very Act there is a section - section 118:
''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."
This came in in 1900 and it applies to all the constitutional laws which were in place at that time and these constitutional laws in Schedule 2 of the Imperial Acts
Application Act were cemented in Australia, in New South Wales, in 1828. It says that quite clearly in here. So that is a continuation. So, the right to trial by jury is not only found in section 80 of the Constitution to
Constitute the Commonwealth of Australia, it is covered by this clause, by this section, where it 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.''
That cements it in our Constitution - the total Constitution. Not that narrow little Constitution which is a manual to amalgamate the States. So the
Constitution -
CALLINAN J: Not just the State - there were no State laws before 1900.
MR WILSON: I still cannot hear you.
CALLINAN J: There were no State laws before 1900. They were colonial laws, and after
1900 the States not only adopted earlier laws but they also changed the law from time to time and that is what "Full faith and credit" has to be given -
MR WILSON: You can change the law, but --
CALLINAN
J: Listen to me, please. That is what "Full faith and credit" has to be given to, the laws as they are, from time to time.
MR WILSON: Fair enough. Yes. Yes. But those laws - even though those --
CALLINAN J: It is not as though they are in 1215, Mr Wilson.
MR WIlLSON: No, even though those laws are amended or repealed that repeal or amendment does not affect any right. This has been stated both in the State
Interpretations Act and the Commonwealth Interpretations Act. I have included both those documents in these submissions, that the repeal or amendment of an Act does not take away or affect any right. This is the
Commonwealth one which is exactly the same wording as the State one and says where an Act repeals in the whole or part of the former Act then unless the contrary indication appears the repeal should:
''not affect any right, privilege, obligation or liability'' -
So they could totally scrap an Act but they cannot get rid of the right, especially the right to trial by jury. Now, this is the most
important right we have, because it is our only protection that we have. We are free men and we are entitled to be judged by our equals and the only time we might give that right over is if both parties give their consent to be
without a jury. This is stated also in the legislation. You have copies of that, too.
The Magna Carta has established itself as the most essential - most important treaty every to be devised. This is acknowledged even
down in Canberra. Down in Canberra they have erect the Magna Carta monument. Have you been to see it? You will not answer? Mr Callinan, have you seen it?
CALLINAN J: Look, you cannot really ask me questions, but, yes, I did see it, Mr Wilson.
MR WILSON: Well, this is a two-way thing, you were asking me questions and I am asking you.
GUMMOW J: No, it is not a two-way thing, actually.
MR WIlLSON: It is not?
GUMMOW J: No.
MR WELSON: You are a dictator, are you?
GUMMOW J: No.
MR WILSON: It is not on.
GUMMOW J: No, you are here to make your submissions on which we then rule.
MR WILSON: Yes.
GUMMOW J: We try to assist you by asking questions so that you can respond to what is on our mind.
MR WILSON: Your job --
GUMMOW J: Do not lecture us on what our job is, please.
MR WILSON: Your job is to ensure fairness.
GUMMOW J: No, it is not.
MR WILSON: It is not?
GUMMOW J: It is to apply justice, according to law.
MR WILSON: And what is justice? Justice is the protection of rights and the punishment of wrongs and justice is what I am after. Justice means -
GUMMOW J: Justice, according to law.
MR WLSON: Yes, that is right. Real law. Not no law. If there has been a law that it passed which takes away our right to trial by jury, it is no law. This is clearly spelt out in
Quick and Garran. It is no law.
CALLINAN J: Mr Wilson, how many other judges have you run this argument past?
MR WILSON: Quite a few.
CALLINAN J: And you have never brought the flags up once, is that correct?
MIR WILSON: No, that is the dreadful situation.
CALLINAN J: So, all the judges --
MR WILSON: That we have a judiciary --
CALLINAN J: Just listen to me a moment. All the judges are wrong and you are right?
MR WILSON: I am not the only one right. The people are right. The previous Chief Justices throughout the centuries are right. It is only
the judges we have got in these courts which are wrong and this is what must be overturned. Now, down at the Magna Carta monument, which is a most important feature in Canberra, there are plaques on the wall. I have made copies
of the photograph of John Howard opening it. This is a copy of his transcript of his speech which talks about the importance of trial by jury.
GUMMOW J: Of course --
M WILSON: Of course.
GUMMOW J: In an historical sense, of course.
MR WILSON: And it is very real today.
GUNMOW J: It is very real today, undoubtedly so.
MR MLSON: And it says on the wall of the Magna Carta monument;
''Magna Carta is now seen as a traditional mandate for trial by jury, justice for all, accountable government and no arbitrary imprisonment.''
Now, that says it all in one sentence. And for the judges of
this country to deny that right to Australians is the greatest -
GUMMOW J: It is not the judges denying it.
MR WILSON: They are denying it.
GUMMOW J: It is not --
MR WILSON: I asked for trial by jury
and they say, "One is not available." and "You don't get trial by jury.". That is denying it.
GUMMOW J: Because various parliaments had made various statutes which provide for this situation.
MR WILSON: They can't make any statutes which take away the right to trial by jury.
GUMMOW J: All right.
MR WILSON: Are you saying they can? That is another question. Are you saying that?
GUMMOW J: I am not here to answer your questions.
MR WILLSON: Well, that is what it is all about.
GUMMOW J: Your time --
MR WILSON: That is why I am here today.
GUMMOW J: Your time - no, you are not here today for all of that. And, your time is almost up.
MR WILSON: I will be coming back time and time again because this issue must never be destroyed. Justice, which is the
protection of rights, must never be destroyed in Australia.
GUMMOW J: Now - -
MR WILSON: In spite of the judges, in spite of the Parliaments, justice must never be destroyed in Australia. Justice is, again, the
protection of rights and the punishment of wrongs.
GUMMOW J: Now, your time is almost up.
MR WILSON: No, I intend to go on time and time again.
GUMMOW J: No, no, no. On this particular occasion your time is
almost up and I am inviting you to sum up anything more you want to say before the red light -
MR WILSON: It is very simple. I am saying the same thing over and over again. I have included a copy of a case in the Court
of Appeal in England and Wales. Here they uphold the right to trial by jury where a trial by jury was denied.
GUNMOW J: They certainly do not. Have you ever heard of the Diplock Courts in Northern Ireland? They have
tried very serious criminal matters without any juries for some years.
MR MLSON: And you say that is right?
GUMMOW J: I am not saying it is right or wrong but you say that is what happened in England. I say it
does not.
MR WILSON: Well, I am putting my case that the people of Australia are entitled to this inherited right for ever - it says in Magna Carta "for ever".
It says, in the Confirmation of
Charters that we are entitled to trial byjury and it says, quite clearly, in another constitution of law - the Petition of Right - that "any awards, doings or proceedings" denying trial by jury - in so many words -
"shall not be drawn into consequence or example".
So, all the cases I have had over the last six years, where I have been denied trial by jury - and this is just another one - they are to be struck out because
I have been denied this most fundamental right, this protection of freedom of trial by jury.
GUMMOW J: Yes. Well, the red light is now on.
MR WILSON: It is not going to stop me.
GUMMOW J: I am afraid it
is. We will hear you no further. And we do not need to hear from you, Mr O'Brien, or you, Ms Webster.
There is no reason to doubt the correctness of the decision in this matter reached by the New South Wales Court of
Appeal. Accordingly, special leave is refused.
Do you seek costs?
MR O'BRIEN: Yes, your Honour.
MS WEBSTER: We seek costs.
GUMMOW J: Yes, very well. It is refused with costs, We will take a short adjournment.
AT 3.16 PM THE MATTER WAS CONCLUDED
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